WEBVTT 00:00:00.046 --> 00:00:20.976 A:middle >> SJC-12996, Rebecca Grossman and others v the Secretary of the Commonwealth of Massachusetts. 00:00:20.976 --> 00:00:23.826 A:middle >> Mr. Robbins, your argument, please. 00:00:23.826 --> 00:00:25.526 A:middle >> Thank you, Your Honor. 00:00:25.986 --> 00:00:31.616 A:middle Good morning, and may please it please the Court, Jeff Robbins on behalf [inaudible]. 00:00:31.616 --> 00:00:35.786 A:middle With due respect to the Secretary, he breezes and glides past 00:00:35.786 --> 00:00:37.816 A:middle and does not address because he cannot. 00:00:37.816 --> 00:00:41.526 A:middle A simple arithmetic fact that [inaudible] that is applied, this regimen, 00:00:41.526 --> 00:00:49.626 A:middle the regimen in place will leave uncountable numbers of Massachusetts voters who want to vote 00:00:49.826 --> 00:00:54.056 A:middle in this consequential election and who have fully complied 00:00:54.056 --> 00:01:02.956 A:middle with the Massachusetts law providing for the alternative of mail-in voting in order 00:01:02.956 --> 00:01:10.016 A:middle to protect them from the risks or the perceived risks of a pandemic, they'll either not be able 00:01:10.016 --> 00:01:16.346 A:middle to even vote or will vote and not be able to have their vote counted, effectively bringing 00:01:16.376 --> 00:01:23.556 A:middle about the disenfranchisement of uncountable numbers of Massachusetts voters complied 00:01:23.696 --> 00:01:30.076 A:middle with the law and who simply wish to exercise the constitutional right to vote. 00:01:30.156 --> 00:01:33.406 A:middle We submit that this is unacceptable and that it's unnecessary. 00:01:33.406 --> 00:01:40.896 A:middle It is wholly unnecessary because, as the reply brief that we filed this morning sets forth 00:01:40.896 --> 00:01:48.186 A:middle in detail, including in charts to which I respectfully direct your attention, 00:01:48.186 --> 00:01:54.206 A:middle notwithstanding the generalized nonspecific and somewhat boilerplate assertions 00:01:54.206 --> 00:02:04.586 A:middle that it will be challenging for the Secretary to comply with deadlines if the date of -- 00:02:04.586 --> 00:02:11.736 A:middle or it may be challenging if the date of counting votes is moved beyond September 1st, 00:02:11.906 --> 00:02:18.796 A:middle there are approximately seven different reasons set forth in our reply brief why 00:02:18.796 --> 00:02:23.166 A:middle that generalized assertion is belied by the facts. 00:02:23.166 --> 00:02:29.336 A:middle These include the fact that election after election after election during the entirety 00:02:29.336 --> 00:02:35.476 A:middle of the Secretary's tenure each and every primary that has been held has been held later 00:02:35.476 --> 00:02:41.176 A:middle than September 1st, generally into the second or third week of September without any impact 00:02:41.176 --> 00:02:46.406 A:middle on his ability to comply with those deadlines, with periods between the counting of the votes 00:02:46.406 --> 00:02:52.876 A:middle and the general election generally exceeding the 53 days between September 11th 00:02:52.876 --> 00:02:58.996 A:middle if the Court chooses that date as we've sought and the general election. 00:02:58.996 --> 00:03:03.046 A:middle Indeed, our neighbors to the south and the north, Rhode Island and New Hampshire, 00:03:03.046 --> 00:03:10.236 A:middle are themselves holding primaries a week after ours on September 8th with no apparent concern 00:03:10.236 --> 00:03:14.076 A:middle about meeting the 45-day deadline or any other deadline. 00:03:14.176 --> 00:03:19.626 A:middle There's no reason why Massachusetts cannot do so, especially where it has held primaries 00:03:19.626 --> 00:03:21.806 A:middle and counted votes well past September 1st every single federal primary year 00:03:21.836 --> 00:03:23.816 A:middle since the Secretary became Secretary, usually leaving less time to comply 00:03:23.846 --> 00:03:25.046 A:middle with the 45-day deadline than there will be 00:03:25.076 --> 00:03:27.626 A:middle if the Court fully grants us the specific relief we seek and sets September 11th as a date 00:03:27.656 --> 00:03:28.766 A:middle on which all mail-in ballots will be received. 00:03:28.796 --> 00:03:29.756 A:middle The sum and substance of it is this: 00:03:29.786 --> 00:03:32.246 A:middle The generalized assertion the Secretary will be challenged to have to meet the 45-day deadline 00:03:32.276 --> 00:03:33.986 A:middle or may be challenged depending on various scenarios such that voters 00:03:34.016 --> 00:03:35.906 A:middle who otherwise will not be able to vote and have their vote counted can vote 00:03:35.936 --> 00:03:37.676 A:middle and have their votes counted is, meaning no disrespect, a red herring. 00:03:37.706 --> 00:03:39.626 A:middle Massachusetts voters and families are highly challenged these days trying to cope 00:03:39.656 --> 00:03:41.156 A:middle with a great many things, including trying to figure out how 00:03:41.186 --> 00:03:42.206 A:middle to vote in the middle of this pandemic. 00:03:42.236 --> 00:03:44.186 A:middle There's no need to tell Massachusetts voters who duly comply with the deadlines 00:03:44.216 --> 00:03:46.376 A:middle for requesting mail-in ballots to protect their health and that of their loved ones 00:03:46.406 --> 00:03:47.726 A:middle as the Secretary effectively does, let them eat cake. 00:03:47.756 --> 00:03:49.286 A:middle If you want to vote so badly, assuming you're fortunate enough 00:03:49.316 --> 00:03:50.606 A:middle to actually receive your ballot in time to do so? 00:03:50.636 --> 00:03:51.866 A:middle You'll just have to go out and go to a town hall 00:03:51.896 --> 00:03:53.276 A:middle and deliver your supposedly mail-in ballot in person. 00:03:53.306 --> 00:03:53.756 A:middle Just wear a mask. 00:03:53.786 --> 00:03:55.106 A:middle The fact is that there are significant communities, 00:03:55.136 --> 00:03:57.476 A:middle ones that have been particularly ravaged by this disease -- the elderly, communities of color, 00:03:57.506 --> 00:03:59.666 A:middle other disabled and all sorts of others who either cannot do this or who, in any event, 00:03:59.696 --> 00:04:01.976 A:middle should not, need not be forced to do this in order to exercise their constitutional rights. 00:04:02.306 --> 00:04:03.846 A:middle >> Thank you, Mr. Robbins. 00:04:03.846 --> 00:04:07.136 A:middle I've got to turn to Justice [inaudible] for the first set of questions. 00:04:07.306 --> 00:04:08.426 A:middle >> Thank you, Justice Gaziano. 00:04:08.426 --> 00:04:14.666 A:middle Mr. Robbins, a couple of just quick factual questions if you know the answer. 00:04:15.266 --> 00:04:22.596 A:middle Are the municipal drop boxes inside buildings or are they outside? 00:04:22.596 --> 00:04:24.476 A:middle >> I don't know the answer to that question, Your Honor. 00:04:24.476 --> 00:04:28.076 A:middle They have been -- I have understood from public statements made by the Secretary 00:04:28.226 --> 00:04:30.746 A:middle that some may be inside, some may be outside. 00:04:30.746 --> 00:04:36.546 A:middle Of course, people will have to commute and go into public spaces either outside or inside 00:04:36.876 --> 00:04:41.596 A:middle in order to deliver their supposedly mail-in ballots under this regime. 00:04:41.896 --> 00:04:50.966 A:middle >> Do you have any sense at all of how difficult it is to obtain a hardship waiver 00:04:50.966 --> 00:04:56.856 A:middle as to the Secretary's obligations to the federal government for the overseas ballots? 00:04:57.196 --> 00:05:01.196 A:middle >> Thank you for asking that question, Your Honor, because I think fifth or sixth 00:05:01.196 --> 00:05:07.116 A:middle in the seven reasons that we list is the fact that, even assuming there was a risk, 00:05:07.116 --> 00:05:10.686 A:middle a meaningful risk of meeting that 45-day deadline -- 00:05:10.686 --> 00:05:14.556 A:middle and as you know, we say that for five reasons before that, there, in fact, is not, 00:05:14.556 --> 00:05:19.356 A:middle at least it hasn't been demonstrated -- the Secretary was able as a matter of law, 00:05:19.626 --> 00:05:22.556 A:middle would have been able to apply for a hardship waiver. 00:05:22.776 --> 00:05:25.886 A:middle And by law, by operation of laws I hope we have quoted, 00:05:26.106 --> 00:05:28.736 A:middle one of those bases is the date of the primary. 00:05:28.956 --> 00:05:31.546 A:middle Another one is a contested election. 00:05:31.946 --> 00:05:36.246 A:middle Now, it may be the Secretary has waited too long to apply for that waiver. 00:05:36.546 --> 00:05:42.606 A:middle But if he has, it's evidence that he never thought despite the fact 00:05:42.606 --> 00:05:46.086 A:middle that there was all this planning about this legislation, he doesn't think even now 00:05:46.086 --> 00:05:48.576 A:middle that it was necessary to ask for such a waiver. 00:05:48.766 --> 00:05:55.376 A:middle But at a minimum, the Secretary should not, we submit, be permitted to invoke his own failure 00:05:55.376 --> 00:06:00.316 A:middle to act and ask for a waiver if he thought there was a real risk as a defense 00:06:00.536 --> 00:06:05.586 A:middle for the constitutional rights of untold Massachusetts voters being violated. 00:06:05.876 --> 00:06:09.046 A:middle >> So we've got an issue of what the -- 00:06:09.046 --> 00:06:13.016 A:middle what level of scrutiny we're going to be applying here. 00:06:13.016 --> 00:06:20.586 A:middle But the issue isn't just simply whether or not the Secretary of State can comply 00:06:20.586 --> 00:06:25.426 A:middle with federal law or even whether or not he's able 00:06:25.426 --> 00:06:31.676 A:middle to get the materials necessary to local officials by October 9. 00:06:31.676 --> 00:06:39.366 A:middle Isn't the issue in considering these deadlines and particularly that the votes be 00:06:39.366 --> 00:06:42.746 A:middle in by September 1st whether that's, again, 00:06:42.746 --> 00:06:48.756 A:middle apply the level of scrutiny appropriate is considering all the circumstances whether 00:06:48.756 --> 00:06:58.536 A:middle that September 1st deadline is reasonable or satisfies intermediate or strict scrutiny? 00:06:58.836 --> 00:07:00.186 A:middle >> Well, Your Honor, thank you. 00:07:00.186 --> 00:07:04.056 A:middle For the reasons we've set forth, we think that given the extraordinary burden 00:07:04.056 --> 00:07:09.466 A:middle that is being placed on a fundamental right, that the scrutiny that is applicable 00:07:09.466 --> 00:07:12.886 A:middle as in Goldstein where the burden, the constitutional burden was, we said, 00:07:12.886 --> 00:07:16.876 A:middle suggest significantly less than exists here, 00:07:17.246 --> 00:07:20.436 A:middle we think that the right standard is strict scrutiny. 00:07:20.436 --> 00:07:24.706 A:middle However, I will say that, regardless of the level of scrutiny, 00:07:24.706 --> 00:07:29.406 A:middle this scheme does not satisfy even rational scrutiny because, 00:07:29.406 --> 00:07:33.556 A:middle for the reasons we've set forth, the math simply guarantees 00:07:33.826 --> 00:07:37.236 A:middle that people will not get their ballots even in time, 00:07:37.636 --> 00:07:40.266 A:middle let alone be able to get their ballots back in time. 00:07:40.266 --> 00:07:44.316 A:middle And the math that I'm referring to, obviously, that basically dictates that, 00:07:44.316 --> 00:07:49.686 A:middle even if you were to apply a rational basis test -- we don't, by the way, challenge, of course, 00:07:49.686 --> 00:07:55.146 A:middle the legitimacy of the legislature or the Secretary's right to regulate elections. 