Chelsea Collaborative, Inc. v. Secretary of Commonwealth, 070218 MASC, SJC-12435

Docket Nº:SJC-12435
Opinion Judge:BUDD, J.
Party Name:CHELSEA COLLABORATIVE, INC., & others [1] v. SECRETARY OF THE COMMONWEALTH & others. [2]
Attorney: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 C...
Judge Panel:Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. GANTS, C.J. (concurring, with whom Lenk and Gaziano, JJ., join).
Case Date:July 02, 2018
Court:Supreme Judicial Court of Massachusetts
 
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CHELSEA COLLABORATIVE, INC., & others [1]

v.

SECRETARY OF THE COMMONWEALTH & others. [2]

No. SJC-12435

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]

Background.

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).

Discussion.

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...

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