COMMONWEALTH OF MASSACHUSETTS

Supreme Judieial Court

No. SJC-12435

CHELSEA COLLABORATIVE, INC., MASSVOTE, AND RAFAEL SANCHEZ, Plaintiffs-Appellees,

v.

WILLIAM FRANCIS GALVIN, AS SECRETARY OF THE COMMONWEALTH, Defendant-Appellant.

ON APPEAL FROM A FINAL JUDGMENT OF THE SUPERIOR COURT FOR SUFFOLK COUNTY

REPLY BRIEF FOR APPELLANT

MAURA HEALEY Attorney General

David C. Kravitz (BBO No. 565688) Assistant State Solicitor

Juliana deHaan Riee (BBO No. 564918) Elizabeth Kaplan (BBO No. 568911)

Assistant Attorneys General One Ashburton Place, 20th floor Boston, Massachusetts 02108 617-727-2200 david. kravitz@state. ma. us j uliana.rice@state.ma.us elizabeth.kaplan@state.ma.us Counsel for Appellant

TABLE OF CONTENTS

TABLE OF AUTHORITIES IX

INTRODUCTION 1

ARGUMENT 3

I. There Is No Authority, In Massachusetts Or Elsewhere, For Applying Any Test Other Than The Sliding Scale Test To Voter Registration 3

II. The 20-Day Rule Does Not Impose A Severe Burden 9 

III. "Heightened Scrutiny" Does Not Apply..16

IV. Any Argument That The 2 0-Day Rule Does Not Survive Rational Basis Review Is Waived, And Fails In Any Event 17

CONCLUSION 2 0

CERTIFICATIONS 22

ADDENDUM

G.L. c. 54, § 64 Reply Add. 1

G.L. c. 54, § 89 Reply Add. 2

G.L. c. 54, § 94 Reply Add. 3

New York Election Law § 8-100 Reply Add. 4

Iowa Code § 49.73 Reply Add. 6

Press release: "Secretary Galvin Proposes Election Day Registration" Reply Add. 8

"An Act Relative to Election Day Registration" Reply Add. 10

TABLE OF AUTHORITIES

Cases

ACORN v.  Bysiewicz,  413 F. Supp. 2d 119 (D. Conn. 2005) 10, 14

AyersSchaffner  v.  DiStefano,  860 F. Supp. 918 (D.R.I.), aff'd,  37 F.3d 726 (1st Cir. 1994) 6, 11-12, 17

Barilla  v.  Ervin,  886 F.2d 1514 (9th Cir. 198 9) , overruled  on  other  grounds, Simpson  v.  Lear  Astronics  Corp.  ,  77 F. 3d 1170 (9th Cir. 1996) 9, 15

Barr  v.  Galvin,  626 F.3d 99 (1st Cir. 2010) 17

Batchelder  v.  Allied  Stores  Int'l,  Inc.,  388 Mass . 83 (1983) 7

Blixt  v.  Blixt,  437 Mass. 649 (2002) 6

Burdick  v.  Takushi,  504 U.S. 428 (1992) passim 

Capen  v. Foster,  12  Pick. 485 (1832) 4

Carey  v.  N.E.  Organ  Bank, 446 Mass . 270 (2006) 18

Cepulonis  v.  Secretary  of the  Com. , 389 Mass. 930 (1983) 3, 12, 14-16

Diaz  v.  Cobb,  541 F. Supp. 2d 1319 (S .D. Fla . 2008) 10

Florida  Dem. Party  v.  Scott, 215 F. Supp. 3d 1250 (N.D. Fla. 2016) 17

Goodridge  v.  Dep't  of  Pub.  Health,  44 0 Mass. 309 (2003) 7

Greidinger  v.  Davis,  988 F.2d 1344 (4th Cir. 1993) 8

111.  St.  Bd.  of  Elec.  v.  Socialist  Workers Party,  440 U.S. 173 (1979) 6

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Kinneen  v.  Wells,  144 Mass. 497 (1897) 3-4

Kusper  v.  Pontikes,  414 U.S. 51 (1973) 3, 12

Libertarian  Ass'n  of  Mass.  v. Secretary  of  the  Corn.  , 462 Mass. 538 (2012) 2, 7-8, 13, 16

Lowell  v.  Kowalski,  380 Mass. 663 (1980) 7

Mass.  Pub.  Int.  Research  Grp.  v.  Secretary, 375 Mass . 85 (1978) 5-6

Obama for  Am.  v. Husted,  697 F.3d 423 (6th Cir . 2012) 8 , 12-13

Opinion  of  the  Justices, 247 Mass. 583 (1924) 4-5

Palko  v.  Connecticut,  302 U.S. 319 (1937) 5

Rosario  v.  Rockefeller, 410 U.S. 752 (1973) 3, 11-12, 14-16

Rutgers  Univ.  Student  Assembly  v.  Middlesex Cty.  Bd.  of  Elec.,  141 A.3d 335 (N.J. Super. App. Div. 2016) 9

Tirnmons  v.  Twin  Cities  Area  New Party, 520 U.S. 351 (1997) 19-20

Washington  v.  Glucksberg,  521 U.S. 7 02 (1997) 5-6

Weinschenk  v.  State,  203 S.W.3d 201 (Mo. 2006) 8-9, 13-14

Statutes

G. L. c . 51, § 26 16

G.L. c. 54, § 64 1-2

G.L. c. 54, § 89 3

G.L. c. 54, § 94 3

Iowa Code § 49 . 73 2

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N.Y. Elec. Law § 8-100 2

Constitutional Provisions

Mass. Const., pt. 1, Declaration of Rights, Art. IX 7

Mass. Const., pt. 1, Declaration of Rights, Art. XXX 20

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INTRODUCTION

Plaintiffs' argument, in a nutshell, is that any

law that can result in a qualified individual being

unable to vote in any election is unconstitutional

unless it can survive strict scrutiny. 1 E.g.,  Chelsea

Br. 21, 25-26, 36. This rule would be both

unprecedented - no court, federal or state, has ever

adopted it, see  Sec. Br. 20-22, 36 - and manifestly

unworkable. An example demonstrates the latter point.

By law, polls in Massachusetts must close at

exactly 8:00 p.m. for all state elections. See  G.L. c.

54, § 64 {"§ 64"). And in every state election, it is

nearly certain that some number of constitutionally

qualified and duly registered voters are, through no

fault of their own (a delayed train, a sick child) ,

unable to arrive at the polls by 8 p.m. Those voters

will be unable to vote in that election due to § 64.

Under Plaintiffs' rule, § 64 should be subject to

strict scrutiny if challenged by a voter who could not

get to the polls until, say, 8:15 p.m. And it seems

plain that § 64 should be held unconstitutional under

that rule, because it is not the least restrictive

possible option. The polls could, for example, remain

open until 9 p.m., as they do in some other states.

1 The Superior Court's novel "necessity test" is, as it conceded, "virtually the same" as strict scrutiny. AD 6 3 .

See,  e.g.,  N.Y. Elec. Law § 8-100(2); Iowa Code

§ 49.73(2). Or they could remain open even later -

there is no theoretical reason why polls could not

remain open until midnight on election day. Any such

"less restrictive" law would have allowed our

hypothetical plaintiff who arrived at 8:15 to vote.

Therefore, under Plaintiffs' (and the Superior

Court's) approach to election law, an 8 p.m. closing

time law like § 64 should be unconstitutional.

That cannot be the law. If state legislatures may

enact only the least restrictive, most narrowly

tailored regulations with respect to every aspect of

election administration where an individual's ability

to cast a vote may be implicated, then much of

election law in this country is unconstitutional. Such

a rule would eviscerate the "State's entrenched

authority to regulate elections, a practical necessity

to ensure that our democratic processes remain fair,

honest and orderly." Libertarian  Ass'n  of  Mass.  v. 

