Heard: March 6, 2018.
action commenced in the Superior Court Department on November
case was heard by Douglas H. Wilkins, J.
Supreme Judicial Court granted an application for direct
C. Kravitz, Assistant State Solicitor (Juliana deHaan Rice,
Assistant Attorney General, also present) for Secretary of
J. Rossman (Kirsten V. Mayer also present) for the
following submitted briefs for amici curiae:
Patrick Moore, Jr., for Common Cause & others.
C. Wong & Maxwell E. Alderman, of California, Dhruv Sud,
of the District of Columbia, Naila S. Awan, of New York,
Allison Boldt, of Minnesota, Ellen A. Scordino, & Michael
E. Welsh for Demos & others.
P. Adegbile, Janet R. Carter, William Roth, of New York,
& Eric L. Hawkins for Alexander Street.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
asked to determine the constitutionality of a statutory
scheme requiring registration at least twenty days prior to
election day in order for an otherwise qualified voter to
vote in that election. See G. L. c. 51, §§ IF, 26,
34. For the reasons that follow, we conclude that the
twenty-day blackout period for voter registration prior to an
election does not violate the Massachusetts Constitution.
However, we further conclude that, having chosen to impose a
deadline for voter registration prior to an election, the
Legislature has a continuing duty to ensure that the deadline
is no further from election day than what the Legislature
reasonably believes is consistent with the Commonwealth's
interest in conducting a fair and orderly election.
summarize the history of voter registration requirements in
the Commonwealth as well as the facts and procedural history
of this case, reserving certain details for discussion of
The voter registration statute.
law requires those planning to vote in an election to
register in advance; as of 1993, prospective voters must do
so at least twenty days prior to election day. G. L. c. 51,
§ 26, as amended through St. 1993, c. 475, §
See G. L. c. 51, §§ 1 (requiring voters to comply
with requirements of G. L. c. 51 in order to vote), IF
(establishing voter registration deadline twenty days prior
to election day for presidential and vice-presidential
elections), and 34 (registrars may not register individuals
to vote for upcoming election after voter registration
Commonwealth has a long history of regulating the right to
vote by way of voter registration laws. See St. 1822, c. 104,
§ 2. In 1874, the Legislature enacted a law that
permitted qualified citizens to register to vote at a
registration session the day before elections in cities and
towns with more than 1, 000 inhabitants and at a registration
session within forty-eight hours of elections and again one
hour before the election meeting in other towns. St. 1874, c.
376, §§ 8, 9, 13. See St. 1874, c. 60 (setting
forth voter registration requirements for Boston).
and 1879, the Legislature first established a longer blackout
period between the deadline to register and election day for
cities and for towns respectively. See St. 1877, c. 235,
§ 2; St. 1879, c. 37, § l.
Subsequently, the Legislature made numerous adjustments to
the voter registration deadline before enacting a twenty-day
blackout period for voter registration applicable to cities
in 1894 and Statewide in 1928. See St. 1928, c. 103, §
St. 1894, c. 271, §§ 1-2; St. 1893, c. 417, §
40; St. 1892, c. 351, §§ 15-18; St. 1884, c. 298,
§ 37. Beginning in 1947, for a time, the registration
deadline was over thirty days before election day. St. 1947,
c. 34, § l.In 1973, the blackout period was
reduced to twenty-eight days before election day. St. 1973,
c. 853, § 1.
1993, Congress enacted the National Voter Registration Act,
commonly known as the "motor voter" law. Pub. L.
103-31, 103d Cong., 1st Sess., 107 Stat. 77 (1993). The
Federal motor voter law provided that State voter
registration blackout periods may not be longer than thirty
days prior to any Federal election. 52 U.S.C. § 20507.
Shortly thereafter, the Legislature enacted a State version
of the motor voter law, in which it returned the voter
registration deadline for all elections in the State to
twenty days prior to an election, where it remains today. St.
1993, c. 475, § 6, amending G. L. c. 51, § 26.
2014, the Legislature authorized "early voting" for
any biennial State election, permitting all voters who
register by that deadline to vote earlier than election day.
See St. 2014, c. Ill. § 12, inserting G. L. c. 54,
Factual and procedural history.
plaintiffs comprise two voter registration organizations and
an individual who registered to vote less than twenty days
before the November, 2016, election and sought to vote in
that election.The plaintiffs filed a complaint on
November 1, 2016, in the Superior Court against the Secretary
of the Commonwealth (Secretary) and the election commissioner
of Revere, the city clerk of Chelsea, and the chairman of the
Somerville election commission (collectively, municipal
defendants) for declaratory relief. The complaint sought a
preliminary injunction allowing the three original individual
plaintiffs to vote in the November, 2016, election.
Granting the request for a preliminary injunction, a Superior
Court judge ordered the municipal defendants to accept and to
count provisional ballots from the individual plaintiffs.
