STATE OF MAINE SUPERIOR COURT KENNEBEC, ss DOCKET NO. CV-20-95

ALLIANCE FOR RETIRED AMERICANS; DOUG BORN; DON BERRY; and VOTE.ORG,

Plaintiffs, v. MATTHEW DUNLAP, in his official capacity as the Maine Secretary of State; and AARON FREY, in his official capacity as the Maine Attorney General,

Defendants,

DONALD J. TRUMP FOR PRESIDENT, INC., REPUBLICAN NATIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, and REPUBLICAN PARTY OF MAINE,

Intervenor-Defendants.

INTERVENOR-DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR

PRELIMINARY INJUNCTION

ii

TABLE OF CONTENTS

INTRODUCTION ........................................................................................................................... 1 ARGUMENT .................................................................................................................................. 1

I. Plaintiffs’ claims fail on the merits. .................................................................................... 2 A. Plaintiffs’ challenges to voter registration regulations fail. ............................................. 5

1. No online registration .................................................................................................. 5 2. Voter identification documents ................................................................................... 6

B. Plaintiffs’ challenges to absentee voting regulations fail. ............................................... 7 1. Election Day Receipt Deadline. .................................................................................. 7 2. Limited Restrictions to Guard Against Ballot Harvesting ........................................ 10 3. Permissive (Rather than Mandatory) Second Opportunity to Comply with Absentee Ballot Signature Requirements; and Signature Matching Laws. ....................................... 13

a. Alleged harms from technical errors on ballot forms are speculative. .................. 13 b. Lack of a mandated opportunity to cure ballots rejected for, inter alia, mismatched signatures, does not unduly burden the right to vote. ............................... 14 c. Maine’s signature policies do not violate Due Process. ........................................ 16

d. The signature matching requirement does not violate Equal Protection. .............. 17 4. No Pre-Paid Postage for Mail-In Absentee Ballots ................................................... 18

II. The equities weigh decisively against Plaintiffs. .............................................................. 19 A. Plaintiffs will suffer no irreparable harm. ..................................................................... 19 B. The balance of the harms and public interest favor Defendants. ................................... 19 C. The Purcell principle prohibits eleventh-hour changes to Maine election laws. .......... 20

CONCLUSION ............................................................................................................................. 20

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TABLE OF AUTHORITIES

Cases ACORN v. Blanco, No. 2:06-cv-611 (E.D. La. Apr. 21, 2006) ........................................................ 4, 9 Albright v. Oliver, 510 U.S. 266 (1994) ............................................................................................... 16 Anderson v. Celebrezze, 460 U.S. 780 (1983) ......................................................................................... 2 Aureli v. R.I. Dep’t of Admin., 985 F. Supp. 48 (D.R.I. 1997) ............................................................. 17 Bar Harbor Banking & Trust, Co v. Alexander, 411 A.2d 74 (Me. 1980) ................................................ 2 Bethea v. Deal, 2016 WL 6123241 (S.D. Ga. Oct. 19, 2016) ................................................................ 4 Blanchard v. Town of Bar Harbor, 221 A.3d 554 (Me. 2019) ................................................................. 13 Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999) .............................................................. 5 Burdick v. Takushi, 504 U.S. 428 (1992) .......................................................................................... 2, 3 Burson v. Freeman, 504 U.S. 191 (1992) ............................................................................................. 13 Busefink v. State, 286 P.3d 599 (Nev. 2012) ....................................................................................... 13 Common Cause/Ga. v. Billups, 554 F.3d 1340 (11th Cir. 2009) ....................................................... 3, 13 Conyers v. Abitz, 416 F.3d 580 (7th Cir. 2005) .................................................................................. 16 Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) ........................................................... passim Democracy N.C. v. N.C. State Bd. of Elections, 2020 WL 4484063 (M.D.N.C. Aug. 4, 2020) ................. 14 Democratic Party of Haw. v. Nago, 833 F.3d 1119 (9th Cir. 2016) ........................................................... 3 Dep’t of Envtl. Prot. v. Emerson, 563 A.2d 762 (Me. 1989) ..................................................................... 2 DNC v. Bostelmann, 2020 WL 3077047 (W.D. Wis. June 10, 2020) ................................................... 16 DNC v. Bostelmann, 2020 WL 3619499 (7th Cir. Apr. 3, 2020) ..................................................... 4, 12 DNC v. Hobbs, 948 F.3d 989 (9th Cir. 2020) .................................................................................... 10 DNC v. Reagan, No. CV-16-01065-PHX-DLR, 2018 WL 10455189 (D. Ariz. May 25, 2018) .... 10, 14 Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2011) ................................................................................ 16 Downeast Mortg. Corp. v. Balzano, 2004 WL 1925525 (Me. Super. June 29, 2004) ............................... 13 Durepo v. Fishman, 533 A.2d 264 (Me. 1987) ....................................................................................... 6 Eu v. San Fran. Cty. Democratic Cent. Comm., 489 U.S. 214 (1989) ...................................................... 10 Foster v. Love, 522 U.S. 67 (1997) ........................................................................................................ 8 Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) .............................................................................. 3, 13 Frank v. Walker, 819 F.3d 384 (7th Cir. 2016) ................................................................................ 3, 7 Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004) .................................................................................. 2 Hennings v. Grafton, 523 F.2d 861 (7th Cir. 1975) ........................................................................ 14, 15 Knox v. Brnovich, 907 F.3d 1167 (9th Cir. 2018) .................................................................................. 5 Lemons v. Bradbury, 538 F.3d 1098 (9th Cir. 2008) ...................................................................... 15, 16 Little v. Reclaim Idaho, 2020 WL 4360897 (U.S. July 30, 2020) ........................................................... 12 Mathews v. Eldridge, 424 U.S. 319 (1976) ........................................................................................... 17 Mays v. LaRose, 951 F.3d 775 (6th Cir. 2020) ..................................................................................... 3 Mays v. Thurston, No. 4:20-cv-341, 2020 WL 1531359 (E.D. Ark. Mar. 30, 2020) ............................... 4 McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802 (1969) ........................................................... 3 Me. Taxpayers Action Network v. Sec’y of State, 2002 ME 64, 795 A.2d 75 (Me. 2002) ...................... 2, 12 Merrill v. People First of Ala., 2020 WL 3604049 (U.S. July 2, 2020) ................................................... 12 Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) .................................................................... 15 Meyer v. Grant, 486 U.S. 414 (1988) .................................................................................................... 5 Miller v. Thurston, 967 F.3d 727 (8th Cir. 2020) ................................................................................. 12

iv

Minn. Voters All. v. Mansky, 138 S. Ct. 1876 (2018) .......................................................................... 11 Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612 (6th Cir. 2016) ................................................. 3 Nielsen v. DeSantis, No. 4:20-cv-236-RH-MJF (N.D. Fla. June 24, 2020) ...................................... 7, 10 Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ..................................................................... 16 Opinion of the Justices, 130 A.2d 526 (Me. 1956) ................................................................................. 13 Perez-Guzman v. Garcia, 346 F.3d 229 (1st Cir. 2003) .......................................................................... 6 RNC v. DNC, 140 S. Ct. 1205 (2020) ............................................................................................ 8, 9 Short v. Brown, 893 F.3d 671 (9th Cir. 2018) ............................................................................... 10, 11 Thompson v. Dewine, 959 F.3d 804 (6th Cir. 2020) ............................................................................. 12 Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) ................................................................ 3 Voting for Am., Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013) .............................................................. 5, 12 Williams v. DeSantis, No. 1:20-cv-67 (N.D. Fla. Mar. 17, 2020) ........................................................... 4