Secretary,  462 Mass. 538, 560 (2012) ("LAM").

The sliding scale test, which considers the

burden the challenged regulation places on voters in

determining the appropriate level of scrutiny, is the

far better approach. That test reserves strict

scrutiny for those regulations that truly make voting

difficult, while properly affording broader deference

to legislative judgments regarding more mundane

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matters such as poll closing times, absentee voting

requirements, 2 and reasonable voter registration

deadlines. And, under the sliding scale test, the

Commonwealth's 20-Day Rule easily passes muster.

ARGUMENT

I. There Is No Authority, In Massachusetts Or Elsewhere, For Applying Any Test Other Than The Sliding Scale Test To Voter Registration.

Every state and federal court to have considered

a constitutional challenge to voter registration

regulations since the Anderson/Burdick  sliding scale

test emerged in the 1980s has applied that test. See 

Sec. Br. 20-21. 3 Plaintiffs insist that Massachusetts

should chart a different course, relying on this

Court's decisions in Kinneen  v.  Wells,  144 Mass. 497

(1897), and Cepulonis  v.  Secretary,  389 Mass. 930

(1983), for their argument that strict scrutiny should

always apply. Plaintiffs' reliance on those cases is

misplaced for the reasons stated at Sec. Br. 30-35,

2 For example, a voter cannot obtain an absentee ballot later than noon on the day before the election, G.L. c. 54, § 89, nor can an absentee ballot be counted if the voter has improperly executed the required affidavit, id.  § 94. Plaintiffs' rule would seem to subject these requirements to strict scrutiny.

3 Moreover, registration cases decided before the sliding scale framework took shape are consistent with its insight that the appropriate level of scrutiny is a function of the severity of the burden a challenged law places on the right to vote. See  Sec. Br. 36-38 (discussing Kusper  v.  Pontikes,  414 U.S. 51 (1973); Rosario  v.  Rockefeller,  410 U.S. 752 (1973); and Cepulonis  v.  Secretary,  389 Mass. 930 (1983)) .

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37-39; that analysis need not be repeated. It suffices

to point out that Plaintiffs barely discuss Capen  v. 

Foster,  12  Pick. 485 (1832), even though Kinneen 

itself refers to Capen  as "[t]he leading case, not

only in this Commonwealth, but in the whole discussion

that has taken place in this country in regard to the

right of legislatures to provide for judging the

qualifications of voters." 144 Mass. at 500. 4 It would

be strange indeed for Kinneen  to have rejected Capen's 

emphasis on reasonableness, see Sec. Br. 25-28, and

created (in dicta)  a new "necessity" test at which

Capen  never hinted, while also describing Capen  in

such glowing terms and purporting to follow its

teachings. And Plaintiffs do not even cite Opinion  of 

the  Justices,  247 Mass. 583 (1924), which discusses at

length the Legislature's authority to "make reasonable

rules and regulations" regarding voter registration,

id.  at 587, describes Capen  as "of indubitable

soundness," id. at 586, and says nary a word about

"necessity." If Kinneen  made "necessity" the test, the

4 Plaintiffs argue in essence that Capen  is irrelevant because it did not address "a requirement to register before Election Day." Chelsea Br. 23 (emphasis in original), see also  id.  at 34. That argument fails: Capen  laid down the principles for assessing any law that prevents a person from voting for failure to timely register. Kinneen  affirmed those principles. 144 Mass. at 500-01. That the particular law at issue in Capen  is different from the one now before the Court does not render Capen's  teaching irrelevant; it simply means that the principles laid down in Capen must now be applied to different facts.

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point appears to have been lost on the Justices

authoring the 1924 Opinion,  as well as those authoring

the cases cited at Sec. Br. 34-35. Plaintiffs'

objection notwithstanding, see  Chelsea Br. 24, the

touchstone of the constitutionality of voter

registration rules in Massachusetts is, and always has

been, reasonableness.

Next, Plaintiffs attempt to transmute this

Court's description of voting as "a fundamental

political right," Mass.  Pub.  Int.  Research  Grp.  v. 

Secretary,  375 Mass. 85, 94 (1978) {"MassPIRG"),  into

a holding that voting-related regulations impinge on

"fundamental rights" and therefore always demand

strict scrutiny. Chelsea Br. 26, 34-35. "Fundamental

right" is a term of art in the substantive due process

context that has been reserved for a small category of

rights that are not enumerated in the Constitution but

are "implicit in the concept of ordered liberty."

Palko  v.  Connecticut,  302 U.S. 319, 325 (1937); see 

Washington  v.  Glucksherg,  521 U.S. 702, 720 (1997)

("[I]n addition to the specific freedoms protected by

the Bill of Rights, the 'liberty' specially protected

by the Due Process Clause includes the rights to

marry; to have children; to direct the education and

upbringing of one's children; to marital privacy; to

use contraception; to bodily integrity, and to

abortion.") (citations omitted). For instance, in a

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case involving "the fundamental right of parents to

make decisions concerning the care, custody, and

control of their children," this Court applied "the

so-called 'strict scrutiny' formula." Blixt  v.  Bllxt, 

437 Mass. 649, 655-56 (2002).

"Fundamental" is also, of course, an adjective

that accurately describes the nature of the right to

vote in our system of government. See,  e.g.,  111.  St. 

Ed.  of  Elec.  v.  Socialist  Workers  Party,  440 U.S. 173,

184 (1979) ("[V]oting is of the most fundamental

significance under our constitutional structure.").

But neither the U.S. Supreme Court nor this Court,

even while recognizing the fundamental importance of

voting, has included voting in the list of substantive

due process-based "fundamental rights" the regulation

of which always demands strict scrutiny. See  generally 

Sec. Br. 18-20. Instead, courts recognize that "[e]ven

though the right to vote is fundamental, every voting

regulation is not subject to strict scrutiny." Ayers

Schaffner  v.  DiStefano,  860 F. Supp. 918, 920

(D.R.I.), aff'd,  37 F.3d 726 (1st Cir. 1994). Indeed,

MassPIRG  noted, in the course of discussing the U.S.

Supreme Court's "fundamental rights" cases, see 378

Mass. at 92-96, that that Court "applies a more

flexible standard" than strict scrutiny when deciding

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voting-related cases. Id.  at 95 n.6. 5

Finally, Plaintiffs urge that the sliding scale

test's origin in federal cases renders it inapplicable

to a state constitutional challenge. This Court

recently rejected a similar argument in LAM,  a ballot

access case that was decided under Art. 9 of the

Massachusetts Declaration of Rights. 462 Mass. at 557.

This Court "align[ed its] analysis under art. 9 with

that of the equal protection clause," id. at 542, and

decided the case under the sliding scale framework.

The Court carefully considered, and rejected, the

argument that Art. 9's ballot access protections were

broader than those guaranteed by the Equal Protection

Clause. Id.  at 558-59.® Plaintiffs also object to any

5 Plaintiffs' reliance on Goodridge  v.  Dep't  of  Pub. Health,  440 Mass. 309, 330 (2003), and Lowell  v. Kowalskl,  380 Mass. 663 (1980), see  Chelsea Br. 26, also fails: Goodridge  found no need to decide whether the (non-voting-related) right asserted in that case was "fundamental," since the law in question could not survive even rational basis review. 440 Mass. at 330-31. And Lowell  concerned a statute that discriminated on the basis of sex. It is therefore a "suspect classification" case that has no bearing on the issue presented here. See  380 Mass. at 666.