00:07:55.146 --> 00:07:55.636 A:middle Far from it. 00:07:55.956 --> 00:08:02.136 A:middle But here where as a practical matter, as a matter of law, any one of us can apply 00:08:02.286 --> 00:08:09.786 A:middle for a ballot as of August 26th or 25th or 24th or 23rd or 22nd. 00:08:09.786 --> 00:08:14.456 A:middle And we are now being informed by the Postal Service and by the Secretary himself 00:08:14.906 --> 00:08:18.816 A:middle that you can expect that, even if town officials 00:08:18.816 --> 00:08:23.596 A:middle who are greatly overburdened somehow have the ability to mail the ballot out the very day 00:08:23.596 --> 00:08:27.836 A:middle that it's received which is improbable for obvious reasons, 00:08:27.836 --> 00:08:30.386 A:middle particularly given the massive influx of these requests, 00:08:30.876 --> 00:08:38.226 A:middle that voters will not even get the ballots by -- within a week, let alone be able to then stand 00:08:38.226 --> 00:08:42.746 A:middle by the mailbox, complete it in the driveway and put it in the mail and hope 00:08:42.746 --> 00:08:46.116 A:middle that the US Postal Service stream gets it back in time. 00:08:46.626 --> 00:08:52.696 A:middle That, we submit, doesn't satisfy any basis, even a minimal analysis, 00:08:52.696 --> 00:08:56.486 A:middle let alone the strict scrutiny analysis that we've submitted applies here. 00:08:56.486 --> 00:08:57.366 A:middle >> Thank you Mr. Robbins. 00:08:57.366 --> 00:08:58.246 A:middle That's all I have. 00:08:59.556 --> 00:09:00.976 A:middle >> Justice Budd. 00:09:01.126 --> 00:09:08.076 A:middle >> Hi. My question is this: I think in the materials you mentioned that there is nothing 00:09:08.076 --> 00:09:16.456 A:middle on the mailing that indicates to voters that the actual ballot have to be 00:09:16.456 --> 00:09:21.846 A:middle in in order to be counted; is that correct? 00:09:21.846 --> 00:09:26.986 A:middle >> Your Honor, there is, in fact, I believe it may be attached to the reply brief. 00:09:27.386 --> 00:09:30.476 A:middle There is a bulletin -- I'm sorry. 00:09:30.476 --> 00:09:33.356 A:middle We attached I think a copy of the application itself. 00:09:33.816 --> 00:09:40.526 A:middle The application I believe says in bold font that there must be an application received 00:09:40.526 --> 00:09:42.936 A:middle by April -- by April -- by August -- 00:09:42.936 --> 00:09:43.706 A:middle >> August. 00:09:43.706 --> 00:09:49.966 A:middle >> -- 26th but does not say anything about the fact that it has to be received in order 00:09:49.966 --> 00:09:54.786 A:middle to be counted back in the town hall with election office by September 1st. 00:09:54.786 --> 00:09:56.526 A:middle That's correct. 00:09:56.526 --> 00:09:57.886 A:middle >> And then -- I'm sorry. 00:09:57.886 --> 00:10:02.306 A:middle I wasn't able to hear you when you talked about the standards of [inaudible]. 00:10:02.306 --> 00:10:08.956 A:middle Normally I'm just -- I just want to make sure I understand your argument, 00:10:08.956 --> 00:10:14.086 A:middle that normally it would be [inaudible] basis but because 00:10:14.086 --> 00:10:17.846 A:middle of the circumstances [inaudible] strict scrutiny? 00:10:18.036 --> 00:10:22.816 A:middle >> Well, what we are submitting is as we think the courts have held and this court has held 00:10:23.046 --> 00:10:30.196 A:middle that where this burden, the constitutional burden is severe, is onerous as this one is, 00:10:30.396 --> 00:10:34.436 A:middle more so than in the Goldstein case where, from memory, 00:10:34.616 --> 00:10:40.516 A:middle the Court applied a strict scrutiny test, that the strict scrutiny -- 00:10:40.606 --> 00:10:42.716 A:middle strict scrutiny is what is required. 00:10:43.156 --> 00:10:47.846 A:middle What I then further said -- and I'm not sure if you were able to hear me, Justice Budd, 00:10:47.846 --> 00:10:53.266 A:middle is that even, however, if you applied simply a rational basis test to this, 00:10:53.266 --> 00:10:56.746 A:middle the minimal test, this deadline is irrational. 00:10:56.746 --> 00:11:03.466 A:middle It's inherently absurd, that there's this internal abolition -- I'm sorry. 00:11:03.466 --> 00:11:07.306 A:middle >> [Inaudible] Not normally but because of the circumstances we're in right now. 00:11:07.306 --> 00:11:08.236 A:middle >> Yes. Yes, Your Honor. 00:11:08.566 --> 00:11:09.606 A:middle >> Yes. Okay. 00:11:09.666 --> 00:11:10.476 A:middle Thanks so much. 00:11:10.676 --> 00:11:11.336 A:middle >> Thank you, Your Honor. 00:11:18.056 --> 00:11:19.506 A:middle >> Justice [inaudible]. 00:11:20.276 --> 00:11:26.126 A:middle >> Yes. Council, one question about the August 26th date. 00:11:26.126 --> 00:11:29.766 A:middle I noticed in your reply brief, I think it's around page 10, 00:11:29.766 --> 00:11:34.946 A:middle you said that voters could get a ballot in the mail by -- on August -- 00:11:35.076 --> 00:11:37.236 A:middle by August 26th or on August 26th. 00:11:37.236 --> 00:11:43.406 A:middle Was there any indication anywhere that voters could get a ballot sooner than August 26th? 00:11:43.716 --> 00:11:47.266 A:middle >> Well, the mathematic -- the chart in the reply brief 00:11:47.266 --> 00:11:50.826 A:middle as the Court will see lays out the deadlines. 00:11:51.596 --> 00:12:00.396 A:middle The voter may apply, may get their application into a town hall, let's say, by August 26th. 00:12:00.396 --> 00:12:01.396 A:middle They of course may do so. 00:12:01.396 --> 00:12:03.636 A:middle >> But they can also get it -- they can do it sooner. 00:12:03.866 --> 00:12:04.816 A:middle >> They can do it sooner. 00:12:04.816 --> 00:12:11.696 A:middle The problem is that if they do it on the 26th, the 25th, the 24th, the 23rd or last week, 00:12:12.226 --> 00:12:15.966 A:middle the Postal Service and the Secretary are stipulating 00:12:16.046 --> 00:12:19.846 A:middle that it may take them a week before they -- before it's transmitted, 00:12:19.846 --> 00:12:23.146 A:middle before it's effectively returned from -- 00:12:23.146 --> 00:12:27.966 A:middle the ballot itself is returned from the local office to the voter. 00:12:27.966 --> 00:12:30.106 A:middle And that, by the way, discounts the unknown 00:12:30.406 --> 00:12:34.766 A:middle which is how long it will take the local officers, burdened as they are 00:12:34.766 --> 00:12:39.616 A:middle by this influx of applications, to simply -- 00:12:39.616 --> 00:12:40.496 A:middle >> I understand now. 00:12:40.496 --> 00:12:40.936 A:middle I understand. 00:12:40.936 --> 00:12:46.796 A:middle Do you have any -- of the cases that you looked at with regard to the level of review 00:12:46.796 --> 00:12:49.836 A:middle that we should apply when a fundamental right is burdened, 00:12:49.996 --> 00:12:53.166 A:middle do you have any particular voting rights cases? 00:12:53.166 --> 00:12:56.856 A:middle Or are they just by analogy that would argue -- 00:12:56.856 --> 00:13:04.296 A:middle >> If I'm correct that in Goldstein there was an indication that strict scrutiny was -- 00:13:04.296 --> 00:13:10.626 A:middle was required -- and I may or may not be correct about that, in candor, that involved a burdening 00:13:10.626 --> 00:13:16.116 A:middle of constitutional -- of voting rights or of election rights significantly 00:13:16.116 --> 00:13:25.346 A:middle in my view less serious than existed here in that, there, the Court recognized the burden 00:13:25.346 --> 00:13:28.226 A:middle for candidates to get on the office by getting -- 00:13:28.226 --> 00:13:32.096 A:middle to get on the ballot by getting signatures and getting votes certified. 00:13:32.446 --> 00:13:36.176 A:middle Here what we have is, unless I am missing something 00:13:36.176 --> 00:13:41.116 A:middle and the Secretary has not contended otherwise, we have the virtual guarantee, 00:13:41.116 --> 00:13:47.756 A:middle the mathematical certainty, if I can say so, that there will be untold voters who according 00:13:47.756 --> 00:13:52.296 A:middle to the Postal Service and according to the Secretary won't even get their ballots in time 00:13:52.296 --> 00:13:55.616 A:middle to mail them in and if they do get their ballots, 00:13:55.616 --> 00:13:59.646 A:middle won't even get their ballots before September 1st. 00:13:59.646 --> 00:14:03.066 A:middle And if they do get their ballots before September 1st -- 00:14:03.066 --> 00:14:07.316 A:middle >> Right. Again, I understand the deadline issues and the dates. 00:14:07.316 --> 00:14:08.446 A:middle I have no further questions. 00:14:08.446 --> 00:14:09.066 A:middle Thank you. 00:14:09.376 --> 00:14:11.296 A:middle >> All right. 00:14:11.296 --> 00:14:12.576 A:middle Justice Kafker, please. 00:14:12.576 --> 00:14:14.636 A:middle >> Mr. Robbins, it's a right to vote, right? 00:14:14.636 --> 00:14:16.516 A:middle It's not a right to vote by mail. 00:14:16.596 --> 00:14:18.756 A:middle That's the constitutional right, right? 00:14:18.936 --> 00:14:23.476 A:middle >> It is a right to vote, Your Honor, but I point to the First Circuit decision 00:14:23.476 --> 00:14:28.566 A:middle and the Attorney General's own filing in federal court on Friday as evidence 00:14:28.566 --> 00:14:32.006 A:middle that here it's effectively the same. 00:14:32.006 --> 00:14:38.076 A:middle >> Well, but it's not, really, because the statute provides a dramatic enhancement 00:14:38.076 --> 00:14:39.456 A:middle of the right to vote, correct? 00:14:39.916 --> 00:14:45.186 A:middle It's -- in response to the COVID crisis, the legislature created a plan 00:14:45.576 --> 00:14:52.526 A:middle that dramatically increased our ability as citizens of Massachusetts to vote, right? 00:14:53.296 --> 00:14:58.816 A:middle >> I look at it not as an enhancement of the right to vote but as a protection of the right 00:14:58.816 --> 00:15:04.546 A:middle to vote, understanding that the pandemic and its effects will otherwise make it impossible 00:15:04.546 --> 00:15:07.976 A:middle or very difficult will, in any event, burden the right to vote. 00:15:08.086 --> 00:15:14.286 A:middle >> But, again, you're saying the statute on its face is unconstitutional, right? 00:15:14.586 --> 00:15:20.556 A:middle >> No. I'm saying that as applied here, under these circumstances where, 00:15:20.556 --> 00:15:26.236 A:middle given what has now been said as of July 30th by the Postal Service and by Secretary Galvin 00:15:26.236 --> 00:15:29.776 A:middle for the first time on Friday where we are looking at a scenario 00:15:29.776 --> 00:15:33.246 A:middle in which it will take a week in either direction, under these -- 00:15:33.246 --> 00:15:36.636 A:middle >> So it will take a week for the person who waited to the last -- 00:15:36.636 --> 00:15:41.326 A:middle to the end, right, the person who's requesting it on August 26th. 00:15:41.326 --> 00:15:45.246 A:middle But that person's also got a bunch of options, right? 00:15:45.246 --> 00:15:50.136 A:middle They can track their ballot to see if -- there's a database, right? 00:15:50.136 --> 00:15:54.326 A:middle They can monitor whether they receive the ballot, correct? 00:15:54.956 --> 00:15:56.806 A:middle They can see where it is in the mail. 00:15:56.806 --> 00:16:00.306 A:middle And if they haven't gotten it, they have other options, right? 00:16:00.306 --> 00:16:05.306 A:middle >> Assuming they have computers and are using it and are computer literate. 00:16:05.306 --> 00:16:09.526 A:middle But I have to take issue with one premise of Your Honor's question. 00:16:09.826 --> 00:16:13.826 A:middle It's not a week for somebody who applies on August 26th. 00:16:14.076 --> 00:16:16.666 A:middle It's a week whenever they apply. 00:16:16.666 --> 00:16:17.436 A:middle It's -- 00:16:17.436 --> 00:16:19.156 A:middle >> They've had since July. 00:16:19.156 --> 00:16:24.706 A:middle When -- the ballots went out July 23rd, according to you? 00:16:24.706 --> 00:16:29.996 A:middle They should have gone out earlier, but they went out July 23rd; is that correct? 00:16:30.176 --> 00:16:35.776 A:middle >> Not the ballots, the applications for the applications for ballots. 00:16:36.046 --> 00:16:37.646 A:middle The applications for ballots. 00:16:38.016 --> 00:16:44.146 A:middle So they were permitted to -- they -- if whenever those arrived, voters were given the chance 00:16:44.226 --> 00:16:48.806 A:middle to apply to send in their application for a ballot. 00:16:48.806 --> 00:16:53.326 A:middle >> Right. And, again, you have -- 00:16:53.326 --> 00:17:00.176 A:middle and, factually, have all of your clients now received the ballots, all of yours? 00:17:00.456 --> 00:17:03.216 A:middle >> Yes. All the petitioners since -- 00:17:03.216 --> 00:17:05.186 A:middle >> All the petitioners have their ballots. 00:17:05.956 --> 00:17:07.216 A:middle They've all gotten theirs. 00:17:07.216 --> 00:17:10.066 A:middle >> Several [inaudible] have still not received them. 00:17:10.296 --> 00:17:17.206 A:middle One of the petitioners, a 98-year-old woman in a home, received hers on Saturday. 