The Supreme Judicial Court today upheld a state law that blocks people from registering to vote in the 20 days before an election - but dropped a hint to the Legislature that, hey, you guys could change this if you want, before adding, it's OK if you don't want to.
The ruling comes in reaction to a suit filed by several people who tried registering less than 20 days before the 2016 election in Revere, Chelsea and Somerville.
A Superior Court judge ruled the law unconstitutional, but Secretary of State William Galvin, who was also named in the suit, appealed. Josh Zakim, Galvin's opponent in the Democratic primary this year, supports Election Day registration.
The state's highest court began its discussion by noting the state constitution upholds "the fundamental right to vote" in several sections. But, it continues, the constitution also gives the state legislature the right to "enact reasonable laws and regulations that are, in its judgment, appropriate."
So, a conundrum: How to balance the two?
The court acknowledged much has changed since it ruled 35 years ago that a pre-election blackout met constitutional muster.
What was perhaps a reasonable regulation that insignificantly interfered with the right to vote thirty-five, one hundred, or 200 years ago may be considered to significantly interfere with the exercise of that right today in light of technological change and the reasonable expectations of Massachusetts citizens.
But the justices then continued that the pre-election limit is OK, because it "does not disenfranchise any voter" - and registering to vote in Massachusetts has become a simple task, and because Galvin does a good job at alerting the public about voter-registration deadlines.
Those in the individual plaintiff's position were free to register prior to the deadline and would have been eligible to vote in the 2016 election had they merely looked into what is required to register and done so. Importantly, the registration deadline does not apply to categories of qualified voters for whom the deadline is more likely to pose a burden. "Specially qualified voters," including Massachusetts residents who are absent from the Commonwealth during the seven days immediately preceding the voter registration deadline or who become a citizen of the United States after the registration deadline but before an election, are exempt.
In addition, the record suggests that the Secretary undertakes sufficient actions to inform the public about the registration deadline. The Secretary mails every household in the Commonwealth an "Information for Voters" booklet that includes a voter registration form and information about the deadline with instructions in Spanish and Chinese as to how to obtain a translated version of the booklet in those languages. Copies of the booklet are provided to group homes, city and town halls, public libraries, senior centers, and various community organizations. Voter registration forms, which note the deadline, are available at municipal offices, post offices, and libraries; online; and via organizations conducting voter registration drives. Information is also disseminated through public service announcements on television stations and newspapers.
As for registration itself, the record contains ample evidence that the Commonwealth has taken great steps to ensure that the process is simple and accessible. ...
Considering a totality of these factors, we conclude that a requirement that prospective voters register twenty days in advance of an election does not pose a significant interference with the fundamental right to vote under the Massachusetts Constitution so as to require the application of strict scrutiny.
The limit, it said, would give local elections officials enough time to process registration requests before an election. In a footnote, the court noted that early voting in 2016 started just five days after the normal deadline for Election Day registration and that Boston officials had to have 30 workers spend a total of 9,000 hours going through registration requests that came in only five days before the state's first ever early voting period - and that that meant many people who registered during that period got provisional ballots that could not be counted as valid until election day anyway.
The court noted, however, that a legislative committee set up to consider shortening the pre-election blackout never met.
Thus, we have a concern that, given the passage of time, the reasoned basis for the twenty-day blackout period may need to be reconsidered.
But then, the court continues, it will give the legislature the benefit of the doubt and assume that legislators haven't acted because they remain convinced the 20-day limit is OK.
We assume that the legislative inaction in this area represents a conscious conclusion that thedeadline remains "as near [election day] as would be consistent with the necessary preparation for conducting the election in an orderly manner and with a reasonable scrutiny of the correctness of the list."