CORDY, J.
This case involves the proper interpretation of a Massachusetts election law that governs the filling of a vacancy where a candidate nominated for "state, city or town office" withdraws, dies, or otherwise becomes ineligible prior to an election, G. L. c. 53, § 14 (§ 14), and its application to the presidential and vice-presidential candidates of a minor political party.
Background and procedural history. In early 2008, a pair of candidates for the presidency and vice-presidency of the United States of America began collecting the signatures of registered voters on nomination papers circulating throughout the Commonwealth.
Consequently, the plaintiffs filed a complaint against the Secretary in the county court, seeking a declaration under G. L. c. 231A, § 1, that § 14 provides a minor party, which does not qualify as a "political party" under Massachusetts law, a means to "substitute" the names of presidential and vice-presidential candidates chosen at the minor party's national convention for those listed on nomination papers being circulated and signed by registered voters throughout Massachusetts. In the alternative, they sought a declaration that § 14 does not afford minor parties a substitution mechanism and that this failure violates art. 9 of the Massachusetts Declaration of Rights. Finally, the plaintiffs argued that, were the single justice unable to explicate
Before us, the Secretary reiterates his threshold argument concerning G. L. c. 231A, § 1, and challenges the merits of the plaintiffs' claims. He contends that § 14 is limited in scope and, assuming arguendo it applies to presidential electors, requires only that vacancies be filled "in the same manner" as the "original nomination," thereby obligating the plaintiffs and any candidates chosen at their national convention to fulfil the same requirements as the original candidates listed on the nomination papers — that is, by submitting nomination papers bearing the signatures of 10,000 registered voters. See note 2, supra. If the time between the national convention and the signature filing deadline is insufficient to complete this task, the Secretary contends, § 14 does not provide any additional recourse to minor parties or the candidates their members indorsed at a national convention. According to the Secretary, the lack of recourse in these circumstances is not unconstitutional because the protections of art. 9 are coextensive with those of the Federal equal protection clause, with which the Massachusetts ballot access provisions have been found to comport. See Barr III, supra at 108-111.
We conclude that this matter is properly before us. The plaintiffs have established an "actual controversy" because the initial dispute between the parties, while moot, is "capable of repetition, yet evading review," id. at 105, quoting Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911), and because our decision today will have an immediate impact in the ongoing Federal proceedings between the parties. On the merits, we conclude that § 14 applies to presidential electors and assume (but need not decide) by extension to the presidential and vice-presidential candidates the electors have pledged to support. Although § 14, as written, is not a model of clarity and its meaning not without uncertainty, we interpret it in a manner largely consistent with the interpretation proffered by the Secretary.
Statutory framework. Within the Commonwealth, only a certain subclass of active political organizations receives the formal label "[p]olitical party" and the corresponding benefits and privileges afforded that status. To attain that label, a political organization must either: (1) have had a candidate for Statewide office garner at least three per cent of the votes cast in the most recent biennial election; or (2) enroll a number of voters "equal to or greater than one percent of the entire number of voters registered in the commonwealth." G. L. c. 50, § 1. Once a political organization satisfies either requirement, it is eligible to conduct "primaries and caucuses for the nomination of city and town officers," id., among other things. If a political organization does not satisfy either requirement, it receives no formal recognition under Massachusetts law, but may serve nonetheless as a "[p]olitical designation."
One of the privileges of attaining party status is the ease with which a recognized political party may place its candidates on the ballot for the general election. With regard to presidential and vice-presidential candidates, the party's State committee need only submit a certificate of nomination to the Secretary bearing the surnames of the party's chosen candidates by the second Tuesday of the September preceding the election.
