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SJC-13904
MARTINA JACKSON & another1 vs. ATTORNEY GENERAL & another.2
Suffolk. May 4, 2026. - June 22, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
Dewar, & Wolohojian, JJ.
Initiative. Constitutional Law, Initiative petition, Elections,
Political party, Primary. Elections, Ballot, Political
party, Primary. Civil Rights, Voting. Attorney General.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 20, 2026.
The case was reported by Gaziano, J.
Andrew M. London (Thaddeus Heuer also present) for the plaintiffs.
Anne Sterman, Assistant Attorney General, for the defendants.
WENDLANDT, J. The plaintiffs, two registered voters,
challenge the Attorney General's certification of an initiative
1 Ann Roosevelt.
2 Secretary of the Commonwealth.
2
petition that would replace the system for State elections,
which currently comprises partisan primaries for party
candidates and nomination papers for nonparty candidates, with a
single, all-party primary in which all candidates would be
listed on one primary ballot and voters could vote for any
candidate on the ballot regardless of party affiliation. The
primary would be held in September, and the two candidates who
receive the most votes in the primary irrespective of party
affiliation would advance to the November general election,
where voters could vote for either of the two top-finishing
primary candidates or, alternatively, could set forth and vote
for a write-in candidate of their choice.
The plaintiffs assert that the initiative petition contains
subject matter excluded from the initiative process in violation
of art. 48 of the Amendments to the Massachusetts Constitution;
in particular, they contend that the initiative petition is
inconsistent with the freedom of elections under art. 9 of the
Massachusetts Declaration of Rights. A single justice of this
court reserved decision and reported the case to the full court
on the complaint and a statement of agreed facts from the
parties.
We conclude that the challenged petition does not
significantly interfere with the constitutionally protected
right to vote or the interrelated right of individuals to seek
3
elected office. Further concluding that the initiative petition
bears a real and substantial relation to legitimate State
interests, we affirm the Attorney General's certification of the
initiative petition and remand the case to the county court for
entry of a judgment declaring that the Attorney General's
certification complies with the requirements of art. 48.
1. The petition. In August 2025, at least ten registered
voters filed Initiative Petition 25-12, titled "Initiative
Petition for a Law to Implement All-Party State Primaries," with
the Attorney General. The petition proposes to change the
current system for State elections, pursuant to which candidates
affiliated with a recognized political party can reach the
general election ballot by prevailing in their party's primary
and receiving that party's nomination, while candidates not
affiliated with a recognized party may do so by gathering
sufficient signatures from registered voters on nomination
papers.3 See G. L. c. 53, §§ 41, 44. The petition would replace
3 The current statutory process requires that candidates submit nomination papers signed by a certain number of registered voters to appear on the ballot; recognized party candidates must submit the requisite signatures to receive access to the party's primary election ballot, while nonparty candidates who obtain the requisite signatures gain direct access to the general election ballot. G. L. c. 53, §§ 6, 44. All registered voters may participate in a primary; voters registered in one political party may vote in that party's primary, while voters not enrolled in a political party must choose the political party in whose primary they wish to participate. G. L. c. 53, §§ 37, 38.
4
this system with a single, all-party primary to be held in
September in which all candidates, regardless of party
affiliation, would appear on the same primary ballot and all
voters, regardless of party registration, would cast their votes
on that ballot. The two candidates who secure the most votes in
the primary election would proceed to the general election,
while others could still campaign as write-in candidates; the
general election ballot would then bear the names of the top two
candidates from the primary and a space for voters to write in
and vote for an alternative candidate.
The Attorney General certified the petition, concluding
that it did not contain excluded matters and otherwise conformed
with the constitutional requirements of art. 48.4 The petition's
proponents submitted sufficient certified signatures to require
the Secretary of the Commonwealth (Secretary) to transmit the
petition to the House of Representatives, and the Secretary did.
