Goldstein v. Secretary of the Commonwealth

• Court: Massachusetts Supreme Judicial Court
• Decided: April 17, 2020
• Docket: SJC 12931
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

SJC-12931

ROBERT GOLDSTEIN1 & others2 vs. SECRETARY OF THE COMMONWEALTH.

Suffolk. April 16, 2020. - April 17, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

Elections, Ballot, Validity of nomination papers. Secretary of the Commonwealth. Constitutional Law, Elections.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 8, 2020.

The case was reported by Cypher, J.

Robert G. Jones for the plaintiffs. Anne Sterman, Assistant Attorney General, for the defendant. Thomas O. Bean & James D. Henderson, for Ranked Choice Voting 2020 Committee, amicus curiae, submitted a brief.

GANTS, C.J. On April 8, 2020, the plaintiffs, each of whom

seeks to be a candidate for elective office in the primary

1 On behalf of himself and others similarly situated.

2 Kevin O'Connor and Melissa Bower Smith, on behalf of themselves and others similarly situated. 2

election scheduled for September 1, 2020, brought an emergency

petition in the county court, seeking relief under G. L. c. 214,

§ 1, and G. L. c. 231A, § 1. They requested a declaration that,

in light of the emergency circumstances arising from the COVID-

19 pandemic, the signature requirements in G. L. c. 53, §§ 7 and

44 (minimum signature requirements), to be listed on the ballot

for a party's nomination pose an "unconstitutionally severe

burden on the fundamental rights" of all Massachusetts would-be

candidates. They seek, by means of this declaration, to

eliminate the minimum signature requirements for the September 1

primary election. In the alternative, they asked for various

forms of equitable relief, such as substantially reducing the

number of required signatures of certified voters, extending the

applicable filing deadlines, and permitting electronic

signatures, as a means of remedying the constitutional

violation. A single justice of this court reserved and reported

this petition to the full court.

The plaintiffs do not contend that the minimum signature

requirements in §§ 7 and 44 are facially unconstitutional; that

is, they do not contend that these requirements unduly burden

the constitutional right of a candidate to seek elective office

in ordinary times. Rather, they contend that these

requirements, when applied in these extraordinary times of a

declared state of emergency arising from the COVID-19 pandemic, 3

create an undue burden on a prospective candidate's

constitutional right to seek elective office.

The Secretary of the Commonwealth (Secretary) agrees that,

"as a practical matter, application of the signature

requirements in the context of the current public health crisis

imposes a greater than usual burden on [the plaintiffs],

triggering heightened scrutiny." The Secretary also agrees

that, in this time of pandemic, the justification for the

current signature requirements cannot survive this scrutiny, and

that this court must craft a remedy for this constitutional

violation. We also agree, and fashion equitable relief intended

to substantially diminish that burden, while respecting the

legislative purpose for imposing minimum signature requirements.

In short, for all candidates seeking to appear on the State

primary ballot on September 1, we order three forms of relief.

First, we order that the number of required signatures be

reduced by fifty percent (50%). Second, we extend the deadlines

for candidates running for State district and county offices to

submit their nomination papers to local election officials for

certification and for the filing of certified nomination papers

with the Secretary to May 5, 2020, and June 2, 2020,

respectively, which are the current due dates for party

candidates running for Federal and Statewide offices. Third,

subject to the restrictions outlined later in this opinion, we 4

order the Secretary to allow the submission and filing of

nomination papers with electronic rather than wet-ink original

signatures ("wet" signatures). We emphasize that the

declaration we make and the equitable relief we provide is

limited to the primary election in these extraordinary

circumstances, which is the sole subject of the case before us,

and does not affect the minimum signature requirements for the

general election this year or for the primary elections in any

other year.3

Background. 1. Ballot access. This year, 2020, is an

election year in Massachusetts for certain Federal,4 State,5 and

county offices.6 The State primary election, in which candidates

3 We acknowledge the amicus letter submitted by the Ranked Choice Voting 2020 Committee.

4 Federal offices include electors of President and Vice- President, United States senator (the seat currently held by Senator Edward Markey), and United States representative (all nine districts). See Secretary of the Commonwealth, A Candidate's Guide to the 2020 State Election, at 5 (rev. Feb. 2020) (2020 Candidate's Guide).

5 Statewide offices include executive councilor (all eight districts), State senator (all forty districts), and State representative (all 160 districts). See 2020 Candidate's Guide, supra.

6 County offices include the register of probate (Barnstable, Bristol, Dukes, Norfolk, and Plymouth Counties only), county commissioner (same), county treasurer (Bristol, Dukes, Norfolk, and Plymouth Counties only), council of government executive committee (Franklin County only), and sheriff (Norfolk County only). See 2020 Candidate's Guide, supra. 5

affiliated with the various political parties (Democratic,

Green-Rainbow, Libertarian, and Republican) are nominated to run

for the offices at issue, is currently scheduled for September

1, 2020. See Secretary of the Commonwealth, A Candidate's Guide

to the 2020 State Election, at 5 (rev. Feb. 2020) (2020

Candidate's Guide). The general election, in which the party

nominees will compete against one another as well as against any

nonparty candidates for the offices on the ballot, is scheduled

for November 3, 2020. See id.

The three plaintiffs aspire to appear on the State primary

election ballot in September in an effort to secure their

respective party's nominations for three different Federal and

State offices. Robert Goldstein seeks to be the Democratic

Party's nominee for the office of United States representative

for the Eighth Congressional District in Massachusetts. Kevin

O'Connor seeks the Republican Party's nomination for the office

of United States senator. Melissa Bower Smith aspires to be the

Democratic Party's nominee for the office of State

representative for the Fourth Norfolk District.

a. Minimum signature requirements. To appear on the

ballot, candidates like the plaintiffs are required by statute

to, among other things, submit nomination papers containing a 6

minimum number of certified voter signatures.7 See G. L. c. 53,

§ 44. The number of certified signatures required differs

depending on the office the candidate is seeking. Id. For

example, a candidate like O'Connor, seeking election as a United

States senator, must secure 10,000 certified voter signatures.