Other candidates for the presidency and vice-presidency,
The nomination papers must be submitted to election officials through a two-step process. First, they must be provided to the registrars of the cities or towns in which the signatories reside, so that the registrars can certify whether the signatures belong to registered voters. G. L. c. 53, § 7, second par. Next, the nomination papers — once certified — must be filed with the Secretary. G. L. c. 53, § 10, first par. The deadlines for these submissions are precise, and intertwined: nomination papers must be filed with the Secretary by the last Tuesday in the August preceding the election, id.; they must be submitted to the local registrars for certification at least twenty-eight days before the deadline for filing with the Secretary, G. L. c. 53, § 7; and certification must be complete no later than the seventh day before the deadline for filing with the Secretary. Id. "In 2008, the deadline for submitting such nomination papers to local [registrars] was July 29.... In turn, the deadline for transmitting them to the Secretary was August 26." (Citations omitted.) Barr III, supra at 102.
While we reserve our discussion of this statutory provision for later in the opinion, we recite here the pertinent part of § 14:
Facts. We turn now to the facts, which have been well-documented in the various Federal court opinions concerning this dispute. See Barr III, supra at 102-104; Barr II, supra at 226-227; Barr I, supra at 318-319.
In 2007, the LAM,
In May, three months into this campaign, the Libertarian National Committee hosted its convention in Denver, Colorado. There, Phillies and Bennett competed for the national organization's indorsement. They ultimately lost to Bob Barr and Wayne A. Root, who became the organization's presidential and vice-presidential nominees, respectively.
After the convention, Phillies returned to Massachusetts (where he had collected approximately 7,000 signatures on his and Bennett's nomination papers) and, on May 29, 2008, again corresponded with the Secretary's office, asking for the form mentioned in the previous exchange. In this e-mail, however, Phillies explicitly referred to the presidential and vice-presidential candidates listed on the nomination papers as "stand-ins," and informed the Secretary that the "actual candidates, who were not the same as the stand-ins, were chosen at the Libertarian Party national convention [in May]." In response, an attorney in the elections division of the Secretary's office conceded that, "in certain rare circumstances, [the office had authorized] ballot substitution,"
Discussion. 1. Justiciability. Before reaching the merits of the plaintiffs' claims, we consider whether the instant action poses an "actual controversy," such that declaratory relief under G. L. c. 231A, § 1,
An actual controversy arises under our law where there is "a
Here, both the plaintiffs and the Secretary "unquestionably [have] a `definite interest in the subject matter'" of § 14, see Department of Community Affairs, supra, a provision that, as both the Federal District Court and the First Circuit have posited, is riddled with uncertainties in this context. See Barr III, supra at 106-107; Barr II, supra at 228-230; Barr I, supra at 320. The plaintiffs also have exposed these interests and uncertainties in litigation stemming from an identifiable dispute borne of the 2008 presidential election; they do not come to us with an abstract puzzle of statutory interpretation. See Woods Hole, Martha's Vineyard & Nantucket S.S. Auth. v. Martha's Vineyard Comm'n, 380 Mass. 785, 792 (1980), citing Department of Community Affairs, supra at 422-423 ("Questions of statutory interpretation, by themselves, do not rise to the level of actual controversy").
Finally, given the broad, remedial purposes of the declaratory judgment act, even were we to recognize the flaws the Secretary has identified in the plaintiffs' complaint, "we [likely] would still exercise our discretion to consider the substantive issues raised therein." Entergy Nuclear Generation Co. v. Department of Envt'l Protection, supra at 328, citing Southbridge v. Southbridge Water Supply Co., 371 Mass. 209, 214-215 (1976). The
2. General Laws c. 53, § 14. Turning to the merits of the plaintiffs' claims, we first address the "two types of imprecision" the First Circuit identified in § 14:
We resolve these imprecisions by reference to familiar canons of statutory interpretation, "[o]ur primary duty in interpreting a statute [being] `to effectuate the intent of the Legislature in enacting it.'" Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 601 (2010), quoting International Org. of Masters v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 392 Mass. 811, 813 (1984). Where the words of a statute are unambiguous, we ordinarily view them as "conclusive as to legislative intent," Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839 (1986), and adhere to their plain meaning. Telesetsky v. Wight, 395 Mass. 868, 872 (1985). Conversely, where the words of a statute are ambiguous, or seemingly in conflict with one another, we interpret the statute, "`if possible, so "as to make it an effectual piece of legislation in harmony with common sense and sound reason"' ... and `tak[ing] care to ... carry out the legislative intent.'" Wolfe v. Gormally, 440 Mass. 699, 704 (2004), quoting Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 190 (1976).
a. Scope of "state office". As the Federal courts observed, the words "state ... office" in § 14 are ambiguous with regard to their application to the position of "presidential elector." Neither term is included in the definitional section of the election laws, G. L. c. 50, § 1, and those definitions that appear relevant — "State election" and "State officer" — suffer from some internal tension, which render them inconclusive on the subject.
