By Brian Dowling

Law360, Boston (April 16, 2020, 6:01 PM EDT ) Massachusetts' high court on Thursday wrestled with how and whether to loosen ballot signature requirements for 2020 political candidates in light of the state's stay-at-home advisory during the coronavirus pandemic, as state lawmakers weighed their own possible fix.

During arguments in the case, the Supreme Judicial Court debated whether it needs to take action given that the Massachusetts Senate on Thursday sent legislation to the House that would slash signature requirements for some candidates in half. It is not clear when or if the House will take up the measure.

Chief Justice Ralph Gants asked Assistant Attorney General Anne Sterman, who is representing Massachusetts Secretary of State William Galvin, whether the court should wait for lawmakers to make a move to address what the parties agree is a serious constitutional violation. Currently, candidates for district and county offices face an April 28 deadline to file nomination signatures with local clerks for certification.

"If the House does not act today, are you suggesting that we should wait to remedy a constitutional violation?" Justice Gants asked.

Sterman said the court wouldn't be obligated to wait.

Justice Gants pressed on: "Time is running short. We are in a difficult posture. We are prepared to act promptly, and we'd be quite happy if the legislature decided to take this away from us."

The petitioners, three political candidates, are seeking to represent a class of all candidates this election cycle. In a filing last Friday, they asked the court to invalidate the signature requirements during the pandemic because they unconstitutionally block ballot access. In the event the requirements aren't canceled, they said the court should extend the deadlines to file signatures with local clerks, slash the number of signatures required and approve the electronic collection of names.

Galvin, who is named as a respondent in the petition, agreed with petitioners that there is a constitutional violation, but he took the position that he couldn't change the process unless ordered to by the legislature or a court, according to Sterman.

By Thursday's arguments, the three candidates and the secretary of state had agreed on a deadline extension and an approach to electronic signatures. Still, they disagreed on how much to cut the signature requirements.

The candidates asked for a two-thirds reduction for all candidates, whether they are running for state representative or the U.S Senate. The Secretary of State — and the Massachusetts Senate — proposed a 50% reduction, but only for offices requiring more than 1,000 signatures.

Robert G. Jones of Ropes & Gray LLP, counsel for the candidates, said the more limited proposal advanced by lawmakers is more "calculated to protect incumbents than to lift the constitutional harm."

"The concern we have to start is that a reduction in the number of signatures and the amount that is described in the secretary's papers has no rationale or coherent justification we can see and may be illusory to petitioners and to candidates who are in similar situations," Jones said.

The petitioners are Robert Goldstein, a doctor at Massachusetts General Hospital running for the U.S. House seat currently held by Stephen Lynch; Kevin O'Connor, a Republican lawyer running for Ed Markey's current U.S. Senate seat; and Melissa Bower Smith, a candidate for her local state representative seat.

The candidates' rationale for a two-thirds reduction in the signature requirements comes from the fact that the governor's stay-at-home order fell about four weeks into the 12-week period the office-seekers had to collect the required signatures.

Justice Scott L. Kafker asked Jones whether the least-intrusive constitutional remedy available in the situation is merely approving the use of electronic signatures for the nomination papers, rather than tweaking the tally requirements to such a specific degree.

Jones countered that getting e-signatures for the campaigns could prove to be more difficult than getting in-person signatures with pen and paper.

"It's hard for me to imagine in the Twitter and Facebook world that a viable candidate can't, if an electronic signature system is workable, get that percentage of the voters in his or her district to sign, right?" Justice Kafker said.

Jones replied that the candidates have 12 days, not the usual 12 weeks, to use the system, and the numbers currently are a significant threshold.

Justice Gants asked it the court needs to set a specific number for the signatures and step into the unique role of policymaker, given the current circumstances.

Jones responded: "It's a very difficult, almost policy-like judgment to make in the process. The best proxy, if you will, we can find in measuring and assessing the extent of constitutional harm and remedying it is to look to the amount of time that has been taken away and take that as a measure of rough justice, if you will."

Sterman said it makes sense to only reduce the signature limit for offices requiring more than 1,000 signers. If the numbers are set too low, she said, it eliminates any benefit of ensuring that candidates on the ballot have enough local support to be there.  

Justice David A. Lowy asked Sterman what the court should do given there's a bill pending in the legislature that may or may not fix the issue before the court.

She responded: "We are left in a position where we can take some cue and some instruction from the parameters of the legislation that has garnered some support in the state legislature."

Galvin is represented by Anne Sterman of the Massachusetts Attorney General's Office.

The petitioners are represented by Robert Jones of Ropes & Gray LLP.

The case is Goldstein et al. v. Galvin, case number SJC-12931, in the Supreme Judicial Court of Massachusetts.

--Editing by Alyssa Miller.

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