Contact: Tatum A. Pritchard, Director of Litigation
On August 21, 2020, DLC filed an Emergency Petition with the Supreme Judicial Court of Massachusetts – Charlson, et al., v. Secretary of the Commonwealth, No. SJ-2020-0588 – on behalf of six individual petitioners, Bay State Council of the Blind (BSCB), and the Boston Center for Independent Living (BCIL) concerning the unavailability of accessible electronic vote by mail for the fast-approaching September 1, 2020 primary.
Per “An Act relative to voting options in response to COVID-19,” enacted on July 6, 2020, registered Massachusetts voters with disabilities are entitled to receive access to an accessible electronic vote by mail ballot as an accommodation from the Secretary of the Commonwealth (“the Secretary”). This accommodation is intended to allow voters with disabilities the opportunity to electronically mark their ballot privately and independently using their own assistive technology, print their marked ballot, and mail or hand-deliver it to their local election official to be counted. However, by the date that DLC filed the Emergency Petition, the Secretary had not provided the public with any information concerning the availability of accessible electronic vote by mail or the process for requesting that accommodation from the Secretary. In addition, it was only on the date of filing that the Secretary signed a contract with VotingWorks to create Massachusetts’ accessible vote by mail online system.
The Secretary’s counsel informed Petitioners on August 24, 2020 of the creation of an Accessible Vote by Mail (AVBM) Coordinator position to process requests from voters for an accessible electronic ballot. Following a day of mediation, the Court entered a Judgment in the case on August 26 establishing an extended deadline and special processes to allow voters with disabilities to access an electronic ballot for the September 1, 2020 primary, and retaining jurisdiction to resolve any further disputes. On August 27, the Court allowed the Parties’ Joint Motion to Amend the first judgment, below, filed to resolve a dispute of interpretation. Altogether, the resulting final Judgment set forth the following:
1. Registered voters seeking access to disability-based accommodations for the September 1, 2020 primary election received an extension from August 26, 2020 – the deadline for all voters to return their 2020 Application for Vote by Mail to the Secretary – until noon on August 28, 2020 to request said accommodations and submit an application to vote by mail. See Judgment at Para. 4.
2. Registered voters seeking access to disability-based accommodations to vote by mail in the primary election shall be permitted to seek such accommodations from the Secretary by submitting:
a. A request via email or telephone for an accommodation to the AVBM Coordinator stating that the voter seeks an accommodation by reason of a disability and including the voter’s first name, last name, date of birth, address at which the voter is registered to vote, mailing address, and an email address and/or telephone number; and
b. A completed 2020 Application for Vote by Mail electronically. An acceptable application signature for this purpose shall be a handwritten signature or an electronic signature, which may consist of the voter’s typewritten name, if accompanied by a statement by the voter that the voter is disabled and does not otherwise have the ability to independently insert an electronic hand-drawn signature. See Judgment at Para. 2, as amended by the Joint Motion to Amendment Judgment.
3. If the AVBM Coordinator receives from the voter the completed accommodation request and application as set forth in paragraph 2 and verifies the voter’s registration, the Secretary shall:
a. Add the voter to the accessible voting system operated by VotingWorks that provides access to an accessible electronic ballot and voter instructions. The AVBM Coordinator will provide the voter with an access PIN;
b. Provide information to the voter by telephone or e-mail to permit the voter to ascertain the location of where the voter’s completed ballot must be sent in order to be officially cast with the voter’s local election office;
c. Provide the voter by e-mail an accessible electronic version of the affidavit of compliance – created with the assistance of Petitioners for purposes of this agreement – that must accompany a ballot in order to be officially cast with the voter’s local election office; and
d. Notify and direct the voter’s local election officials to send the voter by first-class mail: an inner envelope where the ballot is placed after voting which contains an affidavit of compliance to be filled out by the voter, and an outer envelope that is pre-addressed to the local election official with postage guaranteed. See Judgment at Paras. 3, 6.
4. For the ballot of a voter voting pursuant to the Judgment to be counted, the voter’s local election office must receive (a) the completed and printed ballot and (b) the signed affidavit of compliance bearing the name of the voter, which can be either a printed and signed copy of the affidavit of compliance furnished by the Secretary pursuant to paragraph 3(c) or a printed and signed affidavit of compliance furnished by the local election officials pursuant to paragraph 3(d).
a. Due to the limited time until the primary election and the potential that the official envelope provided by the local election office , voters voting pursuant to this agreement are permitted to submit these materials in the envelope provided by the local election office or their own envelope no later than the hour fixed for closing the polls on the day of the primary election. See Judgment at Para. 5.
5. The Secretary shall display on the Election Division’s website information about how a voter may request an accommodation pursuant to this order for the September 1, 2020 primary election. The Secretary’s Election Division’s Twitter account shall also send a Tweet informing the public concerning the provisions of this Agreed Judgment. The Secretary shall also provide information relative to this Agreed Judgment to local election officials. See Judgment at Para. 7.
6. At the close of business each business day between the date of this order and August 28, 2020, the Secretary shall through counsel report to the Petitioners the number of accommodation requests that have been received by the AVBM Coordinator and the number of requests that have been processed or remain unprocessed (including because the request itself is incomplete). See Judgment at Para. 8.
DLC once again thanks our individual petitioners, BSCB, and BCIL for their amazing assistance and support in getting this important resolution, especially given the incredibly short amount of time left to secure any meaningful relief. However, DLC believes that much more progress needs to be made in ensuring that Massachusetts voters with disabilities have equal access to all voting programs for the upcoming November general election and that granting such access is treated as a priority.
Per the reporting mandated by the Judgment, even with the benefit of the extension and additional measures ordered by the Court, only fourteen (14) people in the entire Commonwealth were approved access to an accessible electronic vote by mail ballot. Eight (8) additional people attempted to gain access, but their requests for accommodation were deemed incomplete. As a result of the Secretary’s incredible delay in establishing necessary procedures to receive and process requests for accommodations, this is just a fraction of the voters with disabilities for whom an electronic ballot could have granted an opportunity to privately and independently participate in Vote by Mail during the primary election.
DLC invites feedback from voters with disabilities who cannot privately and independently complete paper Vote by Mail ballots and experienced barriers in getting access to an electronic ballot for the September 1, 2020 primary election – whether due to the request for accommodation process requirements, the technology available to you (e.g., lack of a printer), or other reasons.