After a bench trial, the judge declared G. L. c. 51,
§§ 1, IF, 26, and 34, to be "unconstitutional
to the extent that their [twenty]-day deadline operates to
deny constitutionally qualified voters the right to cast a
Secretary appealed, and this court granted the parties'
joint application for direct appellate review. In nonjury
cases, "[w]e accept the judge's findings of fact
unless there is clear error." Silva v.
Attleboro, 454 Mass. 165, 167 (2009). "However,
'we scrutinize without deference the legal standard which
the judge applied to the facts.'" Id., quoting
Kendall v. Selvaggio, 413 Mass. 619, 621 (1992).
The right to vote.
has long been recognized as a fundamental political right and
indeed the 'preservative of all
rights.'" Massachusetts Pub. Interest
Research Group v. Secretary of the Commonwealth, 375
Mass. 85, 94 (1978), quoting Yick Wo v. Hopkins, 118
U.S. 356, 370 (1886). The Constitution of the Commonwealth
expressly protects the right to vote for qualified voters in
both art. 9 of the Massachusetts Declaration of
Rights and in art. 3 of the Amendments to
the Massachusetts Constitution, as amended (art. 3), '
established that the fundamental right to vote is also
implicitly protected under other provisions of the
Declaration of Rights. See Dane v. Registrars of Voters
of Concord, 374 Mass. 152, 160 (1978) (right to vote is
protected as "natural, essential, and unalienable
right" under art. 1 of Declaration of Rights [citation
omitted]); Swift v. Registrars of Voters of Quincy,
281 Mass. 271, 276 (1932) ("The right to vote is a
precious personal prerogative to be sedulously guarded"
under "[a]rts. 4, 7, 8, [and] 9 of the Declaration of
Rights"); Attorney Gen, v. Suffolk County
Apportionment Comm'rs, 224 Mass. 598, 601 (1916)
("The right to vote is a fundamental personal and
political right" protected under arts. 1 through 9 of
Declaration of Rights).
the Constitution provides the Legislature with broad
authority as part of the State's police power, to enact
reasonable laws and regulations that are, in its judgment,
appropriate. Part II, c. 1, § 1, art. 4, of the
Constitution of the Commonwealth. See Massachusetts
Comm'n Against Discrimination v. Colangelo, 344
Mass. 387, 395 (1962).
the right to vote is a fundamental one protected by the
Massachusetts Constitution, a statute that significantly
interferes with that right is subject to strict judicial
scrutiny. See Cepulonis v. Secretary of the
Commonwealth, 389 Mass. 930, 932, 935 (1983) (subjecting
statutory scheme that did not permit qualified citizens to
register to vote in State elections during their
incarceration to strict scrutiny); Langone v. Secretary
of the Commonwealth, 388 Mass. 185, 196, cert, denied,
460 U.S. 1057 (1983) ("Strict scrutiny is required if
the interests asserted by the plaintiffs are fundamental and
the infringement of them is substantial"). See
also Doe No. 1 v. Secretary of Educ., 479 Mass. 375,
392 (2018), quoting Zablocki v. Redhail, 434 U.S.
374, 386 (1978) ("only a statute that 'significantly
interfere[s] with' the fundamental right at issue burdens
that right and justifies application of strict
scrutiny"). By contrast, statutes that do not
significantly interfere with the right to vote but merely
regulate and affect the exercise of that right to a lesser
degree are subject to rational basis review to assure their
reasonableness. See McSweeney v. Cambridge, 422
Mass. 648, 656 (1996); Kinneen v. Wells, 144 Mass.
497, 499-500 (1887); Capen v. Foster, 12 Pick. 485,
490 (1832). See also Lee v. Commissioner of Revenue,
395 Mass. 527, 530 (1985) ("not every statute that
affects [a fundamental right] must be supported by a
compelling State interest").
parties dispute the standard of review that applies in this
case. The plaintiffs argue that the appropriate standard to
apply to the voter registration deadline is a
"necessity" test, to be applied in a manner
functionally similar to strict scrutiny. The plaintiffs
derived the necessity test from language in Kinneen,
144 Mass. at 499, where this court provided that any
legislation diminishing the right to vote must be
"defended on the ground that it is reasonable and
discussed infra, we reaffirm the court's
reasoning in Kinneen. However, we do not interpret
the word "necessary" as used in Kinneen to
be "fused with special meaning" from more modern
jurisprudence such that strict scrutiny is always the
applicable standard for reviewing regulations on the right to
vote. Cf. United States Trust Co. of N.Y. v. New
Jersey, 431 U.S. 1, 54 n.17 (1977) (Brennan, J.,
dissenting). Instead, the language from Kinneen
contemplates a significant role for the Legislature in
determining which regulations are appropriate. See Cole
v. Tucker, 164 Mass. 486, 489 (1895) (use of official
ballots as they "are such as may properly be deemed
necessary by the Legislature"); 1 Op. Atty. Gen. 54, 55
(1899) (voter registration regulations "can be sustained
only if it is a necessary or reasonable regulation for the
purpose in view; and this is largely a question for the
judgment of the Legislature"). Our inquiry recognizes
different levels of scrutiny depending on the substantiality
of the interference with the voting right. See
Kinneen, 144 Mass. at 501, quoting Capen,
12 Pick, at 489 (statutes that "subvert or injuriously
restrain the right" to vote "under the pretence and
color of regulating" are beyond legislative power).
arguing that a "sliding scale" standard of review
applies, the Secretary relies heavily on Libertarian
Ass'n of Mass. v. Secretary of the
Commonwealth, 462 Mass. 538, 558 (2012), where we
clarified that art. 9 does not extend any ballot access
protections beyond the Federal constitutional requirements.
