Chelsea Collaborative et al.
William F. Galvin et al
July 25, 2017
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR
Douglas H. Wilkins, Associate Justice.
CONST. amend. art. III (" art. III") dictates that
citizens who meet certain qualifications " shall be
entitled to vote." This case challenges the
Massachusetts statutes which, taken together, prohibit
otherwise-qualified citizens from voting unless they register
to vote at least twenty days before the election ("
20-day deadline" or " registration cutoff").
G.L.c. 51, § § 1, 1F, 26, 34. The 20-day deadline
appears nowhere in the Massachusetts Constitution.
than two decades of significant technological change have
passed since the Legislature adopted the 20-day deadline. See
St. 1996, c. 454, § 7; St. 1993, c. 475, § 6. Now,
with " early voting, " all registered voters may
cast a ballot just 5 days after the registration cutoff. St.
2014, c. 111. By election day, the Commonwealth's voter
registration data base already includes the names of
thousands of late-registered voters. As a practical and
technological matter, those people could vote in the ordinary
course. But the 20-day deadline compels officials to use a
program that actually excludes their names from the final
voter printout. These and other developments call into
question any rationale for denying any qualified citizen the
right to vote on account of the 20-day deadline.
considering the facts and the law presented at trial, the
Court concludes that the Legislature lacks constitutional
authority to enact additional voter qualifications. The
Legislature may pass laws that are necessary to ensure
voters' qualifications of voters or to ensure election
security and order. The evidence overwhelmingly shows no such
necessity for the Massachusetts registration cutoff.
Therefore, disenfranchising a qualified citizen because he or
she did not register at least 20 days before the election
exceeds the bounds of Legislature's authority and
violates the Massachusetts Constitution. Enforcing the
Constitution here is not a judicial " policy choice,
" as the Commonwealth contends. Rather, the Court simply applies
the basic rule of our constitutional democracy that, in cases
of conflict, a statute (the 20-day deadline), must yield to
the higher commands of the Massachusetts Constitution.
with the organizational plaintiffs, Chelsea Collaborative and
MASSVote, Inc., three original individual plaintiffs, Edma
Ortiz, Wilyeliz Nazario Leon and Rafael Sanchez ("
plaintiffs") brought this action against the Secretary
of the Commonwealth (" Secretary") and the Cities
of Chelsea, Revere and Somerville (" Municipal
Defendants") for declaratory relief on November 1, 2016.
The complaint sought a preliminary injunction allowing the
three individual plaintiffs to vote in the November 2016
hearing on November 7, 2016, the Court issued a preliminary
injunction ordering the municipal defendants to accept
provisional ballots from the individual plaintiffs. On
November 17, 2016, the parties filed a Joint Motion to Modify
the Court's November 7, 2016 Preliminary Injunction,
which the Court allowed in an order requiring the local
election official defendants to count the individual
plaintiffs' provisional ballots. Later, by agreement,
former plaintiff Wilyeliz Nazario Leon was dismissed
voluntarily from this case. Shortly before trial, former
plaintiff Edma Ortiz was dismissed from the case for lack of
an actual controversy, because it turned out that, although
the local election officials believed her ineligible, she was
actually a specially qualified voter. Because her plane to
Logan International Airport on October 19, 2016 was delayed
for some hours in landing, she was absent from Massachusetts
for more than 7 days prior to 8:00 p.m. on October 19. No one
picked up on this arcane aspect of the law until after the
the 2016 election has passed, the parties and Court all agree
an exception to the mootness doctrine applies, because the
complaint raises issues that are capable of repetition but
will evade review. See First Nat'l Bank of Boston v.
Bellotti, 435 U.S. 765, 774-75, 98 S.Ct. 1407, 55
L.Ed.2d 707 (1978) (passage of the 1976 election did not
preclude resolution of elections dispute thereafter). See
generally Blake v. Massachusetts Parole Board, 369
Mass. 701, 708, 341 N.E.2d 902 (1976).
Court recognized that the pendency of this case, and the
precedent of preliminary injunctive relief in 2016, might
cause complications in the 2018 elections cycle unless the
Legislature or Supreme Judicial Court definitively resolves
the issues soon. Therefore, the Court ordered expedited
pretrial proceedings and an early trial date of July 5, 2017.
