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.