These initial hurdles do not mean, however, that the Legislature necessarily intended to exclude presidential electors from the procedural dictates of § 14. They simply goad us to undertake a holistic evaluation of the election law regime, and to ascertain as we must "the intent of the statute from all its parts and from the subject matter to which it relates." DiGiacomo v. Metropolitan Prop. & Cas. Ins. Co., 66 Mass.App.Ct. 343, 346 (2006). See Sterilite Corp. v. Continental Cas. Co., supra at 839 (courts "should not accept the literal meaning of the words of a statute without regard for that statute's purpose and history"). Thus, we turn to the statutory scheme "as a whole," Wolfe v. Gormally, supra, mindful that "[t]he general purpose of the Legislature in enacting the statutes regulating ... elections was to make a reasonably consistent and harmonious body of law ... which should have the final result of filling the offices required by law."
First, with regard to the hybrid function of the presidential electors, we find instructive (in this limited fashion) the statutory definition of "State officer." Under G. L. c. 50, § 1, that term explicitly includes United States Senators and Representatives from Massachusetts, who, like presidential electors, are elected by Massachusetts voters, yet serve a Federal function. Thus, to some extent, the Legislature anticipated the scope of the term "State officer" — a term analogous to "state ... office" — to extend beyond its literal meaning. Cf. In re Green, 134 U.S. 377, 379 (1890) ("Although [presidential] electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or
This suggests to us that the dual nature of presidential electors should not stand as an impediment to their inclusion under § 14, an inference bolstered by the Legislature's treatment of the position elsewhere. Throughout the statutory regime, the Legislature repeatedly includes the position of presidential elector within the class of offices chosen at a "State election," see note 15, supra, quoting G. L. c. 50, § 1, and, accordingly, makes various provisions relevant to them. See, e.g., G. L. c. 53, § 6 (signature requirement for nomination papers for "any offices to be filled at a state election," including "presidential electors"); G. L. c. 54, § 43A (order of offices listed on ballots at State election includes "Presidential elector"); G. L. c. 54, § 151. The Legislature also imposes myriad requirements on candidates for "state office" that doubtless apply to candidates for presidential elector. See, e.g., G. L. c. 53, § 7 (imposing on "candidate[s] for ... state office[s]" contingent deadline for filing nomination papers with city or town registrars); G. L. c. 53, § 17 (obligating Secretary to "provide blank forms for the nomination of candidates for all state offices"). We see no reason to assume that the Legislature would have employed the term "state ... office" differently in § 14, particularly where it has not enacted another provision relative to the filling of vacancies for presidential elector. Therefore, reading the statute as a whole and in light of its legislative purpose and scope, we conclude that the reference to "candidate[s] for ... state... office" in § 14 is intended to encompass candidates for presidential elector.
From here, we face the more difficult question whether the presidential and vice-presidential candidates themselves come within the class of candidates governed by § 14. The plaintiffs contend that they must, simply by virtue of their association with the presidential electors. The Secretary, however, divorces
We agree with the premise of the Secretary's argument: the President and Vice-President are elected to lead the United States as a whole and, therefore, occupy quintessentially national offices. Consequently, candidates for those positions should not themselves qualify as "candidates for ... state ... office[s]" under § 14. This conclusion, however, only takes us so far and does not fully resolve the problem arising from the inextricable link between the presidential and vice-presidential candidates and their electors. Under G. L. c. 53, § 8, the presidential electors must "pledge" their support to presidential and vice-presidential candidates, who, in turn, must list their slate of presidential electors on any nomination papers circulated throughout the Commonwealth. Thus, the public allegiance of the presidential electors, for whom the people technically cast their vote, see G. L. c. 54, § 78, is a prerequisite to having the names of the presidential and vice-presidential candidates printed on the ballot. See art. II, § 1.
