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Elections, COVID-19, and the Maine Constitution, Oh My!

Late last week, the Law Court issued an important election law decision in Alliance for Retired Americans v. Secretary of State.  In its opinion, the Court held that Maine’s deadline for receiving absentee ballots (8:00 p.m. on election day) as well as the statutory provisions governing the validation of absentee ballots are not unconstitutional as applied during the COVID-19 pandemic.  The Court’s decision in Alliance for Retired Americans is notable on a few levels, including: (1) for reaching the merits of an appeal from an order on a preliminary injunction, (2) for espousing judicial restraint in modifying statutory deadlines, particularly close to an election, and (3) for re-emphasizing the Court’s “important responsibility” to interpret the Maine Constitution, independent of the U.S. Constitution.

First, it is notable that the decision was rendered on an appeal from an order denying a request for a preliminary injunction.  Unlike in federal court, orders granting or denying preliminary injunctions are not typically appealable in state court (an interesting topic for another day).  The Law Court, however, agreed to hear the appeal under the “death knell” exception to the final judgment rule because it concluded that the voters bringing the challenge would irreparably lose the opportunity for effective relief if the interlocutory appeal were not heard before the election.  The Court nevertheless reiterated that election-law challenges should not be unnecessarily delayed until an election is close at hand.

Second, the Law Court set out several principles governing election law challenges.  It noted that the State has a compelling interest in preserving the integrity of its election process, and that courts disfavor altering election rules on the eve of an election.  The Law Court further explained that challenges to election deadlines and ballot requirements are reviewed under a sliding scale approach.  Severe burdens must be justified by compelling government interests, while lesser burdens may be justified by important regulatory interests.

Applying these principles, the Court refused to extend the deadline for receiving absentee ballots despite COVID-19.  It agreed with the Superior Court that the deadline does not severely burden the right to vote, because voters have several options for returning an absentee ballot (mailing, delivering it in person to a secure lockbox, or having another third party deliver the ballot) and the State has taken substantial steps to make in-person voting safe.  Thus, any burden on the right to vote is outweighed by the State’s interests in permitting sufficient time to count ballots and certify results, as well as maintaining voter confidence in the integrity of the election.  Quoting the Superior Court, it wrote:

For this court to unilaterally discard the statutory deadline and impose a deadline of its own choosing, would amount to a judicial re-writing of the election laws. . . . Such a judicial modification of the deadline risks severe disruption of Maine’s electoral process.

The Law Court also rejected the challenge to the absentee ballot requirements, noting that municipal officials are required to take steps to afford voters the opportunity to cure any faults that would cause a municipality to reject an absentee ballot (such as a missing signature).  These procedural safeguards, the Court found, ensure fundamental fairness in the election process.

The third interesting aspect of the decision was the Court’s discussion of the claim that the Maine Constitution provides a right to vote safely.  The Maine Constitution, unlike the federal Constitution, recognizes the right of “pursuing and obtaining safety.”  Consistent with its recent decisions, discussed on this blog, the Court noted that it has the “authority and important responsibility” to independently interpret the Maine Constitution, which may impose stricter standards than the U.S. Constitution.  The Court, however, found no state constitutional violation.  Assuming, without deciding, that the Constitution provides a particularized right to vote safely, the Court concluded that current voting procedures adequately guaranteed that right.

Alliance for Retired Americans is an important case for appellate procedure, election law, and state constitutional interpretation, and is likely to be an oft-cited decision.

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©2020 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 301
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About this Author

Joshua Dunlap Civil Litigation Attorney
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Joshua Dunlap, a member of Pierce Atwood’s Litigation Group and Appellate & Amici team, focuses his practice on civil litigation at both the trial and appellate levels. He appears in federal as well as state court, representing clients in various commercial litigation matters. 

Joshua regularly defends clients in complex litigation, including class actions and multidistrict litigation. Much of his practice has involved representing financial institutions, manufacturers, retailers, and other institutional clients in state and national consumer class actions involving various...

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