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SJC-12996

 REBECCA GROSSMAN & others1   vs.   SECRETARY OF THE COMMONWEALTH.


         Suffolk.    August 24, 2020. - August 26, 2020.

   Present:   Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.


Elections, Ballot, Primary. Secretary of the Commonwealth.
     Constitutional Law, Elections.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on August 19, 2020.

     The case was reported by Kafker, J.


     Jeffrey S. Robbins for the plaintiffs.
     Anne Sterman, Assistant Attorney General, for the
defendant.
     The following submitted briefs for amici curiae:
     William G. Cosmas, Jr., for Robert Goldstein.
     Torey B. Cummings, Assistant United States Attorney, for
the United States.
     Matthew R. Segal, Ruth A. Bourquin, & Jessica J. Lewis for
American Civil Liberties Union of Massachusetts, Inc.
     Michael Walsh, pro se.




     1 Becky Grossman for Congress, Jonathan Levenfeld, Sophie
Kripp, and Shirley D. Grossman, on behalf of themselves and
others similarly situated.
                                                                     2


     KAFKER, J.   In response to the COVID-19 pandemic, the

Legislature passed an emergency law designed to increase voting

options in the September 1, 2020, primary election as well as

the November 3, 2020, general election.    See St. 2020, c. 115.

A prominent additional voting option included in the act is

expansive voting by mail.   For the primary election, voters may

apply for a "mail-in" ballot, so long as their application to

vote by mail is received before 5 P.M. on Wednesday, August 26,

2020.   See St. 2020, c. 115, § 6 (e) (2).   Those mail-in primary

election ballots must be completed and received by local

election officials before 8 P.M. on September 1.See St. 2020,

c. 115, § 6 (h) (3); G. L. c. 53, § 43.    The mail-in ballots can

be returned by mail, dropped off in drop boxes provided by local

officials, or hand-delivered to election officials.     See

St. 2020, c. 115, § 6 (h) (1).   A voter who has requested a

mail-in ballot can also choose to vote in person on either

election day, as always, or between August 22 and 28, 2020, at

early polling locations established pursuant to the act, in lieu

of submitting his or her mail-in ballot.     See St. 2020, c. 115,

§ 7 (b) (1).

     The plaintiffs, consisting of a candidate in the primary

election, her campaign, and a few identified Massachusetts

registered voters, contend that the September 1 deadline for the

receipt of mail-in ballots significantly interferes with the
                                                                     3


constitutional right to vote.    They seek an order from this

court requiring the Secretary of the Commonwealth (Secretary) to

accept mail-in ballots that are received within ten days of the

primary election, so long as those ballots are postmarked by

September 1.2

     Having reviewed the emergency law and its implementation by

the Secretary, we conclude that the existing September 1

deadline is constitutional.     The new law does not significantly

interfere with the constitutional right to vote in the September

1 primary election.   Rather, the legislation enhances the right

to vote in the primary, as well as the general, election, by

providing multiple means of voting, including options to vote by

mail that previously never existed.     The September 1 deadline

for the receipt of mail-in and other ballots for the primary

election is also reasonably designed to account for a number of

time-sensitive legal requirements that follow shortly after the

primary election, including those that provide for recounts and

challenges, as well as the timely mailing of ballots to military




     2 At the time of their original complaint, three of the
individual plaintiffs asserted that they had applied for, but
not yet received, their mail-in ballots for the primary
election. The Secretary has since averred that the ballots for
two of these individual plaintiffs were mailed on August 15,
2020. The third plaintiff originally applied for an absentee
ballot to be sent to her college, which was closed at the time.
The Secretary has averred that she has since applied for, and
been mailed, a second ballot at her local residence.
                                                                      4


and overseas voters, which is required by Federal law.      A time-

defined primary election process, with reasonable deadlines,

including the September 1 deadline at issue, is necessary to

ensure not only compliance with Federal law but also full

participation and a fair and orderly general election in

November.   Finally, for those who requested or received mail-in

ballots very late in the process, there remain multiple

alternatives to simply mailing back the ballots to ensure that

one's vote is counted in the primary election.      In sum, the new

law enhances and does not diminish the means of voting in the

primary election.3

     Background.     Effective July 6, 2020, the Legislature passed

"An Act relative to voting options in response to COVID-19"