See Mass.R.Civ.P. 57 (the " court may order a speedy
hearing of an action for a declaratory judgment and may
advance it on the calendar"). The parties submitted
trial briefs at the final pretrial conference on June 28,
2017. See Plaintiffs' Pre-trial Memorandum of Law and
Proposed Conclusions of Law (" Pl. Mem.");
Secretary of the Commonwealth's Memorandum of Law ("
Comm. Mem."). During and after the trial, the parties
submitted additional written legal arguments. Secretary of
the Commonwealth's Supplemental Memorandum of Law, dated
July 10, 2017 (" Comm. Supp. Mem."); Letter dated
July 10, 2017 from plaintiffs' counsel addressing the
Kinneen case; and the Plaintiffs' Post-trial
Letter dated July 17, 2017.
Court conducted the trial without a jury on July 5, 6, 7 and
10, 2017. It received and accepted an amicus submission from
the Massachusetts Town Clerks' Association on July 13,
2017 and supplemental filings, including motions to strike
trial testimony, on July 17, 2017.
Court accepts and finds the following facts (and the facts
concerning the parties set forth in Appendix C), which are
established beyond any substantial dispute by the
parties' pretrial filings, with minor modifications by
the Court (reflected in language included in brackets below)
resolving some minor disputes. For this purpose, the Court
has treated as undisputed all proposed facts that a party
disputed as to relevance only, after overruling the relevance
objections. In any event, after hearing the evidence, the
Court finds as fact all those proposed facts set forth below
that were disputed only as to relevance.
paragraph numbers in this section of the Court's
memorandum are non-sequential, because this Memorandum
retains the original numbering of the parties' submission
and omits the proposed facts that are disputed.
Plaintiffs' Undisputed Facts
Voter Registration in Massachusetts
Eligible Massachusetts citizens may register to vote by (a)
mailing or hand-delivering a voter registration affidavit to
local election officials,  (b) submitting a voter registration
affidavit in person at a voter registration agency, (c) in
person at the Registry of Motor Vehicles (" RMV"),
(d) online through the RMV, or (e) by submitting the voter
registration affidavit online through the Secretary of the
Commonwealth's website. 950 CMR 57.04-57.07.
Massachusetts does not permit its citizens to register (or
re-register) to vote on Election Day and then cast a ballot
based on that newly submitted registration information on the
same day. 950 CMR 57.04-57.07.
successfully registering, a citizen is added to the annual
register of voters in his or her city or town. G.L.c. 51,
Local election officials are responsible for processing voter
registration applications. 950 CMR 58.01.
Massachusetts uses a computer database to maintain and track
voter registration information. This system is known as the
Voter Registration Information System (" VRIS").
office of the Secretary of the Commonwealth ("
Secretary") maintains VRIS and provides technical
support for its use.
VRIS serves several functions. [Among other things, ] VRIS is
used to input, store, and look up voter information; to send
" queues" of electronic voter registration
applications from the Secretary of the Commonwealth ("
Secretary") to each city or town for processing; to
print voter lists for early voting, primaries, and elections;
to notate early voters and absentee voters ahead of an
election day; to send certified election results to the
Secretary; and to store information sourced from Annual
Mail-In Registration or In-Person at the Local Election
forms used for voter registrations mailed to a local election
official and the forms used for in-person registrations at a
local election official's office are substantively the
Upon receiving an in-person or mail-in registration form, a
local election official typically time-stamps the form.
In-Person Registration at a Voter Registration Agency or at
the Registry of Motor Vehicles
Massachusetts citizens seeking to register to vote ("
applicants") may complete voter registration affidavits
at a voter registration agency, such as military recruitment
offices or state agencies that provide public assistance or
assistance to people with disabilities (e.g., Department of
Transitional Assistance, Department of Mental Health, and
Department of Developmental Services). 950 CMR 57.05(3)(a).
effective date of an in-person registration at a voter
registration agency is the day that an individual completes
the signed affidavit of registration at the agency. 950 CMR
Applicants may also complete voter registration affidavits at
the RMV. 950 CMR 57.06.
effective date of a registration submitted in-person at the
RMV is the time a signed affidavit of registration is
completed at the RMV. 950 CMR 57.06(4)(f).
