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State's highest court details why Mass GOP is wrong and should feel wrong in effort to block expanded early voting
By adamg on Tue, 08/30/2022 - 11:14am
The Supreme Judicial Court had already ruled against an effort by Jim Lyons and the rump state Republican Party to block early voting, but today it released its detailed reasons for why the Republicans are wrong in so many ways, from their claim the Legislature has no right to expand early voting to their alleged fears of "zombie votes" by people who die after casting an early ballot.
The self-professed "heart" of the plaintiffs' complaint is the claim that the universal early voting provisions are facially unconstitutional because, except for in three limited circumstances where "absentee voting" is authorized under art. 45 of the Amendments to the Massachusetts Constitution, as amended by art. 105 of the Amendments, the Legislature is prohibited from providing for any form of voting other than in person on the day of the primary or election. We disagree. Voting is a fundamental right, and nothing in art. 45, as amended by art. 105, or in other parts of the Constitution cited by the plaintiffs, 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. This is particularly true with respect to the universal early voting provisions in the VOTES act, which, in stark contrast to the narrow and discrete absentee-voting provisions of art. 45, enhance voting opportunities equally for all voters.
But what about all those "zombie votes" the Republicans tell each other about around the campfire?
Relying more on rhetorical flourish than reasoned analysis, the plaintiffs invoke the specter of "zombie votes" to perfunctorily claim that the VOTES act is "simply arbitrary and irrational" because it allows "dead people to vote." The law, however, does not allow dead people to vote; it protects the constitutional right to vote by ensuring that ballots validly cast by living registered voters are counted. See Cepulonis, 389 Mass. at 934 (acknowledging "clear policy" in Massachusetts "of facilitating voting by every eligible voter"). Moreover, the law actually serves to avoid the arbitrary results that could occur under G. L. c. 54, § 100, which was repealed by the VOTES act, whereby the decision to count a ballot validly cast by an absentee voter who subsequently died prior to the opening of polls on election day turned on whether the election officers charged with the duty of counting happened to become "cognizant" of the voter's death.
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Comments
seseing through excuses
With more limited absentee voting, one reason you could get an absentee ballot was that you were too sick or disabled to get to the polls, or would be out of state on election day. Mostly that was chronic conditions and people in long-term care, but it also included things like out-of-state appointments for cancer treatment.
People who want to vote by mail because they work on election day, or it's more convenient for some other reason, are more likely to still be alive on Election Day than people who are too sick to go to the polls.
Most of their arguments but
Most of their arguments but their Zombie vote argument is just absurd. While some people might die before the election due to random occurrence most people who die between voting and election day would in fact be seniors and the medically impaired. That's also a group that has always had the ability to vote absentee. I of course do not have raw data in front of me but I am using common sense. It just does not make logical sense.
Not enough mortality to matter
And in an extremely close election absentee ballots are only opened for a recount.
That makes it possible to flag the ballots of the deceased.
And even if that didn't happen, well, the numbers make the issue entirely irrelevant. The average deaths per day (before COVID) in Massachusetts was around 150 people. That's less than one per every two towns, about one per State Rep district, just under 4 per senate district, fifteen per US Rep District.
Has anyone ever lost a US Senate race by less than a 150 vote margin (assuming all 150 were eligible to vote, voted early or absentee, and all voted for the same person)? I doubt it.
absentee ballots
In our town, the absentee (and now mail-in) ballots are opened and run through the machines on election day during times when it isn't busy. I've seen this first hand and have received confirmation that this is the case from election workers.
I can verify
Absentee ballots were always counted in the past, at least in Boston.
20 or so years ago I helped out with a campaign for a special election. The campaign wanted to know the results at the precinct where I stood out. There was one absentee ballot. The voter sent in a blank. I like to think they did that on purpose, which is kind of badass.
With the extension of absentee, I don’t see election folk not counting the mail in ballots.
Provisional ballots are a completely different thing. I think they are only dealt with when the vote is close, with investigations of the eligibility of the voters taking place.
"Landslide Lyndon" Johnson
Won the US Senate race in Texas by 87 votes in 1948.
yeah but...
There was also just a tiny bit of shenanigans involved. (is there a sarcasm emoji?)
Not just the anti-Democratic party
They have now become the anti-democracy party. They and their fascist hero have forfeited any legitimate say in the running of our State and Nation.
The Republican Party
is a criminal syndicate.
This is the Constitutional
This is the Constitutional Amendment in question:
Which makes it explicitly clear that mail-in voting is only authorized for specific absentee purposes. That's hardcoded. If no excuse mail-in voting is now all of a sudden considered critical, then do it properly and amend the state constitution to allow it.
Courts do this a lot, making decisions that if something is useful, it ought to be legal. Instead they should punt those issues to the legislative branch.
That's one way to read it
The other is to read it that the Constitution sets out requirements for voting by people who won't be in town on Election Day or who would have difficulty voting but is completely silent on early voting, and so the Legislature is free to set standards for that.
It couldn't be more clear
The anon comment wants to be a stickler for rules to the point that they are more restrictive than the plain text warrants. You even quoted above where the court made that clear:
Maybe this snip & format will help the anon to understand.
Where is “only”?
Where are you getting that “only”?
Just because it is specifically authorized for people who are sick or out of town doesn’t mean it’s not authorized for anyone else.
gymnastics
The plainest reading is the most honest one. If your mom tells you, "You can read a book, do your homework, or clean your room" and you go and play Roblox claiming "you didn't say I couldn't play video games" then obviously you're getting a whooping.