00:17:17.516 --> 00:17:23.636 A:middle So she, as with God knows how many other similarly situated people around Massachusetts, 00:17:23.836 --> 00:17:30.626 A:middle have to find a way to even get out to mail their ballots in time to get it back. 00:17:30.626 --> 00:17:38.776 A:middle And as I -- I should say that the Secretary is saying that the process of ballot back 00:17:38.776 --> 00:17:42.876 A:middle and ballot -- ballot one way and ballot the other way should be expected to take two 00:17:42.876 --> 00:17:47.156 A:middle to three weeks, which would mean that half of that would be ten days or so. 00:17:47.156 --> 00:17:50.746 A:middle >> Okay. But -- so let's then -- the Secretary also has -- 00:17:50.746 --> 00:17:55.026 A:middle you need the right to challenge the primary as well, right? 00:17:55.126 --> 00:17:56.856 A:middle That takes time. 00:17:56.856 --> 00:18:01.766 A:middle The Secretary points to a bunch of deadlines that need to be met. 00:18:01.766 --> 00:18:04.936 A:middle Aren't those reasonable deadlines? 00:18:04.936 --> 00:18:10.426 A:middle And isn't it important that our soldiers overseas have -- 00:18:10.706 --> 00:18:13.906 A:middle get their ballots in a timely way, too, so they can vote? 00:18:13.906 --> 00:18:18.356 A:middle Aren't all those reasonable requirements to be imposed? 00:18:18.356 --> 00:18:23.176 A:middle >> The 45-day deadline which is a federal deadline, it certainly is reasonable. 00:18:23.286 --> 00:18:25.966 A:middle The problem is that there's no justification. 00:18:25.966 --> 00:18:26.756 A:middle There's no -- 00:18:26.756 --> 00:18:29.616 A:middle >> But it's not a 45 -- don't we have to go backwards? 00:18:29.616 --> 00:18:35.556 A:middle We have -- say your client is in a dead heat, and there's a challenge, 00:18:35.556 --> 00:18:40.176 A:middle that's going to take time to resolve, too, right? 00:18:40.176 --> 00:18:43.026 A:middle >> Well, it will take some time to resolve. 00:18:43.026 --> 00:18:44.956 A:middle But I will point to you -- 00:18:44.956 --> 00:18:50.946 A:middle >> And if we have, for example, a challenge in the Senate which is going 00:18:50.946 --> 00:18:55.596 A:middle to involve the entire state, that's also -- that could take time to resolve, right? 00:18:55.596 --> 00:19:01.196 A:middle Doesn't the Secretary need to build that into his time frame? 00:19:01.196 --> 00:19:03.276 A:middle >> The Court -- the Secretary can factor it in. 00:19:03.276 --> 00:19:10.106 A:middle I'm simply pointing out the two very prominent recounts bookending the Secretary's tenure 00:19:10.336 --> 00:19:15.116 A:middle in which there were those recount challenges, the 1996 one with Philip Johnson 00:19:15.116 --> 00:19:20.306 A:middle and Congressman Delahunt and the one two years ago where there were recounts. 00:19:20.306 --> 00:19:26.086 A:middle And the recounts were completed, and there was no -- by -- two years ago by September 17th, 00:19:26.086 --> 00:19:32.366 A:middle in 1996 later; and there still was no evident impact 00:19:32.366 --> 00:19:37.296 A:middle on the Secretary's ability to meet that 45-day deadline. 00:19:37.296 --> 00:19:42.066 A:middle So the speculative thought that there may be recounts which I credit 00:19:42.066 --> 00:19:43.996 A:middle if there may be and there can be. 00:19:43.996 --> 00:19:47.436 A:middle But the fact of the matter is that, when there have been such recounts, 00:19:47.716 --> 00:19:52.546 A:middle the Secretary has not had any -- as there have been over the course of the last 25 years 00:19:52.776 --> 00:19:57.616 A:middle with primaries taking place later in each case than September first, 00:19:57.806 --> 00:20:02.346 A:middle the fact of the matter is the Secretary has had no difficulty, even with the recounts, 00:20:02.576 --> 00:20:04.826 A:middle complying with the 45-day deadline. 00:20:05.056 --> 00:20:07.266 A:middle >> I have no further questions. 00:20:07.266 --> 00:20:08.166 A:middle Thank you. 00:20:08.606 --> 00:20:09.776 A:middle >> Thank you, Your Honor. 00:20:09.856 --> 00:20:11.546 A:middle >> Justice Lenk? 00:20:16.736 --> 00:20:21.916 A:middle Justice Lenk, do you have any questions? 00:20:22.756 --> 00:20:23.496 A:middle >> [Inaudible] There you go. 00:20:23.496 --> 00:20:25.336 A:middle >> Am I off mute now finally? 00:20:25.786 --> 00:20:26.656 A:middle >> You are. 00:20:26.706 --> 00:20:29.126 A:middle >> Oh. Can you hear me? 00:20:29.126 --> 00:20:29.666 A:middle >> Yes, we can. 00:20:29.816 --> 00:20:31.556 A:middle >> Okay. Good. 00:20:31.556 --> 00:20:31.986 A:middle I'm sorry. 00:20:31.986 --> 00:20:32.916 A:middle I muted myself. 00:20:33.256 --> 00:20:34.256 A:middle Good morning. 00:20:34.296 --> 00:20:39.286 A:middle I do have a couple of questions, the first one being do you -- 00:20:39.286 --> 00:20:41.796 A:middle could we be clear on what it is you're looking for. 00:20:41.796 --> 00:20:48.396 A:middle You're looking for relief that would say that if the [inaudible] ballot was postmarked 00:20:48.396 --> 00:20:53.316 A:middle on the date of the election or before the date of the election, November 3rd -- 00:20:53.316 --> 00:20:59.316 A:middle I'm sorry, September 1st -- for ten days after that, it could be counted, right? 00:20:59.606 --> 00:21:00.506 A:middle >> Yes, Your Honor. 00:21:00.596 --> 00:21:05.166 A:middle We're asking for the specific narrowly tailored relief, I must say less narrow 00:21:05.166 --> 00:21:11.776 A:middle than the Court might on its own suggest -- consider providing and that is that ballots 00:21:11.916 --> 00:21:19.196 A:middle that are postmarked as of primary day but received up to ten days thereafter be counted. 00:21:19.196 --> 00:21:23.746 A:middle The ten days are based on a) the seven days minimum that the Postal Service 00:21:23.746 --> 00:21:29.926 A:middle and Secretary Galvin have both said it may take plus a three-day window to account for the fact 00:21:29.926 --> 00:21:32.126 A:middle that they say that it's a minimum of seven days -- 00:21:32.416 --> 00:21:37.486 A:middle >> Okay. Now, secondly, the question I had to do with the statute itself that was passed 00:21:37.486 --> 00:21:39.976 A:middle by the legislature in the midst of a pandemic, they were quite aware 00:21:39.976 --> 00:21:44.926 A:middle of the fact this was a pandemic, right, when they passed this legislation in 2020? 00:21:44.926 --> 00:21:45.916 A:middle >> No question about it, Your Honor. 00:21:46.016 --> 00:21:47.956 A:middle >> Okay. And that's the reason probably for it, huh? 00:21:48.556 --> 00:21:48.936 A:middle >> Yes. 00:21:49.206 --> 00:21:54.336 A:middle >> Okay. And they at that time did not make any provision for this -- 00:21:54.596 --> 00:22:00.766 A:middle this problem that we're encountering now, right? 00:22:01.386 --> 00:22:08.296 A:middle >> Well, I will agree that the August 26th you can apply until August 26th but you have 00:22:08.296 --> 00:22:10.106 A:middle to get your -- you still have to get your ballot 00:22:10.106 --> 00:22:17.416 A:middle in by September 1st was not necessarily the best move then, with all due respect. 00:22:17.726 --> 00:22:19.286 A:middle But, in any event, we are where we are. 00:22:19.286 --> 00:22:21.426 A:middle Yes. They did know, of course, about the pandemic. 00:22:21.596 --> 00:22:23.956 A:middle And why it is that this was not provided 00:22:24.326 --> 00:22:28.086 A:middle for given what might have been expected is beyond my area of expertise. 00:22:28.636 --> 00:22:30.426 A:middle >> Are we going to have the same problem with the general election 00:22:30.426 --> 00:22:32.696 A:middle on September 3rd -- on November 3rd? 00:22:32.696 --> 00:22:35.276 A:middle The ballot is mailed, must be postmarked by November 3rd, 00:22:35.276 --> 00:22:38.716 A:middle must reach your local election office by September -- November 6th to be counted; 00:22:38.716 --> 00:22:40.776 A:middle that's what the legislation provides, right? 00:22:41.206 --> 00:22:42.486 A:middle >> There -- yes. 00:22:42.486 --> 00:22:46.576 A:middle There is the ability, as I understand it, for certain categories of overseas 00:22:46.576 --> 00:22:52.006 A:middle and military voters to postmark their ballots by September -- I'm sorry -- 00:22:52.006 --> 00:22:55.076 A:middle by the date of the general election and have them counted as long 00:22:55.076 --> 00:22:57.786 A:middle as they are received within ten days thereafter. 00:22:57.786 --> 00:22:59.916 A:middle And so the relief that we seek patterns that. 00:22:59.916 --> 00:23:01.696 A:middle I note -- 00:23:01.836 --> 00:23:04.436 A:middle >> You're asking for ten days and the legislative provided 00:23:04.436 --> 00:23:07.346 A:middle in that situation for three, right? 00:23:07.346 --> 00:23:08.596 A:middle >> I'm sorry, Your Honor. 00:23:08.596 --> 00:23:10.386 A:middle I couldn't hear you all. 00:23:10.386 --> 00:23:12.776 A:middle >> You're asking for ten days when the legislature provided 00:23:12.776 --> 00:23:15.476 A:middle for three even in the general election, right? 00:23:15.476 --> 00:23:21.146 A:middle >> We're asking for ten days from the date of the postmark on September 1st 00:23:21.396 --> 00:23:27.166 A:middle until September 11th when the votes would have to -- the ballots would have to be in. 00:23:27.386 --> 00:23:32.896 A:middle The Court may decide, of course, to grant a shorter period of time, September 8th consistent 00:23:32.896 --> 00:23:35.156 A:middle with New Hampshire and Rhode Island. 00:23:35.156 --> 00:23:39.596 A:middle But that is what we are seeking in an effort to maximize the number of people who will be able 00:23:39.596 --> 00:23:41.656 A:middle to avail themselves of the mail-in feature. 00:23:41.656 --> 00:23:44.316 A:middle >> They have to be postmarked, right, by a certain date, 00:23:44.316 --> 00:23:46.246 A:middle by the date of the election system for one? 00:23:46.896 --> 00:23:48.906 A:middle >> Yes. We're asking that the ballot -- 00:23:49.176 --> 00:23:52.986 A:middle voters would have to postmark their ballots by September 1. 00:23:53.506 --> 00:23:54.076 A:middle That's correct. 00:23:54.276 --> 00:23:56.896 A:middle >> How could they ensure that that would be postmarked on September 1.? 00:23:56.896 --> 00:23:57.856 A:middle How could they assure that? 00:23:58.226 --> 00:24:04.646 A:middle >> Well, you are right in the sense that you are I think pointing out that there are still voters 00:24:04.646 --> 00:24:09.786 A:middle who will be unable to do that because they may have complied with the law and applied 00:24:09.836 --> 00:24:15.686 A:middle by the 24th or '5th or '6th and not even get their ballots in time for September 1st. 00:24:15.686 --> 00:24:16.746 A:middle And you're correct. 00:24:16.746 --> 00:24:22.586 A:middle The conservative, the narrow, relatively narrow, the limited relief that we've sought mindful 00:24:22.586 --> 00:24:26.656 A:middle that the Court wants always to balance the interests of people of the parties involved 00:24:26.656 --> 00:24:30.896 A:middle and adopt narrow relief you are correct when you suggest 00:24:31.336 --> 00:24:33.986 A:middle that there are still people who will be disenfranchised. 00:24:34.336 --> 00:24:40.746 A:middle And so one way you may be wondering, well, how can we reduce further the number of people 00:24:40.746 --> 00:24:44.936 A:middle who would be disenfranchised because they won't even get their ballots back by September 1st? 00:24:45.186 --> 00:24:50.086 A:middle And one thing that the Court may wish to suggest in exercising its equitable power would be -- 00:24:50.166 --> 00:24:56.676 A:middle we have not asked for it because we wanted to be as narrow as possible in seeking this relief, 00:24:56.906 --> 00:24:58.306 A:middle but the Court could, for instance, 00:24:58.306 --> 00:25:03.966 A:middle extend the date of postmarking the ballots till September 4th with the requirement 00:25:03.966 --> 00:25:07.216 A:middle on the backend keeping the same of September 11th. 00:25:07.546 --> 00:25:13.316 A:middle That would surely increase the number of people who could actually participate. 00:25:13.316 --> 00:25:22.056 A:middle Why? Because the Postal Service is saying if you apply by August 26th, it may take a week 00:25:22.056 --> 00:25:26.476 A:middle or more between the time that the ballot is mailed to you 00:25:26.476 --> 00:25:30.426 A:middle by an overburdened postal office and the time that you get it. 00:25:30.426 --> 00:25:35.236 A:middle So to the extent that you're suggesting that there are still people under the relief 00:25:35.236 --> 00:25:40.126 A:middle that we seek who will be disenfranchised, I submit that you're correct. 