Mass. Voters Turn To Top Court To Get Ballot Forms Sent

By Brian Dowling
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Law360 (July 13, 2020, 11:03 PM EDT) -- Seven Massachusetts residents and two voting rights groups sued Secretary of the Commonwealth William Galvin on Monday to force his office to comply with a new law requiring the secretary to send mail-in ballot applications to all registered voters in the state.

Represented by Lawyers for Civil Rights and pro-bono counsel Ropes & Gray LLP, the voters say Galvin would be "undermining the rule of law" by not mailing the applications by a July 15 deadline as demanded by a recent pandemic response bill.

Saying Galvin's actions will "jeopardize the safety of Massachusetts voters in the upcoming elections," the voters have asked the single justice of the Supreme Judicial Court to order Galvin's office to mail the forms. The petition was assigned to Associate Justice Frank M. Gaziano and scheduled for a hearing on Tuesday at 2 p.m.

"An emergency lawsuit is the only available option to protect the health of voters, poll workers, and our democracy. It is clear that Secretary Galvin has not taken the steps required to mail applications to voters, as state law demands," Oren Sellstrom, Lawyers for Civil Rights' litigation director, said in a statement.

The pandemic voting law, signed by Gov. Charlie Baker on July 6, orders Galvin's office to send mail-in ballot applications to all voters by July 15 — a feat the secretary was quick to say would not occur, according to the lawsuit.

Galvin announced the mailing wouldn't happen by July 15 because his office didn't have the $3 million to $5 million in postage needed to mail the applications and pay for their return to the state's 352 cities and towns. That said, the secretary's office said they are ready to send them when they get the money.

"They are sitting in a warehouse waiting to go into the mail," Galvin spokeswoman Debra O'Malley told Law360.

The legal battle centers on a dispute over some $8 million given to Massachusetts by the federal government through the CARES Act. The voters say those funds should cover the postage, but Galvin's office disagrees for two reasons.

The money is already allocated for postage to send the actual ballots, as well as election staff and protective equipment for poll workers, O'Malley said, and federal rules bar the secretary from using the money on the applications.

Galvin's office hopes that Baker or the legislature will come up with some money for the postage, O'Malley said.

The limitations on the federal money aren't there, according to the lawsuit.

The agency providing the funding, the Election Assistance Commission, "makes clear that the CARES Act is designed to be flexible to meet the unprecedented nature of the pandemic, and that the funds can be used to support 'all aspects of voting by mail including additional mailing and postage costs,'" according to the voters' lawsuit.

Without the applications, the voters said in their suit, "it will be more difficult and less safe for voters to participate in our democracy this fall — and the brunt of that impact will be felt by populations who are already most endangered by the deadly novel coronavirus."

The petitioners in the suit are Mary Bertin of Boston, Concepción Pacas of Chelsea, Willie Arthur Scott, Jr. of Boston, Tu To Trac of Quincy, Noelia Rodriguez of Chelsea, Yi Hui Wei of Quincy, and Shu Hong Zhang of Quincy. They are joined in the suit by the voting rights nonprofits Common Cause and MassVOTE.

The petitioners are represented by Oren M. Sellstrom, Laura Maslow-Armand, Sophia Hall and Janelle H. Dempsey of Lawyers for Civil Rights as well as Robert G. Jones and Patrick T. Roath of Ropes and Gray LLP.

Counsel for the state government was not immediately available on Monday.

The case is Bertin et al. v. Galvin et al., case number SJC-2020-520, in the Supreme Judicial Court of Massachusetts.

--Editing by Amy Rowe.

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