As the Legislature did not enact the petition on or before May
6, 2026, the petition is eligible to be placed on the Statewide
November election ballot subject to the proponents' successful
4 As part of the art. 48 initiative process, proponents must file their petition with the Attorney General, who then must certify, inter alia, that the measure contains "only subjects not excluded from the popular initiative." Art. 48, The Initiative, II, § 3, as amended by art. 74 of the Amendments. Pertinently, the Attorney General must certify that the law proposed by the petition is not "inconsistent with . . . freedom of elections." Art. 48, The Initiative, II, § 2, third par.
5
collection of sufficient additional signatures. See art. 48,
The Initiative, V, § 1, as amended by art. 81 of the Amendments.
2. Procedural history. The plaintiffs filed a complaint
challenging the Attorney General's certification of the
petition. They sought relief in the nature of certiorari and
mandamus to quash the Attorney General's certification of the
petition and to enjoin the Secretary from placing the petition
on the general election ballot. They argue that the petition
contains "excluded matters" under art. 48, because it is
"inconsistent with" the "freedom of elections" guaranteed by
art. 9. A single justice of this court reserved and reported
the case to the full court.
3. Discussion. Pursuant to art. 48, "the people reserve
to themselves the popular initiative, which is the power of a
specified number of voters to submit constitutional amendments
and laws to the people for approval or rejection." Art. 48, I.
Article 48 imposes limitations on initiative petitions. See
art. 48, The Initiative, II, § 2. As relevant here, art. 48
provides that "[n]o proposition inconsistent with any one of the
following rights of the individual, as at present declared in
the declaration of rights, shall be the subject of an initiative
or referendum petition: . . . freedom of elections." Art. 48,
The Initiative, II, § 2, third par. See art. 9 of the
Massachusetts Declaration of Rights ("All elections ought to be
6
free; and all the inhabitants of this commonwealth, having such
qualifications as they shall establish by their frame of
government, have an equal right to elect officers, and to be
elected, for public employments").
a. Standard of review. We review the Attorney General's
certification of an initiative petition de novo. Anderson v.
Attorney Gen., 479 Mass. 780, 785 (2018). In reviewing a
challenge to the Attorney General's certification decision, "we
construe art. 48 in a manner mindful that art. 48 establishes a
'people's process' that gives the people of Massachusetts the
opportunity to enact statutes regardless of legislative
opposition and to move forward on measures which they deem
necessary and desirable regardless of legislative opposition"
(quotations, citations, and alteration omitted). Id.
As such, we have repeatedly recognized "the firmly
established principle that art. 48 is to be construed to support
the people's prerogative to initiate and adopt laws" (citation
omitted). Abdow v. Attorney Gen., 468 Mass. 478, 487 (2014).
"In other words, unless it is reasonably clear that a proposal
contains an excluded matter, neither the Attorney General nor
this court on review should prevent the proposal from appearing
on the ballot." Associated Indus. of Mass. v. Attorney Gen.,
418 Mass. 279, 287 (1994).
7
"At the same time, however, we are obligated to safeguard
the integrity of the initiative petition process by requiring
that those seeking to change the law strictly comply with art.
48." Anderson, 479 Mass. at 785-786. "The State Constitutional
Convention of 1917-1918 sought a balance between competing
impulses toward direct versus representative democracy. The
proper form and use of petitions is an important aspect of the
balance art. 48 represents, and our review must respect that
balance." Id. at 786, quoting Hurst v. State Ballot Law Comm'n,
427 Mass. 825, 828, S.C., 428 Mass. 116 (1998).
When determining whether the proposed initiative should be
certified, the Attorney General's factual examination is
"limited to matters implicit in the language of the petition and
to matters of which the Attorney General may properly take
official notice," including "[f]actual matters which are
indisputably true," "matters of common knowledge or observation
within the community," and "additional items of which an agency
official may take notice due to the agency's established
familiarity with and expertise regarding a particular subject
area" (quotations and citation omitted). Yankee Atomic Elec.