Id. A candidate like Goldstein, seeking election as a

representative to the United States Congress, requires 2,000.

Id. And a candidate seeking election as a State representative,

like Smith, must obtain 150. Id.8

b. Certified signatures. To qualify as "certified," a

signature must be of a voter registered in the geographic area

corresponding to the office for which the candidate is seeking

nomination. See G. L. c. 53, § 7. In addition, if the

candidate is seeking the nomination of a particular political

7Candidates for Federal and Statewide offices who are not affiliated with a party also must satisfy certain minimum signature requirements to appear on the general election ballot in November. The deadlines for the submission and filing of their nomination papers, however, do not expire until July 28 and August 25, 2020. See 2020 Candidate's Guide, supra at 6-9. Federal and Statewide nonparty candidates, therefore, are not similarly situated to the plaintiffs. Nor has anyone appeared in this action and challenged the signature requirements and deadlines for nonparty candidates for Federal or Statewide offices. Therefore, we do not address the constitutionality of those requirements and deadlines.

8The number of certified voter signatures required for the other offices at issue in the upcoming State primary election are as follows: Executive councilor, 1,000; State senator, 300; Barnstable and Franklin County offices, 500; and all other county offices, 1,000. See G. L. c. 53, § 44. 7

party, as is the case with the plaintiffs, the voter must be

registered with the same party or as "unenrolled," meaning

registered to vote, but with no party affiliation.9 See G. L.

c. 53, § 37; 2020 Candidate's Guide, supra at 13. Accordingly,

for a candidate like O'Connor, seeking the Republican Party

nomination for United States senator, a Statewide office,

signatures may be secured from voters registered anywhere in

Massachusetts as either Republicans or unenrolled. For a

candidate like Goldstein or Smith, seeking the Democratic Party

nomination to represent a specific district in Massachusetts,

the signatures must be from voters registered in that district

as either Democrats or unenrolled.

c. Nomination papers. The process for obtaining and

certifying the required number of signatures commences when the

Secretary prepares the nomination papers and furnishes them to

candidates. See G. L. c. 53, § 47. This year, the nomination

papers were furnished on February 11, 2020.10 Before obtaining

any signatures, candidates must fill in the top of the

nomination papers with certain information, including their

9 Unenrolled voters are commonly referred to as "Independents." See 2020 Candidate's Guide, supra at 4.

10The Secretary is required to furnish the nomination papers on or before the fifteenth Tuesday preceding the deadline established in G. L. c. 53, § 48, for filing certified nomination papers. See G. L. c. 53, § 47. 8

name, address, and party affiliation (if any), and the office

they are pursuing. See G. L. c. 53, § 8. The candidates, or

others working on their behalf, must then gather voter

signatures on the nomination papers or on "exact copies" of such

forms. See G. L. c. 53, § 17. Voters are required to sign the

nomination papers "in person as registered or substantially as

registered" (emphasis added). G. L. c. 53, § 7. The Secretary

interprets this combination of requirements, that the voter sign

"in person" on the original nomination papers or on "exact

copies" thereof, to mean that the signatures eventually

submitted and filed must be original handwritten or "wet"

signatures. However, "any voter who is prevented by physical

disability from writing may authorize some person to write his

or her name and residence in his or her presence." Id. Voters

also must indicate the address where they are currently

registered on the nomination papers. Id.

d. Certification and filing deadlines. The statutorily

driven timeline that follows the receipt of the nomination

papers from the Secretary has two major deadlines, which can

differ depending on the office a candidate is pursuing. The

first is the deadline by which the candidate must submit the

nomination papers to local election officials for certification.

At least twenty-eight days before the deadline for the

submission of the certified nomination papers to the Secretary, 9

the candidates must submit their nomination papers to local

election officials in each city and town where the individuals

who signed the papers are registered to vote.11 See G. L. c. 53,

§§ 7, 46. For a candidate like Smith, pursuing a seat as a

State representative, this deadline falls on or before April 28,

2020. For candidates like O'Connor and Goldstein, seeking

Federal offices, this deadline falls on or before May 5, 2020.

Applying regulations promulgated by the Secretary, see 950

Code Mass. Regs. § 55.03(1) (2004),12 local election officials

then review each signature on the nomination papers. See G. L.

c. 53, §§ 7, 46. Signatures can be disallowed for a variety of

reasons, including that the voter is not registered at the

address provided, the voter's name as signed does not match the

voter's name as registered, the voter's signature or address is

illegible, the voter is enrolled in the wrong party, or the

voter's signature already appeared on the candidate's nominating

papers. See 950 Code Mass. Regs. § 55.03(1). Due to the

potential for the disallowance of numerous signatures, prudent

candidates collect more signatures than are required, see 2020

Candidate's Guide, supra at 16 (encouraging candidates to do

11"Each nomination paper should contain signatures of registered voters from only ONE city or town." 2020 Candidate's Guide, supra at 16.

12The regulations were promulgated by the Secretary pursuant to authority granted in G. L. c. 53, § 7. 10

just that), and local election officials are required to certify

two-fifths more signatures than are required to make the ballot,

G. L. c. 53, § 7. Local election officials are required to

complete the certification process no later than the seventh day

before the deadline for the submission of the papers to the

Secretary. G. L. c. 53, §§ 7, 46. There then follows a short

period for candidates to seek a review of disallowed signatures.

See G. L. c. 55B, § 6.

The second major deadline, from which the first is

calculated, is the date by which nomination papers certified by

local election officials must then be filed with the Secretary.

For candidates seeking election to State district and county

offices, this deadline is on or before the last Tuesday in May

of an election year, which, this year, means on or before May

26, 2020. See G. L. c. 53, §§ 10, 48. This is the deadline by

which Smith, seeking election as a State representative, must

file her certified nomination papers with the Secretary.

Meanwhile, for candidates who are seeking election to Federal or

Statewide offices, as are O'Connor and Goldstein, the deadline

is on or before the first Tuesday in June, which, in this

election year, is on or before June 2, 2020. See G. L. c. 53,

§ 48.

e. Objection process. Registered voters from the district

in which a candidate seeks nomination have three days from the 11

filing deadlines with the Secretary to file objections to

nomination papers with the State Ballot Law Commission (SBLC).

