Political appeals have a way of shaking up the schedules of the Connecticut Supreme Court, changing its waltz-like pacing into a frenetic jitterbug.
On the eve of last week’s political primary, the Connecticut Republican Party sued Secretary of the State Denise Merrill, charging that she improperly listed the Democratic Party candidates first on the Nov. 6 general election ballot. To get a decision as quickly as possible, the GOP and Merrill have agreed to seek a rare direct “reservation” to the Supreme Court, bypassing stops at the trial or Appellate Court.
On Aug. 17, the high court agreed to that procedure, with an expedited briefing schedule, leading up to oral argument on Sept. 12, the week before the court begins hearing cases for its first term. The GOP’s brief is due by Aug. 27, and Merrill’s brief is due on or before Sept. 6.
The GOP is represented by Proloy K. Das and Richard P. Healey, of Hartford’s Rome McGuigan. “The parties need a quick decision on this,” Das said. “The state needs a quick decision, so the ballots can be ordered, so candidates can send out their campaign literature showing where they’re going to be on the ballot.” He said absentee ballots may have to be printed earlier than ballots for the general election.
Merrill. represented by Assistant Attorneys General Peregrine Zinn-Rowthorn and Jane R. Rosenberg, is contesting the challenge on grounds that sovereign immunity barred the lawsuit against her office. She also disputes that the ballot order statute requires the Republican Party’s candidates be listed first on the ballots.
In an Aug. 13 press conference, Merrill criticized the legal action as a distraction that was “regrettable” and a waste of taxpayers’ money. A Democrat, Merrill bristled at the notion her decision to place the Democrats on the top line was politically motivated.
The statute allows the party that won the most votes in the last election to occupy the top spot. The controversy stems from the fact that on Nov. 2, 2010, Republican gubernatorial candidate Tom Foley received 560,874 votes on the Republican line, about 20,000 more than the 540,970 that Dannel Malloy got on the Democratic Party line. However, Malloy won the election with the 26,308 votes cast for him as the endorsed candidate of the Working Families Party.
In short, the Democratic Party’s candidate won the election, but the Republican Party garnered the most votes.
The case will be a matter of statutory interpretation. The election statute in question, Connecticut General Statutes 9-249a, lists the order in which the names of the parties are to be arranged on the ballot. The top position goes to the “party whose candidate for Governor polled the highest number of votes in the last-preceding election.”
Is there an advantage for a candidate to being on the top ballot line? That’s hard to say. And, as Das points out, that debate isn’t part of the Supreme Court argument.
Election questions have prompted the state Supreme Court to shift into overdrive, to decide questions within the tight deadlines. In 2010, the Republican Party intervened in a lawsuit that challenged the qualifications of the Secretary of the State Susan Bysiewicz to run for state attorney general, a position that, under a statute passed in 1897, required 10 years of active practice at the bar.
That question first surfaced as a musing on a law blog, and was forced forward when Bysiewicz sued herself, to force the question. In that case, Bysiewicz had to go through a grueling trial, with videotaped depositions, which highlighted gaps in her run-of-the mill courtroom experience. By the time the case reached the Supreme Court, in May 2010, time was short. The panel heard arguments from lawyers on both sides — Elliot Gersten for the GOP, and Daniel J. Krisch, now a partner at Halloran & Sage, for the Democrats. The high court panel surprised most people by deliberating less than an hour, then ruling from the bench against Bysiewicz.
Another emergency petition hit the Supreme Court the same year when Martha Dean, the GOP candidate for attorney general, challenged the credentials of Democratic opponent George Jepsen, on the grounds that he, too, fell short of the 10-year active-practice requirement because he had little litigation experience.
In that case, despite a petition from Dean to do so, the Supreme Court did not rush to block the election, declare Jepsen ineligible, or remove his name from the ballot. Instead, Superior Court Judge Julia Aurigemma heard arguments and, within 24 hours, ruled that Dean lacked a legal basis for her challenge.
The state Supreme Court’s election law decisions have typically been unanimous, and lacked any partisan or philosophical division. This past January, the justices voted unanimously to reject a GOP challenge to the census-driven redistricting of Connecticut’s congressional districts.
The Republicans were unhappy with that deicision, but not nearly as unhappy as they were with the state Supreme Court in 1994. That year, the Connecticut Constitution gave the court an unprecedented election law task, when a panel of three justices sat as a trial court in a recount case. Second District U.S. Rep. Sam Gejdenson, a Democrat, had won the election night tally by two votes and was up by only four after an initial recount. GOP candidate Edward Munster challenged the results.
With a new congressional term looming, time was of the essence in that case, in which Chief Justice Ellen Peters, who came to the court from the Yale Law School faculty, presided over her first trial. On Dec. 17, 2004, less than six weeks after the disputed election, the Supreme Court panel ruled unanimously that Gedjensen had won by 21 votes.
Munster called the court’s rejection of his request for a new election “outrageous” and said that the justices had used “sleight-of-hand to arrive at arbitrary vote totals.” He said he would ask the GOP-controlled House of Representatives to seat him anyway. But it did not, and the Connecticut Supreme Court’s ruling held.•