6  Batchelder  v.  Allied  Stores  Int'l,  Inc.,  388 Mass. 83 (1983), which Plaintiffs invoke in support of a "more robust right to vote than the Federal Constitution," Chelsea Br. 32, has little relevance here. As this Court explained in LAM,  Batchelder  "did not enlarge generally the scope of ballot access rights protected under art. 9 vis-a-vis the Federal Constitution," LAM, 462 Mass. at 558, but was limited to the narrow question of whether the right to gather signatures extended to private property. See  id.  (noting that the result in Batchelder  "relied, in large measure, on differences in the language of art. 9, which does not

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consideration of LAM,  urging that ballot access cases

are different, Chelsea Br. 32-33, but as the Fourth

Circuit has noted in applying the sliding scale test

to a voter registration case, "[t]his argument has

been categorically rejected by the Supreme Court."

Greidinger  v.  Davis,  988 F.2d 1344, 1349 n.7 (4th Cir.

1993); see  also  Obama for  Am.  v.  Husted,  697 F.3d 423,

429 (6th Cir. 2012) ("Although Anderson  and Burdick 

were both ballot-access cases, the Supreme Court has

confirmed their vitality in a much broader range of

voting rights contexts."); LAM,  462 Mass. at 560 ("In

theory and in practice, [ballot access] rights

intertwine with those of voters...."); Sec. Br. 22.

Plaintiffs invoke Weinschenk  v. State,  203 S.W.3d

201 (Mo. 2006), a case decided under the constitution

of Missouri, in support of their argument that the

sliding scale test should not apply to state

constitutional cases. Chelsea Br. 30. But Weinschenk, 

far from holding that strict scrutiny applies to all

voting regulations, in fact aligns with the

Secretary's position. That case recognized that

"reasonable regulation of the voting process and of

registration procedures is necessary to protect the

right to vote," 203 S.W.3d at 215 (emphasis added), as

already argued, see Sec. Br. 25-35. Weinschenk  went on

require State action, and that of the First and Fourteenth Amendments, which do") .

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to explain that, "[s]o long as those regulations do

not impose a heavy burden on the right to vote, they

will be upheld provided they are rationally related to

a legitimate state interest. If the regulations place

a heavy burden on the right to vote, ... our

constitution requires that they be subject to strict

scrutiny." 203 S.W.3d at 215-16. Thus, in evaluating

"constitutionality under Missouri's Constitution," id.

at 216, Weinschenk  adopted the very test for which the

Secretary argues. See  Sec. Br. 35-36. 7

II. The 2 0-Day Rule Does Not Impose A Severe Burden.

As already explained, the record in this case,

and cases from this and other jurisdictions, support

the conclusion that the 20-Day Rule does not impose a

"severe" burden requiring the application of strict

scrutiny under the sliding scale test. Sec. Br. 36-41.

Plaintiffs do not distinguish or otherwise rebut those

cases. 8 Plaintiffs do quarrel with the Secretary's

7  Weinschenk  did disclaim the federal test. See  S.W.3d at 216. But not only did the case adopt a test that seems indistinguishable from it, as discussed in the text, it also held that the result in the case would have been the same under the federal test. See  id.

8 It bears repeating that every case closely comparable to this one, in which a voter registration deadline was challenged as a per  se  unconstitutional infringement on the right to vote, has concluded that the deadline did not impose a severe burden, and upheld the deadline. See Rutgers  Univ.  Student Assembly  v.  Middlesex  Cty.  Bd.  of  Elec.  ,  141 A.3d 335, 343 (N.J. Super. App. Div. 2016) (21 days), certif. denied, 158 A.3d 567 (N.J. 2017); Barilla  v.  Ervin, 886 F.2d 1514, 1525 (9th Cir. 1989) (20 days).

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emphasis on "how difficult it is to comply" with a law

in evaluating a burden's severity. Chelsea Br. 37-38. 9

But Plaintiffs cannot point to any evidence in the

record tending to show that voter registration is in

any respect difficult in Massachusetts. To the

contrary, plaintiff Sanchez testified that registering

was easy and took only a few minutes, A44 6, and former

plaintiff Ortiz testified similarly, A447. Instead,

Plaintiffs posit that "the number of people who fail

to comply ... is a useful metric for gauging the

difficulty of compliance." Chelsea Br. 38. But not

only does this unsupported speculation contradict the

record, it fails on its own terms. To conclude from

the number of qualified but unregistered voters that

registering to vote is difficult would be a logical

fallacy. See  ACORN v.  Bysiewicz,  413 F. Supp. 2d 119,

147 (2005) {"[T]hat one percent [of Connecticut's

overruled  on  other  grounds,  Simpson  v.  Lear  Astronlcs Corp.,  77 F.3d 1170 (9th Cir. 1996); Diaz  v.  Cobb,  541 F. Supp. 2d 1319, 1333-35 (S.D. Fla. 2008) (29 days); ACORN v.  Bysiewicz,  413 F. Supp. 2d 119, 146 (D. Conn. 2 0 05) (7 days).

9 Plaintiffs alternatively suggest that the 20-Day Rule "would be less burdensome if the consequence of missing the deadline did not reach disenfranchisement (e.g., casting a provisional ballot instead)." Chelsea Br. 38. This argument was not offered below and is therefore waived. See  A335-51, A467 (arguing that the deadline should be shorter than 20 days, and/or that election-day registration should be available). In any event, any such "quite rigid narrow tailoring requirement[]" is consistent only with "employ[ing] strict scrutiny." Burdick  v.  Takushi,  504 U.S. 428, 440 n.10 (1992).

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voting-eligible residents] were unable or unwilling to

register in advance of election day does not suggest,

let alone prove, that Connecticut's registration

requirements are onerous or burdensome in any way.").

Even the cases on which Plaintiffs rely support

the Secretary's approach to assessing "burden." For

example, in AyersSchaffner  v.  DiStefano,  860 F. Supp.

918 (D.R.I.), aff'd,  37 F.3d 726 (1st Cir. 1994), see

Chelsea Br. 36, a primary for a local school committee

was declared invalid, and a state elections board

scheduled a second primary, but limited participation

in it to only those voters who had actually voted in

the first. See  860 F. Supp. at 919. Registered voters

disqualified from voting in the second sued, and the

district court found that "the Board completely denied

the right to vote to otherwise registered and

qualified voters. A complete denial of the right to

vote is a restriction of the severest kind." Id.  at

921 (emphasis added). In affirming, the First Circuit

distinguished registration deadline cases like Rosario 

v.  Rockefeller,  410 U.S. 752 (1973), as "involv[ing]

conditions explicitly established in advance as

prerequisites for voting," and held that no case

supported barring voters "from participating in an

election based on the failure to meet some later-

imposed, additional criteria." 37 F.3d at 730

(emphasis in original); see also  id.  (disapproving

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"the retroactive restriction of the right to vote").

Under the rule at issue in AyersSchaffner,  there

was nothing registered voters in the plaintiffs'

position could have done to participate in the second

primary. The case thus resembles Kusper  v.  Pont ikes, 

414 U.S. 51 (1973), in which "there was no action that

[the plaintiff] could have taken to make herself

eligible to vote in the [relevant] primary." Id.  at 60

(distinguishing Rosario,  where petitioners'

"disenfranchisement was caused by their own failure to

take timely measures to enroll"). It also resembles

this Court's decision in Cepulonis,  which noted that

under registration rules then in place, certain

prisoners had no way of registering and thus could not

vote. 389 Mass. at 937. Each of AyersSchaffner, 

Kusper,  and Cepulonis  thus concerned a voting rule

that was, for some number of qualified voters,

impossible or unreasonably difficult to comply with -

i.e., it imposed a severe burden, see  Sec. Br. 36.

Plaintiffs also rely heavily on Obama for  Am.  v. 

Husted,  697 F.3d 423 (6th Cir. 2012), see  Chelsea Br.