See G. L. c. 55B, § 5. The SBLC then has twenty-one days from

the closure of the objection periods to render a decision on any

objections. See G. L. c. 55B, § 10. Given the aforementioned

filing deadlines with the Secretary, therefore, objections to

nomination papers would have to be decided by the SBLC on or

before June 19 and 26, 2020, as applicable.

f. Preparation of ballots. For any election in which a

Federal office is at issue, Federal law mandates that ballots

must be transmitted to military and overseas voters no later

than forty-five days in advance of the election. See 52 U.S.C.

§ 20302(a)(8)(A). For the upcoming September 1 primary

election, this means that local election officials must transmit

the ballots to military and overseas voters by July 18. In

turn, this means the Secretary's office may have as little as

eighteen days from the June 26 SBLC decision deadline to the

July 14 date when ballots must be in the hands of local election

officials to prepare, proofread, and finalize the 2,200

different ballot styles required for the different jurisdictions

in the Commonwealth. According to the Secretary's office, this

timeline is already tight, since the process usually takes three

weeks to complete. 12

2. COVID-19 pandemic. On March 10, 2020, the Governor

declared a state of emergency throughout the Commonwealth in

response to the spread of COVID-19, where he invoked his

statutory authority to "from time to time issue recommendations,

directives, and orders as circumstances may require." See

Executive Order No. 591. The following day, the World Health

Organization declared COVID-19 to be a global pandemic. On

March 15, 2020, the Governor issued orders closing all public

and private elementary and secondary schools, prohibiting public

and private gatherings of more than twenty-five people, and

prohibiting the on-premises consumption of food and drink at

restaurants, bars, and other food establishments. Then, on

March 23, 2020, he issued another executive order, further

limiting public and private gatherings to no more than ten

people and requiring all nonessential businesses to close their

physical workplaces and facilities. See COVID-19 Order No. 13.

See also COVID-19 Order No. 21. At his direction, the

Department of Public Health (DPH) issued a "Stay-at-Home

Advisory" the following day, declaring that it was "critically

important" for everybody to "[o]nly leave home for essential

errands such as going to the grocery store or pharmacy," and

that, when people do leave home, to "practice social distancing

by staying [six] feet away from others." DPH Public Health

Advisory: Stay-at-Home Advisory (Mar. 24, 2020). On April 10, 13

DPH issued another advisory recommending that people wear face

coverings or masks when social distancing is not possible. See

DPH Advisory Regarding Face Coverings and Cloth Masks (Apr. 10,

2020). All of these restrictions on everyday life, which will

remain in effect until at least May 4, 2020, have been imposed

in an effort to mitigate the spread of the virus, which can

occur at an alarming rate. Even with these restrictions in

place, as of April 16, 2020, there have been 32,141 confirmed

cases of COVID-19 in Massachusetts, resulting in 1,245 deaths.

See Department of Public Health, Coronavirus Disease 2019

(COVID-19) Cases in MA, as of April 16, 2020, https://mass.gov

/doc/covid-19-cases-in-massachusetts-as-of-april-16-2020

/download [https://perma.cc/FR75-PDFY].

With the onset of the pandemic and the imposition of

restrictions that followed, the plaintiffs and other candidates

could not safely and reasonably gather voter signatures in the

usual ways, namely, going to places where large numbers of

potential registered voters are likely to be, such as town

centers, malls, grocery stores, or political meetings. In the

face of this predicament, the plaintiffs and other candidates

wrote to the Secretary, seeking relief from the minimum

signature requirements. The Secretary, however, maintained that

he lacked the authority to act, and that only the Governor and 14

Legislature could provide such relief.13 The Governor and

numerous legislators have expressed their willingness to

consider a legislative "fix" to the predicament, but bills that

were introduced in the Legislature that would reduce the number

of required signatures for those offices requiring 1,000 or more

signatures by fifty percent, see 2020 Senate Doc. No. 2632, or

by two-thirds for all offices, see 2020 House Doc. No. 4981.

The Senate has engrossed its bill, but, as of the time this

opinion was submitted, neither legislative "fix" had been

enacted.

Discussion. The right to seek elected office, like the

related right to vote, is a fundamental constitutional right in

Massachusetts. Article 9 of the Massachusetts Declaration of

Rights provides, with impressive brevity and clarity, that

"[a]ll elections ought to be free; and all the inhabitants of

this commonwealth, having such qualifications as they shall

establish by their frame of government, have an equal right to

elect officers, and to be elected, for public employments."

13The Secretary issued an advisory recommending, among other things, that candidates and volunteers "take appropriate precautions as they continue to gather signatures. If you are interacting with voters, be sure to have hand sanitizer or disinfectant wipes available and wash your hands frequently. If possible, consider providing signers with fresh pens and sheets of paper." See Secretary of the Commonwealth, COVID-19 Elections Updates, https://www.sec.state.ma.us/ele/covid- 19/covid-19.htm [https://perma.cc/ZM2J-GBY8]. 15

Over the ensuing 240 years since the adoption of our Declaration

of Rights in 1780, art. 9 has served to protect the

"fundamental" and "intertwine[d]" rights of candidates to gain

access to the ballot and of voters to cast their ballots as they

see fit. See Libertarian Ass'n of Mass. v. Secretary of the

Commonwealth, 462 Mass. 538, 560 (2012) (LAM).