Ratify a constitutional amendment with new language to modernize the 45 and 105 year old language. It's very straightforward.
Plainest reading
That identifies situation where the voter is "absent from the city or town...or are unable by reason of physical disability...."
That is plain. Remember that in the United States unless something is specifically outlawed or in any other way specifically identified and limited, restricted or somehow controlled, that something is legal.
This is so important but gets lost. In the US anything not declared illegal is legal. That has both positive and negative consequences. But the most important is that no government may legally declare general and overall control about a given issue without having to justify and keep that claim within the general confines of the ruling Constitutions. So in this case, this paragraph of the Mass Constitution DOES NOT limit what government can do in making voting accessible. It simply states what state government must do for making voting possible in the situations noted.
Add that if an interpretation is needed, then at its plainest the fact that this paragraph is tightly focused on the specific criteria implies that nothing in this paragraph refers to other laws concerning how citizens vote in the Commonwealth.
That's cute
That's not how the law works though. The law you cited is specifically for absentee ballots and has nothing to do with expanded access voting. The court addressed that and clearly stated that there is no interpretation of the law to mean that the only exception to in person voting on election day is an absentee ballot.
So, to make your example actually work it is like my mom wrote some video game rules where my brother was limited to playing Roblox on weekends, but it also said she'd make an exception if he was home sick from school and he could play during school hours on those days.
Then later she decided that he was doing well in school so she edited the rules expanding his regular Roblox time from just weekends to weeknights too, but only after all of his homework was done and until bedtime. The home from school Roblox exception was unchanged.
The lawsuit is me suing my mom claiming that my brother cannot play Roblox on weeknights because clearly the only exception to weekend playing is when he was home sick from school.
The court ruling said, "Hey dumbass, your mom gets to make the rules about playing video games and you sound really stupid trying to claim that she isn't allowed to change the normal rules because of the home sick exception."
I'm not a lawyer either
Does "they can do X, in Y situation" mean they can only do it in that situation?
Also, maybe this is relevant: the US Constitution as amended says the right of citizens over the age of 18 to vote for "the Executive and Judicial officers of a State, or the members of the Legislature thereof," may be denied only "for participation in rebellion, or other crime." I think there's a reasonable argument that if the US constitution says the states should do something, the state legislature has the power to do it.
The people who wrote that weren't thinking of early voting, or voting by mail. They were thinking about the rights of Black Americans, and the motives of the people who brought this lawsuit are pretty clear.
How do you explain the Zombie
How do you explain the Zombie votes argument? Would it not be logical to assume that those most likely to pass away before an election would in fact be those most likely to qualify for the old absentee ballots anyway? It is always possible that someone who is 30 in good health who lives and works in the same city would die in a car crash before the election but their chance of survival through election day is much higher than those who would medically qualify under the old system.
No it doesn't.
It requires cities and towns to make absentee voting available for the reasons cited in the amendment, but it doesn't anywhere limit it to only those reasons or prohibit expanded early voting or universal absentee voting.
One thing that always amazes me
There is no strong link between early / absentee voting and political party. The GOP likes to pretend early voters are fraudulent just to try and throw doubts at elections. But in reality the early votes are fairly well aligned with the voting on the day of the election. It’s not a major help or hindrance to either party.
But there is a link
Okay, I’m looking at polling from 2020, but back then Democrats were more likely to vote before the real Election Day than Republicans.
Now, as to why, I can only guess that my theory that politics has become like a religion to people is proven with this. Democrats decided that early/mail in voting was a cannon of belief while Republicans decided that such activities are heretical. That solid red Utah went to mail in elections before the pandemic is a glowing exception.
Expanded access favors Democrats
Expanded access to voting favors Democrats -- or at least that's the belief among both Dems and Republicans. This is pretty much your "religion" point, but it's Republican policy to try to restrict voting access and to use practices such as packing and cracking to dilute the votes of those who don't vote for them, so there's never really been an opportunity to prove it one way or the other.
Take a look at the Maryland redistricting case
Or heck, what Albany tried to do this year, and try to say with a straight face that Republicans are the only party that practices political gerrymandering.
At the end of the day, both parties act in their best interests, the best interests of the citizens be darned.
We should start calling
We should start calling Republicans the "For Nothing Party" instead of the "Grand Old Party". As a group so far in Massachusetts anyway they have brought nothing forward to benefit their constituents. Have they?
It depends
If you think their constituents are all the residents of the State, then no, they have brought nothing. As far as I can tell, they believe their constituents are wealthy individuals and business interests, and that's who they think they are benefiting. I think they're wrong about that, too. Everyone benefits when government serves all the people, even the wealthy. For instance, their businesses depend on an educated workforce, and the continuing efforts to privatize school systems do not serve that end.
Let's consider what they're
Let's consider what they're known for:
* Losing elections
* Throwing tantrums after losing elections
* Suing after losing elections
* Losing lawsuits
* Throwing tantrums after losing lawsuits
* A coup attempt
* Realizing they didn't have a plan beyond "Get into the Capitol", and milling around until they got hungry, tired, bored, or arrested
Given all that, I think the only proper designation would be the "LTP": "Loser/Tantrum Party".
Except for all the genuine damage they've done
Gutting environmental and workplace protections, ending women's right to control their own bodies, disenfranchizing masses of minority citizens, damaging the Postal service, and on and on. They lose on the legal front (mostly - but the SCOTUS is in their pocket now), but they're still screwing things up, big time.
They deserve scorn, but they also deserve being removed from any position of power.