Statutes 2 U.S.C. §§1 ...................................................................................................................................... 8 2 U.S.C. §7 ........................................................................................................................................ 8 21-A M.R.S. §722 ............................................................................................................................ 10 21-A M.R.S. §753-A ........................................................................................................................ 17 21-A M.R.S. §753-B, as modified by EO I.F.3 ................................................................................ 9, 14 21-A M.R.S. §754-A .............................................................................................................. 9, 10, 11 21-A M.R.S. §756(2) ............................................................................................................ 14, 15, 17 21-A M.R.S. §759 ............................................................................................................................ 15 21-A M.R.S. §760-A ........................................................................................................................ 15 21-A M.R.S. §791(2)(A) .................................................................................................................. 10 3 U.S.C. §1 ........................................................................................................................................ 8

Other Authorities 42 Am. Jur. 2d Injunctions §6 ............................................................................................................... 2 Absentee Voting Guide, bit.ly/2QET4cs ............................................................................................... 1 Building Confidence in U.S. Elections 46, bit.ly/2KF3WUE ............................................................ 12, 13 Executive Order (Aug. 26, 2020), bit.ly/3jpfrPm .................................................................... 4, 9, 10 Maine: Election Tools, Deadlines, Dates, Rules, and Links, Vote.org, vote.org/maine/ .............................. 6 Marc E. Elias, Twitter (May 3, 2020), bit.ly/2XiI74A ........................................................................ 1 Michael T. Morley, Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks, 67

Emory L.J. 545 (2018) ................................................................................................................... 4 Michael T. Morley, Election Emergency Redlines, bit.ly/3aIqiPK .................................................... 11, 12 Nat Hewett, Maine Is Leading on Voting Rights. Other States Should Follow, Bangor Daily News (Nov. 26,

2018), bit.ly/2Yyremo ................................................................................................................... 1 States by Four Pillars Cases, Democracy Docket ................................................................................... 1

1

INTRODUCTION

This is one of many “Four Pillars” lawsuits brought by Democrats and their allies to change

state election laws. States by Four Pillars Cases: Maine, Democracy Docket, bit.ly/2FMt3ph. The “four

pillars” of their demands are (1) that “[p]ostage must be free or prepaid by the government,” (2)

“[b]allots postmarked on or before Election Day must count,” (3) “[s]ignature matching laws must be

reformed to protect voters,” and (4) “[c]ommunity organizations should be permitted to help collect

and deliver voted, sealed ballots.” Democracy Docket (Mar. 18, 2020), bit.ly/3aVNCJU. Democrats

pushed for legislation in these areas long before COVID-19. Unable to persuade legislatures,

Democrats have now turned to the courts. Their new strategy1 is to argue that, in light of COVID-19,

the Constitution requires their legislative agenda. To that end, they and other recruited parties have filed

lawsuits across the country to remove existing voting safeguards. See States by Four Pillars Cases,

Democracy Docket, bit.ly/2CVjpj4 (citing active litigation in 14 states).

In June, Plaintiffs filed this suit challenging several longstanding registration and absentee

voting provisions in Maine. Plaintiffs then sat on the case for 44 days—as November 3 drew closer—

before moving for a preliminary injunction. By this time, Maine citizens were already free to begin

requesting absentee ballots See Absentee Voting Guide, bit.ly/2QET4cs. This delay is telling. Maine has

been a low priority for Plaintiffs because it is a model of accessible voting. See, e.g., Nat Hewett, Maine

Is Leading on Voting Rights. Other States Should Follow, Bangor Daily News (Nov. 26, 2018),

bit.ly/2Yyremo. Indeed, Maine is so accommodating that Plaintiffs find themselves challenging

alternative means to alternative means of registration and voting as burdensome on the right to vote.

Plaintiffs’ motion for preliminary injunction should be denied.

ARGUMENT

1 See, e.g., Marc E. Elias, Twitter (May 3, 2020), bit.ly/2XiI74A (“If [these lawsuits] gain 1 percent of

the vote [for Democrats], that would be among the most successful tactics that a campaign could engage in.”).

2

A preliminary injunction is “an extraordinary remedy only to be granted with utmost caution”

Bar Harbor Banking & Trust, Co v. Alexander, 411 A.2d 74 (Me. 1980). Ordinarily, it requires Plaintiffs

to demonstrate: (1) irreparable injury; (2) that such injury outweighs any countervailing harm to

Defendants; (3) likelihood of success on the merits, and (4) that the public interest will not be adversely

affected. Dep’t of Envtl. Prot. v. Emerson, 563 A.2d 762, 768 (Me. 1989). But the ordinary standard

presumes that the preliminary injunction seeks to preserve the status quo. See Emerson, 563 A.2d at 768.

Here, Plaintiffs seek a “mandatory” injunction to change the law. Id.; 42 Am. Jur. 2d Injunctions §6. Thus,

Plaintiffs’ must show “a clear likelihood of success on the merits.” Emerson, 563 A.2d at 768 (emphasis

added). Plaintiffs cannot satisfy this, or even the normal standard. They are unlikely to succeed on the

merits. And the equities tilt decisively in Defendants’ favor. This Court should deny the motion.

I. Plaintiffs’ claims fail on the merits.

Plaintiffs ask this Court to preliminarily enjoin two voter-registration regulations and four

regulations concerning absentee voting. Intervenors address Plaintiffs’ challenges in turn below, but

first emphasize a few points about the governing legal standards.

Plaintiffs’ main claims invoke the balancing test from the decisions in Anderson v. Celebrezze,

460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). Mot. 11-15; see Me. Taxpayers Action

Network v. Sec’y of State, 2002 ME 64, ¶20, 795 A.2d 75, 82 (Me. 2002) (invoking Anderson-Burdick). It is

a “flexible standard” that “reject[s]” knee-jerk application of strict scrutiny. Crawford v. Marion Cnty.

