Court makes it easier to get on the Sept. 1 primary ballot in Massachusetts due to coronavirus concerns

The Supreme Judicial Court ruled today that the Covid-19 crisis is making it too hard for many candidates to collect enough signatures to get on the ballot for the September primary and so ordered that candidates need only collect half as many signatures - and that candidates for state legislative races have more time to do so. Also, candidates can submit signatures gathered electronically rather than on paper.

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.

The ruling comes on a suit filed by three potential candidates for different offices.

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 Legislature could provide such relief.

Several bills in the legislature to address the issue have gone nowhere, the court said.

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

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.

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.

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.