36-38, but that unusual case offers them little

support. In Husted,  Ohio had eliminated the three days

of early voting immediately before election day - but

only for non-military voters. 697 F.3d at 426-27.

Applying the Anders on/Burdick  framework, the court

observed that " [i]f the State had enacted a generally

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applicable, nondiscriminatory voting regulation that

limited in-person early voting for all Ohio voters,

its * important regulatory interests' would likely be

sufficient to justify the restriction." Id.  at 433-34

(citing Burdlck  v.  Takushi,  504 U.S. 428, 434 (1992)).

However, because the Ohio law was "not generally

applicable to all voters," id.  at 434, the State had

to (and could not) justify "the discriminatory burden

it has placed on some but not all Ohio voters." Id. 

Husted  is thus properly understood as an equal

protection case in the context of voting, where the

State was treating two classes of voters (military and

non-military) differently without adequate

justification. See,  e.g.,  id.  at 435 ("With respect to

in-person early voting, however, there is no relevant

distinction between the two groups."). The 2 0-Day Rule

has no such improper classification. It, unlike the

law in Husted,  is a "reasonable, nondiscriminatory

restriction[]." LAM,  462 Mass. at 560 (emphasis added;

citation omitted).

Weinschenk  further supports looking at difficulty

of compliance to analyze "burden." Weinschenk 

identified two problems with the voter ID law before

it: (1) qualified voters lacking the required form of

ID could not obtain it without "expend[ing] money to

gather the necessary documentation," 203 S.W.3d at

213, and (2) those voters then might have to wait "the

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six to eight weeks that the record shows it takes" to

obtain the documents, id.  at 214. The court thus held

that "the Photo-ID Requirement is an 'onerous

procedural requirement which effectively handicap[s]

exercise of the franchise.'" Id.  at 215 (citation

omitted). That is, it concluded that the law before it

placed "a heavy and substantial burden on Missourians'

free exercise of the right of suffrage," id.,  because

it was unreasonably difficult to comply with.

Moreover, Weinschenk  contrasted the voter ID law

before it with other types of voting regulations,

including the voter registration deadline in ACORN v. 

Bysiewicz,  413 F. Supp. 2d 119 (D. Conn. 2003), and

described ACORN as "distinguishable because [it]

do[es] not involve direct and heavy burdens on the

right to vote." 203 S.W.3d at 216 n.26.

Finally, a rule resulting in a voter's total, or

long-term, disenfranchisement is more burdensome than

one (like the 20-Day Rule) that can prevent a voter

from participating in a single election. 10 That

10 Plaintiffs suggest that the Secretary ignores the impact of failing to comply with a voting regulation, Chelsea Br. 37-38, but it is they who ignore the difference between being unable to vote in a single election and being disenfranchised for an extended period. Case law from this Court and others does recognize that difference. See,  e.g.,  Cepulonis,  389 Mass. at 937 ("[In .Rosario] , the plaintiffs failed to register before a statutory deadline, and could not vote in the next primary. The time limit in that case

- 1 4 -

distinction was critical in Cepulonis,  which focused

on the fact that a prisoner who had not registered

prior to being incarcerated, who was serving a lengthy

sentence (Cepulonis's sentence was 58-82 years, id.  at

932), and who could not register from prison, would be

unable to vote for many elections. Cepulonis 

distinguished Rosario,  which had upheld a rule

requiring party enrollment eight months before the

primary, on precisely that basis: this Court noted

that, in Rosario,  "the plaintiffs failed to register

before a statutory deadline, and could not vote in the

next primary," but "[t]he time limit in that case did

not absolutely disenfranchise voters or deprive them

of the right to vote for a lengthy period." 389 Mass.

at 937 (emphasis added). It was the lengthy period of

deprivation - a feature that the 20-Day Rule lacks 11 -

did not absolutely disenfranchise voters...."); Rosario, 410 U.S. at 758 ("[The law] did not absolutely disenfranchise the class to which the petitioners belong.... Rather, the statute merely imposed a time deadline on their enrollment ... Hence, if their plight can be characterized as disenfranchisement at all, it was not caused by [the deadline], but by their own failure to take timely steps to effect their enrollment."); Barilla,  886 F.2d at 1525 (holding that, with respect to a 20-day voter registration deadline, "[w]hat is at issue here is not a 'ban' on the plaintiffs' right to vote, but rather, a 'time limitation' on when the plaintiffs had to act in order to be able to vote.") (citation omitted).

11 Most voters who register within the 20 days preceding an election will not be able to vote in that election, but will be duly registered for all

- 1 5 -

that Cepulonis  found distinguished Rosario  and

justified strict scrutiny. Contrary to Plaintiffs'

suggestion, see  Chelsea Br. 3 9 n.17, Cepulonis  nowhere

suggests that Rosario  might have come out differently

under the Massachusetts Constitution. See  Sec. Br. 38

& n. 30 . 12

III. "Heightened Scrutiny" Does Not Apply.

Plaintiffs argue that, under the sliding scale

test, the Court "should apply a heightened form of

scrutiny" even though the 20-Day Rule's burden is not

"severe." Chelsea Br. 35. The cases on which

Plaintiffs rely for this proposition do not support

it. For instance, this Court in LAM carefully assessed

the burdens imposed by the challenged regulations and

found them " [t] o some extent ... significant." 462 Mass.

at 561. But, because they were ultimately "modest"

rather than "severe," this Court concluded that

subsequent elections. See  G.L. c. 51, § 26.

12 Plaintiffs erroneously claim that Cepulonis  "did not focus on whether the prisoner could have registered before entering prison," Chelsea Br. 38. In fact, Cepulonis  considered exactly that question: it held that " [t]he fact that for some prisoners there was once an opportunity to register, and they failed to do so, does not in our view support an absentee ballot system that has the effect of disenfranchising a group of prospective voters for long periods of time." 389 Mass. at 937 (emphasis added). As discussed in the text, the lengthy period of disenfranchisement rendered the rule in Cepulonis  especially burdensome, and justified overlooking any failure of diligence on the part of the prisoners in not having registered prior to their incarceration.

- 1 6 -

"'there need be only a rational basis undergirding the

regulation.'" Id.  at 567 (quoting Barr  v.  Galvin,  626 

F.3d 99,  110 (1st Cir. 2010)) (emphasis added).

Plaintiffs' non-Massachusetts authority for

"heightened scrutiny" in this context, see  Chelsea Br.

35-37, fares no better. Husted,  as noted supra,  turned

on the fact that Ohio discriminated against non-

military voters, thereby implicating not only the

right to vote but also equal protection. Florida  Dew. 

Party  v.  Scott,  215 F. Supp. 3d 1250 (N.D. Fla. 2016),

as explained at Sec. Br. 3 9-40, and AyersSchaffner, 

as explained supra,  both found a "severe" burden on

voting rights where circumstances rendered compliance

impossible, and thus applied strict (not "heightened")

scrutiny. Scott,  215 F. Supp. 2d at 1257; Ayers

Schaffner,  860 F. Supp. at 921.

Moreover, where (as here) the burden on voting is

not "severe," the issue is whether the challenged law

is "a reasonable way" to further the Commonwealth's

"legitimate interests." Burdlck,  504 U.S. at 440.

Thus, even if "heightened scrutiny" were appropriate,

in this context such scrutiny would be effectively

"rational basis plus" - a standard that the 20-Day

Rule passes, see  infra  Part IV.

IV. Any Argument That The 20-Day Rule Does Not Survive Rational Basis Review Is Waived, And Fails In Any Event.

Plaintiffs offered no argument below that the 20-

- 1 7 -

Day Rule fails rational basis review. The Superior

Court lauded that restraint, noting that "the

plaintiffs correctly do not attempt to argue that the

20-day deadline fails the bare rationality test." AD69

(emphasis added). Because "[t]he plaintiffs never put

the judge on notice" of any intention to proceed "on

this theory," the argument is now waived. Carey  v. 

