Introduction

On Tuesday, May 2, 2023, Brookline held not one but two elections: the annual Town election and a primary special election for state representative for the 10th Suffolk District, which includes parts of Boston and South Brookline’s Precinct 16.

In addition to the elected positions determined by the May election, there were several questions on the ballot, including tax raises, marijuana retail licenses and a proposed spending plan of an estimated $212 million to demolish and rebuild the Pierce school.

Twelve thousand five hundred thirty-eight Brookline voters cast ballots in the municipal election, determining the outcomes of ballot questions and electing dozens of officials to offices across the town. However, this past May, there were several issues regarding mail-in voting in Brookline.

Some voters were sent the wrong ballots. Others received their ballots without enough time to mail them back to Town Hall. Others hand-delivered their ballots to the town clerk but were informed by TrackMyBallot, a website run by the Secretary of The Commonwealth that allows voters to track the status of their ballots, that their ballots had not been received.

Eight hundred twenty-four mail-in ballots were returned late to Town Hall and were not allowed to be counted under state law, compared to about 250 mail-in ballots that were returned late in Sept. 2022 during the state primary election, in which voters cast 40,354 ballots.

The number of mail-in ballots that arrived late at Town Hall and were not allowed to be counted was large enough to potentially change the results of a handful of election outcomes, including the outcomes of two ballot questions which, together, allocated hundreds of millions of dollars of town funding.

To be clear, the town clerk’s office, which is in charge of administering elections for the town, did not violate any laws.

Voting in May 2023Voters had several options to cast their ballots for the election: they could vote early in person, in person at the polls on election day or request a Vote-by-Mail ballot or an Absentee Ballot, which could be placed in a ballot drop box or shipped back to Town Hall, according to Town Clerk Ben Kaufman, who is in charge of administering elections for the Town.

As of June 2022, An Act Fostering Voter Opportunities, Trust, Equity and Security (VOTES Act) ensures that all Massachusetts voters have a right to vote by mail, regardless of their absentee status, health, level of caution around infectious diseases or ability to get to the polls.

Additionally, this May election was the first election in which every registered Brookline voter received a postcard informing them that voting by mail was an option. Anyone who received a postcard could fill it out and send it back to Town Hall and they would be registered to vote by mail.

Since COVID, people have voted by mail at significantly higher rates than they had in years past. This past May was no exception.

Mail-in ballots must arrive by the time polls close, in this case 8 p.m. on May 2, in order to be counted, under state law.

Stories of votersPrecinct 10 resident David Helman was among those who received a mail-in ballot just days before the election. Planning to be out of state on election day, both Helman and his wife requested that their ballots be shipped to the place they would be staying in Wisconsin. They received their ballots in the mail on April 30, 2023, three days before the election, leaving the couple with three days to get their ballots from Wisconsin to Town Hall.

Late mail-in ballots were not the only problem that arose during the election. Some voters, like Precinct 5 resident Susan Walling, received the wrong ballots.

“I requested an absentee ballot and received it promptly,” Walling said in an email to The Cypress reporters. “Unfortunately, I didn’t open it immediately. It turns out it was for Precinct 3, and I live in [Precinct] 5. I went to Town Hall to get a new ballot and was told I could vote [by mail] for everything but Town Meeting Members. Fortunately, I was able to go to the polls on Tuesday.”

Walling was told by town clerk staff that she could vote by mail for all town-wide elections and ballot questions but that she could not vote by mail in precinct-specific elections, like Town Meeting members, because she had received a ballot for the wrong precinct. She would need to come in person to the polls to vote for Town Meeting Members. Kaufman corroborated the story and explained his office’s response.

“This was something that did happen. We identified about 10 or 15 ballots in one of the later batches for Precinct 5 that were marked for Precinct 3,” Kaufman said. “If you filled it out and sent it back, your vote was counted. We just did not count your votes in Town Meeting.”