But see Glovsky v. Roche Bros. Supermkts., Inc., 469
Mass. 752, 762 (2014) (clarifying holding in
Batchelder); Batchelder v. Allied Stores
Int'l, Inc., 388 Mass. 83, 88-89 (1983) (unlike
Federal Constitution, infringements on electoral candidate
rights under art. 9 do not require State action). Applying
the Federal analysis, we said that "[r]egulations
imposing severe burdens on a plaintiffs' rights must be
narrowly tailored and advance a compelling state interest.
Lesser burdens . . . trigger less exacting review, and a
State's 'important regulatory interests' will
usually be enough to justify 'reasonable,
nondiscriminatory restrictions.'" Libertarian
Ass'n of Mass., supra at 560, quoting
Timmons v. Twin Cities Area New Party, 520 U.S. 351,
358 (1997) .
general, this "sliding scale" analytical framework
is appropriate for cases that involve voting rights under the
Massachusetts Constitution because that framework reflects
both our Constitution's numerous provisions granting
qualified citizens the fundamental right to vote and its
grant of police power to the Legislature, which we have
concluded authorizes the Legislature to regulate that right.
See, e.g., Cole, 164 Mass. at 488 ("principal
question then is, whether [elections law] . . . is a
reasonable regulation of the manner in which the right to
vote shall be exercised, or whether it subverts or
injuriously restrains the exercise of that right");
Kinneen, 144 Mass. at 499-500; Capen, 12 Pick, at
in this case and others, there may be circumstances where the
Massachusetts Declaration of Rights and art. 3 require
application of this analysis in a manner that "guard[s]
more jealously against the exercise of the State's police
power" than the application of the framework under the
Federal Constitution. Blue Hills Cemetery, Inc.
v. Board of Registration in Embalming & Funeral
Directing, 379 Mass. 368, 373 n.8 (1979), quoting
Coffee-Rich, Inc. v. Commissioner of Pub.
Health, 348 Mass. 414, 421 (1965). See Goodridge v.
Department of Pub. Health, 440 Mass. 309, 328 (2003)
("The Massachusetts Constitution protects matters of
personal liberty against government incursion as zealously,
and often more so, than does the Federal Constitution, even
where both Constitutions employ essentially the same
language"); Planned Parenthood League of Mass.,
Inc. v. Attorney Gen., 424 Mass. 586, 590
(1997) ("we must accept responsibility for interpreting
our own Constitution as text, precedent, and principle seem
to us to require") .
making a determination as to the constitutionality of the
twenty-day requirement, we must determine which level of
scrutiny to apply.
The burden of registration requirements on the right to
to apply the rational basis test or strict scrutiny to the
requirement that a prospective voter register twenty days in
advance of an election depends on whether that requirement
significantly interferes with the fundamental right to
vote. See Doe No. 1, 479 Mass.
at 392; McSweeney, 422 Mass. at 656;
Cepulonis, 389 Mass. at 932, 935.
Although we have not before directly reviewed the
constitutionality of the length of a voter registration
blackout period prior to an election, we have certainly
acknowledged the existence of a preregistration system for
voting. See Kinneen, 144 Mass. at 500 ("It is
not an unreasonable provision that all persons entitled as
voters shall be registered as such previously to depositing
their ballots . . ."); Capen, 12 Pick, at 488.
Thirty-five years ago, we implied in dicta that a voter
registration blackout period longer than twenty days before
election day would not likely violate the Massachusetts
Constitution. See Cepulonis, 389 Mass. at 937
("The time limit in [Rosario v. Rockefeller,
410 U.S. 752 (1973), ] did not absolutely disenfranchise
voters or deprive them of the right to vote for a lengthy
we acknowledge that, with the passage of time, voting
regulations once considered constitutionally permissible may
come to significantly interfere with the fundamental right to
vote in light of conditions existing in contemporary society.
Cf. Goodridge, 440 Mass. at 341 n.33 ("We are
concerned with the operation of challenged laws on the
parties before us, and we do not inhibit our inquiry on the
ground that a statute's original enactors had a benign or
at the time constitutionally unassailable purpose").
What was perhaps a reasonable regulation that insignificantly
interfered with the right to vote thirty-five, one hundred,
or 200 years ago may be considered to significantly interfere
with the exercise of that right today in light of
technological change and the reasonable expectations of
Massachusetts citizens. Cf. Columbia Broadcasting Sys.,
Inc. v. Democratic Nat'1 Comm., ...