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Law360 (August 3, 2020, 6:27 PM EDT) -- Massachusetts' top court on Monday faulted Secretary of the Commonwealth William Galvin for offering "unnecessarily" limited guidance to political candidates navigating a new COVID-19-era plan to electronically gather signatures for ballot papers.
The Supreme Judicial Court's opinion, penned by Associate Justice Scott L. Kafker, fleshed out a two-page order from July 13 that approved signatures gathered by Helen Brady, a Republican candidate for the state's Ninth Congressional District.
The April ruling in Goldstein v. Galvin
addressed the difficulties candidates face in collecting ink-and-paper signatures during a pandemic and lockdown to qualify for the September primary ballot. That decision reduced some signature requirements and approved a program for electronic signature collection.The court asked Galvin's office to weigh in on how candidates can remain faithful to the Goldstein decision, but ultimately found the office's guidance lacking.
"Our hope was that the secretary would provide helpful information to candidates as they pivoted, in the middle of a pandemic, from traditional wet signature collection to the new world of electronic signature collection," the court said.
"The guidance that was provided, however, was quite limited, indeed unnecessarily so," the court concluded.
Galvin's spokeswoman Debra O'Malley said the guidance came from the court's opinion in Goldstein. Further, the justices didn't scoff at the guidance when Galvin filed it with the court less than a week after the opinion, according to the secretary's office.
"That guidance was submitted to the court without comment from the court or any of the parties, so we believed that it was clear," O'Malley said.
The court said it "was not ideal" that Brady's software for collecting signatures held the signatures and citizens' data in a database, then compiled the data and names onto final paperwork to send to election officials. Instead, Brady and other candidates should have taken a more straightforward approach by collecting signatures on individual nomination forms and submitting them to state and local officials.
However, the court decided that the differences between the nomination papers signed by registered voters and the final ones that were submitted "cannot justify removing a candidate from the ballot and frustrating voters' right to choose candidates for elected office." The exact weight of Brady's errors was one area of focus during oral arguments.
Brady is seeking to unseat Democratic incumbent Bill Keating in a district that encompasses southeastern Massachusetts, Cape Cod, Nantucket and Martha's Vineyard. The district is the least Democratic in a state in which every member of the congressional delegation is a Democrat, according to the Cook Partisan Voting Index.
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.
Brathwaite and the Democratic party's attorney, Gerald A. McDonough, countered the court's criticism of Galvin's guidance.
"To say that somehow or another he should have gone further — further than the court had gone ... it is completely unfair to him and his office," McDonough told Law360.
Brady's attorney Chris Kenney of Kenney & Sams PC said she is "delighted with the court's ruling," which "prevents democracy from being another victim of the coronavirus pandemic."
The justices also ordered Brady's campaign and its software vendors to destroy any raw voter information, including names, addresses, signatures, email addresses and other data.
A spokeswoman for the Massachusetts attorney general's office, which represented the State Ballot Law Commission, declined to comment on the opinion.
Brady is represented by Christopher Kenney of Kenney & Sams PC.
Galvin and the State Ballot Law Commission are represented by Elizabeth Kaplan of the Massachusetts attorney general's office.
Brathwaite 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.
—Additional reporting by Chris Villani. Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
