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Law360 (July 10, 2020, 6:43 PM EDT) -- Massachusetts' top appellate court wrestled Friday with whether an alleged violation of the electronic ballot signature collection program it detailed in an April decision could keep a Republican congressional candidate's name from going before voters in September's primary.
The Supreme Judicial Court heard arguments on whether 9th Congressional District candidate Helen Brady's use of a signature-gathering software violated the court's decision in Goldstein et al. v. Galvin, which set out how candidates could get ballot nomination papers signed electronically during the COVID-19 pandemic.
The court's questioning focused on whether Brady's software — which collected 1,066 voters' signatures individually then merged them onto nomination papers — was a substantial enough error to warrant keeping her name off the ballot.
The Goldstein decision, and later guidance from the Secretary of State's Office, envisioned that the electronic signatures would be affixed to the document, and then campaigns would send that same document to local elections officials.
Leon Brathwaite II, a registered voter in Brady's district and official with the Massachusetts Democratic State Committee, filed a challenge to Brady's use of the software. The Massachusetts Democratic Party intervened in the appeal.
Associate Justice Scott L. Kafker posed a question of form versus substance to Elizabeth Kaplan, an attorney with the Massachusetts Attorney General's Office, who represented the State Ballot Law Commission and the Secretary of State's Office.
"Is there anything substantially different from what was filed and from what was signed by the voter? Anything at all?" Justice Kafker asked. "Give me one bit of substance."
Kaplan replied: "What the voter saw was Helen Brady's nomination papers, and what was submitted was another version of Helen Brady's nomination papers."
Kafker — who offered a concurring opinion in the Goldstein case that even then warned the adopted process was "stilted" — asked if the state is contemplating "knocking someone off a ballot on this kind of … trap for the technologically unwary?"
Brady had hoped to challenge U.S. Rep. William Keating to represent Massachusetts' 9th Congressional District. Still, if the State Ballot Law Commission's decision stands, she won't be able to challenge Keating in November.
Brady's attorney Christopher Kenney of Kenney & Sams PC said many other campaigns used the same software Brady did, and that the court shouldn't consider the State Ballot Law Commission's selective enforcement of the letter of the law against Brady because it ignored the others.
Associate Justice Barbara A. Lenk asked Kenney whether that argument is anything more than the complaint of someone speeding down the highway who gets pulled over and ticketed, telling the police officer that everyone else on the road was driving above the speed limit.
Explaining that more than three dozen other candidates had used the same software as Brady, Kenney reframed Justice Lenk's analogy: "My position is it is like the state police had everyone pulled over but only ticketed my client."
Justice Lenk asked Kaplan a similar question: If Brady's use of the software is so concerning, why isn't the Secretary of State's Office going after the other campaigns?
Kaplan answered that the Secretary of State's office didn't have the authority to be a sort of "roving investigatory authority" enforcing election laws, and a challenge before the State Ballot Law Commission requires a complaint from a registered voter.
Brady is represented by Christopher Kenney of Kenney & Sams PC.
The Secretary of State and the State Ballot Law Commission is represented by Elizabeth Kaplan of the Massachusetts Attorney General's Office.
Brathwaite II and the Massachusetts Democratic Party are represented by Gerald A. McDonough.
The case is Brady v. State Ballot Law Commission et al., case number SJC-12979, in the Supreme Judicial Court of Massachusetts.
--Editing by Haylee Pearl.
For a reprint of this article, please contact reprints@law360.com.