Election Bd., 553 U.S. 181, 190 n.8 (2008) (opinion of Stevens, J.). Contra Plaintiffs’ repeated cry of

“disenfranchisement,” e.g., Mot. 5, a law is not invalid because it has some effect on voting. Every

election law “exclude[s], either de jure or de facto, some people from voting; the constitutional

question is whether the restriction and resulting exclusion are reasonable.” Griffin v. Roupas, 385 F.3d

1128, 1130 (7th Cir. 2004); see Burdick, 504 U.S. at 433 (allowing “substantial regulation”).

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Anderson-Burdick has two steps. First, Plaintiffs must establish a cognizable burden on the right

to vote and the severity of that burden. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).

Second, they must show that the burden outweighs the State’s interest. Id. Only when an election law

“subject[s]” voting rights “to ‘severe’ restrictions” does a court apply strict scrutiny. Burdick, 504 U.S.

at 434. Burdens that are “merely inconvenient” or “impos[e] only ‘reasonable, nondiscriminatory

restrictions’” are not severe. Crawford, 553 U.S. at 205 (Scalia, J.); Burdick, 504 U.S. at 434. Plaintiffs

“bear[] the burden of pro[ving]” the “magnitude of the burden” through “evidence that quantifies the

extent and scope of the burden imposed by the” challenged law. Democratic Party of Haw. v. Nago, 833

F.3d 1119, 1124 (9th Cir. 2016); Common Cause/Ga. v. Billups, 554 F.3d 1340, 1354 (11th Cir. 2009).

Courts generally treat the sufficiency of a State’s justification, however, as a “legislative fact,” accepted

so long as it is reasonable. Frank v. Walker, 768 F.3d 744, 750 (7th Cir. 2014) (Frank I); see also Crawford,

553 U.S. at 194-97. In fact, States can rely on “post hoc rationalizations,” “come up with its

justifications at any time,” and have no “limit[s]” on the type of “record that [they] can build in order

to justify a burden placed on the right to vote.” Mays v. LaRose, 951 F.3d 775, 789 (6th Cir. 2020).

When measuring burden, “[z]eroing in on the abnormal burden experienced by a small group”

is both unhelpful and erroneous. Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 631 (6th Cir.

2016). Facial challenges like Plaintiffs’ fail when the challenged law “has a plainly legitimate sweep”—

that is, when its “broad application to all … imposes only a limited burden on voters’ rights.” Crawford,

553 U.S. at 202-03; see also id. at 206 (Scalia, J.). Given the State’s power to “play an active role in

structuring elections” and bring “order, rather than chaos,” to “the democratic process,” Burdick, 504

U.S. at 433, the “burden some voters face[]” from a challenged law cannot “prevent the state from

applying the law generally,” Frank v. Walker, 819 F.3d 384, 386 (7th Cir. 2016) (Frank II).2

2 Relatedly, the right to vote does not guarantee the ability to vote in multiple ways. See McDonald v. Bd.

of Election Comm’rs of Chi., 394 U.S. 802, 807 (1969); see also Crawford, 553 U.S. at 205 (Scalia, J.). If one individual

4

Though COVID-19 has changed everyday life, it should not change how courts apply

Anderson-Burdick: “these circumstances are not impediments created by the State.” Bethea v. Deal, 2016

WL 6123241, at *2 (S.D. Ga. Oct. 19, 2016) (emphasis added). For its part, Maine has acted to ensure

accessible voting despite COVID-19. Last week Governor Mills issued an Executive Order that made

in-person voting safer by requiring social distancing at polling locations, extended the deadline for by-

mail voter registration, and extended the time allowed for in-person absentee voting. Executive Order

(Aug. 26, 2020), bit.ly/3jpfrPm (“EO”). Any failure to vote is thus “not caused by or fairly traceable

to the actions of the State, but rather [is] caused by the global pandemic.” Mays v. Thurston, No. 4:20-

cv-341, 2020 WL 1531359, at *2 (E.D. Ark. Mar. 30, 2020).

Moreover, COVID-19 affects both sides of the Anderson-Burdick balance. States also have

“important interests … in the wake of election emergencies,” like focusing on recovery, ensuring

adequate staffing, and maintaining election integrity. Michael T. Morley, Election Emergencies: Voting in

the Wake of Natural Disasters and Terrorist Attacks, 67 Emory L.J. 545, 593 (2018); see also DNC v.

Bostelmann, 2020 WL 3619499, at *2 (7th Cir. Apr. 3, 2020). Thus, despite election emergencies, courts

regularly decline to change election laws by judicial fiat. See, e.g., Williams v. DeSantis, No. 1:20-cv-67

(N.D. Fla. Mar. 17, 2020) (COVID-19); Bethea, 2016 WL 6123241 (Hurricane Matthew); ACORN v.

Blanco, No. 2:06-cv-611 (E.D. La. Apr. 21, 2006) (Hurricane Katrina).

With these principles in mind, and for the reasons below, Plaintiffs are not likely to prevail

against any of the seven policies they challenge for any of the reasons they challenge them.

finds in-person voting impossible, she is free to utilize any one of the numerous absentee options the State provides. If another individual distrusts the mail, see Mot. 5-7, he doesn’t have to use it. Of course, there might be some particular individuals for whom it is virtually impossible to vote under any of the available avenues. But they at most are entitled to as-applied relief, not the facial relief Plaintiffs seek here.

5

A. Plaintiffs’ challenges to voter registration regulations fail.

Plaintiffs challenge two policies. First, Maine requires that citizens return voter registrations

cards by mail or in person, not online. Pls. Ex. 16. Second, the Maine voter registration card requires

first-time registrants to include identity documents. Pls. Ex. 17. Their arguments challenging both

policies boil down to an Anderson-Burdick analysis, and they fail that test.

1. No online registration Voters can obtain the voter registration card in a number of ways—including in person at

various location, online, or by calling the town clerk to have one mailed. And, except for a signature,

they can complete the form on a computer. Pls. Ex. 16. Plaintiffs argue that this violates the free-

speech rights of Vote.org by limiting its ability to provide tools for registration. Mot. 4, 17-19. Plaintiffs

make the overlapping argument that it unduly burdens voting. Mot. 12. Both arguments are misguided.

First, laws regulating the transfer of registration forms do not implicate the First Amendment.

There is “nothing ‘inherently expressive’ about receiving a person’s completed [form] and being

charged with getting that [form] to the proper place.” Voting for Am., Inc. v. Steen, 732 F.3d 382, 392

(5th Cir. 2013); accord Knox v. Brnovich, 907 F.3d 1167, 1181 (9th Cir. 2018). Relatedly, submitting a

voter registration form is an “‘individual, not associational’” right. Steen, 732 F.3d at 390. Plaintiffs’

mistakenly rely (at 17-18) on initiative-petition cases like Meyer v. Grant, 486 U.S. 414 (1988), and Buckley

v. Am. Constitutional Law Found., 525 U.S. 182 (1999). But gathering signatures on “‘[t]he petition itself

is the protected speech.’” Steen, 732 F.3d at 390. In contrast, any message contained in a registration

form is the voter’s, not that of a collective enterprise working toward a concerted goal. Hard-copy

registration “do[es] not in any way restrict or regulate who can advocate [particular] messages, the

manner in which they may do so, or any communicative conduct.” Steen, 732 F.3d at 391-92.

