by Joshua A. Douglas, Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law
While doom-and-gloom seems to dominate voting rights news these days, there is also positive work happening on the ground to enhance the right to vote. That is the goal of a lawsuit in Massachusetts, showing the importance of playing offense instead of defense in an effort to expand democratic participation.
Voters in Massachusetts, along with the ACLU, are challenging Massachusetts’s 20-day registration deadline. Under the law, a voter may not cast a ballot on Election Day unless he or she has registered at least 20 days in advance of the election. The plaintiffs in Massachusetts argue that the government has no need for this registration deadline and that requiring people to register ahead of Election Day deprives those who do not comply of their constitutionally-protected right to vote. They literally cannot vote if they do not register ahead of the election and yet given modern technology, the state has no need for the 20-day requirement.
The plaintiffs have already won, in part. Just before the 2016 election, state judge Douglas Wilkins found that Massachusetts had failed to demonstrate a “real reason, grounded in data, facts, or other evidence,” for the registration deadline. The court noted, “The right to vote is fundamental, as guaranteed by the Massachusetts Constitution.” The registration deadline deprived the three plaintiffs of this fundamental right. The court therefore allowed them to cast their ballots even though they had not registered in time. Yet that decision did not resolve the ultimate question of the constitutionality of a registration deadline before Election Day. The court is now considering that question, hearing testimony from voters, election experts, and state officials.