00:25:40.236 --> 00:25:45.736 A:middle And if the Court wishes to provide more robust relief by expanding the number of people 00:25:45.736 --> 00:25:51.896 A:middle who will not be disenfranchised, then permitting voters to have their ballots postmarked 00:25:51.896 --> 00:25:59.426 A:middle by September 4th and still have the votes counted as of September 11th would do that 00:25:59.426 --> 00:26:04.266 A:middle and would not affect what we say is not a burden on the Secretary 00:26:04.266 --> 00:26:06.896 A:middle as a practical matter based on the history at all. 00:26:07.346 --> 00:26:09.396 A:middle >> Okay. Well, it's nice to be correct about something. 00:26:09.396 --> 00:26:12.106 A:middle But I'm not -- I'm not sure that that was really what I meant. 00:26:12.106 --> 00:26:16.036 A:middle Okay. I was asking a simpler question is how can we show -- 00:26:16.036 --> 00:26:19.336 A:middle how can we ever be sure if something's going to be postmarked on a certain day? 00:26:19.336 --> 00:26:24.136 A:middle If you're -- I have a -- let's say I have a ballot and I want to hand it to my mailman. 00:26:24.306 --> 00:26:26.626 A:middle How do I know it's going to be postmarked as of that day? 00:26:27.156 --> 00:26:29.326 A:middle >> I mean, we don't. 00:26:29.856 --> 00:26:30.676 A:middle >> We don't. 00:26:30.676 --> 00:26:31.806 A:middle None of us do at any time. 00:26:32.206 --> 00:26:34.406 A:middle This is not necessarily pandemic related. 00:26:34.406 --> 00:26:34.946 A:middle Just any time. 00:26:34.946 --> 00:26:38.046 A:middle I mean, we never can be sure something's postmarked on a certain day, right? 00:26:38.766 --> 00:26:41.886 A:middle >> There is no guarantee the Postal Service will succeed 00:26:41.886 --> 00:26:44.606 A:middle in delivering ballots in either direction. 00:26:44.736 --> 00:26:45.516 A:middle >> Delivering. 00:26:45.516 --> 00:26:47.586 A:middle I mean what does postmarking really mean, though? 00:26:48.356 --> 00:26:53.716 A:middle >> It means as I understand it it's received and the processing within the mail -- 00:26:53.946 --> 00:26:56.476 A:middle >> There's a stamp on it of some sort. 00:26:56.476 --> 00:26:57.186 A:middle >> Stamp on it, yes. 00:26:57.186 --> 00:27:00.176 A:middle >> It says it's postmarked a certain date. 00:27:00.396 --> 00:27:02.656 A:middle It states the post office got it. 00:27:02.656 --> 00:27:06.256 A:middle It's not necessarily the same date that the person put it in the mailbox, though. 00:27:06.766 --> 00:27:08.666 A:middle >> It certain -- no. 00:27:08.666 --> 00:27:10.176 A:middle Far from it. 00:27:10.176 --> 00:27:12.806 A:middle >> So, in other words, to be sure something is postmarked a certain day, 00:27:12.806 --> 00:27:17.736 A:middle you have to actually hand it to the post office person at a post office and watch them stamp it. 00:27:17.736 --> 00:27:20.516 A:middle >> You are correct, Your Honor. 00:27:20.516 --> 00:27:21.166 A:middle >> Yeah. All right I. 00:27:21.166 --> 00:27:22.486 A:middle Don't have anything else. 00:27:22.576 --> 00:27:22.976 A:middle Thank you. 00:27:22.976 --> 00:27:26.636 A:middle >> Just a few questions [inaudible] this whole 10-day extension. 00:27:26.636 --> 00:27:32.156 A:middle You explained that it doesn't seem to be pulled out of a hat. 00:27:32.156 --> 00:27:38.286 A:middle It's based upon what is happening in Rhode Island, in the up-states 00:27:38.286 --> 00:27:44.226 A:middle and also the seven days plus three for comfort level. 00:27:44.536 --> 00:27:53.626 A:middle But let me ask you, on the level of scrutiny, if we decide as Justice Kafker asked you 00:27:53.626 --> 00:27:56.946 A:middle that there is there is a right to vote. 00:27:56.946 --> 00:27:58.766 A:middle This is a right to mail-in vote. 00:27:58.766 --> 00:28:01.706 A:middle And I know you think they're not distinguishable. 00:28:01.706 --> 00:28:10.316 A:middle But if we apply rational basis, isn't there deference due in that situation 00:28:10.316 --> 00:28:15.666 A:middle to the legislature and the Secretary of State as far as the timing goes? 00:28:15.816 --> 00:28:18.266 A:middle >> Your Honor, I -- the best way to answer that is point -- 00:28:18.266 --> 00:28:22.476 A:middle to point to the First Circuit's decision of two weeks ago in the common cause case. 00:28:22.476 --> 00:28:27.006 A:middle Quote, The burden imposed by these requirements in the midst of the pandemic is significant. 00:28:27.396 --> 00:28:30.176 A:middle Taking an unusual and, in fact, unnecessary chance 00:28:30.176 --> 00:28:33.246 A:middle with your life is a heavy burden to bear, simply to vote. 00:28:33.456 --> 00:28:38.656 A:middle And so we submit that, given what the First Circuit and other courts 00:28:38.656 --> 00:28:43.926 A:middle and effectively this court in Goldstein in talking about the effects of the pandemic 00:28:44.316 --> 00:28:49.056 A:middle and the Attorney General herself in the federal filing that she made in federal court 00:28:49.056 --> 00:28:55.826 A:middle in Pennsylvania which should be attached to our papers that the burden on this vote is so high 00:28:56.306 --> 00:29:01.326 A:middle that there isn't deference to simply -- there certainly isn't deference in any event 00:29:01.326 --> 00:29:06.966 A:middle to simply say conclusorily [phonetic spelling] there may be, we may be challenged. 00:29:06.966 --> 00:29:14.206 A:middle At a minimum, the Secretary ought to be able to demonstrate that there's a real serious, 00:29:14.206 --> 00:29:19.616 A:middle meaningful likelihood of being unable to do it, which they do not do 00:29:19.916 --> 00:29:23.646 A:middle and which they'd be hard-pressed to do given -- 00:29:23.646 --> 00:29:28.016 A:middle >> Well, I think the deference is not [inaudible] because obviously we're not dealing 00:29:28.086 --> 00:29:32.806 A:middle with good solutions, with a perfect world here. 00:29:32.806 --> 00:29:35.776 A:middle We're dealing with the imperfect. 00:29:35.776 --> 00:29:40.866 A:middle And the deference that I look at is whether or not this the Secretary can 00:29:40.866 --> 00:29:43.486 A:middle in good faith comply with this federal mandate. 00:29:43.486 --> 00:29:44.816 A:middle That's the deference I speak of. 00:29:44.816 --> 00:29:49.466 A:middle >> And, Your Honor, I'm acutely aware that that is the principal argument. 00:29:49.466 --> 00:29:55.886 A:middle And that is why we laid out all of the reasons why the generalized we may have these deadlines 00:29:55.886 --> 00:29:59.366 A:middle that may be a challenge that that doesn't essentially cut it, 00:29:59.366 --> 00:30:04.656 A:middle if you pardon the vernacular, given what we lay out I think pages 11 forward -- 00:30:04.656 --> 00:30:10.166 A:middle >> The shortest time frame I think I saw from the chart was 49 days? 00:30:10.166 --> 00:30:12.436 A:middle >> Yeah. That's -- I think that's right. 00:30:12.436 --> 00:30:14.976 A:middle >> A few of them, that there were a few of them that were 49 days. 00:30:15.046 --> 00:30:19.616 A:middle That was the shortest time if I remember right, correct? 00:30:19.616 --> 00:30:23.626 A:middle >> Right. And what we actually -- because we realize that just putting the primary date, 00:30:23.626 --> 00:30:28.106 A:middle showing that the primaries are held after September 1st was only one half of the equation, 00:30:28.186 --> 00:30:34.266 A:middle that you would want to know how many days before the 45-day deadline between the primary -- 00:30:34.266 --> 00:30:38.866 A:middle >> And the 49 days just a product of the [inaudible] 00:30:38.866 --> 00:30:43.926 A:middle of the calendar, not the magic to that, right? 00:30:43.926 --> 00:30:44.326 A:middle >> No, no. 00:30:44.326 --> 00:30:45.156 A:middle There's no magic. 00:30:45.156 --> 00:30:48.186 A:middle The 45 days is the federal statute. 00:30:48.476 --> 00:30:48.976 A:middle >> Right. Right. 00:30:48.976 --> 00:30:52.196 A:middle And the 49 days is because of how the calendar laid out, correct? 00:30:52.196 --> 00:31:00.886 A:middle >> Our point was that in most of the last 12 or 13 elections there has been less time 00:31:01.146 --> 00:31:07.146 A:middle between the date of the counting and the general election and, therefore, 00:31:07.206 --> 00:31:11.276 A:middle less time between the primary and the -- 00:31:11.276 --> 00:31:15.586 A:middle >> I assume you may be sensing my discomfort in telling the Secretary 00:31:15.586 --> 00:31:20.056 A:middle of State don't do 53 days; do 49 days. 00:31:20.056 --> 00:31:21.106 A:middle >> Oh, I'm not saying that. 00:31:21.106 --> 00:31:26.096 A:middle >> Given the deference that we should probably owe to the elected official in the legislature. 00:31:26.096 --> 00:31:28.526 A:middle >> No. I'm not saying you should or shouldn't do. 00:31:28.526 --> 00:31:33.826 A:middle I'm simply pointing out that in all -- in the vast majority of the election primaries 00:31:33.826 --> 00:31:38.486 A:middle in the last 25, 26 years there has, in fact, even if you took -- 00:31:38.486 --> 00:31:42.506 A:middle even if you picked September 11th as the date when the votes were counted 00:31:42.816 --> 00:31:47.556 A:middle and not September 8th as you may choose to do or may consider doing as Rhode Island 00:31:47.556 --> 00:31:53.136 A:middle and New Hampshire do, there is more time before the mail has to be sent out overseas 00:31:53.696 --> 00:31:59.156 A:middle than there has been in the majority of the last 12, 13 elections, 00:31:59.506 --> 00:32:02.736 A:middle the entirety of the Secretary's tenure. 00:32:02.976 --> 00:32:03.836 A:middle That's the point of -- 00:32:03.836 --> 00:32:11.236 A:middle >> So in -- the overburdened town clerk that you point to in the mailing process, 00:32:11.736 --> 00:32:16.546 A:middle these are the same overburdened clerks would be responsible for the recount, correct? 00:32:16.546 --> 00:32:18.466 A:middle >> What do you mean, the recount? 00:32:18.466 --> 00:32:23.626 A:middle Or is the Court referring to the counting of the ballots as they come in after September 1st? 00:32:23.626 --> 00:32:25.166 A:middle >> Both, actually. 00:32:25.646 --> 00:32:26.286 A:middle >> Well -- 00:32:26.456 --> 00:32:31.196 A:middle >> We're dealing with -- we're dealing with these workers who are going to be working 00:32:31.196 --> 00:32:35.536 A:middle under very extreme circumstances and very trying circumstances. 00:32:35.536 --> 00:32:37.916 A:middle We should be responsive to that, correct? 00:32:37.916 --> 00:32:39.046 A:middle >> Yes. Of course. 00:32:39.046 --> 00:32:42.616 A:middle And I have not heard any -- I've not seen any evidence that -- 00:32:42.616 --> 00:32:47.646 A:middle that it will be difficult to simply count as they come in on a -- 00:32:47.646 --> 00:32:52.696 A:middle every day between September 1st and September 8th or September 11th the ballots that come in. 00:32:52.696 --> 00:32:58.126 A:middle I haven't seen any suggestion or showing certainly that that imposes much of a burden 00:32:58.126 --> 00:33:02.076 A:middle at all on the -- on anybody counting. 00:33:02.076 --> 00:33:08.846 A:middle >> And I guess the bottom line is to be safe in your view and count every vote in your view, 00:33:09.036 --> 00:33:11.816 A:middle we should at least go to September 8th. 00:33:11.816 --> 00:33:13.106 A:middle >> I do think that -- yes. 00:33:13.106 --> 00:33:18.166 A:middle I do think that a week is consistent with New Hampshire and Massachusetts -- strike that -- 00:33:18.166 --> 00:33:19.736 A:middle New Hampshire and Rhode Island -- 00:33:20.046 --> 00:33:21.496 A:middle >> Rhode Island. 00:33:21.496 --> 00:33:23.146 A:middle >> -- who managed to do it. 00:33:23.146 --> 00:33:25.536 A:middle And even that, you know, I point out that 00:33:25.906 --> 00:33:28.846 A:middle that Secretary Galvin has been running these elections without running 00:33:28.846 --> 00:33:33.716 A:middle into that 45-day deadline past September 8th for most of the last [inaudible] century. 00:33:33.716 --> 00:33:38.786 A:middle >> And then a recount couldn't start until September 9th in that event. 