Second, even if transmitting voter registration forms did implicate expressive activity (which

it doesn’t), the First Amendment challenge collapses into the undue-burden-on-voting challenge.

Courts apply Anderson-Burdick even in First Amendment cases when the burden is not severe. See, e.g.,

6

Perez-Guzman v. Garcia, 346 F.3d 229, 238-39 (1st Cir. 2003). Requiring in-person or by-mail

submission is a slight and justified burden. Vote.org has ample means of communicating their

messages or assistance to voters—for example, through their website, which offers links, resources,

information, reminders, and more. See Maine: Election Tools, Deadlines, Dates, Rules, and Links, Vote.org,

vote.org/maine/. And Plaintiffs’ claimed burden (at 4) on “a Mainer[s] seeking to register remotely,”

fails. Voters can register in person. See Pls. Ex. 16. Moreover, for those who cannot access to a printer,

the “multi-day, multi-step process of requesting delivery” of a registration card, Mot. 4, consists of a

single phone call to a town clerk, and then waiting for the form to arrive. Hardly burdensome.

Thus, the policy is analyzed under a less rigorous standard, and Plaintiffs’ claims fail because

of the State’s compelling interest in deterring fraud and maintaining orderly elections. See Crawford, 553

U.S. at 194-97. Allowing online registration would open up new administrative burdens and

opportunities for fraud. Indeed, Plaintiffs’ argument (at 12) that images of signatures can be easily

affixed electronically weighs against allowing online registration. Plaintiffs note that 21-A M.R.S.

§152(5) “contemplates” electronic registration, Mot. 12; see Mot. 18; 21-A M.R.S. §152(5) (“The

Secretary of State may design an application that can be completed electronically ….”). But the fact

that the issue was left to the Secretary’s discretion demonstrates that there are good reasons the

Secretary might decide in either direction. Out of “respect for the differing functions and capabilities”

of the branches, this Court should “stay [its] hand and defer” to this exercise of discretion. See Durepo

v. Fishman, 533 A.2d 264, 265 (Me. 1987).

2. Voter identification documents

To help verify voter identity, the voter registration card requires first-time registrants by mail

to include “a photocopy of your Maine driver’s license, Maine State ID, or current utility bill, bank

statement or government document that shows your name and address.” Pls. Ex. 17. Plaintiffs claim

(at 4-5, 12-13) this means that a photocopy is required from every first-time registrant, and this unduly

7

burdens voting. But the premise of the claim is shaky. If “photocopy” applied to everything on the

list, then we would expect only one “or” before the last item in the list. Instead, the list is divided into

two groups: (1) photo IDs and (2) other documents. The “photocopy” provision applies only to photo

ID’s (as it would be unrealistic to send the actual ID). Moreover, Plaintiffs concede that voters can

use an alternative form that does not require a photocopied document. See Mot. 5 (citing Ex. 18,

National Mail-In Voter Registration Form); see also State Defs. Answer ¶111. This means that there

really is no photocopy requirement, so this claim is moot.3

B. Plaintiffs’ challenges to absentee voting regulations fail.

Plaintiffs challenge four absentee-voting provisions: (1) the 8:00 pm deadline for receipt on

election day; (2) the limited restrictions on third-party ballot return and ballot harvesting; (3) the

signature requirements used to verify absentee ballots in relation to Maine’s policies governing cure

of defective ballots; and (4) the lack of pre-paid postage for voters who vote by mail. All fail.

1. Election Day Receipt Deadline.

Plaintiffs ask this Court to erase and extend the State’s requirement that absentee ballots be

received by 8:00 p.m. on election day. See 21-A M.R.S. §755. Plaintiffs claim (at 5-7, 13) that the deadline

“disenfranchise[s]” voters whose ballots arrive late. This is absurd: deadlines don’t “disenfranchise.”

If they did, then it would be impossible to hold an election. At some point, there has to be a cutoff.

Setting election day as the cutoff for receiving election ballots not only makes sense, it is predetermined

under the authority of the U.S. Constitution. Congress requires that “[t]he electors of President and

Vice President [to] be appointed, in each State, on the Tuesday next after the first Monday in

3 Even if a photocopy were required for first-time by-mail registration, that is not a heavy burden. Most

first-time registrants likely have some access to a photocopier—at their home, at a library, or at a business. The need for small amounts of travel in order to vote is among “the usual burdens of voting.” Crawford, 553 U.S. at 198; Nielsen v. DeSantis, No. 4:20-cv-236-RH-MJF, Doc. 332 at 2-3 (N.D. Fla. June 24, 2020). Any remaining burden would be idiosyncratic and not relevant under Anderson-Burdick, see Crawford, 553 U.S. at 206 (Scalia, J.), and cannot be vindicated through broad requests for facial relief, see Frank II, 819 F.3d at 386.

8

November, in every fourth year succeeding every election of a President and Vice President.” 3 U.S.C.

§1; see also 2 U.S.C. §§1, 7. This, like all “uniform rules for federal elections,” is “binding on the States.”

Foster v. Love, 522 U.S. 67, 69 (1997). In any event, Plaintiffs have failed to carry their burden of

demonstrating that the absentee ballot receipt deadline unconstitutionally burdens their right to vote.

Burden on Voting: Maine’s ballot receipt deadline does not burden voting rights. To begin,

a receipt deadline is necessary only because (no-excuse) absentee voting is permitted as an alternative

to voting in person. In-person voting remains an adequate and available alternative that avoids any of

the alleged problems from an “anticipated surge of absentee ballots.” Mot. 5. But even among absentee

voters, the ballot receipt deadline is not burdensome. Plaintiffs’ arguments to the contrary are

unpersuasive. In their view, increased absentee voting given the pandemic could strain the system (by

overwhelming election officials or the Postal Service) and potentially delay the return of mailed ballots.

Thus, to be safe, voters have to allow a week each time they use the mail. See Mot.6; Pls. Supp. Evid.,

Ex. A at 1. But because some voters are first-time absentee voters (due to COVID-19), the argument

goes, they may be confused by the deadlines, and not allow sufficient time to request or mail their

ballots. Others may be unaware of potential mail delays, and not allow sufficient time. And still others

may want to wait for “late-breaking information … before casing their ballot.” Mot. 5-7, 13. This

convoluted chain of inferences doesn’t add up to a cognizable burden.