Co. v. Secretary of the Commonwealth, 403 Mass. 203, 205 (1988).
"Certification should not be denied because of a speculative
possibility that some fact or facts may exist, outside the range
of the facts that the Attorney General should consider, that
8
would cause the petition to relate to an excluded matter."
Associated Indus. of Mass., 418 Mass. at 286-287. If warranted,
a postenactment challenge may be launched on a "more substantial
factual record." Id. at 287. Accordingly, the question before
us is whether the limited facts before the Attorney General
"compel [the] conclusion that th[e] petition" is inconsistent
with the freedom of elections. Yankee Atomic Elec. Co., supra
at 208.
b. Freedom of elections. Article 9 provides that "[a]ll
elections ought to be free; and all the inhabitants of this
commonwealth, having such qualifications as they shall establish
by their frame of government, have an equal right to elect
officers, and to be elected, for public employments." Art. 9 of
the Massachusetts Declaration of Rights. "Over the ensuing
[246] years since the adoption of our Declaration of Rights in
1780, art. 9 has served to protect the 'fundamental' and
'intertwine[d]' rights of candidates to gain access to the
9
ballot and of voters to cast their ballots as they see fit."5,6
Goldstein v. Secretary of the Commonwealth, 484 Mass. 516, 524
(2020), quoting Libertarian Ass'n of Mass. v. Secretary of the
Commonwealth, 462 Mass. 538, 560 (2012) (LAM). See LAM, supra,
quoting Bullock v. Carter, 405 U.S. 134, 143 (1972) ("the rights
of voters and the rights of candidates do not lend themselves to
neat separation").
5 "The Constitution of the Commonwealth expressly protects the right to vote for qualified voters in both art. 9 of the Massachusetts Declaration of Rights and in art. 3 of the Amendments to the Massachusetts Constitution, as amended" (footnote omitted). Chelsea Collaborative, Inc. v. Secretary of the Commonwealth, 480 Mass. 27, 32 (2018). This fundamental right is also "implicitly protected under other provisions of the Declaration of Rights," including arts. 1, 4, 7, and 8. Id. at 33. See id., quoting Dane v. Registrars of Voters of Concord, 374 Mass. 152, 160 (1978) ("right to vote is protected as 'natural, essential, and unalienable right[]' under art. 1 of Declaration of Rights"), Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 276 (1932) ("The right to vote is a precious personal prerogative to be sedulously guarded" under "[a]rts. 4, 7, 8, [and] 9 of the Declaration of Rights"), and Attorney Gen. v. Suffolk County Apportionment Comm'rs, 224 Mass. 598, 601 (1916) ("The right to vote is a fundamental personal and political right" protected under arts. 1 through 9 of Declaration of Rights).
6 "The right to seek elected office . . . is [similarly] a fundamental constitutional right in Massachusetts." Goldstein v. Secretary of the Commonwealth, 484 Mass. 516, 523 (2020). See Libertarian Ass'n of Mass. v. Secretary of the Commonwealth, 462 Mass. 538, 560 (2012) (LAM) ("Candidates for political office enjoy both a . . . right to participate equally in the electoral process and [to] associate with one another to achieve policy goals" [citation omitted]).
10
c. "Sliding scale" analysis. When we evaluate the
constitutionality of a proposed election law, "we apply a
'sliding scale approach, . . . through which [we] weigh the
character and magnitude of the burden the State's rule imposes
on the [rights of candidates to gain access to the ballot and of
voters to cast their ballots as they see fit] against the
interests the State contends justify that burden, and consider
the extent to which the State's concerns make the burden
necessary.'"7 Goldstein, 484 Mass. at 524, quoting LAM, 462
Mass. at 560.