(act).   See St. 2020, c. 115.   The act was intended to increase

voting options for the 2020 elections in light of the safety

risks posed by the COVID-19 pandemic.     See id.   Among other

things, it decreases barriers to registering to vote, increases

in-person voting options, calls for new safety protocols for in-

person voting, expands the availability of absentee ballots, and

implements a Statewide plan for voting by mail in the 2020




     3 We acknowledge the amicus letters submitted by Robert
Goldstein, Michael Walsh, and the American Civil Liberties Union
of Massachusetts, Inc., as well as the amicus brief submitted by
the United States.
                                                                     5


primary and general elections.    See St. 2020, c. 115, §§ 6 (b),

7, 15, 17, 18, 19.

     1.   Applying to vote by mail.   The additional voting option

at issue here allows any voter to cast his or her ballot by mail

in the 2020 primary and general elections.     See St. 2020,

c. 115, § 6 (b).   To do so, a voter must complete an application

to vote by mail and return it to the city or town clerk's office

before 5 P.M. on Wednesday, August 26, 2020.    See St. 2020,

c. 115, § 6 (e) (1), (2).4,   5


     Once a voter's application is received, a ballot is sent to

the voter's address along with instructions and return envelopes

with prepaid, first-class postage.    See St. 2020, c. 115,

§ 6 (e) (1), (g) (1).   The Secretary has created a ballot

tracking database that allows voters to confirm in real time

whether their application has been received, as well as the date




     4 Under the act, the Secretary was required to automatically
disseminate applications by July 15, 2020 to all voters who
registered to vote before July 1, 2020. See St. 2020, c. 115,
§ 6 (d) (1). The Secretary in fact sent out the applications
one week later, on July 22, 2020. Voters can also access the
application form online. See 2020 Vote by Mail Application,
https://www.sec.state.ma.us/ele/elepdf/2020-Vote-by-Mail-
Application.pdf [https://perma.cc/SY6A-RGS3]. An online
application form may be returned by mail, facsimile, e-mail, or
in-person delivery. See id.

     5 Alternatively, voters who have timely submitted an
application may choose to receive their ballot in person at the
city or town clerk's office. See St. 2020, c. 115, § 6 (e) (1),
(g) (1).
                                                                    6


on which their blank ballot was mailed to them.    See Secretary

of the Commonwealth, Elections and Voting:     Track My Ballot,

https://www.sec.state.ma.us/wheredoivotema/track/trackmyballot

.aspx [https://perma.cc/5HCV-XGGE].    See also Secretary of the

Commonwealth, Voting by Mail FAQ, https://www.sec.state.ma.us

/ele/eleev/early-voting-faq.htm [https://perma.cc/85NL-LG5T].

     2.   Completing and returning mail-in ballots.   Once voters

receive and complete their mail-in primary election ballot, they

may submit the ballot in one of three ways.    First, voters may

physically bring the completed ballot to the city or town

clerk's office or an early voting location.6    St. 2020, c. 115,

§ 6 (h) (1) (i).   See Secretary of the Commonwealth, Election

Advisory # 20-01 (Aug. 17, 2020).     Second, voters may deposit

their ballot into a secured municipal drop box provided by local

election officials.   St. 2020, c. 115, § 6 (h) (1) (ii).      Third,

voters may mail the ballot to the city or town clerk's office

using the envelopes provided with the ballot.    St. 2020, c. 115,

§ 6 (h) (1) (iii).    Regardless of the method selected, the

primary election ballot must be received by the city or town

clerk's office before 8 P.M. on Tuesday, September 1, 2020, in


     6 Pursuant to guidance issued by the Secretary, ballots
should not be submitted to polling locations on the actual
election day itself, because such ballots must be checked at the
local election office before they can be counted at a polling
location. See Secretary of the Commonwealth, Election Advisory
# 20-01 (Aug. 17, 2020).
                                                                      7


order to be counted.     See St. 2020, c. 115, § 6 (h) (3); G. L.

c. 53, § 43.     Voters can also confirm that their completed

ballot was received, and whether it was accepted or rejected,

using the aforementioned ballot tracking database provided by

the Secretary.    See Secretary of the Commonwealth, Voting by

Mail FAQ, https://www.sec.state.ma.us/ele/eleev/early-voting-

faq.htm [https://perma.cc/85NL-LG5T].