Kaufman cited a small staff, a large workload and a short timeline as the cause of the mailing error, saying it was likely due to the misplacement of address labels as his team was stuffing envelopes. He said that his office reached out to those who were sent the wrong ballots and told them that a new ballot could be sent to them.

Other voters experienced problems tracking their ballots online. Precinct 10 Town Meeting member Eric Hyett, who was not up for reelection this past May, spoke about his partner, Teddy Weinberg, who had registered to vote by mail. Weinberg received his ballot and sent it in, but when he checked TrackMyBallot, his ballot was marked as “not received.” After the election, when Hyett called the town clerk, following up on an email he had received from a constituent whose mail-in ballot arrived at his home less than a week before the election, the Clerk’s office informed Hyett that Weinberg’s ballot had been received and processed, but the office had not updated the database.

Precinct 13 Town Meeting Member David Mendels and his family experienced a similar problem.

“My son is a BHS graduate and is a sophomore at Tulane University in New Orleans. He was not 18 in the 2020 election, but he is now. So, he just registered to vote,” Mendels said. “He applied for an absentee ballot and received it on Friday, April 28. Immediately, we sent it back. I used TrackMyBallot on Election Day, and it appears to have never arrived.”

He, his wife and his other son experienced a similar situation.

“My other son–who is 23 and lives in Boston–and my wife both decided to vote by mail. I personally dropped off their ballots at the Coolidge Corner Post Office at 9 a.m. on Friday, April 28, thinking that was plenty of time for it to get [to Town Hall],” Mendels said. “By May 2, according to TrackMyBallot, they were not received. That was surprising to me because I’ve mailed things in Brookline before that have arrived in 24 to 48 hours.”

Mendels did not call the Clerk’s office to confirm whether or not the ballots had been received.

According to Debra O’Malley, Communications Director at the Secretary of The Commonwealth’s office, the Clerk is responsible for updating the TrackMyBallot database.

“Ballots show up as received and either accepted or rejected on our ballot tracker after the town clerk has entered the disposition of the ballot into our state voter database,” O’Malley said. “If the ballot was not shown as received, that means the town clerk’s office had not yet entered into our voter database that the ballot had been received.”

Hyett, whom a number of his constituents had contacted about receiving their ballots within a week of the election, contacted the Clerk and the Secretary of The Commonwealth. the Secretary of The Commonwealth’s office had received similar complaints from a handful of Brookline residents and informed Hyett that they were in contact with the Clerk.

“All of the other towns in Massachusetts are also having spring elections,” O’Malley said. “We have not received similar complaints for those towns. So it does seem to be more specific to Brookline.”

Nonetheless, the Secretary of The Commonwealth has no authority to compel the town to do anything differently in the future because no laws were violated.

“This is not a violation of an election law, which is generally what we’re empowered to investigate,” O’Malley said. “But, we also try to make sure our local election officials are following best practices. We can give them advice on what to do.“

State law sets the deadline for requesting a mail-in ballot at five business days before the election. One week before election day, voters can still submit new requests for mail-in ballots. This makes it impossible for Clerks to send out all of their ballots at least two weeks before an election, as USPS recommends.

Kaufman said he would like to see a change in state law to allow for an earlier and longer timeline around elections.

Aftermath and impactLike many local elections, Brookline’s May 2 election saw many close races for everything from Select Board to Town Meeting Member.

Arden Reamer lost the town-wide Select Board race to Paul Warren by 26 votes. Susan C. Cohen beat Kimberley Richardson by 96 votes in the town-wide race for Housing Authority. In Precinct 2, Stuart P. Rubinow missed a seat at Town Meeting by six votes. In Precinct 6, Alex J. Villanueva missed a seat at Town Meeting by seven votes.

David Mendels ran a close race for Town Meeting Member in Precinct 13.

“I just was elected to Town Meeting. I won by four votes,” Mendels said. “That could have been the margin of me winning or losing the race. Or for my opponent, for that matter. The same could be true for anyone; a lot of races were very close. So, it’s really worrisome.”