Where an election law "significantly interferes" with
voters' rights to cast their ballots freely or with candidates'
rights to gain access to the ballot, we apply strict scrutiny to
the regulation, which requires that it be narrowly tailored to
advance a compelling State interest. Goldstein, 484 Mass. at
524. Our decision in Cepulonis v. Secretary of the
Commonwealth, 389 Mass. 930 (1983), is illustrative. There, we
considered a challenge by prisoners to the statutory scheme
governing absentee voting, which required in-person registration
While the sliding scale approach originates from Federal
7
constitutional jurisprudence, we have noted previously that "there may be circumstances where the Massachusetts Declaration of Rights and art. 3 require application of this analysis in a manner that guards more jealously against the exercise of the State's police power than the application of the framework under the Federal Constitution" (quotation, citation, and alteration omitted). Chelsea Collaborative, Inc., 480 Mass. at 35.
11
to vote by absentee ballot. Id. at 931. Because they were
incarcerated, and because no provision existed that would permit
the prisoners either to register in prison or to register inperson in the town of their domicile, the statutory scheme, in
effect, denied them the right to vote. Id. at 935, 937 (noting
that absentee ballot system "ha[d] the effect of
disenfranchising a group of prospective voters for long periods
of time"). Accordingly, we applied strict scrutiny. Id. at
935-936. We rejected the Commonwealth's assertion that the
statutory scheme was narrowly tailored to prevent voter fraud,
noting the absence of evidence that the goal could not be
achieved while permitting registration of prisoners. Id. We
posited that the goal could be achieved, inter alia, by
providing registration opportunities in prison, as contemplated
for local high schools and colleges, or by transporting
prisoners to their local municipalities for in-person
registration. Id. at 936 n.10. See Goldstein, 484 Mass. at
525-526 (applying strict scrutiny to statutes requiring minimum
number of "wet" signatures that, in context of emergency
protocols instituted during COVID-19 pandemic, significantly
interfered with prospective candidates' right to gain access to
primary ballot).
At the other end of the sliding scale, election procedures
that "merely regulate and affect the exercise of [fundamental
12
rights] to a lesser degree are subject to rational basis review
to assure their reasonableness."8 Chelsea Collaborative, Inc. v.
Secretary of the Commonwealth, 480 Mass. 27, 34 (2018). See
LAM, 462 Mass. at 567 (concluding that election law imposing
only "modest" burdens is subject to rational basis review).
Rational basis review requires that the proposed election law
"bear[] a real and substantial relation to the public health,
safety, morals, or some other phase of the general welfare"
(citation omitted). Chelsea Collaborative, Inc., supra at 40.
The Commonwealth's "important regulatory interests will usually
be enough to justify reasonable, nondiscriminatory restrictions"
(quotations and citation omitted). LAM, supra at 560.
Thus, in Chelsea Collaborative, Inc., 480 Mass. at 29, we
considered a constitutional challenge to a voter registration
statute that, with certain exceptions, required those planning
to vote in an election to register at least twenty days prior to
election day. We determined that the statute was subject to
rational basis review, reasoning that the statute "does not
disenfranchise any voter," "the Commonwealth takes sufficient
steps to minimize the number of qualified voters who miss [the
8 "'[R]ational basis' and 'strict scrutiny' are 'shorthand for referring to the opposite ends of a continuum of constitutional vulnerability determined at every point by the competing values involved.'" Grossman v. Secretary of the Commonwealth, 485 Mass. 541, 547 n.12 (2020), quoting Chelsea Collaborative, Inc., 480 Mass. at 36 n.22.