But even if those who want to vote by mail must do so a week before election day, this is not

a severe burden. It is not even meaningfully different than in an “ordinary election.” See RNC v. DNC,

140 S. Ct. 1205, 1207 (2020). Mail-in absentee voters have always had to account for delivery, including

delays, and risk missing late-breaking news. “[E]ven in an ordinary election, voters who request an

absentee ballot at the deadline for requesting ballots … will usually receive their ballots on the day

before or day of the election,” which precludes mail submission of the completed ballot. Id. In sum,

9

the deadline is not “a significant increase over the usual burdens of voting.” Crawford, 553 U.S. at 198.

It is the usual burden.

External factors notwithstanding, voters can simply request a ballot early and avoid concern

about late submission altogether. See ACORN, No. 2:06-cv-611 (denying request “to extend the

deadline for counting absentee ballots received by mail” in the wake of Hurricane Katrina). Although

some emergencies might require last-minute changes in the law, this one doesn’t. COVID-19 is no

longer a surprise. Unlike earlier spring elections,4 voters have now had ample opportunity to plan for

November. COVID-19, the election, and absentee-voting options have been widely publicized.

Although more people may be voting absentee, they have had time to account for COVID-19.

Plaintiffs Born and Berry are cases in point. Both know now that they will vote absentee in November.

Compl. ¶¶13-14. They can request ballots today and eliminate any burden imposed by the deadline.

And voters who find themselves, for whatever reason, too close to the deadline can simply

vote another way. See, e.g., 21-A M.R.S. §753-B, as modified by EO I.F.3 (in-person absentee voting); 21-

A M.R.S. §754-A (drop off). Indeed, Plaintiffs assert that some people “had not received their absentee

ballots by Election Day” and therefore were burdened. Mot. 6 (citing Ex. 23). But their anecdotal

account was incomplete: “Voter Joe Wolfberg, 82, said he tried to order his absentee ballot, but it

never came in the mail, so he decided to vote in person. Wearing a white mask and hat, Wolfberg said he felt

comfortable voting in person while taking necessary precautions.” Ex. 23 at 7 (emphasis added).

Relatedly, there is nothing “incompatible” about simultaneously allowing voters to request

absentee ballots close to election day, allowing mail-in voting, and enforcing an election-day deadline.

4 The Wisconsin primary remains an isolated judicially alteration of a ballot receipt deadline. See Mot.

6. Plaintiffs imply that the Supreme Court sanctioned this judicial fiat. Mot. 13. Not true; the Court emphasized that the deadline extension was “not challenged in this Court.” RNC, 140 S. Ct. at 1206. Forced to accept an extended date as controlling, the Court was adamant that, at the very least, ballots must be postmarked by election day. Id. at 1206-07. But it never endorsed the district court’s action in that case. See id. at 1207.

10

See Pls. Supp. Evid. at 2. True, a person who requests an absentee ballot a few days before the deadline

won’t have time to use the mail. But for voters who wish to submit their absentee ballot by other

means, see, e.g., EO I.F, the late deadline for requesting absentee ballots provides more options. It is

bizarre to suggest that “a law that makes it easier” for some voters somehow “prevent[s] anyone from

voting” or “violate[s] the Constitution.” Short v. Brown, 893 F.3d 671, 677-78 (9th Cir. 2018). Any

burden arising from confusion about the various options or worry about the mail can be reduced by

“Plaintiffs and other political and civic activists” “educating voters.” DNC v. Reagan, No. CV-16-

01065-PHX-DLR, 2018 WL 10455189, at *3 (D. Ariz. May 25, 2018).

State Interest: Any burden imposed by the receipt deadline is outweighed by the State’s

interest in the “orderly, accurate, and reliable administration of elections.” Id. at * 11; see Crawford, 553

U.S. at 196; Eu v. San Fran. Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989). An election-day

deadline “eliminates the problem of missing, unclear, or even altered postmarks” and “delay that can

have adverse consequences.” DeSantis, No. 4:20-cv-236-RH-MJF, Doc. 332 at 3. Plaintiffs argue that

no justification is “sufficient” for the deadline given that 21-A M.R.S. §722 does not require Maine to

finalize election results for twenty days. Mot. 13. But that is inconsistent with logic, Plaintiffs’ own

assertions about the impending strain on elections officials, e.g., Mot. 5, and the Governor’s recent

order allowing officials to start counting absentee ballots earlier than normal to make sure there is

sufficient time to properly tally the results, EO I.F.1. The State has time after the ballots come in

because it needs time to ensure an accurate result.

2. Limited Restrictions to Guard Against Ballot Harvesting Plaintiffs next claim (at 7-8, 13-14) that Maine’s very few restrictions on third parties returning

other people’s ballots are unconstitutional. Specifically, Plaintiffs challenge the prohibition on paid

absentee ballot collectors, see 21-A M.R.S. §791(2)(A), and the moderate restrictions on the use of

volunteers, id. §754-A(2). Many states limit or prohibit third-party ballot return—i.e., “ballot

harvesting.” DNC v. Hobbs, 948 F.3d 989, 1068 & n.11 (9th Cir. 2020) (en banc) (Bybee, J., dissenting)

11

(collecting laws from 15 states), cert. pet’n pending. Ballot harvesting occurs when third parties—often

“members of a political campaign, political activists affiliated with outside groups or … even paid

personnel”—collect absentee ballots. Michael T. Morley, Election Emergency Redlines 4, bit.ly/3aIqiPK

(“Morley, Redlines”). Even ignoring the obvious dangers of these practices and the State’s interest in

avoiding them, the Court should view Plaintiffs’ challenge with extreme skepticism. The “broadly

shared judgment” among the States that these restrictions are permissible and necessary “is entitled to

respect.” Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1888 (2018).

Burden: Plaintiffs’ claim turns on the theoretical possibility that minimal third-party ballot-

return restrictions might burden a tiny subset of voters—i.e., individuals who cannot vote in person,

who cannot drop off their own absentee ballot, and who cannot put their absentee ballot in the mail.

But idiosyncratic burdens are relevant only in as-applied challenges, not facial claims under Anderson-

Burdick. See Crawford, 553 U.S. at 206 (Scalia, J.). Plaintiffs must prove that the statute lacks “a plainly

legitimate sweep.” Id. at 200-02. They have not done so.

Indeed, to the extent third-party return assistance is needed, Maine allows it. Immediate family

members can return another person’s ballot without restriction. 21-A M.R.S. §754-A(1). And any

authorized volunteer can return the ballot of any voter who marks their ballot in the presence either

two witnesses or one notary public. Id. §754-A(2). Plaintiffs aren’t satisfied with this additional

accommodation; they claim (at 14) that the witness requirement “adds a burdensome … step to

returning absentee ballots” (emphasis added). That is backwards. The only thing the provision at issue

adds is yet another means of accommodating voters. It burdens no one. Short, 893 F.3d at 677.