Online Voter Registration
Online voter registration was enacted in the Commonwealth in
2014 and implemented in 2015.
Since 2015, voters who have a RMV ID, such as a driver's
license, may register to vote online by completing an online
affidavit of registration available at the Secretary's
[apply to] register online through the Secretary's
website, a registrant must enter her driver's license or
state ID number, first and last name, and date of birth. This
information is verified electronically and matched with a
signature on file with the RMV before the voter is given
access to the online voter registration form. If no match is
found in the online system, the applicant must print, sign,
and deliver the application to the local election official in
order to complete the registration process. The online voting
registration form has fields for mailing address, residential
address, political party affiliation, telephone number, and
the last address where the registrant was registered to vote.
Following a match between an online registrant's
information and a signature on file and completion of the
online form, the online voter registration system
electronically transmits the online registration to the
appropriate local election official's as an entry in the
" pending for certification" queue within VRIS.
G.L.c. 51, § 33A.
Applicants may also complete online voter registration
applications during an online transaction with the RMV. 950
CMR 57.07. For online applications, the RMV must
electronically transmit the voter registration application
[information] to the Secretary's central voter registry
within five days. 950 CMR 57.07(3). These applications then
follow the same steps as online registrations through the
Secretary's website, and are electronically transmitted
to the local election official via VRIS. 950 CRM 57.07(3).
online registration is effective as of the time it is
completed. 950 CMR 57.07(4)(f).
Local Election Officials' Responsibilities in Processing
Upon receipt of an application for registration, local
election officials check the application for completeness.
mail-in voter registration form produced by the Secretary
contains 14 sequentially numbered fields, but not all of the
numbered fields are necessary for the application to be
deemed complete. The following fields are not necessary for
the application to be deemed complete: 3 (" former
name"); 5 (" address where you receive all your
mail"); 8 (" telephone"); 9 (" Party
enrollment or designation"); 10 (" address at which
you were last registered to vote"); and 13 ("
Today's date"). Fields 11 (name of person assisting
if applicant cannot sign) and 14 (signature) are mutually
exclusive alternatives, and only one must be completed. Field
12 is the text of an affirmation; the applicant does not do
anything inside field 12.
online registrations, a local election official does not
manually type voter registration information into VRIS.
Instead, the local election official processes records
transmitted to the official appearing in the VRIS "
pending for certification" queue by confirming that the
information is in the correct format and selecting a button
in VRIS to certify the voter. The local election official can
correct information submitted online, such as the format of
the registrant's address. Certifying the voter results in
the registrant moving from the pending queue to the "
actual registered voter" category.
After processing a registration, a local election official
must then send an acknowledgment notice to the registrant
that certifies receipt of the completed affidavit and
notifies the applicant of the disposition of the affidavit.
950 CMR 57.04(3)(j), 57.05(4)(b), 57.06(4)(b), 57.07(4)(b).
the voter registration affidavit is incomplete or otherwise
deficient, the local election officials must notify the
applicant orally or in writing and provide the applicant an
opportunity to remedy the defect. 950 CMR 57.04(3)(d).
Massachusetts Early Voting Law
Massachusetts, early voting was [enacted by St. 2014, c. 111
and] implemented for the first time during the November 2016
[statewide biennial] election.
Under the early voting law, qualified voters who registered
to vote before the [20-day deadline] are permitted to vote
before Election Day, either in person or by mail in the city
or town in which they are registered to vote. [T]here is no
numerical cap on the number of voters who may vote early in
any given election.
Early voting begins 11 business days before a biennial
election and ends at the close of business on the business
day preceding the business day before the election. 950 CMR
47.03. For the November 2016 election, early voting began on
October 24, 2016, five days after the statutory voter
registration deadline of October 19, 2016.
last day of early voting for the November 8, 2016 election
was Friday, November 4, 2016.
statute, each city or town must establish at least one early
voting site, which must include the city or town election
office unless the office is unavailable or unsuitable. G.L.c.
54, § 25B. Early voting must be conducted during regular
business hours throughout the early voting period.
addition to the statutorily mandated locations and periods,
for the November 2016 election, Boston, Lowell, and Brockton
offered multiple early voting locations or extended hours on
nights or weekends.
