THE SUPREME JUDICIAL COURT on Tuesday dismissed the major constitutional challenge that has been levied against the new state law allowing voting by mail, formally addressing a legal question that has been hovering over attempts to expand the law for years. The court found that the Constitution, which lays out specific reasons why someone may vote absentee, does not prohibit the Legislature from expanding voting access beyond that.
“Voting is a fundamental right, and nothing in [the Constitution] prohibits the Legislature, which has plenary constitutional powers, including broad powers to regulate the process of elections and even broader powers with respect to primaries, from enhancing voting opportunities,” Justice Scott Kafker wrote in a 61-page unanimous opinion.
In June, the Legislature passed, and Gov. Charlie Baker signed, a law that authorizes early voting by mail for any voter without an excuse in all state elections, starting this year. Early voting by mail was first authorized as an emergency measure in 2020 during the COVID-19 pandemic, and voting rights advocates pointed to high turnout in the 2020 elections in urging lawmakers to adopt voting by mail permanently. But the Massachusetts Republican Party and other opponents worried that mail-in voting would be less secure and raised a host of other concerns.
Republican Party Chair Jim Lyons and other GOP activists sued, arguing that the new law is unconstitutional.
The Constitution authorizes absentee voting for three reasons: if someone is out of town, physically disabled, or cannot vote on Election Day due to a religious belief. In 2013, the Legislature actually considered but did not act on a constitutional amendment to allow no-excuse absentee voting.
The Republicans said no-excuse early voting by mail is an unconstitutional expansion of absentee voting.
Proponents of the new law, including Secretary of the Commonwealth Bill Galvin, argued that early voting is different from absentee voting, so early voting by mail is not subject to the same constitutional constraints. Early in-person voting was first authorized in 2014.
The SJC upheld the new law on July 11, issuing a ruling quickly because ballots needed to go out for the September 6 state primary. But the justices took time to write up the reasoning behind that decision, and their opinion was released Tuesday.
The court said the language of the Constitution clearly does not apply to primaries, so the only question is about voting in the general election. The court wrote that it respects the Legislature’s authority – its “essential role in enacting the laws that will transform fundamental constitutional principles, including the right to vote, into practical realities.” And the court acknowledged the fundamental right to free elections where every citizen has an equal opportunity to vote.
“All of these considerations support the constitutionality of universal early voting,” Kafker wrote. “In the VOTES act… the Legislature, pursuant to its plenary powers, sought to protect and enhance the exercise of the right to vote guaranteed by these different constitutional provisions. It also did so universally and equally, without granting any particular group special privileges or imposing any special burdens on others.”
While the Constitution grants legislative authority to provide for absentee voting to voters who can satisfy any of the three specified criteria, Kafker wrote, it “makes no mention of limiting the Legislature’s plenary authority to provide for other forms of voting or otherwise restricting voting to in person on Election Day.” While the Constitution establishes the timing of Election Day, the court ruled that does not limit the Legislature’s ability to allow voting before Election Day as well.
The decision also dismisses several other claims the Republicans made against various provisions of the law related to appointing poll workers, banning electioneering near polling places, counting ballots of people who died after casting them, and letting disabled and military voters vote electronically.