00:33:38.786 --> 00:33:42.056 A:middle Someone could call for a recount because you wouldn't know the election results 00:33:42.056 --> 00:33:44.396 A:middle until September 8th or 9th, right? 00:33:44.396 --> 00:33:45.056 A:middle >> 8th or 9th. 00:33:45.056 --> 00:33:45.646 A:middle That's correct. 00:33:45.646 --> 00:33:50.076 A:middle And if there is, in fact, a recount -- a wholly speculative matter now -- 00:33:50.366 --> 00:33:53.516 A:middle and if there is an issue about how about, when it has to get done, 00:33:53.516 --> 00:34:01.226 A:middle either this court can set a deadline for it now or another lower court can deal with it 00:34:01.226 --> 00:34:04.046 A:middle if that becomes an issue where the appropriate parties are concerned. 00:34:04.046 --> 00:34:09.866 A:middle I point out, incidentally, that the deadline for recounts now -- I think we've said this -- 00:34:09.866 --> 00:34:12.636 A:middle is September 12th for completing recounts. 00:34:12.636 --> 00:34:14.406 A:middle >> To complete them. 00:34:14.406 --> 00:34:15.206 A:middle Right. 00:34:15.206 --> 00:34:15.806 A:middle >> And so -- 00:34:15.806 --> 00:34:18.766 A:middle >> What's the deadline to file for recount [inaudible]? 00:34:18.766 --> 00:34:22.526 A:middle >> I believe it is three days after so September 4th. 00:34:23.116 --> 00:34:29.236 A:middle So in fashioning a remedy, the Court could push the deadline for that back two or three days, 00:34:29.236 --> 00:34:32.676 A:middle as it saw fit, if it even be -- or wait to see 00:34:32.676 --> 00:34:36.436 A:middle if it actually materialized and then deal with it then. 00:34:36.436 --> 00:34:37.556 A:middle >> Thank you, Mr. Robbins. 00:34:37.556 --> 00:34:38.536 A:middle >> Thank you, Your Honor. 00:34:41.216 --> 00:34:44.376 A:middle Let me now turn to Sterman [phonetic spelling]. 00:34:45.136 --> 00:34:46.886 A:middle >> Thank you, Your Honor. 00:34:46.956 --> 00:34:49.826 A:middle As the administrator of the Commonwealth Elections, 00:34:50.026 --> 00:34:54.486 A:middle Secretary Galvin takes very seriously his responsibility to ensure that as many voters 00:34:54.486 --> 00:34:56.816 A:middle as possible can participate in elections. 00:34:57.396 --> 00:35:02.086 A:middle And in light of the public health emergency caused by the COVID-19 pandemic, the Secretary 00:35:02.086 --> 00:35:06.146 A:middle and the legislature have made it easier and safer for people to vote in Massachusetts. 00:35:06.146 --> 00:35:11.626 A:middle In 2020, for the first time ever, voters can vote early in both the primary 00:35:11.626 --> 00:35:16.306 A:middle and the general election, either in person or by mail and with no excuse required. 00:35:17.106 --> 00:35:18.706 A:middle The in-person early voting period 00:35:18.706 --> 00:35:21.666 A:middle for the general election has been doubled from 10 days to 20. 00:35:22.416 --> 00:35:25.286 A:middle Every voter in the Commonwealth was mailed an application for a ballot. 00:35:26.156 --> 00:35:30.626 A:middle Ballots can be returned by mail or by hand, to municipal drop boxes, 00:35:30.686 --> 00:35:33.156 A:middle early voting sites or local election offices. 00:35:33.656 --> 00:35:35.976 A:middle The Secretary is making sure that poll workers 00:35:35.976 --> 00:35:40.746 A:middle across the Commonwealth have personal protective equipment, and he has advised local officials 00:35:40.746 --> 00:35:45.846 A:middle on how to safely conduct in-person, early and Election Day voting based on input 00:35:45.846 --> 00:35:48.916 A:middle from public health officials and the Centers For Disease Control. 00:35:49.186 --> 00:35:53.326 A:middle The combined effect is that Massachusetts voters today have more safe options 00:35:53.326 --> 00:35:54.696 A:middle to vote than ever before. 00:35:55.736 --> 00:36:00.516 A:middle The landscape here is not like the ones that the Court faced in Goldstein 00:36:01.116 --> 00:36:04.056 A:middle where the legislature had not yet acted to adopt -- 00:36:04.306 --> 00:36:08.046 A:middle to adapt the statutory rules to take account for the pandemic. 00:36:08.986 --> 00:36:12.496 A:middle Rather, here they have made significant efforts to expand voter options. 00:36:13.066 --> 00:36:17.906 A:middle But while expanding this menu of voting options, the legislature, knowing all the things 00:36:17.906 --> 00:36:20.106 A:middle that need to happen between the nominating primary 00:36:20.106 --> 00:36:24.976 A:middle and the federally imposed September 19th UOCAVA deadline to transmit ballots to military 00:36:24.976 --> 00:36:28.566 A:middle and overseas voters, made a judgment call that ballots need to be received 00:36:28.566 --> 00:36:30.696 A:middle by September 1st in order to count. 00:36:30.806 --> 00:36:34.696 A:middle And this is because the Secretary needs to allow time for recounts, objections 00:36:34.696 --> 00:36:38.976 A:middle and other safeguards before we can know for sure who was nominated at the primary, 00:36:39.306 --> 00:36:41.736 A:middle and the Secretary can move to doing what needs to be done 00:36:41.736 --> 00:36:44.386 A:middle to have an orderly election in November. 00:36:44.746 --> 00:36:48.046 A:middle I would urge the Court to use caution in taking its guidance solely 00:36:48.046 --> 00:36:50.066 A:middle from the dates of previous year's primaries. 00:36:50.476 --> 00:36:55.936 A:middle Remember that the 45-day deadline as a matter of federal law did not exist until 2010. 00:36:56.116 --> 00:37:00.496 A:middle Whether or not the petitioners or this Court agree with every choice the legislature made 00:37:00.496 --> 00:37:04.726 A:middle in enacting these reforms, those choices were rational and they passed constitutional muster. 00:37:05.536 --> 00:37:09.016 A:middle The release that the petitioners seek would prevent the Secretary was complying -- 00:37:09.016 --> 00:37:13.226 A:middle from complying with the federal law requirement to send ballots to military and overseas voters 00:37:13.226 --> 00:37:17.736 A:middle by September 19 and would interfere with the ability to administer the general election. 00:37:18.656 --> 00:37:22.026 A:middle Where the deadline for ballot receipt does not pose significant interference 00:37:22.116 --> 00:37:24.776 A:middle with voters' ability to participate in the primary election 00:37:25.286 --> 00:37:29.276 A:middle and where adopting the remedy proposed by the petitioners would significantly interfere 00:37:29.276 --> 00:37:31.266 A:middle with opportunities for voter participation 00:37:31.266 --> 00:37:34.616 A:middle in the general election, the petition should be denied. 00:37:34.616 --> 00:37:38.536 A:middle At this time I'd be glad to take the court's questions. 00:37:38.536 --> 00:37:39.656 A:middle >> Thank you [inaudible]. 00:37:40.046 --> 00:37:41.076 A:middle >> Thank you very much. 00:37:42.286 --> 00:37:49.026 A:middle So when I -- when I hear your argument, you seem to be saying, well, 00:37:49.026 --> 00:37:55.446 A:middle the Secretary of State understandably his concern is that nobody be disenfranchised 00:37:55.446 --> 00:37:59.146 A:middle but certainly as few people as possible. 00:37:59.826 --> 00:38:08.836 A:middle And we're dealing with legislation passed in 2020 cognizant of the pandemic. 00:38:08.836 --> 00:38:11.566 A:middle And, sure, there's a concern. 00:38:11.566 --> 00:38:19.946 A:middle Absolutely there's a concern that if somebody waits until August 26 to request a ballot that, 00:38:19.946 --> 00:38:28.286 A:middle if they decide to return the ballot by mail, that may not get in on time. 00:38:28.696 --> 00:38:37.966 A:middle But we have to take that scenario in the context of all potential voters and look and see whether 00:38:37.966 --> 00:38:49.616 A:middle or not this statute was reasonable in requiring that the votes be in by September 1st. 00:38:49.616 --> 00:38:51.436 A:middle Is that basically his position? 00:38:52.166 --> 00:38:56.816 A:middle >> That is our position, Your Honor, that even the voter who waits until the very last moment 00:38:56.966 --> 00:39:02.606 A:middle to submit a ballot, a non-in-person ballot for lack of a better term, 00:39:02.606 --> 00:39:04.506 A:middle that person is not disenfranchised. 00:39:04.626 --> 00:39:10.556 A:middle That person may be -- not have the entire menu of options available to them, 00:39:10.746 --> 00:39:15.306 A:middle the menu of options that the legislature created to expand voter opportunities this year. 00:39:15.306 --> 00:39:17.356 A:middle But they absolutely have opportunities 00:39:17.616 --> 00:39:20.986 A:middle to make sure their vote will be counted in this year's election. 00:39:21.746 --> 00:39:28.376 A:middle >> Right. So August 26 the legislature could have said August 16th, but that would have -- 00:39:28.376 --> 00:39:34.646 A:middle and that would have made it more certain that the vote 00:39:34.646 --> 00:39:38.526 A:middle if mailed back would have gotten there on time. 00:39:38.526 --> 00:39:44.216 A:middle But the legislature didn't pick August 15th, August 16th, August 10th. 00:39:44.216 --> 00:39:45.866 A:middle They picked August 26th. 00:39:45.976 --> 00:39:58.596 A:middle And perhaps that's not unreasonable because it gives the voter more time to decide. 00:39:58.596 --> 00:40:09.156 A:middle But if you wait till October -- August 26, then your options of how to vote may not be the same 00:40:09.156 --> 00:40:13.546 A:middle as if you had made your decision on August 12th. 00:40:13.806 --> 00:40:15.956 A:middle Do you understand what I'm saying? 00:40:15.956 --> 00:40:22.556 A:middle >> I think that's exactly right, Your Honor, in that it's clear from the overall provisions 00:40:22.556 --> 00:40:28.386 A:middle of the 2020 law that the legislature was very much interested in taking multiple approaches 00:40:28.386 --> 00:40:33.016 A:middle to expanding opportunities for voters to safely participate in this year's election, 00:40:33.316 --> 00:40:39.796 A:middle and I think it would have been rational when setting the deadline for application request 00:40:40.036 --> 00:40:46.996 A:middle at August 26th to try to push that -- to try to inch that as late as possible in order to allow 00:40:46.996 --> 00:40:50.006 A:middle as many voters to take advantage of that. 00:40:50.406 --> 00:40:55.756 A:middle >> But, of course, if the voter takes that option as late as August 26, 00:40:56.246 --> 00:41:06.296 A:middle then they may have fewer options as to the menu of ways to vote with this 2020 statute. 00:41:06.406 --> 00:41:11.316 A:middle >> I think that's right, but that voter has probably still got more options 00:41:11.316 --> 00:41:17.286 A:middle than if the legislature had set the deadline early, say, August 15 and the voter had not 00:41:17.286 --> 00:41:20.636 A:middle yet decided by that deadline but they wanted to request a mail-in ballot. 00:41:20.636 --> 00:41:26.926 A:middle At that point, the voter who decides on August 26th that they don't want to vote 00:41:26.926 --> 00:41:29.816 A:middle by in-person means will have missed the deadline. 00:41:30.156 --> 00:41:33.486 A:middle So the legislature -- the provision and the date 00:41:33.486 --> 00:41:38.326 A:middle that the legislature chose has still had the effect of maximizing voter opportunities 00:41:38.776 --> 00:41:40.836 A:middle over a deadline that might have been set earlier. 00:41:41.466 --> 00:41:42.356 A:middle >> Okay. Thank you. 00:41:43.516 --> 00:41:48.556 A:middle [ Inaudible ] 00:41:49.056 --> 00:41:49.606 A:middle >> Yes. Hi. 00:41:49.606 --> 00:41:53.186 A:middle I guess I'm just trying to figure out. 00:41:53.186 --> 00:42:01.656 A:middle I -- one of the concerns I have is that voters were not on notice necessarily 00:42:01.656 --> 00:42:10.166 A:middle that there could be a situation where their vote might not count, even if they abide 00:42:10.216 --> 00:42:16.636 A:middle by the guideline presented in the application; is that fair to say? 00:42:16.636 --> 00:42:20.196 A:middle >> I don't think that's quite fair to say. 00:42:20.196 --> 00:42:25.096 A:middle It is true that the application did not contain information about the vote receipt deadline, 00:42:25.556 --> 00:42:29.946 A:middle but the ballot materials that go out to the voters very prominently features a warning 00:42:29.946 --> 00:42:34.226 A:middle as to the date and time by which your ballot must be received in order to count 00:42:34.396 --> 00:42:39.636 A:middle so that a voter, when making the decision about how to return their voted ballot, 00:42:39.636 --> 00:42:44.406 A:middle is very much aware of what time it must be received in order to ensure that it counts 00:42:44.406 --> 00:42:50.456 A:middle and can make the decision about how to return that ballot accordingly. 