Alliance for Retired Ams. v. Sec'y of State

240 A.3d 45

ALLIANCE FOR RETIRED AMERICANS et al.¹

v.SECRETARY OF STATE et al.²

Docket: Ken-20-262

Supreme Judicial Court of Maine.

Argued: October 14, 2020

Decided: October 23, 2020

Revised: November 17, 2020

Matthew S. Warner, Esq., Preti Flaherty Beliveau & Pachios, LLP, Portland, and John Devaney, Esq. (orally), Perkins Coie LLP, Washington, District of Columbia, for appellants Alliance for Retired Americans, Vote.org, Doug Born, and Don Berry

Aaron M. Frey, Attorney General, Phyllis Gardiner, Asst. Atty. Gen. (orally), Thomas Knowlton, Asst. Atty. Gen., and Jason D. Anton, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellees Secretary of State and Attorney General

Patrick Strawbridge, Esq. (orally), and Alexa R. Baltes, Esq., Consovoy McCarthy PLLC, Boston, Massachusetts and Arlington, Virginia, for appellees Donald J. Trump for President, Inc., Republican National Committee, National Republican Senatorial Committee, and Republican Party of Maine

Zachary L. Heiden, Esq. (orally), and Emma E. Bond, Esq., American Civil Liberties Union of Maine Foundation, for amicus curiae American Civil Liberties Union of Maine Foundation

Beth Ahearn, Esq., Maine Conservation Voters, Augusta, for amicus curiae Maine Conservation Voters

Panel: MEAD, JABAR, HUMPHREY, HORTON,^* and CONNORS, JJ.

Majority: MEAD, HUMPHREY, HORTON, and CONNORS, JJ.

Dissent: JABAR, J.

MEAD, J.

[¶ 1] On June 24, 2020, two organizations, the Alliance for Retired Americans and Vote.org, and two Maine residents, Doug Born and Don Berry (collectively ARA), filed a complaint in the Superior Court (Kennebec County) against Maine's Secretary of State and Attorney General (collectively the Secretary) seeking a declaration that, inter alia, (1) the statutory deadline established by 21-A M.R.S. §§ 626(2), 755 (2020) for receiving absentee ballots in an election; and (2) statutory provisions governing the validation and rejection of absentee ballots, see 21-A M.R.S. §§ 756(2), 759(3), (5), 762 (2020), violate the United States and Maine Constitutions. See 14 M.R.S. § 5954 (2020). The complaint asked the court to enjoin the Secretary from "rejecting ballots that are postmarked on or before Election Day and arrive at the election office within a minimum of ten days after Election Day" and "rejecting absentee ballots of otherwise eligible Maine voters without giving the voter notice and an opportunity to cure their ballot or verify their identity."

[¶ 2] Forty-four days later, on August 7, 2020, ARA moved for a preliminary injunction granting the relief requested in its complaint. Following a hearing and oral argument on September 21-22, 2020, the court (Stokes, J. ) denied the motion in a twenty-eight-page order, from which ARA appeals. After expedited briefing and oral argument in this Court, we affirm.

I. DISCUSSION

A. Standing and Justiciability

1. Standing

[¶ 3] No party has raised any issue as to ARA's standing, but we may raise the issue sua sponte as a prudential matter.³ See Blanchard v. Town of Bar Harbor , 2019 ME 168, ¶ 8, 221 A.3d 554 ; Lindemann v. Comm'n on Governmental Ethics & Election Pracs. , 2008 ME 187, ¶ 8, 961 A.2d 538. We agree with the parties’ position at oral argument that standing presents no prudential obstacle in the "unique context" of a pandemic in which this case arises, Lindemann , 2008 ME 187, ¶ 8, 961 A.2d 538 —a context that all Maine people fervently hope will never recur—especially given that the Maine Constitution affords specific protection to the right to vote by absentee ballot and the right to safety, see infra ¶¶ 22, 24, and given that the Alliance's membership consists of retired persons who, as a group, are older, more at risk from the pandemic than younger persons, and more likely to vote by absentee ballot for safety reasons.

2. Justiciability

[¶ 4] "[A]n order granting or denying a motion for a preliminary injunction is not a final judgment and generally is not an action from which we will entertain an appeal." Sanborn v. Sanborn , 2005 ME 95, ¶ 4, 877 A.2d 1075. Accordingly, ARA bears the burden of demonstrating that an exception to the final judgment rule applies before we will reach the merits of the appeal. See Salerno v. Spectrum Med. Grp., P.A. , 2019 ME 139, ¶ 7, 215 A.3d 804. As with the standing issue discussed supra , no party has raised the issue of justiciability.