But even if Maine imposed witness requirements on all forms of absentee voting, it would still

not unduly burden the right to vote. Witness requirements are no more difficult than getting a photo

ID. Crawford, 553 U.S. at 198. Witnessing can be done safely by wearing masks, staying outside,

standing six feet apart, looking through glass, sterilizing documents and pens, and other measures. See

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Thompson v. Dewine, 959 F.3d 804, 810 (6th Cir. 2020); Miller v. Thurston, 967 F.3d 727, 739-40 (8th Cir.

2020). Indeed, the Supreme Court recently stayed an injunction against an Alabama law requiring

absentee ballots to be verified by two witnesses or one notary. Merrill v. People First of Ala., 2020 WL

3604049 (U.S. July 2, 2020). A fortiori, Maine’s requirement is not unduly burdensome.5

State Interest: Any burden from these rules is outweighed by the State’s interests in

preventing voter fraud and ensuring election integrity. According to the Commission on Federal

Election Reform—a bipartisan commission chaired by Jimmy Carter and James Baker—absentee

voting is “the largest source of potential voter fraud.” Building Confidence in U.S. Elections 46,

bit.ly/2KF3WUE (Carter-Baker Report). Absentee voters can be “susceptible to pressure, overt and

subtle, or to intimidation.” Id. And fraud is “far more difficult to detect when citizens vote by mail.”

Id. The practice of ballot harvesting is thus “especially concerning” because it “gives third parties who

may be completely unknown to both the voter and election officials the opportunity to … tamper

with absentee ballots” by “pressur[ing] voters,” or, “[w]hen a voter has voted for the ‘wrong’

candidate,” “chang[ing]” or “dispos[ing] of the ballot.” Morley, Redlines 4-5.

Protections against these dangers thus serve the “‘important interest’ of the state in protecting

the integrity of [elections] and in deterring fraud.” Steen, 732 F.3d at 391; see Bostelmann, 2020 WL

3619499, at *2; Thompson, 959 F.3d at 811. These interests are even stronger given that Maine expects

“a record number of absentee ballot requests.” Little v. Reclaim Idaho, 2020 WL 4360897, at *2 (U.S.

July 30, 2020) (Roberts, C.J., concurring). Plaintiffs claim ( at 15) that regulations on absentee voting

are unnecessary because voter fraud is “nonexistent.” This is unpersuasive.

First, Maine courts have recognized the existence of voter fraud. See, e.g., Me. Taxpayers Action

Network, 2002 ME 64, ¶24, 795 A.2d 75 (person fraudulently registered to vote); Opinion of the Justices,

5 There is no evidence that allowing paid ballot collectors would meaningfully ease the ability to vote,

as Plaintiffs suggest. Mot. 7-18, 14. Moreover, Plaintiffs never explain why it is unsafe for ordinary people to leave home and interact with others, but it is not unsafe for paid third-party groups.

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130 A.2d 526, 534 (Me. 1956) (“Applications and absent voting ballots may be procured and

fraudulently voted ….”). It is not an illusory concern. Second, prophylactic measures are justified to

deter and detect fraud. Crawford, 553 U.S. at 194-97; see Carter-Baker Report 46 (recommending States

“prohibit[] ‘third-part[ies]’ … from handling absentee ballots” given the inherent “risks of fraud and

abuse in absentee voting”). Third, Anderson-Burdick does not require States to present “any record

evidence in support of [their] stated interests.” Billups, 554 F.3d at 1353. States can rely on “studies

and anecdotes pertaining to different locales altogether,” court decisions, history, or logic. Busefink v.

State, 286 P.3d 599, 604 (Nev. 2012); Billups, 554 F.3d at 1353; Frank I, 768 F.3d at 750.

Plaintiffs argue (at 14) that any increased risk of fraud is addressed by criminal laws. Courts

reject this reasoning. “Intimidation and interference laws fall short of serving a State’s compelling

interests because they ‘deal with only the most blatant and specific attempts’ to impede elections.”

Burson v. Freeman, 504 U.S. 191, 206-07 (1992). Because “law enforcement officers” are rarely present

when ballot harvesting occurs, “many acts of interference would go undetected.” Id. at 207.

3. Permissive (Rather than Mandatory) Second Opportunity to Comply with Absentee Ballot Signature Requirements; and Signature Matching Laws.

Plaintiffs next challenge regulations that require rejection of absentee ballots for various

defects. Mot. 8-10, 14-17. They are not likely to succeed on any of them.

a. Alleged harms from technical errors on ballot forms are speculative.

Parties seeking relief from Maine courts must show that the harm they face is more than

speculative. Injuries that are “purely speculative” are “not ripe for judicial review,” see Blanchard v. Town

of Bar Harbor, 221 A.3d 554, 560 (Me. 2019), and not subject to equitable relief, see Downeast Mortg.

Corp. v. Balzano, 2004 WL 1925525, at *1 (Me. Super. June 29, 2004). Here, there is no reason to assume

that Plaintiffs (or any voter) will fill out their ballots incorrectly. To the extent that Plaintiffs’ arguments

rest on such an assumption, the alleged harm is purely speculative and not entitled to relief.

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b. Lack of a mandated opportunity to cure ballots rejected for, inter alia, mismatched signatures, does not unduly burden the right to vote.

Plaintiffs challenge the signature matching requirement of 21-A M.R.S. §756(2) and the lack

of a mandatory opportunity to cure defective ballots, Mot. 8-10, 14-15. Both claims are unavailing.

Burden: Absentee-ballot signature requirements and procedures (like signature matching)

impose no burden on voting rights. They couldn’t, since they apply only to absentee ballots and in-

person voting remains available. See supra 3 & n.2. Moreover, Plaintiffs identify no actual injury from

the alleged inability to cure defects. Plaintiffs rely on the Herron Report, Mot. 10, which states: “When

an absentee ballot in Maine arrives … without a signature or with a different signature-related problem,

Maine law does not require that the voter be given notice and a chance to fix, or ‘cure,’ his or her ballot.”

Ex. 1 ¶21 (emphasis added). But that doesn’t mean voters are not actually given notice and an

opportunity to cure. Maine law explicitly provides that local officials may give voters a second bite at

the apple. See 21-A M.R.S. §753-B (“The clerk may issue a 2nd state absentee ballot to a voter … when

the absentee ballot envelope has a defect in the affidavit that would cause the ballot to be rejected.”).

Plaintiffs thus misleadingly claim (at 14) that there is a “policy of Rejection Without Notice.” Mot. 14.

This not only requires rampant speculation that voters will sign their ballots incorrectly, but also that

their clerk would not provide an opportunity for cure. Such speculation does not support an

injunction. See Democracy N.C. v. N.C. State Bd. of Elections, 2020 WL 4484063, at *17 (M.D.N.C. Aug.