N.E.  Organ  Bank,  446 Mass. 270, 285 (2006) .

In a footnote. Plaintiffs insist that they

preserved this argument, see Chelsea Br. 50 n.21, but

the citations they offer are insufficient. A passing

mention as to whether "20 days is a rational cutoff,"

A345, in a section of a brief entitled "The Voter

Cutoff Law Fails Strict Scrutiny," A340, does not rise

to the level of argument that the statute fails a test

other than strict scrutiny. Similarly, a mere mention

of "rational basis review" in a sentence whose point

is that the 2 0-Day Rule is "unnecessary and therefore

unconstitutional" under the "necessity" test, A468,

fails to "put the judge on notice," Carey,  44 6 Mass.

at 285, that Plaintiffs might be separately arguing

that the statute fails the rational basis test as

well. The Superior Court's own words make plain that

it did not understand Plaintiffs to be raising the

latter argument. See  AD6 9.

In any event, the 20-Day Rule easily survives

rational basis review, for the reasons stated at Sec.

- 1 8 -

Br. 44-45, and by the Superior Court at AD69-70. The

Superior Court correctly upheld as "legitimate" the

"state's interest in efficiency and reducing the

pressure upon local officials," AD69, in addition to

its undisputedly compelling interests in ascertaining

voter qualifications and running orderly elections.

Plaintiffs' insistence that the 20-Day Rule's

justification is "not supported by the record,"

Chelsea Br. 49, is belied by the Superior Court's

determination that "the Commonwealth has offered a

sufficient theoretical justification for the

challenged laws." AD6 9. No more is required.

Even if the appropriate standard is a sort of

"rational basis plus," cf.  Chelsea Br. 49, the 20-Day

Rule meets that test. The Superior Court found that

"the 20-day deadline may well make elections

administration easier or more convenient." AD69. For

instance, common sense dictates that the spike of

registration activity that occurs at the deadline, see 

A1467 (Plaintiffs' expert's report), is easier to

manage if it occurs before elections officials are

already working lengthy hours to manage early voting

and prepare for election day. See  Sec.  Br. 8-10, 47-

4 9; AD25-28. Bearing in mind that, in non-severe

burden cases like this one, courts do not "require

elaborate, empirical verification of the weightiness

of the State's asserted justifications," Timmons  v. 

- 1 9 -

Twin  Cities  Area  New Party,  520 U.S. 351, 364 (1997),

the Superior Court's findings justify the 20-Day Rule

even under "rational basis plus" review. Indeed, the

Superior Court recognized that only strict scrutiny

places the 20-Day Rule's constitutionality into

question. See  AD70 ("In the end, therefore, this case

turns on application of strict scrutiny....").

• k  k  k 

As Plaintiffs note, the Secretary has proposed

legislation that would implement election-day

registration in Massachusetts. See  Reply Add. 8-14.

The Plaintiffs and the Secretary thus agree that

Massachusetts can, and should, allow voters to

register and vote on election day, under appropriate

conditions. Our system of separated powers commits the

question of whether and how to do so to the people's

elected representatives. See  Mass. Const. Pt. 1, Art.

XXX.

CONCLUSION

For the foregoing reasons, and for those stated

in the Secretary's opening brief, the judgment of the

Superior Court should be reversed.

- 2 0 -

Respectfully submitted,

WILLIAM FRANCIS GALVIN SECRETARY OF THE COMMONWEALTH

By his attorney,

MAURA HEALEY

65688) Assistant  State  Solicitor Juliana deHaan Rice (BBO #564918) Elizabeth Kaplan (BBO #568911) Assistant  Attorneys  General One Ashburton Place, 20th floor Boston, MA 02108 617-727-2200 david.kravitz@state.ma.us juliana.rice@state.ma.us elizabeth.kaplan@state.ma.us

Dated: February 20, 2 018

- 2 1 -

CERTIFICATION PURSUANT TO MASS. R. APP. P. 16(k)

I certify that the foregoing brief complies with all rules of court pertaining to the filing of briefs, including, but not limited to, Mass. R. App. P. 16 and 20 .

I certify under penalty of perjury that, pursuant to the parties' agreement, I this day caused one paper copy and one electronic copy of this brief to be served by first-class mail and by email on the counsel of record listed below.

Jessie J. Rossman, Esq. ACLU Foundation of Massachusetts 211 Congress Street Boston, MA 02110 j rossman@aclum.org

CERTIFICATE OF SERVICE

- 2 2 -

ADDENDUM

G.L. c. 54, § 64 Reply Add. 1

G.L. c. 54, § 89 Reply Add, 2

G.L. c. 54, § 94 Reply Add. 3

New York Election Law § 8-100 Reply Add. 4

Iowa Code § 49.73 Reply Add. 6

Press release: "Secretary Galvin Proposes Election Day Registration" Reply Add. 8

"An Act Relative to Election Day Registration" Reply Add. 10

General Laws chapter 54, section 64

Notices or warrants for state and city elections and for the election of town officers in towns where official ballots are used shall specify by name all the offices to be voted for, and state, in the form in which it will appear upon the ballot, any question submitted to the voters. They shall specify the time when the polls will be opened, and in cities and in towns when voting by precincts, when the polls will be closed, and in towns when not voting by precincts, when they may be closed.

The polls shall in no case be kept open after eight o'clock in the evening. At state elections the polls shall not be closed before eight o'clock in the evening.

In cities and towns at the election of state officers, the polls may be open as early as fifteen minutes before six o'clock in the forenoon, and shall be open not later than seven o'clock in the forenoon and shall be kept open at least thirteen hours. In cities at the election of city officers, the polls may be open as early as fifteen minutes before six o'clock in the forenoon, and shall be open not later than ten o'clock in the forenoon and shall be kept open at least ten hours.

In towns, at the election of town officers, the polls may be opened as early as fifteen minutes before six o'clock in the forenoon, and shall be opened as early as twelve o'clock, noon, and shall be kept open at least four hours, and until the time specified in the warrant when they may or will be closed; and in towns not voting by precincts they may be kept open for such longer time as the meeting shall direct. The selectmen in any town may provide that the hours during which the polls shall be open for the pmpose of voting on a question to be submitted to the voters of said town shall be the same as the hours designated by said selectmen for the election of town officers. After an announcement has been made by the presiding officer of a time so fixed for closing the polls they shall not be closed at an earlier hour.

Reply Add. 1

General Laws chapter 54, section 89

Any form of written communication evidencing a desire to have an absent voting ballot be sent for use for voting at an election shall be given the same effect as an application made in the form prescribed by the state secretary. No application shall be deemed to be seasonably filed unless it is received in the office of the city or town clerk or registrars of voters before noon on the day preceding the election for which such absent voting ballot is requested; provided, however, that if the day preceding such election is a Sunday or legal holiday, then it shall be received by such clerk or registrars before five o'clock post meridian on the last previous day on which such office is open. An application by a voter admitted to a health care facility after noon of the fifth day before the relevant election, as provided in subsection (c) of section ninety-one B, may be received up until the time the polls close.

The provisions of section eighty-one relative to spoiled ballots shall apply to absent voting ballots; provided, however, that no request for a substitute ballot from a voter who has received his ballot by mail shall be valid unless it is accompanied by the spoiled ballot and received in the office of the city or town clerk or the registrars of voters before noon on the day preceding the election for which such substitute absent voting ballot is requested.