     3.   In-person voting.    Voters who have not yet returned

their completed primary election ballot also have the option of

voting in person.     See St. 2020, c. 115, § 24.   The act

provides, for the first time, for a seven-day in-person early

voting period from August 22, 2020, to August 28, 2020.

St. 2020, c. 115, § 7 (b) (1).     Additionally, voters may still

vote in person on election day, September 1.     See St. 2020,

c. 115, § 24.7

     4.   Subsequent election deadlines.    After the September 1

primary election, a number of deadlines follow in the period

before the general election.     On or before September 4, any

recount petitions must be filed with election officials.        See

St. 2019, c. 142, § 88.     On September 5, local election




     7 The act also tasks the Secretary with promulgating
emergency regulations to implement protective measures at the
polls, including social distancing, personal protective
equipment, and the use of hand sanitizers. See St. 2020,
c. 115, § 19.
                                                                       8


officials must certify primary election results.    See G. L.

c. 53, § 52.   Any recounts must be completed by September 12,

and any challenges to nomination papers must be heard and

adjudicated by the State Ballot Law Commission by September 14.

See St. 2019, c. 142, §§ 88, 90.   Subsequent to such recounts

and adjudicatory decisions, the Secretary must prepare and print

more than 500 different general election ballot styles required

by all of the different districts and jurisdictions within the

Commonwealth, and then disseminate them to local election

officials by September 16 for distribution to military and

overseas voters.    Under Federal law, these general election

ballots for military and overseas voters must be distributed by

local election officials by September 19, 2020.    See 52 U.S.C.

§ 20302(a)(8)(A).   See also St. 2019, c. 142, § 91.

    5.   Recent issues at the United States Postal Service.       To

the extent that ballot applications, mail-in ballots, and ballot

return envelopes are transmitted by mail, the Secretary has

directed that they be sent by the United States Postal Service

(postal service) using first-class postage.    In a letter dated

July 30, 2020, the general counsel for the postal service

informed the Secretary of the potential effect of postal service

processing times on the delivery of election materials.     The

letter stated that certain Massachusetts "deadlines for

requesting and casting mail-in ballots are incongruous with the
                                                                    9


Postal Service's delivery standards."   The letter explained that

most domestic first-class mail is delivered two to five days

after it is received by the postal service.   Other mail is

delivered more slowly.   The general counsel recommended that

applications to vote by mail be submitted no later than fifteen

days before election day, and completed ballots be mailed at

least one week before election day.   Though the letter primarily

addressed the feasibility of mail-in ballot deadlines pertaining

to the 2020 general election, the primary election deadlines in

Massachusetts also do not meet the general counsel's recommended

timetable.   At the same time, however, the letter indicated that

"the Postal Service is not purporting to definitively interpret

the requirements of your state's election laws, and also is not

recommending that such laws be changed to accommodate the Postal

Service's delivery standards."   Rather, the letter stated that

the postal service would be unable to adjust its delivery

standards to accommodate the mail-in ballot deadlines.8


     8 More recently, on August 21, 2020, the Postmaster General
of the United States testified before the United States Senate
as to recent changes at the United States Postal Service (postal
service). See Boston Globe, Postmaster pledges to prioritize
election mail, but offers no plan to ensure timely delivery
(Aug. 21, 2020) https://www.bostonglobe.com/2020/08/21/nation
/postmaster-testify-before-senate-amid-uproar-over-mail/
[https://perma.cc/G6KY-Z4V2]. The Postmaster General told
senators that he was not yet able to provide a plan to ensure
the timely delivery of election ballots. Id. At the same time,
he stated that the postal service was "fully capable and
committed" to delivering election materials on time. Id.
                                                                      10


     Discussion.   1.    Standard of review.     The right to vote,

expressly provided by both art. 3 of the Amendments to the

Massachusetts Constitution9 and art. 9 of the Massachusetts

Declaration of Rights,   10   is fundamental.   See Chelsea

Collaborative, Inc. v. Secretary of Commonwealth, 480 Mass. 27,

32-33 (2018) ("the fundamental right to vote is also implicitly

protected under other provisions of the Declaration of Rights").

