Weighing injunction, SJC hears mail-in voting legal arguments

BOSTON — The power of the Legislature to take action that is not specifically authorized or prohibited in the state Constitution was at issue Wednesday morning as the Supreme Judicial Court heard arguments related to the Republican Party’s challenge to the new law making early voting and vote-by-mail permanent features of Massachusetts elections.

Republican Party Chairman Jim Lyons, Secretary of State candidate Rayla Campbell and others filed a lawsuit seeking to overturn the so-called VOTES Act, which Gov. Charlie Baker signed last month making voting-by-mail permanent in Massachusetts, arguing that it violates the allowances for absentee voting contained in Article 105 of the state Constitution.

That part of the Constitution explicitly allows for absentee voting for three reasons -- when a voter is going to be out of town for Election Day, has a disability, or has a religious-based conflict with Election Day. Lyons and the plaintiffs argue that those three reasons are the only reasons for which absentee voting can be allowed.

“We assert that any kind of absentee or mail-in voting must comply with the strictures of Articles 45, 76, and 105, or else they are on their face outside the authority of the Legislature,” Michael Walsh, a Lynnfield attorney representing Lyons and the plaintiffs told the SJC. He added, “When Article 105 and its two predecessors say that the Legislature will have the power to do X, they are necessarily saying that there is no power to do anything that is not X.”

Some legal experts and the defendants in the case, however, have suggested mail-in voting is a form of early voting, distinct from Election Day and absentee voting covered by the Constitution.

Attorney General Maura Healey’s office, in a brief filed on behalf of defendant Secretary of State William Galvin’s office, said the article of the Constitution cited by plaintiffs “empowers the Legislature to provide for absentee voting for certain categories of voters, but this provision – which applies only to general elections, not primary elections – sets a floor for what the Legislature can do, not a ceiling.”

“The Legislature retains the broad power to go above this floor, and it appropriately exercised this broad power when it expanded the ways in which voters could exercise their fundamental right to vote by making permanent an expanded version of early voting by mail,” the attorney general’s office wrote.

The motion in play Wednesday was the party’s request for an injunction to block Galvin from mailing out ballot applications to the more than 4.7 million voters in Massachusetts by July 23 and the secretary has asked the SJC to rule by that date so he can either mail the applications to comply with the law or avoid having the court rule after the applications are already in the mail.

This is a developing story. Check back for updates as more information becomes available.

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