13
deadline]," "registration itself is sufficiently simple and
accessible," and the twenty-day period was not so far in advance
of election day as to significantly interfere with the voting
right. Id. at 37-38, 40. Honoring the possibility that a voter
registration blackout period could potentially be established
that is "so far from election day that . . . it . . . would
significantly interfere with the right to vote," id. at 39-40,
we concluded that the twenty-day period reflected "a reasonable
legislative determination that the deadline [was] set as near as
possible to election day as consistent with the need to maintain
an orderly election," id. at 42. See LAM, 462 Mass. at 567
(concluding that election laws requiring minor party candidates
to gather minimum number of signatures in advance of election,
regardless of when party's national convention was held, imposed
"modest burden[]" and thus were subject to and passed rational
basis review, because State had legitimate interest in ensuring
that candidates enjoyed substantial measure of support before
appearing on ballot).
d. Applicable standard of review. The plaintiffs contend
that, because the petition "significantly interferes" with both
voters' and candidates' rights under art. 9, we must apply
strict scrutiny. In particular, the plaintiffs argue that
permitting only two candidates to appear on the general election
ballot "curtails voter choice by . . . reducing . . . the field
14
of candidates available" and "exclud[es] candidates with
significant community support who currently have a path to the
general election" by way of either party nomination or the
submission of nomination papers. Citing the experience of other
States that have adopted similar election laws and historical
data from the Commonwealth's current election system showing
that voter turnout for primary elections generally is lower than
in the general election, the plaintiffs maintain that the
proposed law's single, all-party primary shifts both voters'
choice and candidates' access to "a preliminary stage in the
electoral process when many voters have yet to participate."
The Attorney General has a different view. She argues that
the petition imposes only a "modest" regulatory burden on
voters' and candidates' rights and is therefore subject to only
rational basis review. The petition, the Attorney General
contends, "holds all candidates to the same rules" and is less
burdensome than other ballot access restrictions that have
warranted strict scrutiny at the Federal level. See, e.g.,
Anderson v. Celebrezze, 460 U.S. 780, 792-794 (1983) (holding
filing deadline for independent candidates more than seven
months before election unconstitutional where deadline "place[d]
a particular burden on an identifiable segment" of voters and
"discriminate[d] against [independent] candidates and -- of
15
particular importance -- against those voters whose political
preferences [lay] outside the existing political parties").
We agree with the Attorney General that rational basis
review applies to the election law proposed by the petition.
Significantly, the proposed election law in no way
"disenfranchise[s] any voter." Chelsea Collaborative, Inc., 480
Mass. at 38. Under the proposal, every qualified voter would be
able to participate in both the all-party primary and the
general election. The proposed system would allow all voters to
vote for any candidate in the primary, regardless of the voter's
party affiliation. In addition, any voter whose preferred
candidate is not among the top two primary finishers would
nonetheless retain the ability to write in and vote for that
candidate on the general election ballot. Cf. Cepulonis, 389
Mass. at 937 (applying strict scrutiny in holding voter
registration law unconstitutional as applied to prisoners where
"rule result[ed] in a totally arbitrary loss of the right to
vote for some prisoners, but not others").
Relying on historical voter behavior data and the
experience of other States that have adopted election laws
similar to the proposal here, the plaintiffs argue that the
petition would "relegate the opportunity for significant
electoral choice to a lower-turnout [primary] election in which
the majority of voters historically do not participate." That
16
argument, however, misapprehends the scope of the Attorney
General's review at the certification stage. As the Attorney
General notes, extrapolation from candidate and voter behavior
in prior election cycles is of limited value because such
extrapolation relies on observations under a different election
system than the one proposed. At this stage, the Attorney
General cannot engage in the predictive analysis urged by the
plaintiffs; instead, she must consider whether there is no set
of circumstances under which the law proposed would be valid.
See Yankee Atomic Elec. Co., 403 Mass. at 208. Here, as the
Attorney General notes, it is possible that under the proposed
law voters would engage more fulsomely in the proposed all-party
primary, understanding the enhanced significance of that
preliminary stage under the new structure.
Moreover, the petition would not affect candidates' ability
to participate in the all-party primary. Under the current
system, all candidates must submit nomination papers signed by a
designated number of registered voters to appear on the ballot:
party candidates must submit these signatures to appear on their
party's primary ballot, while nonparty candidates who submit the
requisite signatures are placed directly on the general election
ballot. See G. L. c. 53, §§ 6, 44-46. The petition does not
alter the requirement to show a minimum level of support; all
candidates who achieve the existing signature thresholds --17
regardless of party affiliation or lack thereof -- would be
listed on the same single primary ballot.
