The Amherst Town Council is planning an executive session on Monday, June 7, to discuss a lawsuit filed in Massachusetts Supreme Judicial Court late last month by 40 Amherst voters. The lawsuit alleges 76 signatures, including those of voters who are suing, were wrongfully disqualified in April by the Board of Registrars.
The Board is being urged to enter into an agreement with the lawsuit’s plaintiffs, to certify wrongly-invalidated signatures and grant the referendum the petitioners sought.
“The voters whose signatures were unlawfully disqualified have been waiting several weeks for the Town to resolve this problem,” said petitioner Marla Jamate. “In some cases, signatures weren’t certified because a petitioner included the words ‘Amherst,’ or ‘Massachusetts’ after their street address, or didn’t include a middle initial. Numerous errors were made, and we hope the Town will act very soon to restore faith in our local government, and its commitment to voting rights, including the right to petition.”
Petitioners sought a referendum after the Town Council voted on April 5 to borrow $35 million to reconstruct the Jones Library. They submitted 1,088 signatures to the Town on April 20, according to the Town Clerk’s Office. The office obtained authority to certify the signatures at a three-minute Board of Registrars meeting on April 21, and did not certify 246, ultimately declaring that the petitioners were 22 short of the 864 needed to trigger a Voter Veto referendum. That number would represent five percent of the Town’s registered voters, a threshold set by the Amherst Home Rule Charter.
Constitutional lawyer John Bonifaz of Amherst urged the Board of Registrars to enter into a consent decree at their meeting on June 1, citing the “strength of the complaint,” filed on May 20.
“The constitutional right of voters to have their signatures validated on petitions for local ballot measures … is as fundamental as their constitutional right to vote in an election,” said Bonifaz, who was not a signer of the petitioner and doesn’t represent the plaintiffs. “The integrity of the Board of Registrars is on the line in this case,” he said.
The Town’s Attorney, Gregg Corbo of KP Law, sought to prevent discussion of a consent decree, stating that it was not on the Board’s agenda, and the Board lacks the authority to discuss the case without the Town Manager’s approval.
Registrar Demetria Shabazz moved that the Board schedule an executive session to discuss the lawsuit, a motion which passed after it was seconded by Registrar Jaime Wagner. Registrar Jacqueline Gardner voted against the motion, and Town Clerk Susan Audette, who serves on the board in an ex-officio capacity, abstained. However, no new meeting date was set by late Friday, June 4.
The lawsuit, Terry Y. Allen, et. al. vs. Board of Registrars of the Town of Amherst, alleges that the Board violated state laws and regulations by failing to certify valid signatures and protect voters’ rights under the U.S. Constitution and Massachusetts Declaration of Rights. It seeks a judicial order for the Board to certify at least 76 signatures, and find that the petition satisfied the 5% threshold required to trigger a town wide referendum. The plaintiffs are represented by Carol Gray of Amherst, and Thomas O. Bean of Verrill Law in Boston. No hearing dates were set as of Friday.
Questions have arisen in recent weeks about the right of the Board of Registrars to act independently, and whether it should have its own legal counsel. Meanwhile, the Charter grants Town Manager Paul Bockelman the authority to “prosecute, defend, and compromise all litigation” in which the town is involved.
During public comment at Wednesday’s Board of Registrars meeting, resident Peggy Matthews-Nilsen expressed disappointment over the wrongful disqualifications and the Town’s failure to rectify the situation. “Amherst has a reputation and a public image as a socially-conscious, progressive college town, so one of the last things expected here would be the kind of voter suppression taking place in conservative parts of the country,” she said.
Matthews-Nilsen noted that in 2019 in nearby Greenfield, residents used a voter petition to bring a $19 million library project to a town-wide vote. She referred to a May 15, 2019 article in the Greenfield Recorder, where an at-large Greenfield City Councilor, Isaac Mass, was quoted as saying, ‘We want as many people as possible to vote on this. It’s the right thing.”
“This is an example of more democracy. So my question to you is, ‘why is less democracy acceptable in Amherst?” Matthews-Nilsen asked.
The Amherst referendum petitioners analyzed the rejected signatures and found that many were provided by long-term registered voters, including some former Town employees and elected officials. The group appealed over 100 rejections to the Board of Registrars, and submitted 92 affidavits from residents who stated that they signed in their normal manner, and would like their signatures counted.
The voters who filed the recent lawsuit state that their signatures were disqualified based on unlawful and inconsequential criteria, including omission or inclusion of middle initials, failure to abbreviate “Lane” or “Road” in their addresses, or inclusion of the words “Amherst,” and “Massachusetts,” after a street name.
Massachusetts General Law requires that signatures on petitions be “substantially” rather than “exactly” as registered to be certified.
Bonifaz’s letter urges the Board to certify that the “Voter Veto” petition met the 5% threshold, and that the Town set a date for the referendum the petitioners sought. He noted that the Town’s lawyers had claimed the only avenue available to the petitioners was to challenge the disqualifications in court.
“Now that the voters … have filed this litigation, the Board can opt to waste tens of thousands of taxpayer dollars in legal fees fighting this case in court, or can opt to settle the matter with the plaintiffs via a consent decree,” Bonifaz said.
Resident Sarah McKee, a former Jones Library Trustee, spoke during the public comment period and questioned why it is necessary for residents whose civil rights were violated to sue the Town in order to have those rights affirmed. McKee noted that such a scenario burdens plaintiffs and taxpayers with legal costs.
Under the Charter, once the five percent threshold is met for a Voter Veto petition, the Town Council can reconsider its vote, and if the measure isn’t repealed by the Council, it must set a referendum either during a special election, or at the next regular Town election.
Boards of Registrars statewide are responsible for certifying signatures on nomination papers and petitions, issuing party enrollment and voter registration certificates, and investigating objections and challenges to local nomination papers. Registrars take an oath to perform their duties faithfully, and can face penalties under Massachusetts General law for preventing voter registration, fraud, and refusing to perform their duties.
Massachusetts General Law states that if registrars can “reasonably determine” from a signature the identity of the duly registered voter, the name shall be “deemed to have been signed substantially as registered.” The agenda for the Town Council’s executive session on Monday is here. It will be followed by a forum on the Town’s Capital Improvement Program at 6:30 p.m., and a regular meeting of the Council at 6:45 p.m.