Rent Control Turns on Question: What's a Ballot?

What is a ballot?

The fate of 16,000 housing units in Cambridge--more than a third of the city's housing stock--may hang on this question.

The Massachusetts Supreme Judicial Court (SJC) will attempt to resolve the growing legal fight in the next two weeks. Associate Justice Herbert P. Wilkins announced Tuesday that the five-member court on December 19 will review a lawsuit challenging the voting procedures of last month's state referenda.

While the Senate passed two petitions from Boston and Cambridge Tuesday asking to spread out the abolition of rent control over five years, a veto from Gov. William F. Weld '66 is imminent.

For tenant activists, a favorable ruling from the SJC may be the last hope for saving rent control.

Four voters are suing Secretary of State Michael J. Connolly, who conducted the ballot question vote in the November 8 election. They have charged Connolly with violating the state constitution by failing to provide summaries in voting booths of the nine lengthy initiatives.

No one disputes that Article 48 of the Massachusetts Constitution requires that ballot question summaries be printed on the ballot.

Both sides agree that the state legislature passed a law in August permitting Connolly to print separate paper summaries for distribution at polling sites throughout the state.

What is at issue is whether the August law--Chapter 129--violates the constitution, and exactly what constitutes a ballot.

Legal Dispute

"The question is, 'What is a ballot per se?'" state Rep. John E. McDonough (D-Jamaica Plain) said in an interview last Friday. "This is new legal terrain, not just for Massachusetts but, as far as we know, for any state."

"The statute would define something handed to you as a ballot," McDonough said, offering his interpretation of the issue.

The plaintiffs, who are seeking to throw out the results of the nine initiatives, disagree. They brought their suit against Connolly to Suffolk County Superior Court last week.

"Some voters were literally trapped in the voting booths, since they had already closed the curtain, and were forced to vote on questions about which they were confused and on which they had no substantive information in front of them," Ruth A. Bourquin and Burton A. Nadler, the plaintiffs' attorneys, wrote in a memo to Judge Hiller B. Zobel '53.

Zobel agreed. After hearing oral arguments from Bourquin, Nadler and Assistant Attorney General Peter Sacks--who is representing Connolly--the judge granted a 10-day restraining order November 29, barring certification of five of the nine ballot questions.

Among the five was Question 9, the ballot initiative to eliminate rent control in Boston, Brookline and Cambridge, effective January 1.

But the state appealed Zobel's restraining order. According to Attorney General L. Scott Harshbarger '64, the use of the modern voting booth prompted the passage of an act in 1941. That act, Harshbarger argued, defined the strips of paper above the levers in a voting booth as another type of "ballot."

"Printed material presented to the voter during the voting process was deemed part of the 'ballot,' even if the voter did not mark his or her choices on that printed material," the attorney general wrote in a memo to the Suffolk County Appeals Court.

"The Legislature in Chapter 129 defined 'ballot' so as to include the separate summary sheets prepared by the Secretary [of State]," Harshbarger added.

Associate Justice Christopher J. Armstrong concurred. He threw out the restraining order for four of the five disputed referenda.

Armstrong, however, sympathized with the plaintiffs' case. "The plaintiffs' constitutional challenge is meritorious, in the sense that it has a substantial likelihood, although not a certainty, of success," he wrote in his eight-page ruling.

But until the constitutional challenge is settled, the fate of Question 9--and the eight other initiatives--remains in legal limbo.

The case is now before the SJC, which can--among other options--throw out all nine referenda on one end, or force enactment of all nine initiatives on the other.

McDonough, the chair of the House of Representatives committee on election laws, said Chapter 129 was a necessity.

"We were in a constitutional jam because of the number of questions and the length of the questions," he said. "[The attorney general] specifically addressed the constitutional questions and advised us they were very confident that it passed constitutional muster."

He said the alternative to paper summaries were either "teeny-tiny type" on the voting booth ballot, or a completely separate vote for the referenda on a paper ballot.

As for the SJC, Wilkins extended Zobel's restraining order on the rent control question until December 14. On that day, he will review whether to extend the order yet again, according to Ed Cafasso, spokesperson for the attorney general's office.

The legal debate has split state residents.

"Everyone went to the polls knowing how they were going to vote when they got there," said state Rep. Avin E. Thompson (D-Cambridge), whose district includes Harvard Yard.

Thompson said a new election would take $3.5 million to administer, and he ruled out the cost as prohibitive.

One Last Hope

For many tenant activists, the court challenge may be the last hope before Question 9 takes effect on January 1, especially if Weld vetoes the home-rule petitions, which would let low-and moderate-income, elderly and disabled tenants to stay under rent control through 1999.

"I'm hoping the courts rule that the ballot are unconstitutional, so that there will be another election," said Lester P. Lee Jr. of the pro-rent control Save Our Communities Committee. "It would be a second chance for us to explain to the voters what's going on.

Zobel agreed. After hearing oral arguments from Bourquin, Nadler and Assistant Attorney General Peter Sacks--who is representing Connolly--the judge granted a 10-day restraining order November 29, barring certification of five of the nine ballot questions.

Among the five was Question 9, the ballot initiative to eliminate rent control in Boston, Brookline and Cambridge, effective January 1.

But the state appealed Zobel's restraining order. According to Attorney General L. Scott Harshbarger '64, the use of the modern voting booth prompted the passage of an act in 1941. That act, Harshbarger argued, defined the strips of paper above the levers in a voting booth as another type of "ballot."

"Printed material presented to the voter during the voting process was deemed part of the 'ballot,' even if the voter did not mark his or her choices on that printed material," the attorney general wrote in a memo to the Suffolk County Appeals Court.

"The Legislature in Chapter 129 defined 'ballot' so as to include the separate summary sheets prepared by the Secretary [of State]," Harshbarger added.

Associate Justice Christopher J. Armstrong concurred. He threw out the restraining order for four of the five disputed referenda.

Armstrong, however, sympathized with the plaintiffs' case. "The plaintiffs' constitutional challenge is meritorious, in the sense that it has a substantial likelihood, although not a certainty, of success," he wrote in his eight-page ruling.

But until the constitutional challenge is settled, the fate of Question 9--and the eight other initiatives--remains in legal limbo.

The case is now before the SJC, which can--among other options--throw out all nine referenda on one end, or force enactment of all nine initiatives on the other.

McDonough, the chair of the House of Representatives committee on election laws, said Chapter 129 was a necessity.

"We were in a constitutional jam because of the number of questions and the length of the questions," he said. "[The attorney general] specifically addressed the constitutional questions and advised us they were very confident that it passed constitutional muster."

He said the alternative to paper summaries were either "teeny-tiny type" on the voting booth ballot, or a completely separate vote for the referenda on a paper ballot.

As for the SJC, Wilkins extended Zobel's restraining order on the rent control question until December 14. On that day, he will review whether to extend the order yet again, according to Ed Cafasso, spokesperson for the attorney general's office.

The legal debate has split state residents.

"Everyone went to the polls knowing how they were going to vote when they got there," said state Rep. Avin E. Thompson (D-Cambridge), whose district includes Harvard Yard.

Thompson said a new election would take $3.5 million to administer, and he ruled out the cost as prohibitive.

One Last Hope

For many tenant activists, the court challenge may be the last hope before Question 9 takes effect on January 1, especially if Weld vetoes the home-rule petitions, which would let low-and moderate-income, elderly and disabled tenants to stay under rent control through 1999.

"I'm hoping the courts rule that the ballot are unconstitutional, so that there will be another election," said Lester P. Lee Jr. of the pro-rent control Save Our Communities Committee. "It would be a second chance for us to explain to the voters what's going on.