To be sure, the proposed law shifts voters' most diverse
candidate selection to an earlier point in the election cycle.
However, because the all-party primary would take place in
September of the election year, it allows candidates an equal
opportunity to reach voters at the height of election attention
before the general election in November. See Washington State
Republican Party v. Washington State Grange, 676 F.3d 784, 794
(9th Cir.), cert. denied, 568 U.S. 814 (2012) (reasoning that
"[b]y giving minor-party candidates access to [an] August
primary ballot" instead of earlier primary contest in March,
all-party primary system allowed those candidates to capitalize
on heightened voter attention). Cf. Celebrezze, 460 U.S. at
786, 790-792 (holding early filing deadline that required
independent candidates to file in March in order to appear on
November ballot unconstitutional because it prevented
independent candidates from taking advantage of "unanticipated
political opportunities" that might arise later in election
cycle and required independent candidates to gather petition
signatures at time when voters were not attuned to upcoming
campaign). By allowing minor party and nonparty candidates to
participate in the September primary "at the same time, and on
the same terms, as major party candidates," the petition grants
18
them "an opportunity to appeal to voters at a time when election
interest is near its peak, and to respond to events in the
election cycle just as major party candidates do." Washington
State Republican Party, supra.
In addition, nothing in the proposed law precludes
candidates who do not finish in the top two in the primary from
continuing to campaign for voters' support. And voters may
continue to support their preferred alternative candidate by
adding that candidate's name as a write-in candidate in the
space provided on the general election ballot, as required by
the proposed law. See Graham v. Roberts, 200 Mass. 152, 157
(1908) ("[The] space for writing in names not printed on the
ballot . . . secures the right of every one to vote as he
pleases, and the requirements limiting the names that are to be
printed on the ballot are within the power of the Legislature").
See also Cole v. Tucker, 164 Mass. 486, 488 (1895) (noting
courts' widespread approval of ballot acts that "permit the
voter to vote for such persons as he please by leaving blank
spaces on the official ballot in which he may write or insert in
any other proper manner, the names of such persons, and by
giving him the means and a reasonable opportunity to write in or
insert such names" and collecting cases).
Further, the all-party primary system does not discriminate
against any party or idea, nor does it unfairly advantage one
19
type of candidate. The petition gives major party, minor party,
and nonparty candidates the same opportunity to advance to the
general election by requiring that all candidates demonstrate
the same base level of support to gain access to the primary --the number of signatures required for the elected office sought
-- and imposing the same threshold on all candidates to advance
to the general election. See LAM, 462 Mass. at 562 (upholding
election law where challenged ballot access provisions were
"nondiscriminatory," "extend[ed] to all classes of candidates an
equality of opportunity," "subject[ed] all political
organizations . . . to the same criteria," and were not "unduly
burdensome for candidates unaffiliated with the recognized
political parties" [quotations and citations omitted]);
Washington State Republican Party, 676 F.3d at 795 ("because
[the ballot initiative] gives major- and minor-party candidates
equal access to the primary and general election ballots, it
does not give the established parties a decided advantage over
any new parties struggling for existence" [quotation and
citation omitted]); Opinion of the Justices, 368 Mass. 819, 823
(1975) (upholding proposed election statute where restrictions
imposed on independent candidates by proposal were "no greater
than those imposed on members of political parties").
We conclude that "[g]iven the[] modest burdens imposed" by
the petition on voters' and candidates' rights, "there need be
20
only a rational basis undergirding the [petition] in order for
it to pass constitutional muster" (citation omitted). LAM, 462
Mass. at 567.
e. Application of rational basis review. To withstand
rational basis review, the petition must "bear[] a real and
substantial relation to the public health, safety, morals, or
some other phase of the general welfare" (citation omitted).
