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Chelsea Collaborative, Inc. v. Secretary of Commonwealth

Supreme Judicial Court of Massachusetts, Suffolk

July 2, 2018


          Heard: March 6, 2018.

         Civil action commenced in the Superior Court Department on November 1, 2016.

         The case was heard by Douglas H. Wilkins, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          David C. Kravitz, Assistant State Solicitor (Juliana deHaan Rice, Assistant Attorney General, also present) for Secretary of the Commonwealth.

          Jessie J. Rossman (Kirsten V. Mayer also present) for the plaintiffs.

          The following submitted briefs for amici curiae:

          M. Patrick Moore, Jr., for Common Cause & others.

          Kyle 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.

          Debo 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.

          BUDD, J.

         We are 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.[3]


         We 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 specific issues.

         1. The voter registration statute.

         Massachusetts 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, § 6.[4] 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 deadline).

         The Commonwealth has a long history of regulating the right to vote by way of voter registration laws.[5] 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).

         In 1877 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;[6] St. 1879, c. 37, § l.[7] 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, § 1;[8] 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.[9]In 1973, the blackout period was reduced to twenty-eight days before election day. St. 1973, c. 853, § 1.[10]

          In 1993, Congress enacted the National Voter Registration Act, commonly known as the "motor voter" law.[11] 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.

         In 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, § 25B.[12]

         2. Factual and procedural history.

         The 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.[13]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.[14] 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 ballot."[15]

         The 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).


         1. The right to vote.

         "[V]oting has long been recognized as a fundamental political right and indeed the 'preservative of all rights.'"[16] 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[17] and in art. 3 of the Amendments to the Massachusetts Constitution, as amended (art. 3), [18]'[19]

         We have 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).

         Simultaneously, 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).

         Because 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").[20] 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").

         The 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 necessary."

          As 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).

         In 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) .

         In 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 490.

         However, 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") .[21]

          Before making a determination as to the constitutionality of the twenty-day requirement, we must determine which level of scrutiny to apply.

         2. The burden of registration requirements on the right to vote.

         Whether 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.[22] 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 period").

         However, 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., ...

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