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 Moreover, the law actually serves to avoid the arbitrary results that could occur under G. L. c. 54, § 100, which was repealed by the VOTES act, whereby the decision to count a ballot validly cast by an absentee voter who subsequently died prior to the opening of polls on election day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.