Within a city or town, each early voting site is required to
have a voter list that includes all registered voters in that
city or town.
early voting list may be a printed list, the list already
maintained in VRIS, or another electronic list, such as an
electronic poll book.
Electronic poll books, also known as " poll pads, "
were used by 29 cities and towns during the 2016 early voting
period and received positive feedback.
Somerville and Revere successfully printed their respective
early voter lists in advance of the early voting period.
Boston, 400 voters voted provisionally during the early
voting period for the November 2016 election.
the November 2016 election, Chelsea held early voting inside
the Chelsea city clerk's office and used VRIS computers
to track early voters. Somerville borrowed additional VRIS
terminals from the Commonwealth and set them up in the
Somerville City Hall so that they could immediately note each
voter's use of early voting in VRIS. Revere scanned
records from its early voting list into the VRIS system.
Somerville, 40, 874 people voted in the November 8, 2016
election, 40 percent of whom did so through early voting.
the City of Revere, 20, 081 people voted in the November 8,
2016 election, 20 percent of whom did so through early
the City of Chelsea, 10, 033 people voted in the November 8,
2016 election, 16 percent of whom did so through early
the City of Boston, 277, 366 people voted in the November 8,
2016 election, 18 percent of whom did so through early
addition to processing voter registrations, local election
officials [perform] Election Day operations within their
Election Day Responsibilities Of Local Election
prepare for Election Day, local election officials must print
a voting list with all registered voters in their respective
towns and cities.
Somerville, Revere, and Chelsea were each able to prepare and
print the Election Day voter list after the end of early
voting on Friday, November 4, 2016, and before the general
election on Tuesday, November 8.
7:56 pm on Monday, November 7, 2016, the Secretary's
Office emailed local election officials reminding them that
they should not wait until the morning of Election Day--the
next day--to generate their voter lists.
2016, local election officials in Chelsea, Revere, and
Somerville printed their respective voting lists using
printers in their offices, without the use of outside vendors
or specialized equipment.
Massachusetts Registration Deadline
Thousands of Massachusetts citizens registered to vote after
the registration deadline but before each of the last three
presidential elections. The chart below lists the number of
voters who registered to vote in the twenty days before the
November 2016, 2012, and 2008 elections.
" Specially Qualified Voter" is a person (a) who is
otherwise eligible to register as a voter; and (b)(1) whose
present domicile is outside the United States and whose last
domicile in the United States was Massachusetts; or (2) whose
present domicile is Massachusetts and who is: (i) absent from
the city or town of residence in the active service of the
armed forces or in the merchant marine of the United States,
or a spouse or dependent of such person; (ii) absent from the
commonwealth; or (iii) confined in a correctional facility or
a jail, except if by reason of a felony conviction. G.L.c.
50, § 1.
legislature first defined the term Specially Qualified Voter
by a statute approved on January 14, 1994. 1993
Mass.Legis.Serv.Ch. 475 (S.B. 1824). In 2001, the legislature
modified the definition of Specially Qualified Voter to
exclude persons who were confined in a jail " by reason
of a felony conviction." 2001 Mass.Legis.Serv.Ch. 150
person who meets the definition of Specially Qualified Voter
throughout the seven days immediately preceding the Voter
Cutoff Law's deadline may register after that deadline.
To do so, such a voter may appear before a local election
official in the city or town of her legal residence during
regular business hours up until the 4 p.m. the day before the
election. There is no numerical cap on the number of voters
who may qualify as a Specially Qualified Voter. G.L.c. 51,
the November 2016 election, a Specially Qualified Voter could
register during regular business hours from Thursday, October
20, 2016 until 4 p.m. on Monday, November 7, 2016. G.L.c. 51,
the November 2016 election, there were 47 Specially Qualified
Voters in Somerville.
Somerville, the processing of the Specially Qualified Voters
was smooth for the November 2016 election.
There were 13, 50, and 35 Specially Qualified Voters in
Revere for the November 2016, 2012, and 2008 elections,
respectively. Chelsea had no Specially Qualified Voters in
Boston had 986 Specially Qualified Voters who participated in
the November 2016 election.
Election Day Registration
Election Day Registration (" EDR") is a system that
allows qualified citizens to register, or re-register, to
vote on Election Day and then cast a ballot based on that
newly submitted registration information on the same day.