At the same time, "the Constitution provides the Legislature

with broad authority as part of the State's police power, to

enact reasonable laws and regulations that are, in its judgment,

appropriate."   Id. at 33.     See Opinion of the Justices, 368




     9 Article 3 of the Amendments to the Massachusetts
Constitution provides:

     "Every citizen of eighteen years of age and upwards,
     excepting persons who are incarcerated in a correctional
     facility due to a felony conviction, and, excepting persons
     under guardianship and persons temporarily or permanently
     disqualified by law because of corrupt practices in respect
     to elections who shall have resided within the town or
     district in which he may claim a right to vote, six
     calendar months next preceding any election of governor,
     lieutenant governor, senators, or representatives, shall
     have a right to vote in such election of governor,
     lieutenant governor, senators and representatives; and no
     other person shall be entitled to vote in such election."

     10Article 9 of the Massachusetts Declaration of Rights
provides: "All elections ought to be free; and all the
inhabitants of this commonwealth, having such qualifications as
they shall establish by their frame of government, have an equal
right to elect officers, and to be elected, for public
employments."
                                                                  11


Mass. 819, 821 (1975) ("The court has sustained statutes which

reasonably regulate elections . . .").

     Whenever we evaluate the constitutionality of a restriction

on the right to vote, we apply a "sliding scale approach, . . .

through which [we] weigh the character and magnitude of the

burden the State's rule imposes on the plaintiffs' rights

against the interests the State contends justify that burden,

and consider the extent to which the State's concerns make the

burden necessary."   Goldstein v. Secretary of the Commonwealth,

484 Mass. 516, 524 (2020), quoting Libertarian Ass'n of Mass. v.

Secretary of the Commonwealth, 462 Mass. 538, 560 (2012).11

"Because the right to vote is a fundamental one protected by the

Massachusetts Constitution, a statute that significantly

interferes with that right is subject to strict judicial

scrutiny" (citations omitted).   Chelsea Collaborative, Inc., 480

Mass. at 33.   "By contrast, statutes that do not significantly

interfere with the right to vote but merely regulate and affect




     11As discussed in Chelsea Collaborative, Inc. v. Secretary
of the Commonwealth, 480 Mass. 27, 34-35 (2018), the "sliding
scale" approach originates from Federal constitutional
jurisprudence. However, as the court went on to note, "there
may be circumstances where the Massachusetts Declaration of
Rights and art. 3 require application of this analysis in a
manner that guards more jealously against the exercise of the
State's police power than the application of the framework under
the Federal Constitution" (quotation and citation omitted). Id.
at 35.
                                                                       12


the exercise of that right to a lesser degree are subject to

rational basis review to assure their reasonableness."        Id.at

34.12    Here, the parties dispute the standard of review that

should apply to the September 1 deadline established under the

act, with the plaintiffs urging that it is strict scrutiny, and

the Secretary that it is rational basis.       Our first task,

therefore, is to resolve that issue.

        2.    The burden of the September 1 deadline on the right to

vote.        The plaintiffs argue that the September 1 deadline

imposed under the act is a significant burden on their right to

vote by mail.       There are multiple problems with this argument.

First, there is no constitutional right to vote by mail.          There

is, rather, a more general constitutional right to vote.

