The coronavirus undercut these candidates’ efforts to get on the ballot in Massachusetts. Now, they’re suing.
"In a regular climate this would be no big deal."
Kevin O’Connor had big plans for March 14.
After announcing his U.S. Senate campaign several weeks earlier, the 58-year-old attorney and Dover Republican had organized a wide-ranging group of volunteers, including his 82-year-old mother, to help gather the 10,000 signatures required to get his name on the Massachusetts ballot.
“We had people in front of supermarkets, at dumps, going door-to-door, pharmacies, convenience stores, liquor stores — every type of outlet we could think of,” O’Connor told Boston.com in an interview.
His campaign had organized March 14 to be “Super Saturday” for the effort. But on March 11, the World Health Organization declared the COVID-19 outbreak a pandemic. And as the number of local cases reached triple digits, O’Connor said they were forced to shut it down. (His 86-year-old father was hospitalized with the virus the following week.)
“It’s changed everything,” he said.
What the virus has yet to change is the signature requirements, which O’Connor and two other local Democratic candidates are now suing the state to change.
“Our election laws must adapt to accommodate the emergency conditions caused by COVID-19,” said Robert G. Jones, a partner at the Boston law firm Ropes & Gray, which filed the emergency petition Wednesday on behalf of O’Connor, House candidate Robbie Goldstein, and state representative candidate Melissa Smith.
The three plaintiffs are different candidates with different hurdles.
O’Connor is vying to take on whoever wins the Democratic primary between Sen. Ed Markey and Rep. Joe Kennedy, Goldstein is an infectious disease doctor at Massachusetts General Hospital challenging Rep. Stephen Lynch from the left, and Smith is a Hingham resident hoping to unseat ten-term incumbent Rep. James Murphy. Goldstein is required to gather at least 2,000 signatures and, like O’Connor, file them by May 5. Smith has to file at least 150 signatures by April 28.
However, their signature-gathering efforts have followed identical paths; the coronavirus has turned a requirement that in most years would be a formality into a major roadblock to the ballot.
“In a regular climate this would be no big deal,” said Smith, who had previously planned to file double the minimum threshold in case some are deemed invalid.
As campaigns up and down the ballot go digital due to coronavirus concerns, the three insurgent candidates have had to resort to the far more unreliable and laborious strategy of calling voters and mailing them sheets to sign and return — or even leaving petitions out on their porch for supporters to sign.
“I cross my fingers and hope that they get back to me in time,” Goldstein said.
And the issue isn’t unique to first-time candidates; as The Boston Globe reported, even Markey was 3,000 signatures short of the 10,000 threshold as of Tuesday. In an email Monday, supporters were directed how to request forms that they could sign and then mail back to the Markey campaign in a pre-paid envelope. While the incumbent senator’s campaign reportedly remains confident that method will ensure they reach the threshold, the tedious strategy is more burdensome for down-ballot candidates.
O’Connor, Goldstein, and Smith are short of their respective signature thresholds, according to the lawsuit. Even after collecting signatures before outbreak, O’Connor and Goldstein estimate that the mail collection strategy will cost their campaigns thousands of dollars. And Smith, whose campaign had delayed signature gathering as she recovered from a respiratory condition (which also makes her more vulnerable to COVID-19), says the methods are “consuming scarce resources.”
“It’s time consuming and expensive, and it still may not be enough,” she said.
The new 40-page lawsuit names Secretary of State Bill Galvin and asks the state’s Supreme Judicial Court to rule that the effects of the coronavirus have “transformed Massachusetts’ ballot access laws — which are reasonable, in ordinary times — into unconstitutional barriers standing between candidates and the ballot,” according to Jones. It asks the court to either wipe out the signature requirements or relax them in some way — such as reducing the thresholds, extending the deadlines, or allowing electronic collection.
“Under the present circumstances, the signature requirements for ballot access under Massachusetts law impermissibly burden the fundamental rights of these candidates and cannot be reconciled with the Massachusetts and United States Constitutions,” the lawsuit reads.
Galvin’s office says they currently have no legal authority to change the requirements, which are set by state law. Deb O’Malley, a spokeswoman for Galvin, told Boston.com that they can only be changed by the state lawmakers. O’Malley also noted that delaying the deadline would “affect other deadlines, such as the deadline to challenge a candidate’s papers and the deadline to print ballots.”
“Our office is under a federal deadline to provide military and overseas voters with their absentee ballots by July 18,” she said.
Galvin’s office has previously suggested that campaigns continue in-person signature gathering, with precautions like swapping out pens and using new sheets of paper. But as residents are being urged to stay at home as much as possible amid an expected surge in coronavirus cases, Goldstein still doesn’t believe it would be a safe way to gather signatures from a public health perspective.
“I can’t, as a physician, in good conscience, put people that work for my campaign or volunteer for my campaign at risk,” he said. “And at the end of the day I don’t think that any campaign is worth risking the public’s health.”
Senate President Karen Spilka told the State House News Service on Thursday that she’s working with fellow state senators to find “consensus” on the issue, which went unaddressed in a coronavirus response bill last month allowing communities to postpone spring elections and expand vote-by-mail options.
A dozen candidates, including Reps. Seth Moulton and Ayanna Pressley, signed a letter to Beacon Hill leaders last month calling for a 30-day extension of the signature deadlines. But both Spilka and House Speaker Robert DeLeo have expressed more support for reducing the threshold as the crisis continues.
“I do support cutting, reducing the number, especially in the higher numbers,” Spilka said Thursday. “We don’t want people going out there jeopardizing their health to collect signatures. That just doesn’t make sense at this point at all.”
One bill that has garnered support from local voting rights groups would cut the thresholds by two-thirds.
However, with less than three weeks until the first signature deadline, lawyers for O’Connor, Goldstein, and Smith say they have gotten no indication that lawmakers will “act in a timely manner.” And if their lawsuit doesn’t force the Legislature’s hand, they want the Supreme Judicial Court to issue an emergency order preventing the current requirements from being enforced.
“The ultimate goal is that the commonwealth — either through the court system or though the State House — recognizes the profound public health consequences of the current law and takes action to make sure that we can still have a democratic process,” Goldstein said.
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