No ballot shall be mailed or delivered, as provided in section ninety-one B, until an application has first been filed and certified by the registrars and returned to the clerk, as provided in section ninety-one. Said application may request an absent voting ballot for each regular or special primary and regular or special election which occurs within the calendar year in which the application is received by the city or town clerk or registrars.

A family member of a person qualified to vote by absent voting ballot may apply in the same manner on behalf of such person. Such applicant shall state his relationship to the absent voter, shall sign the application under the pains and penalties of perjury, and shall transmit the application to the clerk of the city or town of the absent voter's residence.

Reply Add. 2

General Laws chapter 54, section 94

The city or town clerk or a person designated by him shall open each envelope purporting to contain an official absent voting ballot as soon as possible after receiving it, in the view of any persons who may be present. He shall remove therefrom the inner envelope provided for in clause (c) of the first paragraph of section eighty-seven and, without opening such inner envelope, compare the signature thereon with the signature on the application therefor, except if a family member signed the application or if the voter received assistance in signing the application or the envelope, and examine the affidavit on each such envelope. If he finds that such affidavit has been improperly executed, or does not sufficiently indicate that the ballot was marked and mailed or delivered as required by sections ninety-two and ninety-three, or except as provided in the preceding sentence was not signed by the person who signed the application therefor, he shall mark across the face thereof "Rejected as defective", and shall place on the absent voting disposition list required by section ninety-one or section ninety-one A, as the case may be, opposite the name of the voter the capital letter R. Each envelope, so marked, all applications for absent voter ballots and all lists referred to in this section shall be preserved and destroyed in the manner provided by law for the retention, preservation or destruction of official ballots. If he does not mark the envelope "Rejected as defective", he shall mark a check against the name of the voter on the absent voting disposition list required by section ninety-one or section ninety-one A, as the case may be. Said clerk, or such person, shall record on tally sheets prepared and furnished by the state secretary all envelopes, as well as accepted or rejected ballots of absent voters; and, in cities and towns divided into voting precincts, a separate record shall be made for each precinct.

Said clerk shall notify, as soon as possible, each voter whose ballot was rejected that such ballot has been rejected. Said notice shall be on a form prescribed by the state secretary and provided by the clerk. Unless the clerk determines that there is clearly insufficient time for the voter to return another ballot, the clerk shall then proceed as if the voter had requested a substitute ballot under section eighty-nine. If the clerk received the original ballot by mail, the clerk shall enclose the substitute ballot and other papers described in section eighty-seven with the mailed notice of rejection. If the original ballot was delivered to the voter in the office of the clerk or at a health care facility, the clerk shall attempt to communicate to the voter as soon as possible that the substitute ballot is available. If the clerk timely receives an inner envelope purporting to contain such a substitute ballot, and does not mark it "Rejected as Defective" under this section, he shall strike the letter R from any list on which it has been placed under the preceding paragraph.

Reply Add. 3

§ 8-100. Elections; dates of and hours for voting, NY ELEC § 8-100

McKinney's Consolidated Laws of New York Annotated

Election Law (Refs & Annos)

Chapter Seventeen. Of the Consolidated Laws (Refs & Annos)

Article 8. Conduct of Elections (Refs & Annos)

Title I. Polling Places

McKinney's Election Law § 8-100

§ 8-100. Elections; dates of and hours for voting

Effective: July 1, 2015

Currentness

1. (a) [Eff. until Dec. 31, 2016, pursuant to L.2015, c. 87, § 13. See, also, par. (a), below.] A primary election, to be

known as the fall primary, shall be held on the first Tuesday after the second Monday in September before every general

election unless otherwise changed by an act of the legislature. Members of state and county committees and assembly

district leaders and associate assembly district leaders and all other party positions to be elected shall be elected at the

fall primary and all nominations for state and local public office required to be made at a primary election in such year

shall be made at the fall primary. In the year two thousand sixteen in which electors of president and vice president of the

United States are to be elected, an additional primary election, to be known as the presidential primary, shall be held on

April nineteenth, two thousand sixteen, unless otherwise changed by an act of the legislature, for the purpose of electing

delegates and alternate delegates to the national convention.

1. (a) [Eff. Dec. 31, 2016, pursuant to L.2015, c. 87, § 13. See, also, par. (a), above.] A primary election, to be known as

the fall primary, shall be held on the first Tuesday after the second Monday in September before every general election

unless otherwise changed by an act of the legislature. In each year in which electors of president and vice president of the

United States are to be elected an additional primary election, to be known as the spring primary, shall be held on the

first Tuesday in February unless otherwise changed by an act of the legislature, for the purpose of electing delegates to

the national convention, members of state and county committees and assembly district leaders and associate assembly

district leaders.

(b) In the event a run-off primary election is required in the city of New York, it shall be held on the second Tuesday

next succeeding the date on which the initial primary election was held.

(c) The general election shall be held annually on the Tuesday next succeeding the first Monday in November.

2. [Eff. until Jan. 1, 2018. See, also, subd. 2, below.] Polls shall be open for voting during the following hours: a primary

election from twelve o'clock noon until nine o'clock in the evening, except in the city of New York and the counties of

Nassau, Suffolk, Westchester, Rockland, Orange, Putnam and Erie, and in such city or county from six o'clock in the

morning until nine o'clock in the evening; the general election from six o'clock in the morning until nine o'clock in the

evening; a special election called by the governor pursuant to the public officers law, and, except as otherwise provided

by law, every other election, from six o'clock in the morning until nine o'clock in the evening.

Wi STl AW 2018Thomson Reuters No claim Reply Add. 4 Government

§ 8-100. Elections; dates of and hours for voting, NY ELEC § 8-100

2. [Eff. Jan. 1,2018. See, also, subd. 2, above.] Polls shall be open for voting during the following hours: a primary election

from twelve o'clock noon until nine o'clock in the evening, except in the city of New York and the counties of Nassau,

Suffolk, Westchester, Rockland, Orange, Putnam, Dutchess and Erie, and in such city or county from six o'clock in the

morning until nine o'clock in the evening; the general election from six o'clock in the morning until nine o'clock in the

evening; a special election called by the governor pursuant to the public officers law, and, except as otherwise provided

by law, every other election, from six o'clock in the morning until nine o'clock in the evening.

3. In any election district in which a primary of any party is uncontested, no primary of such party shall be held. In any

election district in which the primaries of all parties are uncontested on the day of any primary election, no primaries

shall be held on such day and the polling place shall not be opened for voting.

4. No primary, special or general election for any state or local office or for the election of officers of any corporation

which is funded in whole or in part by federal, state or municipal moneys shall be held on a Saturday or Sunday.

Credits

(L.1976, c. 233, § 1. Amended L.1977, c. 458, § 2; L,1978, c. 373, § 71; L.1981, c. 524, § 1; L.1981, c. 557, § 1; L.1981, c.

628, § 1; L.1982, c. 97, § 1; L.1983, c. 432, § 1; L.1994, c. 652, § 1; L.1997, c. 132, § 1, eff. July 25, 1997; L.2000, c. 335,

§ 1, eff. Jan. 1, 2001; L.2007, c. 17, § 1, eff. April 9, 2007; L.2007, c. 228, § 4, eff. July 3, 2007, deemed eff. July 1, 2007;

L.2011, c. 147, § 1, eff. July 18, 2011, deemed eff. July 1, 2011; L.2013, c. 99, §4, eff. July 8, 2013; L.2015, c. 87, § 1, eff.

July 23, 2015, deemed eff. July 1, 2015; L.2017, c. 367, § 1, eff. Jan. 1, 2018.)

Notes of Decisions (9)

McKinney's Election Law § 8-100, NY ELEC § 8-100

Current through L.2018, chapter 1.

End of Document © 2018 Thomson Renters. No ciaim to original U.S. Government Works.