As with many fundamental rights, the "court has sustained

statutes which reasonably regulate elections and access to a

place on the ballot." Opinion of the Justices, 368 Mass. 819,

821-822 (1975). See Opinion of the Justices, 413 Mass. 1201,

1209 (1992), quoting Opinion of the Justices, 375 Mass. 795, 811

(1978) ("the right to be elected, preserved in art. 9, is not

absolute but 'is subject to legislation reasonably necessary to

achieve legitimate public objectives'"). In fact, the court has

previously considered the same minimum signature requirements at

issue here and concluded that they withstood constitutional

scrutiny. LAM, 462 Mass. at 567. In that case, the plaintiff

Libertarian party sought to transfer the certified voter

signatures obtained by one candidate to another candidate in

order to qualify the latter to be on the general election

ballot. See id. at 545-546. The present case comes before the

court under an entirely different set of facts and

circumstances. The framework through which we analyze it,

however, remains the same. 16

When we evaluate the constitutionality of a restriction on

access to the ballot, we apply a "sliding scale approach, . . .

through which [we] weigh the character and magnitude of the

burden the State's rule imposes on the plaintiffs' rights

against the interests the State contends justify that burden,

and consider the extent to which the State's concerns make the

burden necessary" (quotations, citations, and alterations

omitted). Id. at 560. "Regulations imposing severe burdens on

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" (quotations and citations omitted). Id. More

recently, recognizing that the Massachusetts Declaration of

Rights may be more protective of voting rights than the Federal

Constitution, we have declared that we do not use the phrase

"severe burden," which arises from Federal constitutional

jurisprudence, in determining whether strict scrutiny applies

but instead apply strict scrutiny to a voting requirement that

"significantly interfere[s]" with the fundamental right to vote.

See Chelsea Collaborative, Inc. v. Secretary of the

Commonwealth, 480 Mass. 27, 35, 36 n.21, 40 (2018). We need not

decide here whether the Massachusetts Constitution provides

greater protections for the art. 9 rights at issue, because it 17

is undisputed that, under the circumstances arising from this

pandemic, we should apply strict scrutiny to the minimum

signature requirements regardless of whether we apply a "severe

burden" or "significant interference" formulation.

In ordinary times, the minimum signature requirements to

appear on the ballot in Massachusetts only impose "modest

burdens" on prospective candidates for public office, so "there

need be only a rational basis undergirding the regulation in

order for it to pass constitutional muster" (citation omitted).

LAM, 462 Mass. at 567. And in ordinary times the rational basis

threshold is "easily" met, as the "State's interest in ensuring

that a candidate makes a preliminary showing of a substantial

measure of support before appearing on the ballot is legitimate"

(quotation, citation, and alteration omitted). Id. Minimum

signature requirements ensure "that the candidates who appear on

the . . . ballot have demonstrable support among the voting

public." Barr v. Galvin, 626 F. 3d 99, 111 (1st Cir. 2010),

cert. denied, 565 U.S. 929 (2011). In doing so, they "safeguard

the integrity of elections by avoiding overloaded ballots and

frivolous candidacies, which diminish victory margins,

contribute to the cost of conducting elections, confuse and

frustrate voters, increase the need for burdensome runoffs, and

may ultimately discourage voter participation in the electoral 18

process." Libertarian Party of Me. v. Diamond, 992 F.2d 365,

371 (1st Cir.), cert. denied, 510 U.S. 917 (1993).

But, as we have recognized, statutory requirements that

were once considered constitutionally permissible may later be

found to interfere significantly with a fundamental right as

societal conditions and technology change. See Chelsea

Collaborative, Inc., 480 Mass. at 37, citing Goodridge v.

Department of Pub. Health, 440 Mass. 309, 341 n.33 (2003). And

similarly, statutory requirements that in ordinary times impose

only modest burdens on prospective candidates for public office

may significantly interfere with the fundamental right to run

for political office in a time of pandemic.

We need not dwell long on how dramatically conditions have

changed in Massachusetts since the Governor first announced a

state of emergency arising from the COVID-19 pandemic on March

10. All who presently live in the Commonwealth have seen it

(and lived it), and, for additional details, posterity can look

to our recent decision in Committee for Pub. Counsel Servs. v.

Chief Justice of the Trial Court, 484 Mass. 431, 433-434 (2020).

Suffice it to say that, during the state of emergency, the

traditional venues for signature collection are unavailable:

few people are walking on public streets in town centers; malls

are closed, as are all but essential businesses; restaurants

provide only take-out food or delivery; public meetings, if held 19

at all, are conducted virtually; and the vast majority of people

are remaining at home. See Glovsky v. Roche Bros. Supermkts.,

Inc., 469 Mass. 752, 762 (2014) (recognizing candidates'

constitutional right to solicit nominating signatures outside

entrance to supermarket); Batchelder v. Allied Stores Int'l,

Inc., 388 Mass. 83, 92 (1983) ("a person needing signatures for

ballot access requires personal contact with voters").

When people do encounter each other, they do so only by

maintaining a "social distance" of at least six feet, and

attempt to keep such encounters as brief as possible. Because

it has been shown that one can carry and spread the COVID-19

virus without any apparent symptoms, every encounter with

another person, especially a stranger, poses a risk of

infection. Because it is not altogether clear how long the

COVID-19 virus may "survive" on various surfaces and objects,

people are reluctant to touch any pen or piece of paper that has

been touched by another, at least unless they quickly can wash

or sanitize their hands. Accordingly, if a candidate seeks to

obtain signatures on nomination papers in the traditional ways,

he or she reasonably may fear that doing so might risk the

health and safety not only of the person requesting the

signature but also of the persons who are signing, of the

families with whom they live, and potentially of their entire

community. 20

In short, as the Secretary rightly and readily

acknowledges, the minimum signature requirements, which may only

impose a modest burden on candidates in ordinary times, now

impose a severe burden on, or significant interference with, a

candidate's right to gain access to the September 1 primary

ballot, and the government has not advanced a compelling

interest for why those same requirements should still apply

under the present circumstances. See LAM, 462 Mass. at 560.

Indeed, it concedes that there is none. The minimum signature

requirements, therefore, in this time of pandemic are

unconstitutional as applied to the plaintiffs, and other

similarly situated candidates.

If the Legislature had enacted a law on March 23 imposing

harsh new requirements that made it substantially more difficult

for candidates to obtain the required signatures to get on the

September 1 primary ballot, we no doubt would declare the law

unconstitutional. The Legislature, of course, did not do this,

but it is fair to say that the pandemic did. To be sure, "wet"

signatures can still be obtained, but the ability to do so

safely has been greatly diminished or been made significantly

more laborious. No fair-minded person can dispute that the

fundamental right to run for elective office has been

unconstitutionally burdened or interfered with by the need to 21

obtain the required "wet" signatures in the midst of this

pandemic. See LAM, 462 Mass. at 560.