While this constitutionally and statutorily entrenched relationship between presidential electors and the candidates themselves lends credence to the plaintiffs' argument that both should fall under the purview of § 14, it also gives us pause in a manner the parties do not contemplate. If we read § 14 as permitting some body (whether it be a minor party or political organization) to change the names of the presidential and vice-presidential candidates to whom electors are pledged, then what of the statutory duty of electors to vote for the candidates named in the filing? See G. L. c. 53, § 8. Are we to read § 8 as embracing an "amended" filing with the names of the substituted candidates, or to assume the electors' continued allegiance to the original candidates for whom they had pledged (in writing) to vote?
In light of our ultimate interpretation of § 14, we need not
b. Scope of "substitution" mechanism. Moving now to the second disputed portion of § 14, we consider the manner in which that provision allows for the filling of a vacancy where a candidate withdraws his or her nomination. First, we note that § 14 is applicable only when a candidate who has been nominated withdraws, dies, or is otherwise ineligible; thus, the candidate must complete the nomination requirements and formally withdraw before any vacancy is created or may be filled. See G. L. c. 53, § 13. On its face, then, this provision does not apply where a candidate seeks to transfer his or her signatures to another candidate midway through the nomination process.
Once a vacancy is created under § 13, it "may be filled by the same political party or persons who made the original nomination and in the same manner."
With respect to who has the authority to fill a vacancy, the
We agree with the Secretary's position that the LAM's status as a political designation has some relevance to this inquiry; the association cannot expect us to disregard its statutory status, or lack thereof, and permit it direct access to the ballot. See G. L. c. 50, § 1; G. L. c. 53, § 8. However, it seems unreasonable to conclude, as the Secretary suggests, that the Legislature intended to restrict the pertinent language of § 14 to the actual signatories of the nomination papers. While it takes 10,000 certified signatures to "make" the nomination, in a sense, it is contrary to reason and experience to assume that so large a group coalesces around a single candidate of their own accord. Rather, the candidates themselves, or the minor party or political organization with which they are affiliated, mobilize volunteers (or contract with a company) to collect the required signatures. See Note, Guarding the Treehouse: Are States "Qualified" to Restrict Ballot Access in Federal Elections?, 80 B.U. L. Rev. 289, 297 (2000). Thus, the better interpretation of the statute comports with this reality and recognizes that some persons or entities must work on the voters themselves, to corral them and to secure their signatures in support of any given candidate.
Despite the Secretary's fears, adopting this interpretation of the statute will not permit candidates unaffiliated with a recognized political party to circumvent the signature-gathering
The plaintiffs do not, nor could they, put forth a compelling argument to overcome this unambiguous language. They nonetheless urge us to extrapolate from the latter provision — that contemplating "alternative" mechanisms for filling a vacancy — a legislative intent to defer to the decisions of a minor party where the need to replace a candidate affiliated with it arises and the time to gather the requisite number of signatures is insufficient. This we cannot do. The Legislature has made no provision in the election laws for the internal processes of minor parties or political organizations (as opposed to those of recognized political parties) with regard to the indorsement of presidential candidates.
3. Article 9. Notwithstanding the imprecisions it identified in § 14, the First Circuit proceeded to examine — and reject — the plaintiffs' claim under the equal protection clause that, by refusing to allow substitution of minor party presidential and vice-presidential candidates, "the Secretary discriminates arbitrarily between recognized political parties and [minor parties or political organizations]." Barr III, supra at 108-111. The plaintiffs now bring a more generalized claim of constitutional violation under art. 9,
As our decisions in Batchelder v. Allied Stores Int'l, Inc., supra, and the cases cited imply, we have the inherent authority "to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution." Goodridge v. Department of Pub. Health, 440 Mass. 309, 328 (2003), quoting Arizona v. Evans,
b. Application. Given our conclusion regarding the scope of protections under art. 9, we assess the plaintiffs' constitutional claims within the familiar territory charted by the First Circuit.