4, 2020) (“The potential future rejection of an absentee ballot request is … entirely speculative and

cannot serve as the basis for either a right-to-vote claim or a procedural due process claim”). And any

slight burden imposed by the signature requirement is further reduced because “Plaintiffs and other

political and civic activists” can “educat[e] voters” about the rules. Reagan, 2018 WL 10455189, at *3.

Plaintiffs next claim a “severe burden” because the matching is done by elections officials

rather than “trained forensic document examiners,” Mot. 9, 14-15. But potential human error does

not “give rise to a constitutional claim.” Hennings v. Grafton, 523 F.2d 861, 864-65 (7th Cir. 1975).

15

Because “the work of conducting elections in our society is typically carried on by volunteers and

recruits,” “errors and irregularities … are inevitable, and no constitutional guarantee exists to remedy

them.” Id. at 865. Nor do “life’s vagaries”—like the fact that a person’s signature can change, Mot.

10—“raise any question about the constitutionality of [the challenged law].” Crawford, 553 U.S. at 197.

Finally, Plaintiffs’ attempt to combine a slight (at most) burden imposed by a possibility rather

(than a surety of) an opportunity to cure and a slight (at most) burden imposed by the signature-

matching law does not add up to a severe burden. Even without opportunity to cure, Maine has

sufficient protections to ensure only “minimal” burdens on voting rights and regulate standards and

procedures. Lemons v. Bradbury, 538 F.3d 1098, 1104 (9th Cir. 2008). Officials cannot reject a signature

on their own. See 21-A M.R.S. §§756(2), 759(3)(A). The clerk examines the signatures first and

identifies any discrepancy. Id. §756(2). Thereafter, the warden “review[s] the notes of the clerk,”

rejecting the ballot only if “the warden finds that … [t]he signatures do not appear to have been made

by the same person.” Id. §759. This provides an added layer of review and consistency for the voter.

See Lemons, 538 F.3d at 1104. In addition, ballots are processed publicly so that all those present may

observe the proceedings. See 21-A M.R.S. §760-A.

State Interest: First, mail-in votes are inherently more suspectable to fraud, see supra 12, so

states have an interest in enforcing integrity policing measures like signature matching. Plaintiffs’

arguments (at 15) that voter fraud is “essentially nonexistent” and already prohibited by other laws,

fail for reasons already discussed. Supra 12-13. Second, contrary to Plaintiffs’ assertion (at 14-15)

regulations can be underinclusive and serve a legitimate state interest. See, e.g., Metromedia, Inc. v. City of

San Diego, 453 U.S. 490, 511-12 (1981). Third, Plaintiffs’ argument that “the State has ample time to

help voters resolve any discrepancies before its certification of ballots is due,” Mot. 14., is misguided.

Plaintiffs have no basis for claiming that the time period built into the certification process isn’t already

16

accounted for. And to the extent the State does have extra time, there is no indication that the State

fails to investigate or correct discrepancies. See supra 14.

c. Maine’s signature policies do not violate Due Process.

Plaintiffs purport to allege a separate procedural due process violation with respect to a lack

of mandatory opportunity for cure. Mot. 15-16. Their claim fails on two separate grounds.

First, Plaintiffs’ procedural due process claims are duplicative of their Anderson-Burdick claims.

Anderson-Burdick is the “single standard for evaluating challenges to voting restrictions.” Obama for Am.

v. Husted, 697 F.3d 423, 430 (6th Cir. 2012); see DNC v. Bostelmann, 2020 WL 3077047, at *6 (W.D.

Wis. June 10, 2020). And in any event, Anderson-Burdick right-to-vote claims rely on a much more

“specific guarantee[]” than “the more generalized notion of” of procedural due process, so the

generalized claim is duplicative of the specific claim. See Albright v. Oliver, 510 U.S. 266, 273 (1994);

Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005). Because Plaintiffs’ Anderson-Burdick claims fail, supra

13-15, so too do their due process claims.

Second, even if the due process claims were not completely redundant, they fail the Mathews v.

Eldridge balancing test “for the same reasons” that the parallel right-to-vote claims fail Anderson-Burdick.

See Lemons, 538 F.3d at 1104. As Plaintiffs describe it, review of process due requires a “weigh[ing]”

of “Plaintiffs interests” in voting, “risk of erroneous deprivation of the right to vote,” and “the State’s

interest, including any extra administrative of financial burden on the State from requiring additional

procedures.” Mot. 16 (citations and quotations omitted).

While Plaintiffs have a strong interest in the right to vote, there is no risk of being deprived of

that right by an absentee-ballot regulation, given that they can vote in person.6 But even assuming that

6 Plaintiffs’ lead case for applying the Mathews v. Eldridge standard, Mot. 16, emphasized that “[a]n

examination of procedural due process [was] particularly appropriate in [that] case because the State ha[d] chosen to categorically define as ineligible to vote [that is, ineligible to vote in any way] a subset of persons subject to guardianship proceedings.” Doe v. Rowe, 156 F. Supp. 2d 35, 48 (D. Me. 2011) (emphasis added). Not so here.

17

rejections for determined noncompliance with integrity policing regulations (like signature

requirements) are “deprivations” and that all of the rejections are “erroneous,” there is still only

minimal risk of an “erroneous deprivation.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Contra

Plaintiffs’ claim (at 8) the (low) number of rejections for lack of signature is unlikely to change in

November. Pls. Ex. ¶175 (despite drastic increase in by-mail voting the 2020 primary, raw number of

ballots rejected for lack of signature went down). Contra Plaintiffs’ claim (at 16) signature mismatch

accounts for only a tiny subset of rejected ballots. Id. ¶165. So the “probable value” of any additional

process would be negligible. Mathews, 424 U.S. at 335. And, in any event, it is outweighed by the State’s

strong interest in current policies. See supra 14. After all, “[p]rocedural due process guarantees fair

procedure, not ‘perfect, error-free determinations.’” Aurelio v. R.I. Dep’t of Admin., 985 F. Supp. 48, 56

(D.R.I. 1997).

d. The signature matching requirement does not violate Equal Protection.

Finally, Plaintiffs raise an independent signature-matching Equal Protection claim grounded

in (1) the fact that absentee voters who request a ballot online or over the phone are not subject to

the signature matching requirement, Mot. 9, 17 (citing 21-A M.R.S. §§756(2), 753-A(4)&(6)), and (2)

the notion that that signature matching could have disproportionately harmful effects for those with

inconsistent signatures, Mot. 17.7 But no matter what label they use, all voting regulations are governed

by Anderson-Burdick. See Husted, 697 F.3d at 430. And this Court should reject the “attempt to sidestep”

that analysis. Short, 893 F.3d at 677. In any event, Plaintiffs acknowledge that the relevant class is

people “whose signatures often vary.” Mot. 17. That is not a protected class. Thus, even if this

regulation is underinclusive to the State’s ends, it does not come close to violating Equal Protection.