Second, voters, including those who have requested mail-in

ballots, have multiple voting options, and thus are not limited

to returning their ballots by mail.        Third, reasonable, firm

deadlines for voting are necessary, particularly in the primary

election process which must be completed in a timely manner to

ensure an orderly general election.        For all of these reasons,

as more fully discussed infra, we conclude that the September 1




       As the court noted in Chelsea Collaborative, Inc., 480
        12

Mass. at 36 n.22, "rational basis" and "strict scrutiny" are
"shorthand for referring to the opposite ends of a continuum of
constitutional vulnerability determined at every point by the
competing values involved" (citations omitted).
                                                                   13


deadline for voting, which applies equally to voting by mail as

well as in-person voting, does not significantly burden the

right to vote given the multiple options available to voters,

including those who have requested mail-in ballots.

    We begin by emphasizing that the expansion of the right to

vote, by providing multiple voting options, was the

Legislature's express purpose in adopting the act.      See

St. 2020, c. 115, preamble ("Whereas, The deferred operation of

this act would tend to defeat its purpose, which is to forthwith

provide for increased voting options in response to COVID-19,

therefore it is hereby declared to be an emergency law,

necessary for the immediate preservation of the public health

and convenience" [emphasis added]).

    Prior to the adoption of the act, voters effectively had

two options for voting in a State primary election.      If they had

a recognized excuse for not being able to vote in person on the

date of the primary election, namely, a physical disability,

religious objection, or absence from the Commonwealth, they

could vote in advance using an absentee ballot.   See G. L.

c. 54, § 86.   Otherwise, they had to vote in person.    In

recognition of the COVID-19 pandemic and the potential impact

that it might have on the ability or desire of voters to appear

in person to vote at a polling location, the Legislature (and

the Governor) acted on July 6, 2020, to create a number of new
                                                                    14


voting options in time for the September 1 primary election, as

well as for the general election that follows on November 3.

For the first time, voters can now vote in a primary election in

person at early polling locations.13   Early in-person voting

commenced on August 22, and is ongoing through August 28.      In

addition, the act provided primary election voters, again for

the first time, with the option of "no excuse" voting by mail,

the option at issue here.    As to that option, the act also

provided several different ways for voters to submit their mail-

in ballot so that it is received on or before the September 1

deadline, only one of which requires reliance on the postal

service.    See Chelsea Collaborative, Inc., 480 Mass. at 39

(describing widespread accessibility of voter registration

process).   While voters do have the option of returning their

ballot by mail, using the first-class postage-prepaid envelope

provided by the Secretary for that purpose, they also can (1)

deliver it in person to their city or town clerk's office, (2)

deposit it in a secure drop box, if one is available in their

city or town, or (3) deliver it in person to one of the

aforementioned early polling locations or the city or town

clerk's office.   Of course, voters also still have the option of




     13In 2014, the Legislature authorized limited early voting
in State biennial elections, but not primaries. See St. 2014,
c. 111, § 12.
                                                                    15


voting in person on September 1, in lieu of submitting their

mail-in ballot.    Thus, when the act is examined as a whole,

there can be no doubt that voters now have many more options for

voting in the primary election than existed prior to the passage

of the act, and multiple means of delivering their mail-in

ballot before the September 1 deadline.

    This is not to suggest that the emergency act was prescient

and anticipated all of the potential problems arising from the

COVID-19 crisis.   In its effort to support applications and

voting by mail, the Legislature may have been overly optimistic

to expect that mail-in ballots could be requested by voters as

late as August 26, be filled out and mailed back by voters, and

be received by election officials on or before the September 1

deadline.   The Legislature certainly could not have anticipated

the recent postal service problems.    With that said, the

Legislature did not leave the right to vote dependent on the

vagaries of postal service efficiency.    The act provided voters

with the opportunity to request mail-in ballots well before the

August 26 deadline; while there was some initial delay in

getting the applications for mail-in ballots out to registered

voters, they did go out by July 22, well over a month before the

August 26 deadline.   Moreover, the Secretary's website allows

voters to track the receipt of their application, the date that

their blank ballot is mailed, and the date that their completed
                                                                    16


ballot is received.   For those voters who have experienced

delays in receiving their mail-in ballots after applying for

them, or for those who have not yet received or even applied for

ballots, they have other options, as outlined supra, for making

sure their ballot is received, or otherwise exercising their

right to vote, by the September 1 deadline.