Many other races came down to a dozen or a couple dozen votes.

Ballot Question 1 and ballot Question 2B were close votes as well. Question 1 was approved by 309 votes, authorizing the town to raise taxes and spend $212 million to tear down and rebuild the Pierce School. Question 2B was voted down by 72 votes, preventing the town from further raising taxes to collect an additional $1,850,000 to implement a municipal compost program.

While it is impossible to say how many of the 824 voters whose ballots were received late in the mail ultimately voted in person at the polls, it is also impossible to say how many were unable to vote at the polls, and therefore, their votes were not counted at all.

The election processMassachusetts law sets standards and timelines for all elections within The Commonwealth, including municipal elections. Under state law, all papers for candidates and ballot questions are required to be filed and certified 35 days before an election. Candidates then have another two days to withdraw from the ballot, meaning ballots are finalized 33 days before an election. This timeline was written into law before COVID and before mail-in voting was as widespread as it is today, although absentee voting did exist at the time.

Once the content of the ballot is finalized, that information needs to be sent by the town to a contractor, who lays out the text on a page, prints ballots and mails them to the town for distribution. Brookline contracts with a company called Elections Systems and Software (ESS).

According to Debra O’Malley, Communications Director at the Secretary of The Commonwealth’s office, the office tasked with administering elections state-wide, the Secretary of The Commonwealth recommends town clerks have their ballots printed and ready to mail to voters at least three weeks before an election.

Three weeks, according to O’Malley, should be enough time for ballots to be shipped to voters and shipped back to Town Hall, leaving a couple of days for voters to fill out their ballots in between. According to Kaufman, for this election, the ballot closed on March 30 at 5 p.m., and the information for the ballot was sent to ESS on Friday, March 31 2023.

Because of the weekend, ESS did not begin laying out ballots until Monday, April 3, less than one month before the election.

“Laying out ballots is incredibly complex and detailed work, involving multiple versions sent back and forth, and hours of detailed review by town clerk staff to ensure the ballots are accurate,” Kaufman said. “It normally takes 7-10 days to lay out a ballot, especially one with a large number of races, ballot questions and a simultaneous special state primary election.”

Kaufman said the ballot was approved for printing on Wednesday, April 12, but there were additional challenges during the layout and printing process.

“The complexity of this election meant the ballot printing took the full 10 days we usually anticipate for our vendor. The main issue was a result of the simultaneous special state primary election that was held in Precinct 16,” Kaufman said.

The voting machines the town uses are capable of processing different ballots simultaneously. This feature is useful for primary elections where separate parties have individual ballots and for separate, simultaneous elections, such as the town election and special state primary election that took place in Precinct 16 in May. However, for this feature to work, all ballots must have the same dimensions.

Separate machines counted the ballots for the simultaneous town election and the 10th Suffolk District special state primary, eliminating the need for all ballots to be the same size in May. The separate machines allowed the separate ballots to have different dimensions. But, according to Kaufman, ESS, who did not respond to an interview request from The Cypress, did not realize that separate machines were being used to count ballots from the two elections.

The Secretary of The Commonwealth’s office had designed the ballot for the special state primary election to be 11 inches long. ESS assumed that the town ballot needed to fit in the same machine as the special state primary, so they attempted to design an 11-inch ballot for the town election. Due to the number of races and ballot questions, it was not possible to fit the town ballot onto an 11-inch sheet of paper, according to Kaufman.

“Once the town clerk’s office was told about the issues, the vendor was quickly contacted and told that there would be a separate machine for each election, so the ballots did not need to be the same length,” Kaufman said. “This allowed the vendor to design a 17-inch ballot for the town election. This redesign took additional time, which is why the vendor took 10 days to design the ballots.”

That meant the Clerk’s office did not receive the ballots until April 18, exactly two weeks before election day, later than the Secretary of The Commonwealth recommends, but within the non-binding timeline that the town had set for itself.