The burdens imposed by the statutory minimum signature

requirements are not inevitable. There are alternatives that

could preserve the legislative purpose that a candidate

demonstrate a certain level of support in order to win a place

on the ballot and yet protect the public from the health risks

associated with obtaining "wet" signatures.

As a general matter, the principle of separation of powers

set forth in art. 30 of the Massachusetts Declaration of Rights

prevents the "judiciary [from] substituting its notions of

correct policy for that of a popularly elected Legislature"

(citation omitted). Commonwealth v. Leno, 415 Mass. 835, 841

(1993). But where fundamental constitutional rights are

violated, and where the Legislature fails to remedy the

constitutional deficiencies after having had the opportunity to

do so, and where an aggrieved litigant files suit seeking

remedial relief for the constitutional violation, the judiciary

must provide such a remedy. See Cepulonis v. Secretary of the

Commonwealth, 389 Mass. 930, 938 (1983), citing Reynolds v.

Sims, 377 U.S. 533, 586 (1964). Here, where the filing deadline

for nomination papers fast approaches, and the Legislature has

yet to take decisive action, we have little choice but to

provide equitable relief, pursuant to G. L. c. 214, § 1, to 22

protect the constitutional rights of the plaintiffs and those

similarly situated. See Commonwealth v. United Food Corp., 374

Mass. 765, 781 (1978) ("In order to avoid the unconstitutional

aspects of the statute, and to achieve the basic legislative

purpose, we conclude that the judge must have discretion to

fashion the judgment in this case . . ."). "It is a well

settled principle that, in fashioning appropriate relief, the

issuance and scope of equitable relief rests within the sound

discretion" of the court. Johnson v. Martignetti, 374 Mass.

784, 794 (1978), citing Martin v. Murphy, 216 Mass. 466, 468

(1914). We recognize, though, that where these extraordinary

circumstances require us to make policy judgments that, in

ordinary times would be best left to the Legislature, our remedy

must be "no more intrusive than it ought reasonably be to ensure

the accomplishment of the legally justified result." Perez v.

Boston Hous. Auth., 379 Mass. 703, 730 (1980).14

14The action we take here is by no means unprecedented. Other States, addressing the potential for voter disenfranchisement in the face of natural disasters, have similarly provided narrowly tailored equitable relief to protect the constitutional rights of voters. See, e.g., Florida Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1257-1259 (N.D. Fla. 2016) (ordering Statewide extension of voter registration deadline in response to Hurricane Matthew); Georgia Coalition for the People's Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344, 1345-1346 (S.D. Ga. 2016) (ordering extension of voter registration deadline for one county in response to Hurricane Matthew). In addition, at least one court has declared minimum signature requirements to be unconstitutional in light of the pandemic and, as a result, reduced the numbers. See Omari 23

The plaintiffs have requested various alternative forms of

relief. Before we discuss the relief that is granted, we take a

moment to address the requests for relief that we do not believe

are justified.

The plaintiffs first request that we not only declare the

minimum signature requirements unconstitutional as applied to

them and similarly situated candidates during this primary

election, but also declare the minimum signature requirements

void. In effect, the plaintiffs seek to avoid the minimum

signature requirements altogether and proceed directly to the

September 1 primary ballot. We decline to order this remedy;

the justification for the current statutorily prescribed

signature requirements is outweighed by the burden those

requirements impose under the present conditions, but there is

still merit to having some signature requirements. Even in the

midst of the pandemic, the State has a legitimate interest in

ensuring that a candidate makes a preliminary showing of support

among the electorate before appearing on the ballot. In

addition, the pandemic has not completely deprived candidates of

the ability to gather signatures. Between February 11, 2020,

when the nomination papers were first made available, and March

Faulkner for Va. vs. Virginia Dep't of Elections, CL2000-1456, Cir. Ct. of Richmond (Mar. 25, 2020) (order reducing signature requirement for candidates seeking to be Republican Party nominees for United States Senate from 10,000 to 3,000). 24

23, 2020, when the first significant restrictions were imposed

in response to the pandemic, candidates had forty-one days in

which to gather signatures without any constraint. Since March

23, the process has become unconstitutionally burdensome, but

not impossible. And the remedies we provide in this decision

will permit additional signatures to be safely obtained. It

would not be equitable, therefore, to declare the minimum

signature requirements void altogether.

Given the looming deadlines, the plaintiffs also request,

in the alternative, that we extend the deadlines for submitting

nomination papers to local election officials and for filing the

certified nomination papers with the Secretary. The Secretary,

however, maintains that an extension beyond May 5 for

submissions to local election officials and May 26 for filing

with the Secretary is not workable, given the time needed for

the SBLC to deal with any objections to the nomination papers,

for the Secretary's office to prepare the 2,200 different styles

of ballots required for the different jurisdictions in the

Commonwealth, and for local election officials to then transmit

the ballots by July 18 to military and overseas voters, as

required by Federal law. The plaintiffs have not disputed the

Secretary's timeline or his analysis of the problems that would

arise from a greater extension, and we defer to his experienced

judgment in this regard. Therefore, we will extend the 25

deadlines only for candidates running for State district and

county offices, and extend their deadlines only to match the

deadlines that apply to party candidates running for Federal and

Statewide offices: from April 28 to May 5 to submit nomination

papers to local election officials for certification, and from

May 26 to June 2 to file the certified nomination papers with

the Secretary.