    Nor do we minimize the importance of voting by mail,

especially during the ongoing COVID-19 pandemic.    For many

voters, including those over the age of sixty-five and those

with pre-existing conditions, for whom the coronavirus has

proved so lethal, voting with minimal or no personal contact is

rightly viewed as their only option.    The act, however, took

this into account.    It provided, for the first time, for the

option of a "no excuse" mail-in primary election ballot.      And

while it extended the deadline for requesting and returning such

a ballot perhaps too close to the due date to encourage this

option, the over-all mail-in ballot process was laudable and

reasonable.   Still further, the Legislature built in other

contactless options, such as the use of drop boxes, for voters

to use if they were not prepared or able to return their mail-in

ballots by the September 1 deadline through the postal service.

By providing all of these expanded voting options for the

primary election, the Legislature did act to try to reduce the

number of voters who would need to appear in person at polling
                                                                     17


locations, either on election day or for early voting, which, in

turn, one would reasonably expect to reduce the potential risk

for the spread of the coronavirus.   Understandably, that will

not make polling locations sufficiently "safe" for all voters,

especially the most vulnerable, but it is another example of how

the act has enhanced, not burdened, the right to vote during

these unprecedented times.

      Deadlines are also a necessary part of the election

process, particularly the primary election, which must be

completed in a timely fashion to set the stage for the general

election.   See Chelsea Collaborative, Inc., 480 Mass. at 41.

The question then becomes whether the particular deadline

selected nonetheless constitutes a significant burden on the

exercise of the constitutional right.   In making this

determination, we look to the statutory scheme as a whole.      As

discussed supra, there are a number of State and Federal

statutory election deadlines that follow the September 1 primary

election and other preparations that must be undertaken to

effectuate the general election that takes place shortly after

it.   Most notably, by Federal law, general election ballots must

be distributed to military and overseas voters by local election

officials by September 19.   See 52 U.S.C. § 20302(a)(8)(A).    See

also St. 2019, c. 142, § 91.   To comply with this deadline, the

Secretary must complete the general election ballots and provide
                                                                   18


them to local election officials by September 16.    For the

upcoming general election, this involves preparing and printing

the more than 500 unique ballot styles necessitated by all of

the different electoral districts and jurisdictions within the

Commonwealth.   Before that can happen, however, local election

officials must certify primary election results, which will not

occur for this primary election until September 5.    See G. L.

c. 53, § 52.    In the meantime, recounts may be demanded by

September 4, but not resolved until as late as September 12.

St. 2019, c. 142, § 88.    There is also the possibility for

objections to nominations, which may be heard and adjudicated by

the State Ballot Law Commission as late as September 14.   See

St. 2019, c. 142, § 90.    In effect, therefore, the Legislature

had to consider and balance dueling voting rights when it came

to setting a deadline for the receipt of mail-in ballots for the

September 1 primary election, so as not to disenfranchise voters

during the primary election but also not to disenfranchise

voters in the general election that follows.

    Based on the aforementioned circumstances and their

particular relevance to this primary election, we conclude that

the September 1 deadline established under the act for the

receipt of mail-in and all other ballots does not significantly

interfere with the fundamental right to vote under the

Massachusetts Constitution so as to require the application of
                                                                      19


strict scrutiny.   Therefore, we apply the rational basis test to

determine its reasonableness.

    3.   Rational basis review of the September 1 deadline.        "As

a matter of due process, rational basis analysis requires that

statutes bear a real and substantial relation to the public

health, safety, morals, or some other phase of the general

welfare" (quotation and citation omitted).    Chelsea

Collaborative, Inc., 480 Mass. at 40.    Additionally, "[a]s a

matter of equal protection, the rational basis test includes a

requirement that an impartial lawmaker could logically believe

that the classification would serve a legitimate public purpose

that transcends the harm to the members of the disadvantaged

class" (quotation and citation omitted).    Id.   In making this

assessment, we operate from the "strong presumption that the

Legislature does not act arbitrarily."    Id. at 45.    On the

record before us, it is apparent that it did not.