Sixteen states and the District of Columbia have enacted some
form of EDR. Cal. Elec. Code § 2170; Colo. Rev. Stat.
§ 1-2-217.7; Conn. Gen. Stat. § 9-19j; D.C. Code
§ 1-1001.07(g)(5); H.B. 2590, 27th Leg. (Haw. 2014)
(taking effect in 2018); Idaho Code Ann. § 34-408A; 10
Ill.Comp.Stat. Ann. 5/4-50, 5/5-50, 5/6-50; Iowa Code §
48A.7A; Me. Rev. Stat. Ann. tit. 21-A, § 122(4); Md.
Code Ann., Elec. Law § 3-305 (2016) (allowing same-day
registration during early voting); Minn. Stat. § 201.061
(Subd. 3); Mont. Code Ann. § 13-2-304(1)(a); N.C. Gen.
Stat. § § 163-82.6A(a), 163-227.2(b) (allowing
same-day registration during one-stop voting period); N.H.
Rev. Stat. Ann. § 654:7-a; Vt. Stat. Ann. tit. 17,
§ 2144; Wisc. Stat. § 6.55; Wyo. Stat. Ann. §
22-3-104; see also Utah Code Ann. § 20A-4-108 (pilot
program that continued through 2016).
Dr. Barry Burden
of EDR on Voter Registration and Voter
After conducting an independent review of the peer-reviewed
scholarship on EDR, Dr. Burden finds that studies have shown
that EDR increases voter turnout by between three and six
order to analyze the effect that EDR would have on voter
turnout in Massachusetts and which groups would benefit from
EDR, Dr. Burden ran a cross-sectional regression analysis.
Dr. Burden determined that a cross-sectional regression
analysis on 2012 voter data would be an appropriate model for
The Census Bureau conducts a survey of individuals and
collects data as part of its Current Population Survey (CPS).
Every two years the CPS asks individuals if they voted, and,
if they did not vote, why not.
well designed election day registration law is good public
The first adopters of EDR were able to administer EDR at the
polling place using paper registrations and poll books. Some
states today continue to administer their EDR process by
Milwaukee is a large urban municipality in Wisconsin.
Milwaukee is demographically similar to Boston.
Neil Albrecht is the Executive Director of the Election
Commission for the City of Milwaukee in Wisconsin.
Albrecht's responsibilities in this position are to
oversee all aspects of election management and coordination
in Milwaukee. Albrecht has worked at the Election Commission
for the City of Milwaukee for twelve years.
Like elections in Massachusetts, elections in Wisconsin are
administered at the local, municipal level rather than at the
in Massachusetts, eligible citizens in Milwaukee may register
to vote in several ways. In Milwaukee, voters may register by
mail, online, in-person at the Milwaukee Electoral
Commission, in-person at municipal libraries, or in-person at
the polls on Election Day. Registration online and at
municipal libraries closes 20 days prior to each election in
Milwaukee (or the third Wednesday before each election).
Voters may still register to vote at the Milwaukee Election
Commission up until the Friday before each election, or at a
polling location on Election Day.
Wisconsin has had EDR since 1975. Wisc. Stat. § 6.55.
Election Day, voters in Milwaukee who wish to register to
vote using Election Day Registration appear at their local
polling place. An election official confirms that they are
registering at the correct place, and then confirms that the
person possesses the necessary qualifications and
documentation to vote, including identification and proof of
residence. The voter then completes a same-day registration
form in paper, and, they are then permitted to vote. After
the election, a local election official enters the
registration information into a statewide computer system
called WisVOTE. The Milwaukee Election Commission's voter
registration staff and temporary staff enter registrations
Voters who are unable to provide sufficient photo ID at the
time they are voting, or whose registration information is
incomplete at the time of registration, are issued a
provisional ballot. Provisional ballots are noted in WisVOTE
and held until the Friday following the election, by which
time the voter must provide the missing identification or
information for their vote to be counted.
Wisconsin law requires that all Election Day registrations be
entered into WisVOTE no later than thirty days after a
primary, spring, or special elections, and no later than
forty-five days after a general election.
Milwaukee keeps a log of every Election Day registration
using a supplemental form, which is used to cross-check that
every Election Day registration form has been received and
properly entered into WisVOTE. The city has entered Election
Day registrations within the forty-five days following a
general election for at least the past eleven years.
