Hampshire Superior Court Judge Richard J. Carey heard arguments yesterday (Aug. 3) in a lawsuit brought by two students from the University of Massachusetts at Amherst, who claim their campaigning and voting rights have been infringed upon by the town’s election calendar.
The students, Caitlin Cullen and Lily Tang, are seeking an emergency injunction, to block the town from holding a primary for the new, incoming Town Council on Sept. 4th, the statewide primary date. The women, who are both registered to vote in Amherst, claim that effective campaigning and informed voting have been made unlawfully difficult, given that most students from UMass, Amherst College and Hampshire College are not in Amherst over the summer.
Carey took the case under advisement. Judges typically rule within weeks – sometimes even days – on time-sensitive matters such as these.
If Carey were to rule in the students’ favor, it could force the town to delay the primary election for the Town Council by about two months, or cancel the primary entirely in favor of a single final election. Such a decision would be at odds with the House and Senate’s approval of a bill for a special election in Amherst, which Gov. Charlie Baker signed on June 28. Lauren F. Goldberg, an attorney for the Town, argued that Massachusetts Attorney General Maura Healey should have been notified of the students’ challenge to Amherst election calendar and have a chance to be heard.
The two-count complaint by Cullen and Tang cites violation of the right to run for elected office without significant interference under the Massachusetts Declaration of Rights; and violation of the right to vote free from age discrimination, under state law and the U.S. Constitution.
The lawyer for the students, Paul Rudof, said voting rights include the opportunity to participate meaningfully in the election process. “The right to vote is not just about the ability to walk in on election day and fill in a bubble,” he said. “A voter needs the ability to be informed in order to cast a reasonable ballot.”
Goldberg and attorney Joel B. Bard argued on the Town’s behalf that the complaint was brought too late for consideration. Forcing the town to change the existing dates now would create logistical difficulties and about $40,000 in additional costs, they said. “Bringing it up at this point is disruptive, it’s prejudicial.” said Goldberg, adding that blank absentee ballots are being mailed out to Amherst residents abroad. “This election is underway,” she said.
Rudof said the students’ case was “not ripe” or relevant for filing at least until the special election bill was signed. The judge appeared sympathetic on this point. If the complaint was filed prior to the bill’s signing, Carey asked, “Wouldn’t I have told them to run along?”
Prior high-profile rulings show that Carey has not hesitated to challenge government officials when he believes they have acted in error, but that he also holds students individually responsible for their behavior.
Cullen wanted to run for Town Council, but was cut off from her “natural constituency” by the election calendar, Rudof told the court. The Town of Amherst only made nomination papers available three days before the UMass spring semester’s end on May 4, the while Sept. 4 is the first day of classes.
“The entire campaign season leading up to that date occurred at a time when almost all students are out-of-town,” Rudof said.
Amherst had a population of nearly 38,000 people in the 2010 U.S. Census. The town’s median age is 21.6 years. Of Amherst’s 20,954 registered voters, 41% are between the ages of 18 and 25, according to Cullen and Tang’s complaint. It is unknown how many young registered voters are college students.
The Town is about to dramatically restructure its municipal government, which has included Town Meeting for nearly 260 years. In local elections this past March, voters chose to eliminate the 240-member Town Meeting and five-member Select Board, in favor of a thirteen-member Town Council and an appointed Town Manager. Three of the councilors will be elected “at large” and two each from five newly-formed districts, which replace 10 precincts. About thirty-four people are running for the 13 seats, including six seeking at-large posts. The level of competition varies from one district to another.
The complaint Cullen and Tang filed is not technically a “class action,” brought on behalf of many, and the women “can’t, in our view, speak for all of the students,” said Goldberg. Cullen and Tang “may not assert the rights of other college students who are not plaintiffs, ” she stated.
Goldberg said two other students are running for Town Council, and apparently obtained the 25 signatures each needed to get on the ballot without difficulty. John Page is running for a District 3 seat, and Dillon Maxfield, for an at-large seat.
An Amherst case involving student voting rights was argued before the U.S. District Court in 1974. The case, Walgren vs. Board of Selectmen, was brought by a candidate for the Select Board who believed a January voting calendar – when students were on winter break – undermined his election prospects. The court ultimately found for the town. However, the two cases have notable differences, including that Walgren was not actually a student, as are Cullen and Tang. The court’s full opinion in Walgren can be seen here.
The new Amherst town charter set forth the Sept. 4 primary date and the final election date on Nov. 6, which were authorized by the legislature. However, the charter also provided for alternative dates, which would have allowed for nomination papers to be filed until Oct. 22, a preliminary election on Dec. 11. and a final election Jan. 24.
Rudof said a delay of two months would be unlikely to have a significant impact on launching of the Town Council, and the court must decide whether the existing schedule creates a “unique burden”” on college students.
Goldberg argued that Rudof failed to present evidence that most college students leave Amherst in the summer, and maintained that some stay in off-campus housing or attend summer programs here.
She added that a large share of election campaigning these days is done electronically. “Anybody can hop on the Internet wherever they are in the world and find out about the candidates,” Goldberg said.
In a sworn statement on July 11, Cullen, who was elected to Town Meeting in March, emphasized the need speak to constituents in person. “My campaign consisted entirely of face-to-face conversations with potential voters,” she stated.
In his filings, Rudof argued that the state Supreme Judicial Court has recognized that a candidate’s ability to engage in “personal contact with voters” may be critical to voting rights.
The UMass dorms are divided among at least three of Amherst’s new voting districts, and because students are not notified of their housing assignments until this month, they wouldn’t know who their Town Council candidates are, the complaint states. In an affidavit signed on July 14, Tang stated that she does “not know yet for certain where I will be living at UMass,” despite a request for a particular dorm in May.
Carey asked Rudof if he thought the town purposely sought to thwart student participation in the election. “We’re not suggesting it was intentional,” Rudof said, adding that nonetheless, “it would be hard to come up with a schedule that would make it more difficult for students to participate.”
Goldberg said that the development of the charter was a long process with numerous opportunities for public comment over the last few years, and that the issues concerning college students were known and discussed. An April 23 Town Meeting voting in favor of the Sept. 4 special election plan, after which UMass, Amherst College and Hampshire College were notified of its likelihood. College vacation breaks in the winter, Goldberg said, also make it difficult to plan elections here. “There was the ultimate belief that there is no perfect time to hold any election in Amherst,” she said.
Cullen is slated to graduate from UMass in December with a major in genetic counseling. Tang, who was is going into her second year at UMass, is spending the summer in New Jersey, working on a congressional campaign.
Only members of the first Town Council will be chosen via both a primary and final election process under the charter, with no primaries in all future elections.
Rudof is an attorney with Elkis, Auer, Rudof & Schiff in Northampton. Goldberg and Bard are with K.P. Law, which has offices in Boston, Worcester and Northampton, among others.
Here are links to two articles on recent major cases, in which Carey has ruled or presides:
Marla Goldberg-Jamate is an Amherst resident and serves on Town Meeting for Precinct 7. She is unrelated to Lauren Goldberg mentioned above. This article may be updated and revised as new information becomes available.