The plaintiffs have further requested, as alternative

relief, that we "substantially" reduce the number of signatures

required to get on the primary election ballot. The Secretary

agrees, but suggests that the reductions should only apply to

offices for which 1,000 or more certified voter signatures are

currently required. This would preclude any reduction of the

required minimum signatures for candidates for State senator and

representative, who currently must secure 300 and 150

signatures, respectively, and for offices in certain counties

(e.g., Barnstable County register of probate and Barnstable

County commissioner), who currently need to obtain 500

signatures. We agree that, in light of the prevailing

circumstances, the most equitable alternative is to reduce the

number of signatures required. We do not agree, however, that

it would be equitable to do so only for some candidates and not

others. 26

Presumably, the number of signatures required for each

office was established to reflect a balance between the number

of people represented by the elected office and the burden

involved in obtaining the signatures. Hence, a Statewide office

such as United States senator warrants burdening a candidate

with a requirement of gathering 10,000 signatures, while an

office representing fewer people, such as a State senator,

warrants a signature requirement of 300. It seems only just

that the same rationale should apply when it comes to reducing

the minimum numbers in response to the pandemic, and that the

same percentage decrease should apply to all offices. To hold

otherwise would alter the relative ratio of the minimum

requirements chosen by the Legislature. For instance, a primary

candidate for the State Senate must gather only three per cent

of the signatures that a primary candidate for the United States

Senate must gather; that ratio should not be altered by the

remedy we devise.

In determining the percentage of the across-the-board

reduction, the Secretary has suggested a reduction of fifty

percent (50%), the same amount that has been proposed in one of

the bills currently pending in the Legislature.15 We agree with

15We note that both the Secretary and 2020 Senate Doc. No. 2632 would limit this fifty percent (50%) reduction to offices requiring 1,000 or more signatures. 27

that suggested percentage decrease. Fifty percent (50%) has a

rational connection to the underlying constitutional violation.

As noted supra, the candidates had forty-one days after the date

when nomination papers were first made available (February 11)

to gather signatures without any significant restrictions

related to the pandemic. That all changed on March 23, when the

Governor issued the order limiting public and private gatherings

to no more than ten people, requiring all nonessential

businesses to close their physical workplaces and facilities,

and directing DPH to issue the Stay-at-Home Advisory, urging

people to leave home only for essential errands and to practice

social distancing when they did. Forty-one days is almost

exactly fifty percent (50%) of the time between February 11 and

May 5, which is now the deadline by which all primary candidates

have to collect signatures and submit them to local election

officials. Even if candidates were slow to start, it was

significantly challenging, but not impossible, to gather

signatures after March 23, and as discussed infra, candidates

will now have some opportunity to obtain electronic signatures

through May 5, so it should not be unfairly burdensome for a

serious candidate to obtain one-half of the required signatures.

The number of certified registered voter signatures required to

get on the September 1 primary ballot, therefore, is reduced by

fifty percent (50%) for all candidates. 28

Finally, the plaintiffs also request that we order State

officials to explore "less stringent strategies" for the

collection and submission of signatures, such as through the

electronic collection of signatures. They note that a few

States have implemented the use of electronic signatures and

submissions for purposes of securing access to the ballot,

including at least two that did so in response to the current

pandemic.16 In the order reserving and reporting this case to

the full court, the parties were asked to address the logistics

of, and potential problems with, collecting and verifying

electronic signatures. Their submissions have convinced us that

there are too many issues and unanswered questions to allow us

confidently to impose a remedy that would transform a nomination

system that required "wet" signatures into one that permitted a

broad range of electronic signatures, including a printed name.

To name just a few, there are the inherent time constraints

discussed supra; there are potential logistical, legal, and

cyber-security related concerns; and, of course, there is the

16Arizona already had adopted an electronic candidate nominating system called "E-qual," which allows voters to show support for candidates "from the comfort of [their] home[s] or anywhere [I]nternet access is available." See https://apps .azsos.gov/equal [https://perma.cc/2HDB-YHSF]. New Jersey and Florida, meanwhile, have taken some action in this regard in response to the pandemic. See New Jersey Governor, Executive Order No. 105 (Mar. 19, 2020); Florida Secretary of State, Emergency Rule No. 1SER20-2 (Apr. 3, 2020). 29

fact that local and State governments are already operating

under severe constraints, and often with skeletal staffing, due

to the pandemic.

The Secretary, however, has suggested one modest means to

include electronic signature collection among our equitable

remedies, which the plaintiffs find attractive, as do we.

Specifically, the Secretary proposes that we order that

candidates seeking to be on the ballot for the September 1

primary election be allowed to scan and post or otherwise

distribute their nomination papers online. Voters may then

download the image of the nomination papers and either apply an

electronic signature with a computer mouse or stylus, or print

out a hard copy and sign it by hand. The signed nomination

paper can then be returned to the candidate, or a person working

on the candidate's behalf, either in electronic form (by

transmitting the "native" electronic document or a scanned paper

document) or in paper form (by hand or mail). The candidates

will still have to submit the nomination papers to local

election officials in hard copy paper format, but the proposed

process will alleviate the need for, and the risk associated

with, obtaining "wet" signatures. The Secretary is ordered

forthwith to provide clear guidance to prospective candidates as

to how this electronic signature collection process may be 30

accomplished effectively, although candidates need not await

that guidance to get started.

Conclusion. For the reasons stated, the plaintiffs'

application for declaratory relief is allowed to the extent that

we declare, in the limited context of the current pandemic, that

the minimum signature requirements in G. L. c. 53, §§ 7 and 44,

for candidates in the September 1, 2020, primary election are

unconstitutional. As a remedy for this constitutional

violation, we order that (1) the number of required signatures

be reduced by fifty percent (50%) for all offices; (2) the

deadlines for candidates running for State district and county

offices to submit their nomination papers to local election

officials for certification and for the filing of certified

nomination papers with the Secretary be extended to May 5, 2020,

and June 2, 2020, respectively, which are the current due dates

for party candidates running for Federal and Statewide offices;

and (3) subject to the restrictions outlined in this decision,

the Secretary shall allow the submission and filing of

nomination papers with electronic rather than "wet" signatures.

So ordered. KAFKER, J. (concurring). Given the pressing need for

immediate action during the pandemic, and the technological

limitations in our existing electoral infrastructure identified

by the Secretary of the Commonwealth (Secretary), I concur in

the court's multifaceted remedy. I write separately, however,

to express concern that those responsible for our electoral

process have concluded that they are unable to solve the problem

of in-person signatures with the more straightforward and

targeted solution of electronic filing of signatures, and

therefore have required the court to temporarily rewrite the

election laws. Those responsible for our elections must have

the technological tools to respond to the pandemic that

confronts us, which has fundamentally changed the world as we

know it. Leaving these electoral problems for the courts to

solve should be a last resort.

