By: Adriana Dunn

On October 6, 2021, the Massachusetts Senate overwhelmingly passed the VOTES Act, aimed at expanding the temporary rights granted to citizens as a result of the COVID-19 pandemic. Some of the highlights of the bill include permanent no-excuse mail-in voting, expanded early voting options, same day voter registration, a correction to the automatic voter registration system implemented in 2020, and assistance for incarcerated individuals to exercise their right to vote.

Although the COVID-19 pandemic produced brand new challenges, with the temporary implementation of many of the provisions found in the VOTES Act, Massachusetts citizens set record voter participation numbers. 3.7 million votes were cast in the 2020 election, a majority being either early ballots or mail-in ballots.

While this bill is certainly a huge step in protecting voting rights in Massachusetts and furthering steps that were already taken in light of the pandemic, multiple progressive amendments did not make the final approved bill. The final approved amendment regarding protecting voting access for eligible incarcerated people includes a provision requiring that voting information is posted within the correctional facility for all people to see, written voting information is passed out, and incarcerated people are assisted in mailing their ballots from the facility. However, there are a number of amendments regarding voting access for incarcerated individuals that were either withdrawn or rejected; one such withdrawn amendment (amendment 7) proposed giving incarcerated individuals writing instruments with which to fill out their ballots. Also rejected was an amendment (amendment 25) proposing automatic voter registration of incarcerated individuals as soon as they were released. In this amendment, ten days before the release of an incarcerated person, their information would be sent to the Secretary of State to have them automatically placed on the voter rolls, unless they had explicitly asked not to be registered.

The rejected amendment proposing automatic voter registration for formerly incarcerated individuals is somewhat offset by the approved provision in the VOTES Act that fixes current problems with Massachusetts Automatic Voter Registration (AVR) at large. When AVR was originally approved in 2018, the law specified that voters would be able to opt out of registering after the transaction. However, the Massachusetts Secretary of State implemented a “front-end” system instead, in which people are able to back out of registering before their registration happens (ie. at the DMV rather than via postcard afterwards). Although this does not make registration as easy for formerly incarcerated individuals as AVR upon release, an updated state-wide “back-end” AVR system should be more secure and result in a higher number of people opting-in.

Other rejected amendments include a proposed online portal for applying for a mail-in ballot (Amendment 26). The final approved bill instead sets out that an applicant for a mail-in ballot may file an application with a local election official, but that “[a]ny form of written communication evidencing a desire to have an early voter ballot sent for use for voting at an election shall be given the same effect as an application made in the form prescribed by the state secretary”. A critique of the proposed online portal for voting would be the potential for voter fraud, a cause that the VOTES Act has addressed in multiple ways. First, the VOTES Act sets Massachusetts’ integration into the Electronic Registration Information Center (ERIC), a multi-state database that assists states in improving the accuracy of their voter rolls. The VOTES Act also requires risk-limiting audits for all regular state primaries and elections to ensure electoral security and integrity.

Although critics of the VOTES Act believe it might be too overreaching and thus violate the Massachusetts State Constitution, the Act was overwhelmingly passed in the state senate by a vote of 36-3, and has even been endorsed by The Boston Globe. The Act now heads to the Massachusetts House of Representatives.

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