Chelsea Collaborative, Inc., 480 Mass. at 40. We have
previously sustained proposals that would "reasonably regulate
elections and access to a place on the ballot." Goldstein, 484
Mass. at 524, quoting Opinion of the Justices, 368 Mass. at 821.
See, e.g., Grossman v. Secretary of the Commonwealth, 485 Mass.
541, 553 (2020) (applying rational basis review and concluding
that "the Legislature acted rationally when it concluded that a
September 1 deadline for the receipt of mail-in ballots in the
primary election was necessary to achieve the legitimate public
purposes of conducting orderly primary and general elections"
during COVID-19 pandemic); LAM, 462 Mass. at 567 (applying
rational basis review and upholding candidate filing deadline in
light of State's legitimate interest in "ensuring that a
candidate makes a preliminary showing of a substantial measure
of support [before] appearing on the ballot" [citation
omitted]).
21
Indeed, more than a century ago this court considered the
constitutionality of an all-party primary system for municipal
elections. See Graham, 200 Mass. at 155-156. In Graham, we
determined that such a system was constitutionally sound under
art. 9, holding that "[t]he regulation that only the names of
the two candidates chosen at the preliminary election shall
appear on the final official ballot is simply a regulation for
the election, which the Legislature and the people may adopt."
Id. at 156. The plaintiffs contend that because the Graham
court referenced "the question [of] the voting of women" in
municipal elections, id. at 157, that case was "decided in an
entirely different era" and should therefore serve as "no more
than a point of historical interest." While we recognize that
"statutory requirements that were once considered
constitutionally permissible may later be found to interfere
significantly with a fundamental right as societal conditions
and technology change," Goldstein, 484 Mass. at 525, we see
nothing in the petition before us that suggests a different
outcome from that which we arrived at in Graham should portend
here.
In particular, the Attorney General has identified several
State interests served by the all-party primary: it levels the
playing field for major and minor party candidates by imposing
the same requirements across all candidates; offers voters more
22
choice earlier in the election cycle by allowing them to choose
from a broader candidate pool rather than only from among
candidates of their chosen political party; narrows the field of
candidates for the general election so voters can focus on fewer
candidates; requires that candidates garner enough support to
finish in the top two primary positions to ensure their
advancement to the general election;9 and ensures a more
competitive general election between the top two candidates.
These are legitimate public objectives, and the means selected
to achieve them, the all-party primary, "bears a rational
relationship to [these] goal[s]." Opinion of the Justices, 375
Mass. 795, 811 (1978).
We find persuasive similar determinations by the United
States Supreme Court and the United States Court of Appeals for
the Ninth Circuit regarding the constitutionality of similar
laws, albeit in the context of constitutional challenges to
those laws as violating the freedom of association guaranteed by
the First Amendment to the United States Constitution.10 In
9 While the plaintiffs protest that the write-in option is insufficient to secure a meaningful opportunity for candidates who fail to secure one of the top two spots after the primary to appear on the general election ballot, it is reasonable for the State to require a candidate to have some measure of support before listing the candidate's name on the printed general election ballot. See LAM, 462 Mass. at 567.
10Unlike the United States Constitution, the Massachusetts Constitution and Declaration of Rights expressly grant to voters
23
California Democratic Party v. Jones, 530 U.S. 567, 570 (2000)
(Jones), the Supreme Court addressed whether a State could
change its partisan primary from a closed primary, in which each
voter's primary ballot was limited to candidates of his or her
own political party and only the party's members could vote on
its nominee, to a blanket primary, in which each voter's primary
ballot would list every candidate regardless of party
affiliation and allow the voter to choose freely among them.