The United States Postal Service’s Election Mail Service recommends at least one week to ship ballots in each direction. In order to meet this recommendation, the Clerk would have needed to pack and ship all 8,192 mail-in ballots that had been requested on the same day he received them. According to Kaufman, meeting this recommendation was not possible due to the short timeframe and small staff.

“A team of town employees from the town clerk’s office and other departments worked late nights and weekends to send ballots out as soon as we received them,” Kaufman said. “4,500 ballots were mailed out by April 20 and another 3,500 were mailed by the deadline to request vote by mail ballots on April 25.”

These dates are 12 and seven days before the election. As a result, many voters did not receive their ballots with enough time to follow the USPS Election Mail Service’s guidelines, which recommend voters mail in their ballots “at least one week prior to your state’s deadline [in this case, 8 p.m., May 2]”.

State law mandates that any ballots received by the town later than 8 p.m. (when the polls close) on election day are not eligible to be counted, regardless of when they’re post-stamped.

Eight hundred twenty-four ballots were received after the polls closed on May 2, according to Kaufman. Under state law, these ballots could not be counted. Kaufman said he has encouraged Brookline’s state delegation to explore a change in state law that would allow these ballots to be counted in a municipal election.

Kaufman said the 824 people whose ballots came in late had the option to cast provisional ballots in person at the polls on election day, even if they also mailed in ballots. These provisional ballots would only be counted once election officials were able to determine that the mail-in ballots were not received.

“Some of these voters, seeing that their ballot was not received on Election Day, went and voted in person, so their votes were counted,” Kaufman said. “The change in state law I have advocated for would allow us to count any ballot that was postmarked by election day and received within three days. Some of these ballots may have been postmarked after election day and could not be counted even if the State changed the law.”

O’Malley said that the Secretary of The Commonwealth has also recommended that the Town review their contract with ESS to ensure an early enough timeline for ballot printing.

FutureKaufman sees two major issues in election laws. According to Kaufman, the first issue surrounds the short timeframe for ordering and sending out ballots for a municipal election.

“While State elections have ballots set and printed months before Election Day, the municipal election calendar does not afford us this time,” Kaufman said. “Without a change in state law regarding the timeline to print the ballot, we do not have enough time for the ballots to be designed, printed, shipped and mailed for all voters to return their ballots in a timely fashion.”

The second issue has to do with the date by which ballots need to be received to be counted. According to state law, in municipal elections, ballots must be received by the town clerk’s office before the hour that polls close on election day. This means that ballots that are mailed in advance but are not received by 8 p.m. on election day cannot be counted.

“We do runs to the post office throughout election day to collect ballots, including a final run at 7:45 p.m. [polls close at 8 p.m.] to collect as many ballots as we can,” Kaufman said. “Unfortunately, many ballots are still received in the days after the election that cannot be counted. For me, the worst day of the year is the day after election day, when we receive ballots from the post office and have to reject them for arriving late.”

The fact that he has to reject ballots every year, Kaufman said, is why he wants to see changes in state law.

“I have suggested to our legislative delegation that the timeline be changed so that the ballot closes one week earlier than it does now,” Kaufman said. “That would allow us to receive ballots from our vendors one week earlier and allow more time for ballots to be sent and returned.”

According to O’Malley, the issue is complex. Those who wish to run for office will have to make up their minds earlier in the year if ballots are finalized further out from the election. She said it might mean that elections would need to be pushed to later in the year.

“A lot of towns have their elections in April and May, so, if normally you would pull out your nomination papers in January or February, you might have to start thinking in November, December that you want to run,” O’Malley said. “Not everybody is in the area at that time. Some people are in warmer climates for the winter. Especially Representative Town Meeting Members who may be migratory.”

According to Kaufman, there is very little that the town can do to address these issues without changes to state law.

“Staff were in the office on nights and weekends, including running ballots to the main Post Office by South Station at midnight in an attempt to expedite mailing,” Kaufman said. “Unfortunately, without a change to state law, these issues will continue to occur.”