SECRETARY OF THE COMMONWEALTH Bill Galvin and voting rights advocates want to allow Massachusetts residents to vote by mail for any reason. But is that constitutional?
The Massachusetts Constitution explicitly says the Legislature can authorize absentee voting for just three reasons: if someone is out of town, physically disabled, or cannot vote on Election Day due to a religious belief.
Lawmakers acknowledged the constraint in 2013, when they considered but did not act on a constitutional amendment to allow absentee voting for any reason.
“There’s been a long-term traditional view that opportunities to vote by mail in Massachusetts are constrained by the Constitution, which specifies particular conditions under which you can do this,” said Evan Horowitz, executive director of the Center for State Policy Analysis at Tufts University.
Last year amid the pandemic, the Legislature allowed anyone to apply for an absentee ballot by defining COVID-19 precautions as a physical disability. They also allowed universal early voting by mail, under the rationale that the constitutional constraint does not apply to early voting, which the state just adopted in 2014. In other words, early ballots, even if they are mailed in, are different from absentee ballots.
It is the latter opinion that Galvin is relying on in introducing his new bill, which would permanently expand early voting by mail.
David Sullivan, an attorney working with a coalition of advocates pushing to make mail-in voting permanent, penned a legal memo arguing that the Legislature has authority to authorize mail-in voting. Sullivan examined the legislative intent during the 1917 constitutional convention that passed the constitutional amendment authorizing absentee voting. The amendment was intended to address a constitutional provision requiring senators to be chosen at “meetings” with voters physically present.
A lawmaker said at the time that the Legislature wanted to let “the soldiers, the traveling men, and the laboring man who may be kept away, or the railroad man” vote. (Elections for senators by written ballot were instituted the following year.) Later amendments were passed adding disabilities and religious beliefs to the reasons allowed for absentee voting.
Sullivan believes the Legislature can authorize vote by mail for any reason, but he acknowledged in an interview that his interpretation is unlikely to be universally accepted. “I expect it will be litigated at some point,” Sullivan said.
The bill supported by the advocates specifies that any challenge to the constitutionality of voting by mail must be brought in the Supreme Judicial Court within 180 days after the bill’s passage. A lawsuit would be barred if it sought to overturn the outcome of an election in which people already voted.
“We obviously don’t want people to vote by mail then find out afterwards that it was illegal,” Sullivan said.