When we declare an act unconstitutional, we must do so in

the least intrusive and most judicious manner possible. See

Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167

(1998) ("We must construe statutory provisions, when possible,

to avoid unconstitutionality, . . . and to preserve as much of

the legislative intent as is possible in a fair application of

constitutional principles"). Even as these extraordinary

circumstances require us to fashion judicial remedies for such

constitutional violations, we must do our utmost to avoid making 2

policy decisions that are the responsibilities of other branches

of government. See Commonwealth v. Leno, 415 Mass. 835, 841

(1993) (recognizing "the undesirability of the judiciary

substituting its notions of correct policy for that of a

popularly elected Legislature" [quotations and citation

omitted]). Our duty is to do the minimum of what is necessary

to conform those statutes to the Massachusetts Constitution, and

not to rewrite those statutes more extensively. See id. See

also Aptheker v. Secretary of State, 378 U.S. 500, 515 (1964)

("Although this Court will often strain to construe legislation

so as to save it against constitutional attack, it must not and

will not carry this to the point of perverting the purpose of

a statute or judicially rewriting it" [quotation, citation, and

alteration omitted]).

The fundamental issue here is the statutory requirement

that nomination signatures be obtained "in person." See G. L.

c. 53, § 7. As the court highlights, and as we have previously

stated, the State has a legitimate interest in ensuring that

candidates have a "substantial measure of support" before they

may appear on the ballot. See Libertarian Ass'n of Mass. v.

Secretary of the Commonwealth, 462 Mass. 538, 567 (2012),

quoting Barr v. Galvin, 626 F.3d 99, 111 (1st Cir. 2010), cert.

denied, 565 U.S. 929 (2011). Otherwise, the ballot would be

overcrowded and confusing. See id. at 567 & n.29. Moreover, 3

the requirement that candidates obtain a minimum number of

signatures in order to qualify for the ballot is reasonably

related to this interest. See id. Rather, it is the in-person

aspect of the signature requirement that renders it unduly

burdensome in light of the current pandemic and quarantine, as

this requirement presents public safety risks for both the

campaign and individual signatories. An in-person signature

simply cannot be obtained without endangering the health of

those collecting the signatures and those signing their names.

The least intrusive remedy to this constitutional

deficiency would be one that carves out the in-person

requirement and replaces it with its nearest equivalent:

electronic signatures. This solution should be technologically

feasible and relatively straightforward in the midst of a

pandemic: use electronic nomination papers that can be

electronically signed by voters and electronically submitted to

local election officials.

Electronic signatures are the norm in the private sector

and many areas of government. Even before automatic voter

registration took effect, the Secretary maintained an online

portal that allowed citizens to complete an online affidavit

using an image of their electronic signature from the registry

of motor vehicles to register to vote. See G. L. c. 51, § 33A.

The Legislature has also already laid the groundwork for the 4

verification of registered voters' electronic signatures. The

Legislature has expressly determined that, as a general matter,

"[a] record or signature may not be denied legal effect or

enforceability solely because it is in electronic form," and,

"[i]f a law requires a signature, an electronic signature

satisfies the law." G. L. c. 110G, § 7 (a), (d). The

Legislature and the Secretary have also facilitated certain

business filings by allowing both electronic signatures and

electronic submissions. See G. L. c. 156D, §§ 1.40 et seq.

(including electronic signatures in definition of "sign" or

"signature" for purposes of incorporation); 950 Code Mass. Regs.

§ 113.06(4) (2006) (requiring "original" signature on corporate

filings unless documents are submitted "by authorized electronic

or facsimile transmission"). If this trend toward acknowledging

electronic signatures is acceptable for the registration of

voters and the creation of businesses, it should also be

sufficient to meet ballot signature requirements.

One would think that, had electronic signatures been

expeditiously approved for use on nomination papers by the

Legislature and the Secretary, nothing more would be necessary

to remedy the unconstitutional burden here. In an age dominated

by social media sites like Facebook and Twitter, and one that

requires sophisticated digital political campaigning, it is

difficult to imagine that a viable legislative candidate for the 5

State house or State senate would be unable to electronically

alert and engage the 150 or 300 followers that the candidate

needs to obtain electronic signatures to appear on the ballot.

Those seeking Statewide office should also be able to satisfy

their reasonable signature requirements if a readily accessible

electronic signature process were adopted. Indeed, this would

presumably be the norm if the technical capacities of our

election infrastructure were anywhere near as sophisticated and

adaptable as those of the private sector and other areas of

government.

Unfortunately, according to the Secretary, election

officials lack the technological capacity at this time to

readily accept electronic signatures for ballot nominations.

The Secretary contends that there are significant limitations on

the capacity of local and State election officials to receive

and verify such electronic signatures for the purposes of

satisfying the signature requirements, even when those

requirements involve a manageable numbers of signatures, ranging

from 150 to 10,000, plus the additional number of signatures

necessary to create a margin of error for the candidates.

Specifically, the Secretary contends that individual

municipalities may not be able to open large e-mail attachments

containing voter signatures, and may be unable to access online

file storage sites due to cybersecurity concerns. Why this 6

remains so difficult in the modern era is somewhat inexplicable.

Why a simple e-mail attestation that includes the name, address,

and party registration of the voter is insufficient is also not

obvious. The process for verifying even "wet" signatures

appears to consist primarily, if not completely, of a comparison

of the name, address, and voter registration on the "wet"

signature with the name, address, and voter registration on

record. See 950 Code Mass. Regs. § 55.03(1) (2004). Why a

simple e-mail is more suspect than a "wet" signature remains

unclear.