00:42:50.456 --> 00:42:53.906 A:middle >> Yeah. I mean, I -- I mean, just anecdotally, 00:42:53.906 --> 00:42:58.336 A:middle I know people who haven't yet received their ballots. 00:42:58.596 --> 00:43:04.256 A:middle I myself after hearing all the concerns about Postal Service and whatnot, 00:43:04.256 --> 00:43:06.916 A:middle I was going to request the mail-in ballot. 00:43:07.356 --> 00:43:10.526 A:middle And then it sounded like, gee, that that may not be the best way to go. 00:43:10.526 --> 00:43:11.736 A:middle I don't feel comfortable. 00:43:11.736 --> 00:43:16.726 A:middle I don't feel like that's going to -- that's going to work, and you're confirming to me 00:43:16.726 --> 00:43:20.806 A:middle that that, in fact, may very well be the case. 00:43:20.806 --> 00:43:24.276 A:middle So I'm just trying to figure out what are we to do about the fact 00:43:24.536 --> 00:43:26.946 A:middle that we've got all of this going on. 00:43:26.946 --> 00:43:32.096 A:middle I understand that the -- you know, this legislation went through post-pandemic, 00:43:32.096 --> 00:43:35.776 A:middle but we didn't necessarily know that there were going to be all of these problems 00:43:35.776 --> 00:43:39.416 A:middle with the post office; isn't that fair? 00:43:39.416 --> 00:43:42.576 A:middle >> So I guess I would offer a few things in response to that. 00:43:42.956 --> 00:43:47.836 A:middle One is that, by way of numbers, although I don't doubt that there are plenty of anecdotes 00:43:47.836 --> 00:43:52.756 A:middle about folks who experienced a delay in receiving their ballot, I can report that at least 00:43:52.756 --> 00:43:57.346 A:middle as of 10 a.m. this morning upwards of 97 percent of requests 00:43:57.436 --> 00:44:03.346 A:middle for mail-in ballots had been fulfilled, and it's changing by the minute such that we expect 00:44:03.466 --> 00:44:08.106 A:middle by the end of the day we'll be at about as close to 100 percent as we can get, 00:44:08.406 --> 00:44:10.766 A:middle understanding that we're still receiving requests. 00:44:11.736 --> 00:44:16.846 A:middle So I think there's not significant cause for concern there. 00:44:17.836 --> 00:44:18.726 A:middle The other thing -- 00:44:18.726 --> 00:44:22.006 A:middle >> Just to stop you there just for a second, just to put on the record. 00:44:22.416 --> 00:44:22.596 A:middle >> Sure. 00:44:22.906 --> 00:44:26.576 A:middle >> One person I know received the wrong ballot so, you know, had to -- 00:44:26.836 --> 00:44:30.766 A:middle there had to be time built in to get a new ballot. 00:44:30.766 --> 00:44:31.766 A:middle Do you know what I mean? 00:44:31.916 --> 00:44:33.766 A:middle So all sorts of things are going on. 00:44:33.766 --> 00:44:39.776 A:middle But I do hear you and that, you know, the office is trying to get the ballots 00:44:39.776 --> 00:44:42.966 A:middle out as quickly and effectively as possible. 00:44:43.436 --> 00:44:43.836 A:middle I'm sorry. 00:44:43.836 --> 00:44:45.006 A:middle >> It's no problem at all. 00:44:45.226 --> 00:44:50.216 A:middle The other thing I'll point to with respect to the Postal Service issues is that, 00:44:51.196 --> 00:44:56.846 A:middle while it's true that what's going on with the Postal Service now could not necessarily have 00:44:56.846 --> 00:45:00.186 A:middle been anticipated earlier this summer when the 2020 law was passed, 00:45:00.986 --> 00:45:05.496 A:middle it is also true that the Secretary has taken steps to ensure that those changes 00:45:05.896 --> 00:45:10.056 A:middle in Postal Service operations will not affect Massachusetts voters. 00:45:10.056 --> 00:45:15.196 A:middle So one of the changes to the Postal Service operations has been the way they treat election 00:45:15.196 --> 00:45:22.166 A:middle mail that is not postmarked using first-class postage. 00:45:22.166 --> 00:45:25.016 A:middle And so the -- those may not be entitled to -- 00:45:25.016 --> 00:45:28.806 A:middle may not be treated with the same speed with which first-class mail would 00:45:28.806 --> 00:45:32.596 A:middle or election mail has been treated by the Postal Service in the past. 00:45:32.596 --> 00:45:34.776 A:middle That is an issue that should not affect Massachusetts. 00:45:34.896 --> 00:45:42.016 A:middle The Secretary has -- all the ballot applications went out by first-class mail, 00:45:42.446 --> 00:45:44.296 A:middle and the ballots that voter receipt -- 00:45:44.296 --> 00:45:47.406 A:middle that voters receive are being sent via first-class mail. 00:45:47.736 --> 00:45:50.356 A:middle The envelopes with which they can return them 00:45:50.596 --> 00:45:55.606 A:middle to their local election officials are postage prepaid with the first-class mail rate. 00:45:55.786 --> 00:46:01.546 A:middle So the Secretary has done what he can within his power to ensure -- 00:46:01.546 --> 00:46:08.416 A:middle to pay for that additional postage and to ensure that the election mail gets treated 00:46:08.416 --> 00:46:15.656 A:middle in an expeditious way by the Postal Service. 00:46:15.956 --> 00:46:16.966 A:middle >> Okay. Thank you. 00:46:17.196 --> 00:46:18.006 A:middle >> Justin Cypher. 00:46:18.006 --> 00:46:18.966 A:middle >> Yes. Thank you. 00:46:18.996 --> 00:46:24.066 A:middle Is the only challenge created by the proposed extension the problem that would occur 00:46:24.066 --> 00:46:29.686 A:middle if there is a recount, or are there other challenges presented to the Secretary? 00:46:30.286 --> 00:46:32.396 A:middle >> The recount is a large part of the challenge. 00:46:32.436 --> 00:46:37.656 A:middle There is also an opportunity for people to file objections with the State Ballot Law Commission, 00:46:38.216 --> 00:46:41.056 A:middle objecting to a candidate's placement on the general election ballot, 00:46:41.056 --> 00:46:43.756 A:middle and those have to be heard and resolved as well. 00:46:44.126 --> 00:46:49.286 A:middle There are other things that have to take place with the resolution of provisional ballots. 00:46:49.286 --> 00:46:53.956 A:middle If somebody casts a ballot and their registration status is uncertain 00:46:53.956 --> 00:46:56.526 A:middle at the time they cast it, that needs to be resolved. 00:46:56.526 --> 00:47:01.156 A:middle But the sort of -- the longer -- the longer time periods, the things that are more complicated 00:47:01.156 --> 00:47:03.506 A:middle and more time-consuming to resolve are the recount 00:47:03.506 --> 00:47:06.096 A:middle and the State Ballot Law Commission objections. 00:47:06.336 --> 00:47:08.216 A:middle >> Thank you. 00:47:08.476 --> 00:47:10.046 A:middle One more question. 00:47:10.046 --> 00:47:14.756 A:middle Do you agree with the characterization by the petitioner in the reply brief 00:47:15.196 --> 00:47:23.436 A:middle that the Secretary has met shorter deadlines in the past and that this is not a big deal 00:47:23.436 --> 00:47:29.076 A:middle in terms of the number, that you've met -- you've met shorter deadlines in the past? 00:47:29.076 --> 00:47:30.086 A:middle >> I don't agree. 00:47:30.086 --> 00:47:32.396 A:middle And, actually, the chart that they the petitioner submitted 00:47:32.396 --> 00:48:03.046 A:middle with their reply is quite helpful as an illustration of that. 00:48:03.046 --> 00:48:19.586 A:middle So if Your Honors look at that chart, you'll notice that in all years 2010 00:48:19.586 --> 00:48:27.426 A:middle and prior the number of days between the primary and the general election was the same. 00:48:28.106 --> 00:48:38.496 A:middle It was 49 days, and that's because our statute requires that the primary be held 00:48:38.496 --> 00:48:41.856 A:middle on the seventh Tuesday preceding the general. 00:48:41.856 --> 00:48:44.476 A:middle So that's why it stays fixed at 49. 00:48:44.816 --> 00:48:53.036 A:middle But something changes you'll notice in 2010, and the reason for that change is 00:48:53.086 --> 00:49:00.216 A:middle that the MOVE Act imposed the 45-day federal law deadline for the Secretary 00:49:00.216 --> 00:49:09.296 A:middle and local election officials to transmit ballots to military and overseas voters. 00:49:09.296 --> 00:49:18.626 A:middle In 2010, because that requirement was new, Massachusetts as well 00:49:19.286 --> 00:49:25.526 A:middle as some other states did receive a waiver of that deadline, 00:49:25.946 --> 00:49:29.436 A:middle which is why the time period remained at [inaudible] days. 00:49:29.436 --> 00:49:34.536 A:middle But you'll notice that for every election since there has been a longer time period 00:49:34.966 --> 00:49:40.616 A:middle between the primary and the general election, and that is because special -- 00:49:40.616 --> 00:49:46.806 A:middle special legislation has been enacted in every biennial state election year since 2010 00:49:46.836 --> 00:49:48.666 A:middle to move our primary date earlier so that we could comply with federal law. 00:49:48.696 --> 00:49:49.506 A:middle So that's why those numbers go up, 00:49:49.536 --> 00:49:51.456 A:middle and you'll see that there are also differences in presidential election years. 00:49:51.486 --> 00:49:51.846 A:middle Turnout is higher. 00:49:51.876 --> 00:49:53.406 A:middle There are more ballots to count, and any recount would be more [inaudible]. 00:49:53.436 --> 00:49:53.646 A:middle >> Thank you. 00:49:53.676 --> 00:49:54.336 A:middle I have no further questions. 00:49:54.366 --> 00:49:54.726 A:middle >> Justice Kafker. 00:49:54.756 --> 00:49:56.436 A:middle >> Yes. So tell me about how the lock boxes, what does the statute say 00:49:56.466 --> 00:49:57.696 A:middle about lock boxes and what factually do we know? 00:49:57.726 --> 00:49:58.536 A:middle Does every town have a lock box? 00:49:58.566 --> 00:49:59.046 A:middle Are they required to? 00:49:59.076 --> 00:50:01.176 A:middle >> The law does not require every municipality to have a contact-free drop box, 00:50:01.206 --> 00:50:02.076 A:middle although we know that many of them do. 00:50:02.106 --> 00:50:04.596 A:middle As best I can ascertain, there are at least about 200 of them across the Commonwealth as is. 00:50:04.626 --> 00:50:06.966 A:middle That is not the only way to drop off your ballot if you don't want to put it in the mail 00:50:06.996 --> 00:50:07.956 A:middle and you don't want to vote in person. 00:50:07.986 --> 00:50:09.006 A:middle The legislation also required that your -- 00:50:09.036 --> 00:50:11.166 A:middle you can turn your mail-in ballot in at any early voting site during early voting hours. 00:50:11.196 --> 00:50:13.446 A:middle Those happen for seven days before the primary and for 20 days before the general. 00:50:13.476 --> 00:50:14.916 A:middle You can also hand it to your local election officials. 00:50:14.946 --> 00:50:16.746 A:middle And so while those options are not quite as contact-free as putting it 00:50:16.776 --> 00:50:18.306 A:middle in a metal box outside a building might be, they are certainly -- 00:50:18.336 --> 00:50:19.956 A:middle come with less contact than one might encounter voting in person. 00:50:19.986 --> 00:50:22.416 A:middle And given the traffic we've seen at early voting sites and the widespread availability of dates 00:50:22.446 --> 00:50:24.876 A:middle and times for early voting, one is likely to encounter far less human contact at those sites 00:50:24.906 --> 00:50:25.836 A:middle than they would at, say, the grocery store. 00:50:25.866 --> 00:50:28.086 A:middle >> The other question I have relates to -- and this is going to be the first time in history, 00:50:28.116 --> 00:50:29.976 A:middle right, that we're going to have this level of mail-in voting; is that correct? 00:50:30.056 --> 00:50:30.866 A:middle >> That's right. 00:50:30.866 --> 00:50:37.016 A:middle This is the first time that one has been able to vote by mail without an excuse in Massachusetts. 