Maine’s highest court on Friday reaffirmed that absentee ballots must be received by Election Day to be counted.
In a 4-1 decision, justices on the Maine Supreme Judicial Court rejected a lawsuit seeking to require state election officials to count any ballots that were postmarked by Election Day but do not arrive before polls close.
The lawsuit from the Alliance for Retired Americans, Vote.org and two Maine residents had sought to extend the cutoff by 10 days because of the unprecedented use of absentee ballots this year and concerns about delayed mail delivery. The plaintiffs had also sought to require municipal clerks to take additional steps to contact voters whose ballots were deemed invalid.
But the justices agreed with a lower court that the absentee ballot deadline imposed by the Maine Legislature “even in 2020 imposes only a modest burden on the right to vote.” While the majority justices concluded that “it is beyond dispute that a citizen’s right to vote is fundamental,” they said the processes put in place by Secretary of State Matt Dunlap’s office during the pandemic provided ample opportunities and ways for Mainers to cast their ballots.
“As we have explained, however, the risk that an absentee voter will be erroneously deprived of that right has been substantially reduced through the procedures instituted by the Secretary, even if the statutory deadline for returning such ballots is adhered to,” the justices wrote.
“Finally, as we have discussed, the state’s interest in following statutory directives governing the election is substantial,” the ruling continued. “In sum, we conclude that absentee voters will be afforded ‘fundamental fairness’ in the November 2020 election.”
The Law Court justices in the majority ruling were Acting Chief Justice Andrew Mead, Justice Thomas Humphrey, Justice Andrew Horton and Justice Catherine Connors.
In a dissenting opinion, however, Justice Joseph Jabar wrote that the court “cannot ignore the untenable position in which Maine voters find themselves by having to exercise their constitutional right to cast an absentee vote in the middle of a deadly pandemic.”
“Although the Secretary has taken steps to ameliorate the effects of the pandemic, he cannot rectify the shortcomings of the United States Postal Service,” Jabar wrote in his dissent. “We cannot ignore those Maine voters, projected to number at least 600-700, who will have their constitutional right to vote by absentee ballot impacted by the COVID-19 pandemic and the United States Postal Service’s delivery problems. The election day deadline for the receipt of mail-in absentee ballots is unconstitutional ‘as applied’ during a once-in-a-lifetime deadly pandemic.”
With the Maine Legislature unable to meet before Election Day to extend the deadline, Jabar supported granting an injunction allowing properly postmarked ballots to be counted if they arrived within two days of Nov. 3. He agreed with the court’s rejection of requiring clerks to take additional steps to allow voters to correct invalidated ballots, however.
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