2

49.73. Time of opening and closing polls, IA ST § 49.73

Iowa Code Annotated

Title II. Elections and Official Duties [Chs. 39-79]

Subtitle 1. Elections [Chs. 39-633]

Chapter 49. Method of Conducting Elections (Refs & Annos)

I.C.A, § 49.73

49.73, Time of opening and closing polls

Effective: July 1, 2009

Currentness

1. At all elections, except as otherwise permitted by this section, the polls shall be opened at 7:00 a.m. if at least one official

from each of the political parties referred to in section 49.13 is present. On the basis of voter turnout for recent similar

elections and factors considered likely to so affect voter turnout for the forthcoming election as to justify shortened

voting hours for that election, the commissioner may direct that the polls be opened at 12:00 noon for:

a. Any school district election.

b. Any election conducted for a city, including a local option sales and services tax election conducted pursuant to section

423B.1. At elections conducted pursuant to chapter 423B, all polling places shall have the same voting hours.

a, b. [Deleted by Acts 2017 (87 G.A.) ch. 155, H.F. 566, § , eff. July 1, 2019.]

c. Any election conducted for a benefited district.

d. Any election conducted for the unincorporated area of a county.

2. The commissioner shall not shorten voting hours for any election if there is filed in the commissioner's office, at least

twenty-five days before the election, a petition signed by at least fifty eligible electors of the school district or city, as the

case may be, requesting that the polls be opened not later than 7:00 a.m. All polling places where the candidates of or

any public question submitted by any one political subdivision are being voted upon shall be opened at the same hour,

except that this requirement shall not apply to merged areas established under chapter 260C. The hours at which the

respective precinct polling places are to open shall not be changed after publication of the notice required by section

W6SI1AW © 2018 Thomson Reuters Reply Add. 6 ''/orks, 1

49.73. Time of opening and closing polls, IA ST § 49.73

49.53. The polling places shall be closed at 9:00 p.m. for state primary and general elections and other partisan elections,

and for any other election held concurrently therewith, and at 8:00 p.m. for all other elections.

2. All polling places where the candidates of or any public question submitted by any one political subdivision are being

voted upon shall be opened at the same hour. The hours at which the respective precinct polling places are to open shall

not be changed after publication of the notice required by section 49.53. The polling places shall be closed at 9:00 p.m. for

state primary and general elections and other partisan elections, and for any other election held concurrently therewith,

and at 8:00 p.m. for all other elections.

Credits Amended by Acts 1970 (63 G.A.) ch. 1039, § 28; Acts 1971 (64 G.A.) ch. 98, § 13; Acts 1973 (65 G.A.) ch. 136, § 153;

Acts 1974 (65 G.A.) ch. 1101, § 37, eff. April 26, 1974; Acts 1975 (66 G.A.) ch. 81, § 76; Acts 1976 (66 G.A.) ch. 1056,

§ 44; Acts 1976 (66 G.A.) ch. 1075, § 40, eff. May 15, 1976; Acts 1994 (75 G.A.) ch. 1180, § 13; Acts 2002 (79 G.A.) ch.

1134, §§ 37, 38, eff. Jan. 1, 2003; Acts 2007 (82 G.A.) ch. 59, H.F. 848, § 11; Acts 2008 (82 G.A.) ch. 1115, H.F. 2620, § 97; Acts 2009 (83 G.A.) ch. 138, H.F. 450, § 1; Acts 2017 (87 G.A.) ch. 155, H.F. 566, §§ 25, 26, eff. July 1, 2019.

Notes of Decisions (9)

I. C. A. §49.73, IA ST §49.73

Current with legislation from the 2017 Regular Session

End of Diinimeitl © .lOlS Thomson Reuters. No claim to original U.S. Government Works.

WEST LAW (o; 2018 Thomson Reuters, No claim Ftep'y Acid. 7 Government Works.

William Francis Galvin Secretary of the Commonwealth

Contact: Debra O'Malley January 25, 2018 Telephone: 617-727-9180

SECRETARY GALVIN PROPOSES ELECTION DAY REGISTRATION

Secretary of the Commonwealth William F. Galvin today announced that he is proposing

legislation to allow Massachusetts voters to register and vote on Election Day.

"Allowing voters to register on Election Day is the next step in our successful effort to

expand access to the ballot," Galvin said. "Over the past few years, my office has worked to

bring online voter registration, pre-registration, and early voting to Massachusetts. This is yet

another way to make it easier to cast a ballot for any eligible citizen who wants to vote."

Under current law, Massachusetts voters must be registered at least 20 days before an

election in order to be eligible to vote. Galvin's bill would allow voters who missed that 20 day

deadline to go to their local polling place on Election Day, complete a voter registration form,

and vote immediately afterward.

Galvin, who has expressed support for Election Day registration in the past, has presented

his proposal to members of the Joint Committee on Election Laws and is urging them to pass it

as soon as possible. The Committee must report legislation by February 7, 2018.

Massachusetts' voter registration deadline has been the subject of recent litigation, with

opponents arguing that the deadline is unconstitutional. While Galvin does not believe that a

registration deadline violates the Constitution, he believes his proposal is the most efficient way

to increase voter turnout and participation.

"Election Day registration has been shown to be one of the simplest and more effective

ways of increasing voter participation, with administrative costs much lower than many other

proposals to do the same thing, because it combines the act of registration and voting," Galvin

-More-

State Flouse, Room 337, Boston, Massachusetts 02133 Reply Add. 8

In an effort to make the change as seamless as possible, Galvin's proposal would

establish Election Day registration, while providing a transition period for local election officials.

Election Day registration would go into effect in 2019, allowing election officials to implement

the change before the next presidential election.

Also included in the legislation is a proposal for Massachusetts to join the Electronic

Registration Information Center (ERIC), a group of states whose mission is ensuring the

accuracy of voting lists and increasing voter participation.

-End-

State House, Room 337, Boston, Massachusetts 02133 Reply Add. 9

An Act Relative to Election Day Registration

SECTION 1. Section 1 of chapter 51 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by striking out the last sentence and inserting in place thereof the following sentence:- A person otherwise qualified to vote for national or state officers, but who has not registered in accordance with the provisions of section 26 of this chapter shall be eligible to register under section 34A.

SECTION 2. Section IF of chapter 51 of the General Laws is hereby repealed.

SECTION 3. Said chapter 51, as so appearing, is hereby amended, by striking out section 3, as so appearing, and inserting in place thereof the following section:-

Section 3. For all elections and primaries, a person shall be registered and may vote in the ward or voting precinct where he resides; provided, however, that any registered voter of a city or town who moves to any other precinct in said city or town or to another city or town may register to vote at his new address by making written application to the city or town clerk no later than the close of registration or in accordance with the provisions of section 34A. A new resident of the city or town may also, upon like application, be registered at the new address by making written application to the city or town clerk no later than the close of registration or in accordance with the provisions of section 34A. The city or town clerk shall forthwith notify each voter making any such written application that the same has been received and that he may vote, subject to the provision of this section regarding the close of registration, in the ward or precinct into which he has moved or in accordance with provisions of section 34A.

SECTION 4. Section 26 of said chapter 51, as so appearing, is hereby amended by striking out, in lines 9 and 10, the words "eight o'clock in the evening" and inserting in place thereof, in each instance, the following figure:- 5:00 pm.

SECTION 5. Section 26 of said chapter 51, as so appearing, is hereby further amended by striking the last sentence.

SECTION 6. Said chapter 51 is hereby further amended by striking out section 28, as so appearing, and inserting in place thereof the following section:-

Section 28. Registrars shall hold a continuous session from 9:00 am until 5:00 pm on the last day for registration prescribed under section 26. For those towns having less than 1,500 voters, such session shall be sufficient if it includes the time from 9:00 until 11:00 am and from 2:00 until 5:00 pm.