00:50:37.016 --> 00:50:40.656 A:middle >> So and I take it based on -- I mean, I read it -- 00:50:40.656 --> 00:50:46.166 A:middle again, I'm reading The Washington Post today and The Globe today says that they're going 00:50:46.166 --> 00:50:51.696 A:middle to be a whole different set of potentially of challenges to mail-in voting. 00:50:51.696 --> 00:50:59.826 A:middle Does that also justify sort of strict compliance with this September 1st deadline, 00:50:59.826 --> 00:51:08.316 A:middle meaning that there may be a more robust type of challenge to votes this time 00:51:08.316 --> 00:51:12.526 A:middle that haven't proceeded in the past; is that fair to say? 00:51:12.526 --> 00:51:18.426 A:middle >> I mean, certainly if that were to come to pass, that would place additional strain 00:51:18.426 --> 00:51:21.066 A:middle on the already limited time that we have to do what needs to be done 00:51:21.066 --> 00:51:22.356 A:middle between the primary and general, yes. 00:51:23.286 --> 00:51:29.316 A:middle >> Meaning that, again, first time in history we've ever dealt with mail-in voting, 00:51:29.316 --> 00:51:36.406 A:middle and the recount and challenge process may be more complicated than it's been 00:51:36.406 --> 00:51:39.416 A:middle in the past; again, is that fair to say? 00:51:39.416 --> 00:51:43.826 A:middle >> I think it's fair to say that it may be more complicated both 00:51:44.456 --> 00:51:50.556 A:middle because this is the first time we're doing this because as we sort of described in our brief, 00:51:50.656 --> 00:51:55.706 A:middle the procedure followed for the 2018 recount in the 3rd Congressional District, obviously, 00:51:55.706 --> 00:51:59.536 A:middle it can't -- if there is a recount this year, it won't be able to happen in exactly the same way 00:51:59.536 --> 00:52:01.826 A:middle because of the pandemic and the need for social distancing. 00:52:02.116 --> 00:52:08.776 A:middle And it also may be that that those procedural options, that more people choose -- 00:52:08.856 --> 00:52:12.886 A:middle that we're more likely to see more recount requests or more objections 00:52:12.886 --> 00:52:16.706 A:middle to the Ballot Law Commission because this is the first year we're doing it in this way. 00:52:16.706 --> 00:52:19.366 A:middle It's difficult to predict. 00:52:19.366 --> 00:52:23.836 A:middle >> And my final question is more sort of, you know, part of what we're trying 00:52:23.836 --> 00:52:27.556 A:middle to do is educate people what the options are. 00:52:27.556 --> 00:52:33.796 A:middle So you're a voter who's not received their -- you've requested -- you want -- 00:52:33.796 --> 00:52:37.656 A:middle you're a person who's interested in mail-in voting 00:52:37.656 --> 00:52:41.696 A:middle to avoid, you know, interpersonal contact. 00:52:41.696 --> 00:52:43.936 A:middle It's now August 24th. 00:52:43.936 --> 00:52:48.346 A:middle What are -- what are your options to preserve your vote? 00:52:48.346 --> 00:52:52.916 A:middle Just this person doesn't have their ballot yet. 00:52:52.916 --> 00:52:57.446 A:middle What can they do right now and under the law 00:52:57.446 --> 00:53:01.826 A:middle that the legislature has passed and make sure they get to vote. 00:53:02.356 --> 00:53:05.966 A:middle >> If that person has not yet applied for a ballot, they can still do so; 00:53:05.966 --> 00:53:09.546 A:middle and they can drop that application off with their local election officials. 00:53:09.546 --> 00:53:12.846 A:middle If they have already applied for their ballot but have not received it, 00:53:13.416 --> 00:53:16.636 A:middle they can inquire with their local election officials or with the Secretary 00:53:16.636 --> 00:53:18.926 A:middle of State's office and check status. 00:53:19.626 --> 00:53:23.446 A:middle It is also true that worst case scenario, 00:53:23.446 --> 00:53:28.586 A:middle if somebody is not certain whether their mail-in vote will be counted, although they might prefer 00:53:28.586 --> 00:53:33.486 A:middle for obvious and understandable reasons to avoid human contact, they can still go in and vote 00:53:33.486 --> 00:53:39.996 A:middle in person at an early voting site at which there ought to be less traffic and fewer people 00:53:40.306 --> 00:53:43.716 A:middle or worst -- absolute worst-case scenario, on Election Day. 00:53:43.716 --> 00:53:45.376 A:middle So your vote will only be counted once. 00:53:45.376 --> 00:53:48.276 A:middle If you're not sure, either you check the website 00:53:48.276 --> 00:53:51.606 A:middle and you're not certain whether your vote has been received or the website indicates 00:53:51.606 --> 00:53:54.506 A:middle that your vote has not been received and you want to make sure 00:53:54.666 --> 00:53:58.896 A:middle that your vote counts this year, you can go vote in person at an early voting -- 00:53:59.086 --> 00:54:02.086 A:middle early voting site or on Election Day. 00:54:02.086 --> 00:54:05.766 A:middle >> And if you're -- if you've sent in your ballot -- 00:54:05.766 --> 00:54:12.626 A:middle and I looked at this sophisticated tracking system they've developed, 00:54:12.626 --> 00:54:19.216 A:middle the Secretary of State has developed -- and it indicates your ballot has not been received yet, 00:54:19.216 --> 00:54:27.576 A:middle and that happens over the next couple of days, can you -- you can still go try to vote, 00:54:27.576 --> 00:54:31.526 A:middle I take it, if you -- if you don't know if it's been received? 00:54:31.526 --> 00:54:36.876 A:middle I'm just trying to figure out what how do you protect yourself if you don't show up on 00:54:37.096 --> 00:54:41.766 A:middle that database or you don't trust that database. 00:54:41.766 --> 00:54:42.096 A:middle >> I'm sorry. 00:54:42.096 --> 00:54:45.716 A:middle You may -- you can absolutely still go vote in person at either an early voting site 00:54:46.326 --> 00:54:52.436 A:middle or at your regular polling location on Election Day if that website does not yet indicate 00:54:52.436 --> 00:54:55.406 A:middle that your ballot has been received. 00:54:55.406 --> 00:54:56.036 A:middle >> Okay. Thank you. 00:54:56.036 --> 00:54:56.816 A:middle That's all I have. 00:54:57.516 --> 00:54:59.766 A:middle [ Inaudible ] 00:55:00.266 --> 00:55:02.576 A:middle >> Yeah. I was hoping you could go over that chart with me again 00:55:02.606 --> 00:55:04.706 A:middle because I'm not seeing exactly what you said here. 00:55:04.706 --> 00:55:08.566 A:middle After 2010, you said there was a change so it wouldn't be 49 days. 00:55:08.566 --> 00:55:17.096 A:middle But I think to me that if we have September 1, 2020, to November 3, 2020, at 63 days 00:55:17.096 --> 00:55:24.856 A:middle and it was shorter than that in 2014 with 56 days, right; shorter than that in 2016. 00:55:24.856 --> 00:55:26.086 A:middle It was 61 days. 00:55:26.086 --> 00:55:33.446 A:middle And September -- 2018 I'm not sure because of the difference in the way it was done here 00:55:33.446 --> 00:55:36.846 A:middle because they're putting in between them the recounts in the general election as opposed 00:55:36.846 --> 00:55:39.966 A:middle to the days between the primary election and general election date. 00:55:39.966 --> 00:55:45.256 A:middle But I'm assuming that's probably very similar to what it was in 2020, right? 00:55:45.256 --> 00:55:50.026 A:middle >> Yeah. So the duration is I suppose marginally shorter in 2016 and 2014. 00:55:50.026 --> 00:55:53.106 A:middle It's important to remember that 2014 was not a presidential election year. 00:55:54.456 --> 00:55:56.856 A:middle >> 2016 was, though, wasn't it? 00:55:56.856 --> 00:55:59.296 A:middle >> It was but there's a difference of only two days between -- 00:55:59.436 --> 00:56:01.726 A:middle >> Yes. It's two days [inaudible]. 00:56:01.726 --> 00:56:11.906 A:middle >> In 2018 there was only -- by the time the recount was finished -- 00:56:11.906 --> 00:56:13.176 A:middle I'm just checking my dates. 00:56:13.406 --> 00:56:16.296 A:middle 2018 was again not a presidential election. 00:56:16.616 --> 00:56:17.566 A:middle Turnout was lower. 00:56:17.846 --> 00:56:22.966 A:middle And I'll have to count the number of days that we had in 2018 00:56:22.966 --> 00:56:25.226 A:middle because it's expressed a little differently on this chart. 00:56:25.556 --> 00:56:28.236 A:middle The number that's given is the date following the recount. 00:56:28.596 --> 00:56:30.156 A:middle >> Right. I understand that this is saying. 00:56:30.156 --> 00:56:32.946 A:middle I think they probably are arithmetically probably similar. 00:56:32.946 --> 00:56:35.156 A:middle September 4th and November 6th is probably not too much different 00:56:35.156 --> 00:56:37.636 A:middle from September 1st and November 3rd. 00:56:37.636 --> 00:56:39.106 A:middle I don't know how much -- I haven't done it. 00:56:39.106 --> 00:56:40.776 A:middle Yeah. It's not that important. 00:56:40.926 --> 00:56:45.346 A:middle [Inaudible] sure I was understanding that, in fact, after 2010 there was still some times 00:56:45.716 --> 00:56:48.606 A:middle when it was, you know, less than what it is right now. 00:56:49.186 --> 00:56:53.816 A:middle >> Yeah. But I'm actually calculating 2018 is the same, 63 days. 00:56:53.816 --> 00:56:54.576 A:middle >> Yeah. But okay. 00:56:54.576 --> 00:56:58.366 A:middle So you still had 2016, 2014. 00:56:58.466 --> 00:57:00.446 A:middle 2012 was a little bit shorter. 00:57:00.446 --> 00:57:05.916 A:middle >> So I'm not sure I understand what your point was, that 2000 you were talking 00:57:05.916 --> 00:57:11.796 A:middle about the contrast between 49 days, I suppose. 00:57:11.796 --> 00:57:13.656 A:middle >> Yes. Exactly. 00:57:13.656 --> 00:57:20.566 A:middle That essentially the comparison value of the date or the duration of time from '10 00:57:20.596 --> 00:57:25.566 A:middle and previous is very low because the situation was far different in those years. 00:57:25.856 --> 00:57:28.796 A:middle We did not have the 45-day federal law deadline by which we need 00:57:28.796 --> 00:57:31.916 A:middle to transmit balance to military and overseas voters. 00:57:32.186 --> 00:57:39.056 A:middle So that's why the dates from -- on this chart from 1996 to 2010 are showing a duration 00:57:39.056 --> 00:57:42.946 A:middle of just 49 days, and then you see that they go up in the years since when we've had 00:57:42.946 --> 00:57:45.316 A:middle to comply with that 45-day deadline. 00:57:46.366 --> 00:57:47.946 A:middle >> Yeah. Let me ask you a question. 00:57:47.946 --> 00:57:50.316 A:middle I mean, I suppose, though, we're not talking 00:57:50.316 --> 00:57:53.526 A:middle about mailing this to the -- to the feds, are we. 00:57:53.526 --> 00:57:55.376 A:middle We're talking about the electronic transmission? 00:57:55.376 --> 00:58:00.566 A:middle >> So some do electronic transmission and some do by mail. 00:58:00.566 --> 00:58:03.116 A:middle >> Oh. So we rely on the United States Post Office to meet the 45 days? 00:58:03.116 --> 00:58:07.856 A:middle >> Yes. So it's actually at the voters' requests for the military and overseas voters. 00:58:07.856 --> 00:58:12.166 A:middle So they can ask for it electronically or they can ask for it by mail. 00:58:12.436 --> 00:58:16.856 A:middle And, yes. Obviously, there's -- we've got to rely on the Postal Service to get those -- 00:58:17.116 --> 00:58:21.486 A:middle those ballots where military and overseas voters ask for them by mail [inaudible]. 00:58:21.486 --> 00:58:24.266 A:middle >> [Inaudible] you know, I asked a question before 00:58:24.266 --> 00:58:29.156 A:middle about the day of the legislation this year. 00:58:29.156 --> 00:58:34.486 A:middle I mean it was clearly post-pandemic, it was certainly pre-knowledge 00:58:34.486 --> 00:58:35.976 A:middle of the post office difficulties, right? 00:58:36.046 --> 00:58:36.766 A:middle >> I believe so. 00:58:36.766 --> 00:58:38.646 A:middle I think it was enacted on July 6th of this year. 00:58:38.646 --> 00:58:41.866 A:middle >> Yeah. So it's not like that is really going 00:58:41.866 --> 00:58:46.656 A:middle to answer the question whether the legislature really anticipated this because they even -- 00:58:46.656 --> 00:58:49.846 A:middle even they [inaudible] the general election, right? 00:58:49.996 --> 00:58:53.656 A:middle >> They did give three extra days for the general election because what has 00:58:53.656 --> 00:58:55.856 A:middle to happen following the general election is different. 