While these rights are fundamental, they — and the general principles to which they attach — do not amount to "an open sesame for minor parties and individuals who want to appear on the ballot with the major [party] candidates." Ireland, supra, quoting Socialist Workers Party v. Hechler, 890 F.2d 1303, 1304 (4th Cir. 1989). Rather, they stand as foils to a State's entrenched authority to regulate elections, a practical necessity to ensure that our democratic processes remain fair, honest and orderly. See Storer v. Brown, 415 U.S. 724, 730 (1974). Thus, to evaluate the constitutionality of State ballot access regimes, the United States Supreme Court has developed a "sliding scale" approach, see id., through which courts "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." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (Timmons), quoting Burdick v. Takushi, supra at 434. "Regulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens ... trigger less exacting review, and a State's `important regulatory interests' will usually be enough to justify `reasonable, nondiscriminatory restrictions.'" Timmons, supra, quoting Burdick v. Takushi, supra.
Here, the burdens the plaintiffs allege are twofold, and, it appears, framed differently than those asserted before the First Circuit. First, the plaintiffs contend that, absent a mechanism to
To some extent, these burdens are significant. "But they cannot be considered in a vacuum." Ireland, supra at 756. That is, while the plaintiffs accentuate the dire consequences of a perceived tear in the statutory fabric (i.e., the absence of a "substitution mechanism"), we are obligated to step back and contemplate the cumulative effect of the legislative tapestry. See Libertarian Party of Wash. v. Munro, 31 F.3d 759, 761-762 (9th Cir. 1994) (Munro) (examining "entire scheme regulating ballot access" where minor party challenged specific provision that granted major, but not minor, parties second opportunity to place candidates on ballot after filing deadline had passed). In doing so, we ask whether "the challenged laws `freeze' the status quo by effectively barring all candidates other than those of the major parties," Manifold v. Blunt, 863 F.2d 1368, 1374 (8th Cir. 1988), cert. denied, 493 U.S. 893 (1989), quoting Jenness v. Fortson, 403 U.S. 431, 439 (1971), or "whether `reasonably diligent' minor party candidates can normally gain a place on the ballot." Munro, supra at 762, quoting Storer v. Brown, supra at 742.
When viewed in this context, the plaintiffs' purported right of
Where a ballot access regime is otherwise open and accessible to minor parties and their candidates, Federal courts have rejected claims akin to the one presented here. See Munro, supra at 761-762; Libertarian Party of N.H. v. Gardner, 759 F.Supp.2d 215, 223-226 (D.N.H. 2010) (Gardner I), aff'd, 638 F.3d 6 (1st Cir.) (Gardner II), cert. denied, 132 S.Ct. 402 (2011). For example, the United States Court of Appeals for the Ninth Circuit has rebuffed a challenge to a particular State election law that, by granting major, but not minor, parties a "second opportunity" to field a candidate after the filing deadline had passed, forced minor parties to hold their nominating conventions
While similar in kind to the right their brethren sought in New Hampshire, the novel right the plaintiffs ask us to recognize is better described as a right (seemingly, in the absolute) for a minor party itself to qualify for ballot access. As the plaintiffs must view it (but do not argue), the signatures collected on behalf of one pair of candidates bearing the "Libertarian" designation must signal the voters' support for the minor party, rather than the candidates. Only then could the plaintiffs argue that they are entitled to transfer those signatures from one slate of candidates to another.
While there is no doubt some truth to this underlying contention, the concept is at odds with our statutory regime. Political organizations themselves only warrant deference, and only are entitled to direct access to the ballot, where they have satisfied the requirements for recognition as a "[p]olitical party." G. L.
Finally, although we reject the plaintiffs' overarching assertion of a constitutional "right of substitution," we nonetheless examine the ballot access regime to determine whether it unduly burdens the plaintiffs' recognized rights in the manner described above.