SECTION 7. Said chapter 51 is hereby further amended by striking out section 34, as appearing in the 2016 Official Edition, and inserting in place thereof the following section:-

1 Reply Add. 10

Section 34. Except as otherwise provided in section 34A, after 5:00 pm of a day on which registration is to cease, the registrars shall not register any person to vote in the next election, except that they shall furnish, or cause to be furnished, to each person waiting in line at the hour of 5:00 pm for the purpose of being registered, a card or slip of identification bearing such person's name and shall, before registration ceases, permit such person to register.

SECTION 8. Said chapter 51 is hereby further amended by inserting after section 34 the following section:-

Section 34A. (a) An individual who is eligible to vote may register on the day of an election by appearing in person at the polling place, during the hours it is open for voting, for the precinct in which the individual maintains residence, by completing a registration application in a form prescribed by the state secretary which complies with identity requirements of 52 U.S.C. section 21083, by presenting to the appropriate election official proof of residency and by making a written oath which shall be as follows: 1 certify that I; am a citizen of the United States; am at least 18 years old; am not under guardianship that prohibits me from registering and/or voting or otherwise prohibited from voting; am not temporarily or permanently disqualified by law because of corrupt practices in respect to elections; have not and will not vote in any other location within the Commonwealth or elsewhere; have read and understand this statement: I further understand that giving false information is a felony punishable by not more than 5 years imprisonment or a fine of not more than $10,000, or both.

[b] For purposes of this section, the term "proof of residence" shall mean 1 of the following, so long as it includes the name of the applicant and the address from which he or she is registering:

[i] a valid photo identification including, but not limited to, a Massachusetts driver's license or other state-issued identification card; or

(ii) other documentation demonstrating the name and address where the applicant maintains residence and seeks to register including, but not limited to, a copy of a current utility bill, bank statement, government check, residential lease agreement, wireless telephone statement, paycheck, other government document or correspondence, a current student fee statement or other document from a post-secondary educational institution that verifies the student's current address.

[c] Upon meeting the identity requirements of subsection (a), production of proof of residence, and the making of an oath sufficient to support registration, the ballot clerk or his designee shall permit the applicant to vote at that election. Any person who registers to vote on the day of an election in accordance with this section shall, absent disqualification, be registered to vote at all subsequent primaries and elections.

2 Reply Add. 11

(d] A registrant who fails to present suitable identification shall be permitted to deposit a provisional ballot pursuant to the provisions of section 76C of chapter 54, but shall be required to return within two business days after a state primary or municipal election or within six days following a state election to present sufficient identification to the local election officials in order for the local election officials to determine that the registrant is qualified to vote in such election and has deposited an eligible provisional ballot.

[e] The state secretary shall make available to the election officers at each polling place, to the extent possible, access to the statewide list of registered voters as contained in the central registry of voters set forth in section 47C. For the purposes of this section, an electronic or printed copy of all voters registered to vote in that precinct as of the last day of the registration period, as required by sections 55 and 60, shall be sufficient.

(f] The local election officials may correct information supplied by the registrant to the extent necessary to maintain the integrity of their records. If an affidavit is incomplete or if it appears from the facts set forth in the affidavit that the registrant is not qualified to register as a voter, the local election officials shall proceed in accordance with the provisions of section forty-seven.

(g] As soon as practicable after the election, the registrars shall add the registrant's name, address and effective date of registration to the annual register of voters.

[h] This section shall not apply to an individual seeking to register to vote in any town for the purposes of voting at annual town meeting or special town meeting.

[i] A registered voter shall not re- register on the day of a primary or election for the exclusive purpose of altering his party affiliation.

Q) The state secretary shall adopt regulations to implement the relevant provisions of this chapter.

(k) Upon credible information or allegation of illegal voter registration, or credible information or allegation of illegal multiple voting, there shall be an investigation upon the merits of said information or allegation by the attorney general, or by the district attorney having jurisdiction over the municipality in which the alleged illegal registration or illegal multiple voting occurred. Nothing in this subsection shall be construed as excluding enforcement of this section by any means otherwise provided by law.

(1) Violations of this section shall be punishable under sections 8, 26 and 27, of chapter 56.

SECTION 9. Said chapter 51 is hereby further amended by striking out section 47C, as so appearing, and inserting in place thereof the following section:-

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Section 47C. Subject to appropriation, the state secretary shall maintain a central registry of voters which shall contain the names, addresses and effective dates of registration of all registered voters in the commonwealth and which shall contain the name, date of birth, occupation, veteran status, nationality, if not a citizen of the United States, for street list purposes only, and residence on January first in the preceding year and in the current year, of every person three years of age or older in the commonwealth as provided by registrars. The registrars shall enter and maintain all the information required. The secretary of the commonwealth shall adopt regulations governing the operation of said central registry. The names and addresses of voters and any other information contained in said central registry shall not be a matter of public record; provided however, that such information shall be available upon execution of a license agreement to state party committees, official political designation committees, statewide candidate committees, state ballot question committees, the jury commissioner, adjutant general and any other individual, agency or entity that the state secretary shall designate by regulation consistent with the purposes of this section, at a fair and reasonable cost not to exceed the cost of printing or preparing computer readable documents.

SECTION 10. Said chapter 51 is hereby further amended by inserting after section 47C the following section:-

Section 47D. The registry of motor vehicles, and any other state agency permitted by law, shall provide data, as deemed necessary by the state secretary, for the purposes of maintaining accurate and complete voter lists. At least every 2 months, the registry of motor vehicles, and any other state agency the secretary designates, shall electronically transmit to the secretary all data as directed by the secretary and relevant to the purposes of voter registration, including, if available, the following record fields: (i) name, current residential address, mailing address, date of birth, driver's license number and/or last 4 digits of the social security number, and telephone number; [ii] date, time, and nature of the last change to the information; and (iii) any additional information designated by the state secretary for such purposes and reasonably related to maintaining accurate and complete voter lists. The secretary shall provide the names and addresses and other data contained in said central registry, as well as information received from the registry of motor vehicles and any other agency received for the purpose of maintaining accurate and complete voting lists, to the Electronic Registration Information Center ("ERIC"] after entering into a binding legal agreement with ERIC specifying the terms and conditions of Massachusetts's membership in the Center.

The secretary shall implement, if practicable, a centralized system to manage and evaluate data received from ERIC to send required mailings to voters and residents identified as eligible but not registered centrally rather than from the local level. The secretary shall provide information to the registrars in electronic form and in a manner minimizing data management at the local level for any action necessary to be taken by the local election officials.

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The information sent to and received from ERIC shall not be a public record.

SECTION 11. There shall be an advisory committee on the implementation of Election Day registration. Among other issues it may consider, the advisory committee shall study the resources necessary for, costs associated with, and feasibility of providing every polling location with real-time electronic access to the statewide database of registered voters. The advisory committee shall be comprised of the secretary of state, or a designee, who shall chair the advisory committee, the attorney general, or a designee, the house and senate chairs of the joint committee on election laws, or their designees, 2 representatives of the Massachusetts Town Clerks Association, at least 1 of whom shall be a town clerk from a town of under 5,000 residents, and 2 representatives of the Massachusetts City Clerks Association. The advisory committee shall complete its study on the implementation of election day registration and submit an interim report and recommendations for improving administration of election day registration, in writing, to the joint committee on election laws and the senate and house committees on ways and means on or before June 30, 2020, and the advisory committee shall submit its final report in writing to the joint committee on election laws and the senate and house committees on ways and means on or before June 30, 2021.

SECTION 12. Sections 1 through 8 of this act shall take effect on July 1, 2019.

SECTION 13. Sections 9 through 11 shall take effect within 60 days of passage.

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