Baber v. Dunlap, 349 F. Supp. 3d 68, 77 (D. Me. 2018) (quoting Crawford, 553 U.S. at 207 (Scalia, J.)).

7 Plaintiffs again invoke “lack of consistent standards” as a third Equal Protection challenge, but this

argument has been fully discussed above. See supra 15.

18

4. No Pre-Paid Postage for Mail-In Absentee Ballots Plaintiffs claim that the State imposes a poll tax in violation of the Twenty-Fourth and

Fourteenth Amendments to the U.S. Constitution, and unduly burdens the right to vote by failing to

provide postage for mail-in absentee ballots. Mot. 10-11, 15, 19. Both arguments deserve short shrift.

First, “[p]ostage charged by the United States Postal Service—like the fee charged by any

other courier or the bus fare for getting to the polls to vote in person—is not a tax prohibited by the

Twenty-Fourth Amendment.” DeSantis, No. 4:20-cv-236-RH-MJF, Doc. 332 at 2-3); see Black Voters

Matter Fund v. Raffensperger, 2020 WL 4597053, at *27 (N.D. Ga. Aug. 11, 2020) (“The fact that any

registered voter may vote in Georgia on election day without purchasing a stamp … necessitates a

conclusion that stamps are not poll taxes….”). Therefore, requiring voters to pay for their own postage

also “satisfies” the Fourteenth Amendment. League of Women Voters of Ohio v. LaRose, No. 2:20-cv-

1638-MHQ-EPD, Doc. 57 at 25 (S.D. Ohio Apr. 3, 2020).

Second, to the extent that buying stamps burdens voters who choose to mail their absentee

ballots, see Mot. 15, the burden is slight. As an initial matter, affected Plaintiffs can simply utilize one

of the many alternative voting methods that do not require purchase of a stamp—for example, by

voting in person, or returning the absentee ballot in person, or having a third party return the absentee

ballot. See Raffensperger, 2020 WL 4597053, at *27 (discussing in-person and drop off alternatives).

Moreover, the ancillary costs of getting to the polls—in person (by car, bus, train, etc.) or by mail—

are simply “the usual burdens of voting.” Crawford, 553 U.S. at 198; see DeSantis, No. 4:20-cv-236-RH-

MJF. Doc, 332 at 2-3. Postage is an “evenhanded restriction,” LaRose, No. 2:20-cv-1638-MHQ-EPD,

Doc. 57 at 25, with “a plainly legitimate sweep,” Crawford, 553 U.S. at 202.

And the slight burden imposed the cost of a stamp is fully justified by the State’s interests.

Mailed ballots are inherently more susceptible to fraud. See supra 12. Requiring voters to pay for their

own postage “protects the integrity and reliability of the electoral process itself,” see LaRose, No. 2:20-

19

cv-1638-MHQ-EPD, Doc. 57 at 25, by making it more likely that a ballot is the voter’s own,

intentionally and individually cast. Finally, States have an obvious interest in protecting their resources.

Plaintiffs don’t get to dictate how the State spends its money.

II. The equities weigh decisively against Plaintiffs.

Even if this Court concludes that one of Plaintiffs’ claims has merit, it should deny preliminary

relief based on the equitable factors, as well as the Purcell principle.

A. Plaintiffs will suffer no irreparable harm.

Plaintiffs’ claim for irreparable harm is premised on the loss or severe burdening of their right

to vote. Mot. 19. This wrongly assumes that they are likely to succeed on their claims. And “in a case

such as this,” where Plaintiffs move to enjoin laws enacted to “reduce voting fraud,” “the right to vote

is on both sides of the ledger.” Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 952 (7th Cir. 2007).

B. The balance of the harms and public interest favor Defendants.

When the government is a defendant, harm to the defendants and public interest merge into

one factor. See Nken v. Holder, 556 U.S. 418, 435 (2009). The “inability to enforce its duly enacted plans

clearly inflicts irreparable harm on the State.” Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018). Those

plans, as explained above, are supported by weighty public interests that outweigh any burdens on

voters. See Benisek, 138 S. Ct. at 1944 (public interest in “orderly elections”). And the public interest

would be disserved by courts imposing burdensome injunctions on state officials at this juncture, while

they are working to address a public-health emergency. With “public election offices … stretched to

the limit in this pandemic crisis,” the equities do not lie with any plaintiff who “calls for quick

implementation of a systemic remedy” to statewide election procedures. Black Voters Matter, 2020 WL

2079240, at *4; see also Arizonans for Fair Elections v. Hobbs, No. 20-cv-00658, 2020 WL 1905747, at *3

(D. Ariz. Apr. 17, 2020).

20

C. The Purcell principle prohibits eleventh-hour changes to Maine election laws.

When Plaintiffs ask federal courts to enjoin voting laws just before an election, they must

weigh “considerations specific to election cases.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Indeed, the

First Circuit has been mindful of “the harm to the public interest from the chaos that [would] ensue

if the Maine election laws, which have been in place [for many years], are invalidated by a court order

in the crucial final weeks before an election.” Respect Maine PAC v. McKee, 622 F.3d 13, 16 (1st Cir.

2010). Maine courts likewise have resisted last-minute changes to election law. See Crafts v. Quinn, 482

A.2d 825, 829 (Me. 1984) (refusing to “invalidat[e] … the requirements for candidacy” “so close to

the election”). Other States have also followed the “Purcell principle” and rejected judicial changes to

election laws as an election approaches. See Liddy v. Lamone, 919 A.2d 1276, 1288 (Md. 2007); Dean v.

Jepsen, No. CV106015774, 2010 WL 4723433, at *7 (Conn. Super. Ct. Nov. 3, 2010); In re Request for

Advisory Opinion Regarding Constitutionality of 2005 PA 71, 740 N.W.2d 444, 454 (Mich. 2007).

“[A]llow[ing] the election to proceed without an injunction suspending [election] rules”

promotes “[c]onfidence in the integrity of our electoral process,” which “is essential to the functioning

of our participatory democracy.” Purcell, 549 U.S. at 4, 6. Conversely, courts risk “voter confusion”

when they order changes to election laws on the eve of election day. Id. at 4-5. “As an election draws

closer, that risk will increase.” Id. at 5. Voter confusion, in turn, causes a “consequent incentive to

remain away from the polls.” Id.

Plaintiffs seek disruptive changes to Maine’s election system and waited until the eleventh hour

to do so. The relief sought would inevitably sow confusion and distrust among the electorate. The

Purcell principle guards against those concerns and should by itself preclude the relief Plaintiffs seek.

Purcell was sufficient for the U.S. Supreme Court to stay the injunction in Wisconsin, see RNC, 140 S.

Ct. at 1206-08, and it should be sufficient to deny Plaintiffs’ request here.

CONCLUSION

For these reasons, this Court should deny Plaintiffs’ motion for preliminary injunction.