The election laws prescribe the time period in which minor party candidates, as well as those unaffiliated with any political party or organization, must gather the requisite number of signatures from registered Massachusetts voters, and the dates on which those signatures must be filed with local election officials and the Secretary. G. L. c. 53, §§ 6-9. They are silent on the inner workings of minor parties themselves and, thus, it remains the prerogative of those minor parties, the plaintiffs included, to select a nationally indorsed candidate (for whom they may then collect signatures in Massachusetts) at any time, and in any manner, they see fit. See Dunlap, supra at 220 n.5 ("whatever the date the Libertarian Party chose, it was its decision and the Party is in an awkward position to complain that its decision shortened the time within which it could collect signatures"). That, in some cases, a minor party may have to think ahead to ensure that its candidate will receive the benefit of the full period allowed to collect signatures, or else fall within the restraints of a self-imposed abbreviated time frame, does not impose a significant burden. Cf. McClure v. Galvin, 386 F.3d 36, 42 (1st Cir. 2004) (Storer v. Brown, supra at 734, "held that a potential candidate was not significantly burdened by a statute that forced him to think ahead one full year before becoming an independent candidate").
On this point, we find instructive Federal court decisions
By comparison, in 2008, a candidate retrieving nomination papers on the first day they were available, February 6, would have had until July 29 (approximately 176 days) to gather the 10,000 signatures required to qualify for the ballot. From the day George Phillies contacted the Secretary's office regarding the national party's indorsement of Barr and Root (May 29), the plaintiffs would have had sixty days until the deadline. That is,
Given these modest burdens imposed on the plaintiffs, we agree with the First Circuit's conclusion that "there need be only a rational basis undergirding the regulation in order for it to pass constitutional muster," Barr III, supra at 110, citing Timmons, supra at 358-359, a threshold that § 14 easily meets. As the First Circuit noted, the State's "interest in ensuring that a candidate makes a preliminary showing of a substantial measure of support [before] appearing on the ballot" is legitimate. Barr III, supra at 111. Although this interest is discernibly less weighty in the context of presidential elections, in which "the outcome ... will be largely determined by voters beyond the State's boundaries," Anderson v. Celebrezze, supra at 795, it is not so diminished as to be impotent against the minimal burdens imposed on the plaintiffs.
Conclusion. The matter is remanded to the county court, where the single justice will enter a declaratory judgment consistent with this opinion.
So ordered.
Read together, these provisions yield a slightly troublesome result: by incorporating the term "State election," the term "State officer" includes "national, state, or county officer," and, thus, is "defined to be broader than itself." Barr v. Galvin, 659 F.Supp.2d 225, 228-299 (D. Mass. 2009) (Barr II).
In any event, modern Federal case law concerning the rights of minor parties has incorporated some measure of sensitivity toward their cause, thereby suggesting that the analysis under the Federal Constitution does touch on the substance of Adams's concern. See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 791-793 (1983) (recognizing vital role minor parties and other political organizations play in American politics and deeming unconstitutional Ohio statute requiring independent candidates for presidency to file statement of candidacy and nomination petitions in March of election year); Williams v. Rhodes, 393 U.S. 23, 31 (1968) ("the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot").
Even assuming that minor parties have "some interest in preventing voter confusion of [their] nominated candidates with other candidates who also espouse Libertarian ideals," Gardner II, supra at 16, the plaintiffs have offered no evidence supporting their bald assertion that a substitution mechanism is vital to circumventing this concern. See id., quoting Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 454 (2008) (rejecting presumption that "a well-informed electorate will interpret a candidate's party-preference designation to mean that the candidate is the party's chosen nominee or representative or that the party associates with or approves of the candidate"). Moreover, although we recognize that the opportunity to "write in" the name of a candidate is not an ideal substitute for having the candidate's name printed on the ballot where restrictive access provisions are in place, see Anderson v. Celebrezze, 460 U.S. 780, 799 n.26 (1983), it is an alternative in the circumstances presented here, where a candidate, by his own volition, wholly failed to qualify for ballot access. G. L. c. 54, § 42. See Metros v. Secretary of the Commonwealth, 396 Mass. 156, 161 (1985) (finding no violation of right to vote, and positing that voter could write in candidate's name, where candidate did not satisfy disqualification provision).