WisVOTE was adopted in 2016. Prior to WisVOTE, Wisconsin used
a similar database known as the Statewide Voter Registration
System. WisVOTE is used to manage voter registrations and
track voter participation in elections. Registrations that
are mailed into the City of Milwaukee are also entered into
Employees of the Election Commission for the City of
Milwaukee are able to process same-day registration voter
forms in two to four minutes each.
During the 2014 midterm elections, approximately 45, 000
voters in Milwaukee filled out a registration form on
the November 2016 election, over 247, 000 people voted in
Milwaukee. For each of the past three biennial elections
(November 2016, November 2014, and November 2012), about 20%
of voters in the City of Milwaukee registered on Election
Day. In Milwaukee, EDR has expanded voter participation and
reduced confusion regarding the registration process.
Approximately 330, 000 residents are registered voters in
Milwaukee, and a typical turnout for a presidential election
is 85% of registered voters.
EDR also offers voters inspired to vote close to an election
the opportunity to do so.
Milwaukee, voters from precincts with high student
populations, high minority populations, and high
concentrations of poverty are more likely to use EDR.
EDR is an effective mechanism for furthering the goals of the
Elections Commission for the City of Milwaukee, namely the
provision of fair, accurate, and accessible elections.
EDR increases access to voting and thus substantially
increases voter participation. Wisconsin is among the states
with the highest voter participation rates in presidential
elections. EDR reduces the use of provisional ballots, which
introduce inefficiency and further burdens on voters and poll
The Milwaukee Election Commission is able to implement EDR
and at the same time undertake its other election duties such
as voter registration, campaign finance reporting, filing
requirements for political candidates, and absentee and
mail-in ballot administration with a staff of eight
total of 654 poll books are printed in Milwaukee. Electronic
poll books are not used in the City of Milwaukee. In
Milwaukee, books are generally printed within days after
workers finish entering mail-in registrations into WisVOTE.
The Secretary has conducted no formal study and has issued no
findings as to the burden of implementing or administering
EDR in Massachusetts . . .
Before the Massachusetts legislature adopted the current
Early Voting law, the Secretary's Office proposed a bill
that would have permitted " advanced voting." This
bill would have required advanced voting to be held on the
same day as the voter registration deadline, namely twenty
days before the election.
Section 16(b) of Chapter 111 of the Acts of 2014 (An Act
Relative to Election Laws) (May 22, 2014) ordered the
creation of an elections task force, that was required by
statute to study a variety of election issues, including
same-day registration. The Secretary or a designee is
designated to sit on this task force. The statute requires
the " task force [to] submit its report and
recommendations, together with drafts of legislation to carry
its recommendations into effect, with the clerks of the house
and senate on or before August 1, 2017." Id.
of April 5, 2017, this task force had not yet convened an
The Secretary's Undisputed Proposed Findings of
Elections in Massachusetts
addition to providing training and guidance to local
elections officials on matters of election administration,
the Elections Division in the Office of the Secretary of the
Commonwealth prepares, prints, and delivers early voting
ballots, absentee ballots, official ballots and envelopes for
each of these. For the 2016 statewide election, over 500
unique forms of ballots were prepared.
The Elections Division ensures that local elections officials
have properly tested their voting equipment and that the
polling places are accessible.
There are 2, 174 precincts in Massachusetts. In 2016, there
were 1316 unique polling places.
Local election officials are responsible for processing voter
Following the processing of a mail-in voter registration,
local election officials mail an acknowledgment form to the
voter. If that acknowledgment form is returned as
undeliverable, the local election official moves the voter to
the " inactive voters" list and sends a
confirmation of that change.
voter on the inactive voters list may appear at a polling
place and vote upon showing identification.
Local election officials are responsible for preparing voters
list, consisting of every registered voter in the city or
town organized by address [except that the voter lists used
on election day does not include voters who registered after
the [20-day deadline] and do not necessarily include
Specially Qualified Voters].
For election-day voting in the 2016 statewide election, voter
lists were required to be on paper. Electronic poll books
containing the same information will be permissible for use
in future elections, if approved by the Secretary of the
Electronic poll books were permitted for use in early voting
Local election officials are responsible for hiring and