    As discussed at length supra, the September 1 deadline for

the counting of ballots is reasonable in light of the numerous

State and Federal statutory election deadlines that follow the

September 1 primary election and the other matters that must be

addressed to effectuate the general election that follows.       In

the Legislature's estimation, the existence of these deadlines

and other matters, which either must or may need to be satisfied

to allow the general election that follows to proceed, made it
                                                                  20


unfeasible to provide for the post-election day receipt of mail-

in ballots in connection with the September 1 primary election.

    In this regard, the present case resembles the Chelsea

Collaborative case.   There, the court considered a similar

constitutional challenge to a statute that required individuals

to register to vote no later than twenty days before the

election.    See Chelsea Collaborative, Inc., 480 Mass. at 28.    In

so doing, the court weighed the fundamental right to vote

against the various other responsibilities that government

officials had to attend to between the deadline and the date of

the election:

    "Local election officials are responsible for processing
    voter registration applications, screening them for errors,
    and confirming voter qualifications. During the time
    immediately preceding an election, elections officials have
    a variety of tasks in addition to processing these forms.
    For example, these administrators must recruit and train
    poll workers, test elections-related machines, and print
    voter lists prior to the commencement of election day
    voting."


Id. at 41.   In light of this, the court found that there was

"ample evidence" that it would be rational for the Legislature

to conclude that a deadline was necessary prior to election day

to achieve the "legitimate public purposes" of "conducting

orderly and legitimate elections."    Id. at 40-41.   The court

then went on to conclude that, "at least for the time being, an

impartial lawmaker could logically believe that the voter
                                                                  21


registration deadline imposed twenty days prior to election day

still serves legitimate public purposes that transcend the harm

to those who may not vote."    Id. at 46.

    For their part, the plaintiffs in the present case suggest

that the potential that some of the aforementioned events and

deadlines will even occur or become relevant following the

September 1 election is speculative and, based on past history,

unlikely or at least manageable.    They also suggest that the

Secretary could have sought an exemption from the forty-five day

military and overseas voter deadline, as permitted by law under

certain circumstances.    The Legislature and the Secretary must,

however, prepare and provide time for recounts and contested

nominations.    They do not have the luxury of counting on them

not to occur.   A request for exemption from the Federal

deadline, meanwhile, may or may not be granted.     In crafting the

act, the Legislature chose not to leave this to chance or

conjecture, which certainly is not an irrational choice.

    In considering the reasonableness of the September 1

deadline for the receipt of mail-in ballots, we are also mindful

that with the dramatic expansion of voting by mail introduced

under the act comes the potential for more complicated issues if

there is a challenge to those ballots.      Thus, the fact that

challenges may have been resolved in the past in a certain

number of days does not mean they will be resolved as quickly in
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this new mail-in ballot world.     We are also mindful, as the

Legislature no doubt was, that any challenge will be playing out

in the midst of a pandemic.

     For all these reasons, we conclude that the Legislature

acted rationally when it concluded that a September 1 deadline

for the receipt of mail-in ballots in the primary election was

necessary to achieve the legitimate public purposes of

conducting orderly primary and general elections during this

particular election cycle.14

     Conclusion.   For the reasons discussed, we conclude that

the September 1 deadline for receipt of mail-in primary election

ballots is not unconstitutional.

                                      So ordered.




     14While we have concluded that the statutory September 1
deadline only needs to satisfy the rational basis standard, it
also likely would satisfy a strict scrutiny analysis, see
Chelsea Collaborative, Inc., 480 Mass. at 35 (to satisfy strict
scrutiny, regulation "must be narrowly tailored and advance a
compelling state interest"), as well as the intermediate level
of scrutiny -- "less exacting than strict scrutiny but more
searching than mere rational basis review" -- advocated by the
concurrence in the Chelsea Collaborative decision. See id. at
53 (Gants, C.J., concurring) (which "would consider whether the
Commonwealth's asserted interests in imposing the restriction
are legitimate, whether the restriction in fact serves those
interests, and whether the restriction is 'precisely drawn' to
do so, weighing each of these factors in order to ascertain
whether the burden on voting rights is justified").