Nevertheless, because of the current technological limits

on our election capabilities and the procedural requirements of

the current process, candidates will be forced to continue to

submit their nomination papers in hard copy form. According to

the Secretary, we are limited to the following process for

allowing electronic signatures. First, candidates will be

permitted to electronically post or distribute their nomination

papers. Then, voters must download the papers and either

electronically sign, or print and physically sign, the document

and return it to the candidate in electronic or paper form. The

candidate will then be tasked with producing all voter

signatures in hard copy paper format, and physically submitting

his or her nomination papers to local officials for

certification. At minimum, this awkward, multistep process will 7

require candidates or campaign volunteers to risk exposure to

the virus by venturing out, either to the post office or a local

official's physical office, in order to deliver the nomination

papers to election officials.

Allowing voters to submit their signatures electronically

as part of this cumbersome process, by itself, is not enough to

fix the problem. Indeed, the parties agree that this stilted

approach to electronic signatures is not enough. Rather, given

the apparent lack of technological capacity to readily accept

and verify electronic signatures in a more straightforward

manner –- even in the midst of a global pandemic -- this court

is instead forced to impose alternative remedies, such as

reducing the statutorily prescribed signature threshold and

extending the time limits for gathering signatures.

Unfortunately, these alternative remedies raise other

constitutional issues. When we start to alter the numbers of

signatures required to qualify for the ballot, we begin to stray

into territory reserved for the Legislature. See Kenniston v.

Dep't of Youth Servs., 453 Mass. 179, 189 (2009). While

reducing the signature threshold by fifty percent may be a sound

Solomonic solution, and roughly corresponds to the amount of

time candidates have lost, this appears to be more of a policy

choice best left to the Legislature, which can act with great 8

dispatch when it chooses to do so.1 Nonetheless, in the instant

case, at this last minute in the signature gathering process,

and in the absence of legislative action, this court is forced

to impose these alternative remedies itself to conform the

election laws to constitutional requirements during the pending

emergency. These remedies also appear to be the least intrusive

ones available, in light of the deficient technological

capabilities identified by the Secretary and the imminent

approaching deadlines for submitting nomination papers.

In this "high tech" era, and in the midst of a global

pandemic that severely restricts close personal contact, the

failure to be able to solve manageable technological problems on

the eve of an election is confounding and distressing. At a

time when we need to be fundamentally rethinking what must be

done in person and what can instead be done electronically, our

electoral process seems dangerously unequipped to adapt to a new

paradigm.

The COVID-19 pandemic has dramatically changed our current

reality, not only in the Commonwealth, but across the globe, and

not simply for a month or two. Despite the significant negative

1 We recognize that elected officials are presently operating under the same quarantine restrictions as the rest of the Commonwealth. This makes the enactment of major substantive changes more difficult to accomplish, particularly where such changes require collaborative efforts among significant numbers of people. 9

effects of this lockdown, health officials have urged the

importance of maintaining quarantine efforts for the foreseeable

future. Tozzi and Bloomberg, "Social distancing until 2022? It

may be necessary, according to Harvard coronavirus researchers,"

Fortune (Apr. 14, 2020) https://fortune.com/2020/04/14

/social-distancing-until-2022-coronavirus-end-date-spread-covid-

19-harvard-researchers/ [https://perma.cc/HQJ5-4257]. It

remains to be seen when the current measures will no longer be

necessary. The Governor has indicated that the existing

lockdown will remain in place until at least May 4, 2020. See

COVID-19 Order No. 21. Even to the extent that the spread of

the virus slows in the coming months, there are indications it

may again surge in the fall. See Tozzi and Bloomberg, supra.

In any event, it is clear that the effects of COVID-19 will be

felt for years to come, and that we must adapt to face the long-

term logistical challenges that this new reality poses to our

society, particularly for in-person interactions.

Other States have adapted their election machinery to

address the electronic signature problem. As the court

observes, ante at note 16, Arizona has adopted a centralized

system for allowing voters to electronically sign candidates'

nomination papers, called "E-Qual." See

https://apps.azsos.gov/equal/ [https://perma.cc/2HDB-YHSF]. The

E-Qual website prompts voters to provide select personal 10

information, which is then used to access their voter

registration record. See id. Once their voter registration

record has been identified, voters may electronically sign a

candidate's nominating petition. See id. As the website

boasts, this system allows voters to show their "support for a

candidate from the comfort of [their] home[s] or anywhere

[I]nternet access is available." See id.

Despite the apparent lack of technological solutions

available for purposes of the current election cycle, it would

appear that the Commonwealth has the means to ameliorate this

issue going forward, though not in time to address the issue

before the court. As explained by the amicus, the Commonwealth

is already expanding its acceptance of electronic signatures in

other areas of election administration. Pursuant to legislation

passed in 2018, the Commonwealth began implementing an automatic

voter registration process on January 1, 2020. See G. L. c. 51,

§ 42G½; St. 2018, c. 205, § 4. As a part of this process,

automatic voter registration agencies, such as the registry of

motor vehicles,2 must transmit a voter's electronic signature to

the Secretary, who transmits the same to the board of registrars

2 An "automatic voter registration agency" is defined as "a location at a state agency where an eligible citizen may register to vote." G. L. c. 51, § 42G½ (a), (b). 11

or election commission of the city or town where the voter

resides. G. L. c. 51, § 42G½ (e).

Municipal registrars therefore already have at least a

growing database of electronic signatures of voters registered

in the Commonwealth. It follows, then, that they should have

the capability to compare electronic signatures submitted for a

candidate's nomination papers with electronic signatures

submitted by automatic voter registration agencies. See G. L.

c. 51, § 42G½; 950 Code Mass. Regs. § 55.03(1)(b). They should

therefore be able to scale up to wider use of electronic

signatures in the near future. That future, however, is

apparently not now. For that reason, I am forced to concur.

In sum, while I agree with the court that the technological

limitations described by the Secretary prevent us from replacing

the in-person requirement with electronic signatures alone in

the short time before the signatures are due, and require the

multifaceted remedy the court proposes, I feel compelled to

emphasize that those responsible for our election process must

have the necessary tools to quickly adapt to the current

pandemic and the future crises to follow. Absent such

technological adaptability, our elections will be imperiled and

our election laws may themselves have to be rewritten in the

midst of a crisis, as was done here. That is an invitation to

conflict and confusion that must be avoided.