00:58:55.896 --> 00:59:00.266 A:middle The constraints on the Secretary and on the Commonwealth are different. 00:59:00.516 --> 00:59:08.316 A:middle There are still some that exist after the general election, but they're different 00:59:08.316 --> 00:59:15.576 A:middle than what has to happen after the primary in order to quickly pivot and be able 00:59:15.576 --> 00:59:20.566 A:middle to safely administer a general election. 00:59:20.566 --> 00:59:24.536 A:middle >> What about the [inaudible] Haynes business [phonetic spelling] that they keep bringing up? 00:59:24.766 --> 00:59:33.616 A:middle That was quite late and it was quite contested, wasn't it? 00:59:33.616 --> 00:59:34.136 A:middle >> I'm sorry. 00:59:34.136 --> 00:59:37.106 A:middle >> Somebody had to do it, [inaudible] Haynes? 00:59:37.106 --> 00:59:41.126 A:middle >> Yes. The 2018 recount. 00:59:42.086 --> 00:59:42.246 A:middle >> Yep. 00:59:42.246 --> 00:59:47.736 A:middle >> Yes. That was quite contentious and a labor-intensive recount, that we have reason 00:59:47.766 --> 00:59:49.116 A:middle to believe that the number of votes that will be cast 00:59:49.146 --> 00:59:51.126 A:middle in the 4th Congressional District this year will far outpace what was cast 00:59:51.156 --> 00:59:52.716 A:middle in the 3rd Congressional District in 2018. 00:59:52.746 --> 00:59:55.086 A:middle And when you add in not just more ballots to recount but also the additional constraints 00:59:55.116 --> 00:59:57.636 A:middle of social distancing in the pandemic, as laborious as the recount was in 2018, 00:59:57.666 --> 00:59:59.886 A:middle we would expect that any recount that would occur this year would be even more complex. 00:59:59.916 --> 00:59:59.983 A:middle >> Yeah. 01:00:00.516 --> 01:00:03.546 A:middle [ Inaudible ] 01:00:04.046 --> 01:00:08.966 A:middle I suspect all of us do about people who have not yet received their ballots. 01:00:08.966 --> 01:00:09.746 A:middle And that is a problem. 01:00:09.746 --> 01:00:15.936 A:middle I mean, if you can't even get your ballot in now by mail, that's a problem, isn't it? 01:00:17.026 --> 01:00:20.396 A:middle >> I agree that it's cause for concern, although as a number -- 01:00:20.396 --> 01:00:22.526 A:middle >> You couldn't be sure that it would be postmarked, could you? 01:00:22.526 --> 01:00:27.326 A:middle I mean, I am still [inaudible] about what postmarking means and how it's achieved? 01:00:27.326 --> 01:00:30.416 A:middle How can anyone ever be sure of the postmark? 01:00:30.416 --> 01:00:34.276 A:middle >> I think Your Honor was exactly correct when you spoke with Mr. Robbins to say 01:00:34.276 --> 01:00:39.126 A:middle that the only way to be sure of a postmark is to walk your piece of mail into a post office 01:00:39.126 --> 01:00:41.036 A:middle and watch them apply the postmark stamp. 01:00:41.746 --> 01:00:45.826 A:middle It is correct to say that, if you put it in your mailbox or in a blue mailbox on the street 01:00:45.826 --> 01:00:50.876 A:middle or hand it to a postal worker, it's probably not going to get postmarked my guess is 01:00:50.876 --> 01:00:52.086 A:middle until at least the following day. 01:00:52.086 --> 01:00:53.106 A:middle >> Yeah. Okay. 01:00:53.106 --> 01:00:55.786 A:middle I don't have anything else. 01:00:55.786 --> 01:00:56.306 A:middle Thank you. 01:00:59.146 --> 01:01:02.866 A:middle >> Well, I'm one of the 97 percent who did receive a ballot. 01:01:04.386 --> 01:01:14.876 A:middle Someone just asked you does the potential for disenfranchisement given all the uncertainties 01:01:14.876 --> 01:01:18.176 A:middle out there lead to strict scrutiny analysis? 01:01:18.176 --> 01:01:22.826 A:middle How do you get to a rational basis with that in the air? 01:01:22.826 --> 01:01:29.076 A:middle >> So I don't think it does, Your Honor, and that's in part because I disagree with the idea 01:01:29.076 --> 01:01:33.386 A:middle that anyone is disenfranchised by the deadline. 01:01:33.386 --> 01:01:38.446 A:middle So while it's true as we spoke about earlier that someone who waits until August 26 01:01:38.606 --> 01:01:45.666 A:middle to request a ballot may have fewer options available to them among the menu of options 01:01:45.666 --> 01:01:48.936 A:middle that has been provided by the legislature to get their ballot back 01:01:49.056 --> 01:01:51.376 A:middle on time, they do still have options. 01:01:51.616 --> 01:01:53.666 A:middle That voter has not been disenfranchised. 01:01:53.756 --> 01:01:57.866 A:middle They may just be more limited in how they can return that ballot and ensure 01:01:57.866 --> 01:02:02.876 A:middle that it is received in a timely manner by their local election official. 01:02:02.876 --> 01:02:08.096 A:middle >> I should know the answer to this, but could you please educate me. 01:02:08.536 --> 01:02:13.956 A:middle With respect to the decision that ballots should be received by mail by 9/1 01:02:13.956 --> 01:02:16.816 A:middle to be counted, that's not in the statute? 01:02:16.816 --> 01:02:20.366 A:middle That's something that the Secretary of State came up with, correct? 01:02:20.366 --> 01:02:21.006 A:middle >> No, Your Honor. 01:02:21.006 --> 01:02:22.516 A:middle That is in the 2020 statute. 01:02:23.016 --> 01:02:25.736 A:middle >> That's in the statute that have to be received to be counted? 01:02:26.076 --> 01:02:26.736 A:middle >> That's correct. 01:02:26.736 --> 01:02:31.846 A:middle The 2020 statute contains both that deadline at 8 pm as well 01:02:31.846 --> 01:02:33.676 A:middle as the three-day deadline for the general. 01:02:33.676 --> 01:02:35.076 A:middle >> Oh, okay. 01:02:35.076 --> 01:02:37.076 A:middle I should -- I should have known that. 01:02:37.076 --> 01:02:37.606 A:middle Thank you. 01:02:37.756 --> 01:02:39.976 A:middle And I interrupted you. 01:02:39.976 --> 01:02:41.026 A:middle Please proceed with your answer. 01:02:42.416 --> 01:02:44.916 A:middle >> With respect to standard of review, again, 01:02:44.916 --> 01:02:49.746 A:middle I think part of the reason we have a fundamental disagreement with the petitioners over the level 01:02:49.746 --> 01:02:55.366 A:middle of scrutiny is because we disagree that any voter is, per se, disenfranchised by operation 01:02:55.366 --> 01:03:00.486 A:middle of the deadline but also because, as the Court well knows in the context of election cases, 01:03:00.956 --> 01:03:05.406 A:middle there is a sliding scale by which the Court determines the appropriate level of scrutiny. 01:03:05.696 --> 01:03:11.876 A:middle And the question that is asked to ascertain where the level of scrutiny ought to be 01:03:11.876 --> 01:03:18.766 A:middle on that sliding scale is whether the provision of issue creates significant interference 01:03:18.926 --> 01:03:21.246 A:middle with the voters' ability to exercise the franchise. 01:03:21.246 --> 01:03:24.746 A:middle And as we've described in our brief, that's simply not the case here. 01:03:24.746 --> 01:03:26.336 A:middle Goldstein was a very different case. 01:03:26.336 --> 01:03:29.426 A:middle That was earlier on in the pandemic when the legislature -- 01:03:29.426 --> 01:03:35.416 A:middle in the ballot access context had not yet acted to adapt the ordinary statutory requirements 01:03:35.736 --> 01:03:38.726 A:middle to account for the changed conditions of the pandemic. 01:03:39.456 --> 01:03:41.856 A:middle That's quite different than what we have here. 01:03:41.856 --> 01:03:47.856 A:middle Here, the legislature has dramatically expanded the menu of options available to voters 01:03:47.916 --> 01:03:52.206 A:middle so that it -- I don't believe it can be fairly said that any particular aspect 01:03:52.206 --> 01:03:57.126 A:middle of that menu creates significant interference with the voters' right 01:03:57.126 --> 01:03:59.586 A:middle or ability to exercise their franchise. 01:04:00.186 --> 01:04:06.636 A:middle We're now looking at, you know, sort of minor questions as to whether -- 01:04:06.636 --> 01:04:11.306 A:middle whether the August 26 deadline ought to have been a day earlier or a day later. 01:04:11.306 --> 01:04:15.466 A:middle That's very different than the question that the Court had in front of it in Goldstein 01:04:15.466 --> 01:04:19.046 A:middle where candidates at the time were still subject to pre-pandemic rules. 01:04:19.046 --> 01:04:25.146 A:middle And so as a result, when you look at the significant interference question in the context 01:04:25.146 --> 01:04:29.306 A:middle of all of the menu of options available to voters, it's clear that the Court ought 01:04:29.306 --> 01:04:32.736 A:middle to be exercising rational basis for view here rather than strict screening. 01:04:32.736 --> 01:04:39.826 A:middle >> And your argument is once we get to rational basis the issue then becomes how -- 01:04:39.926 --> 01:04:43.846 A:middle how the Secretary is able to comply with federal requirements 01:04:44.046 --> 01:04:46.086 A:middle which leads to the longer time frame. 01:04:46.086 --> 01:04:50.436 A:middle >> That's part of it but also the reasonableness of the legislature's judgment 01:04:50.436 --> 01:04:54.156 A:middle that August 26 was an appropriate deadline and -- 01:04:54.276 --> 01:04:59.856 A:middle >> What's -- I know you may not know the answer to this, but was part of the rationale 01:05:00.406 --> 01:05:07.986 A:middle for the deadline to be set at -- for the same day as the election at 8 pm 01:05:08.146 --> 01:05:10.406 A:middle to incentivize people to mail in early? 01:05:10.696 --> 01:05:14.646 A:middle >> I don't believe that's the case, Your Honor. 01:05:14.836 --> 01:05:20.266 A:middle I believe that that deadline was motivated by exactly what we've been discussing here today, 01:05:20.266 --> 01:05:23.746 A:middle which is the post-primary deadlines and everything that needs to occur in order 01:05:23.746 --> 01:05:27.896 A:middle for Secretary Galvin to administer a fair and orderly general election. 01:05:28.896 --> 01:05:34.876 A:middle >> Could we -- we can't expect that if someone was to mail on 9/1, it's postmarked on 9/1, 01:05:34.876 --> 01:05:36.576 A:middle it's not going to get there the same day 01:05:37.086 --> 01:05:42.446 A:middle if you're mailing something from, you know, Pittsfield, right? 01:05:42.446 --> 01:05:48.006 A:middle >> Right. And that's why, you know, if a voter has requested -- 01:05:48.006 --> 01:05:50.116 A:middle >> I'm not going to pick on the Pittsfield Postal Service 01:05:50.116 --> 01:05:52.696 A:middle but anywhere it's not necessarily going 01:05:52.696 --> 01:05:56.286 A:middle to be received the same day if it's dropped in a mailbox. 01:05:56.286 --> 01:05:59.756 A:middle >> I think that's right, and that is likely part 01:05:59.756 --> 01:06:04.686 A:middle of the reason why the legislature created the opportunity to return your mail-in ballot 01:06:04.686 --> 01:06:08.966 A:middle to an early voting site or to a polling location or your election official so that if, 01:06:08.966 --> 01:06:13.606 A:middle for example, you received a ballot by mail, you haven't decided who to vote for 01:06:13.606 --> 01:06:17.556 A:middle or you just get it on August 30th and you want to make sure it gets 01:06:17.906 --> 01:06:25.056 A:middle to your local election official by the deadline, you are not limited to just a mail-in option -- 01:06:25.056 --> 01:06:30.726 A:middle >> Right. So if I wait to the last minute and I drop it into a mailbox, 01:06:30.726 --> 01:06:34.186 A:middle I just don't know if it's going to get to my polling place by then. 01:06:35.206 --> 01:06:36.196 A:middle >> If it's a mailbox, yes. 01:06:36.326 --> 01:06:41.016 A:middle If it's a drop box, one of the municipal drop boxes, then you don't have to worry about it. 01:06:41.016 --> 01:06:43.966 A:middle If it's a Postal Service mailbox, yeah. 01:06:44.046 --> 01:06:45.036 A:middle >> Okay. All right. 01:06:45.036 --> 01:06:46.226 A:middle That's all the questions I have. 01:06:46.476 --> 01:06:47.226 A:middle Thank you very much. 01:06:47.226 --> 01:06:55.146 A:middle Let me just remind the Justices if we could have [inaudible] or stop the call at 12:15. 01:06:55.276 --> 01:06:57.296 A:middle But thank you, Council. 01:06:57.716 --> 01:06:58.536 A:middle >> Thank you. 01:06:58.626 --> 01:06:59.306 A:middle >> Thank you.