[¶ 5] We conclude that the impending election and corresponding deadline for the receipt of absentee ballots are sufficient to invoke the "death knell" exception to the final judgment rule. That exception "justifies consideration of issues raised on an interlocutory appeal only if awaiting a final judgment will cause substantial rights of a party to be irreparably lost. A right is irreparably lost if the appellant would not have an effective remedy if the interlocutory determination were to be vacated after a final disposition of the entire litigation." Id. ¶ 8 (alteration and quotation marks omitted).

[¶ 6] The exception applies here because once the November election is held, the claimed injury to Born and Berry's constitutional right to vote—which, as discussed infra is specific to this pandemic-affected election cycle—cannot be repaired, even if they eventually prevail on their complaint for declaratory judgment after the election.

[¶ 7] We reach the merits notwithstanding our decision in Crafts v. Quinn , 482 A.2d 825 (Me. 1984), where, in a challenge to statutory nomination petition requirements, we noted that "[a]t first glance" the death knell exception "might seem to apply," because there, as here, were we "to require a final disposition by the Superior Court before we would entertain an appeal, the election would undoubtedly have come and gone before review in this [C]ourt would be available." Id . at 827-828. We nonetheless dismissed the appeal, in part due to the plaintiffs’ lack of diligence in pursuing their claim, noting that it would be "anomalous" that their failure to pursue their rights promptly should create a new benefit for them, i.e ., interlocutory appellate review. Id . at 828.

[¶ 8] This due diligence requirement resonates particularly strongly in the context of a challenge to existing election laws raised shortly before an election is scheduled to take place. See Jones v. Sec'y of State , 2020 ME 117, ¶ 4, 239 A.3d 628 ("there is a strong public interest in not changing the rules for voting at this late time") (citing Purcell v. Gonzalez , 549 U.S. 1, 4-6, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) ). Here, the plaintiffs filed their complaint on June 24, 2020, although the pandemic emergency was declared in mid-March,⁴ and they waited another forty-four days before filing their motion seeking preliminary injunctive relief. We will apply the death knell exception only because it is not clear whether this matter could have reached finality at the trial court level by the time the plaintiffs filed this appeal had they acted more swiftly. We reiterate, however, that given the concerns recognized in Jones and Purcell , see id. , when challenges to election laws are lodged on the eve of an election it is imperative that plaintiffs act as expeditiously as possible in their pursuit of relief.

B. ARA's Burden

[¶ 9] ARA's complaint contends that the challenged statutory provisions are "an unconstitutional burden on the right to vote," which, pursuant to the Maine Constitution, includes the right to vote absentee, subject to what the Legislature deems "proper enactment" and "reasons deemed sufficient." Me. Const. art. II, §§ 1, 4 ; see Burdick v. Takushi , 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) ("voting is of the most fundamental significance under our constitutional structure" (quotation marks omitted)); Opinion of the Justices , 2017 ME 100, ¶ 49, 162 A.3d 188 ("Voting is a fundamental right, it is at the heart of our democratic process." (alteration and quotation marks omitted)). ARA "bears a heavy burden of proving unconstitutionality, since all acts of the Legislature are presumed constitutional." Jones v. Sec'y of State , 2020 ME 113, ¶ 18, 238 A.3d 982 (alteration and quotation marks omitted). To succeed in its challenge, ARA "must demonstrate convincingly that the law and the Constitution conflict. All reasonable doubts must be resolved in favor of the constitutionality of the enactment." Id. (alteration and quotation marks omitted).

[¶ 10] Beyond the "heavy burden" of proving that the Legislature's provisions for accepting absentee ballots are unconstitutional, id. , ARA faces another significant burden in seeking the "extraordinary remedy" of a preliminary injunction shortly before a general election. See Saga Commc'ns of New England, Inc. v. Voornas , 2000 ME 156, ¶ 19, 756 A.2d 954 ("historically, the Maine courts have taken a conservative attitude toward injunctions, holding the injunction to be an extraordinary remedy only to be granted with utmost caution when justice urgently demands it" (quotation marks omitted)); Haskell v. Thurston , 80 Me. 129, 132, 13 A. 273, 274 (1888).

[¶ 11] To justify a preliminary injunction in this case, because the requested injunctive relief has "mandatory aspects" and does not simply seek "to preserve the status quo," Dep't of Env't Prot. v. Emerson , 563 A.2d 762, 768, 771 (Me. 1989), ARA must demonstrate that it has a "clear likelihood of success on the merits" of its complaint, id. at 768, 771, and must additionally "demonstrate that (1) it will suffer irreparable injury if the injunction is not granted; (2) such injury outweighs any harm which granting the injunctive relief would inflict on the other party; ... and [ (3) ] the public interest will not be adversely affected by granting the injunction," Bangor Historic Track, Inc. v. Dep't of Agric., Food & Rural Res. , 2003 ME 140, ¶ 9, 837 A.2d 129. "Failure to demonstrate that any one of these criteria are met requires that injunctive relief be denied." Id. ¶ 10. "The fact that appellants are asserting...