The candidate of each party who won the most votes in the
blanket primary would become that party's nominee for the
general election. Id. The Court noted four State interests
assertedly served by such a system -- promoting fairness,
affording voters greater choice, increasing voter participation,
and protecting privacy -- but concluded that the proposed system
was not a narrowly tailored means of furthering them. Id. at
584, 585. Relevant to the present matter, however, the Court
observed:
the right to elect officers and to candidates the right to run for office. As such, the question before us is not "whether the proposed law would abridge [analogous] freedoms as they exist under the Federal Constitution, but whether the proposed law would abridge them as they exist under the Massachusetts Declaration of Rights, for, if it would, [art.] 48 excludes the proposed law from the popular initiative." Associated Indus. of Mass., 418 Mass. at 284, quoting Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 249-250 (1946). "Upon [this] question of Massachusetts law, Federal decisions are persuasive, but not controlling." Associated Indus. of Mass., supra, quoting Bowe, supra at 250.
24
"Respondents could protect [all of these State interests]
by resorting to a nonpartisan blanket primary. Generally
speaking, under such a system, the State determines what
qualifications it requires for a candidate to have a place
on the primary ballot[,] . . . [and] [e]ach voter,
regardless of party affiliation, may then vote for any
candidate, and the top two vote getters . . . then move on
to the general election. . . . Under a nonpartisan blanket
primary, a State may ensure more choice, greater
participation, increased 'privacy,' and a sense of
'fairness' -- all without severely burdening a political
party's First Amendment right of association."
Id. at 585-586.
Applying this dictum from Jones, the Ninth Circuit in
Washington State Republican Party, 676 F.3d at 787, determined
that Washington's "top two" nonpartisan primary system, an
election law similar in all material respects to the petition's
proposal, did not violate the First Amendment associational
rights of the State's political parties. Recognizing the
possibility that a top two primary system "makes it more
difficult for minor-party candidates to qualify for the general
election ballot than regulations permitting a minor-party
candidate to qualify for a general election ballot by filing a
required number of petition signatures," the Ninth Circuit
nonetheless concluded that "[t]his additional burden . . . is an
inherent feature of any top two primary system, and the Supreme
Court has expressly approved of top two primary systems." Id.
at 795, citing Jones, 530 U.S. at 585-586. Although they are
not controlling, we "give respectful consideration to persuasive
25
decisions of the Federal courts," Commonwealth v. Moore, 379
Mass. 106, 110 (1979), and find these cases persuasive insofar
as they recognize legitimate State interests furthered by an
all-party primary election of the kind proposed in the petition.
In sum, we conclude that the petition is a "measured and
reasonable attempt to regulate elections," LAM, 462 Mass. at 567
n.29, and does not significantly interfere with the
constitutionally protected right to vote or the interrelated
right of individuals to seek elected office.
4. Conclusion. Our task is not to determine whether the
proposal at issue is better or worse than the current system, or
whether it will serve government interests more or less
effectively than the status quo; our responsibility solely is to
determine whether the petition before us presents a reasonable
regulation of elections that rationally relates to the general
welfare.11 See Graham, 200 Mass. at 153 ("the question before us
is not whether the provisions of the [proposal] are well adapted
11The plaintiffs make much of the Attorney General's decision not to certify a related initiative petition, which was identical to the petition at issue except that it did not provide a write-in option. The Attorney General did not certify that petition, concluding that it was inconsistent with the freedom of elections. The plaintiffs argue that, based on the Attorney General's reasoning for declining to certify that proposal, this petition similarly fails. That related petition is not before us, however; our analysis concerns only whether this petition is inconsistent with the freedom of elections, not the petition's efficacy or merits relative to other failed petitions or the status quo.
26
to conditions existing in the [State] and likely to give the
people a beneficent and well ordered government, but whether
they are within the constitutional power of the [people] to
enact"). This limited question requires us to determine whether
the petition "bear[s] a real and substantial relation to the
public health, safety, morals, or some other phase of the
general welfare" (citation omitted). Chelsea Collaborative,
Inc., 480 Mass. at 40. We conclude that it does. Accordingly,
we remand the case to the county court for entry of a judgment
declaring that the Attorney General's certification complies
with the requirements of art. 48.
So ordered.