The national and state Republican candidates will appear first on Connecticut ballots in the November 7 election, the state Supreme Court has ruled, in its first case argued this new court year.
The court ruled 7-0 to re-map the ballot order on the grounds that the Republican Party polled the most votes for governor in 2010.
Democrat Dannel Malloy beat Republican Tom Foley by nearly 7,000 votes in the governor’s race, due in part to the 26,308 votes cast for Malloy as a candidate for the Working Families Party, which also listed Malloy as its gubernatorial candidate.
The court’s decision on the ballot order—with a full written opinion to follow—stated without explanation that the Republicans had exhausted their administrative remedies, were not barred by sovereign immunity, and correctly interpreted the grammar of state statute 9-249a. It says the Secretary of the State has to list parties on the ballot, starting with “The party whose candidate for governor polled the highest number of votes in the last-preceding election,” and so on for the other parties.
Secretary of the State Denise Merrill commented after the ruling was reached Tuesday, “While I am surprised at the outcome today, I am confident that my office interpreted the statute in good faith and with due diligence.” In 2011, Merrill’s office listed the Democratic Party candidates first in municipal election ballots without any objections,
The Republicans were represented by Rome McGuigan lawyer Proloy K. Das, who said after the announcement, “We’re glad we came out on top.” Das teamed with Richard P.Healey in the eleventh-hour matter. Merrill said enough time still remains to produce absentee and other ballots by the Oct. 5 statutory deadline.
Solicitor General Gregory T. D’Auria in the attorney general’s office, arguing on behalf of Merrill, contended she was well within her rights to interpret the statute, and that her result was reasonable and sound. D’Auria also argued that the phrase “polled the highest number of votes” directly follows the phrase “candidate for governor,” and is therefore more closely linked to it.
Chase T. Rogers, near the end of D’Auria’s Supreme Court argument Sept. 12, asked, “But what do you do about the first part of the sentence,” which starts out, “the party whose candidate….”
The arguments focused heavily on whether the Republicans had the legal right to even bring the claim in the first place, contending sovereign immunity shielded Merrill. Das argued that to preserve jurisdiction and give the plaintiffs their day in court, Merrill’s act of placing the Democrats on top must be construed as “a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority” which is an exception to sovereign immunity.
The high court evidently agreed.
In July, the Republicans wrote Merrill a letter protesting the ballot order, and Merrill responded that because Malloy garnered the most votes, the Democrats should be listed first. In an August 14 hearing before Superior Court Judge James Graham, the parties and Graham agreed to forward the matter directly to the appellate courts.
Das began his argument before the Supreme Court by saying, “This case is not about politics, it is about law.” The well-crafted briefs from both sides digest a recent spate of Connecticut election law cases over the past two years. A final ruling by the Supreme Court was needed in time to print the absentee and other ballots, which must be available by early October. The AG’s office argued that this matter should have been appealed many months ago using the Uniform Administrative Procedures Act, and that by failing to do so, the Republicans had not exhausted their administrative remedies, and courts lacked legal jurisdiction to hear their case.
As for sovereign immunity, Das argued in briefs that it has not been used in the past to block law disputes, and that now is no time to start.
The ruling means that national as well as state races will list the Republican candidate first, so Mitt Romney will appear above Barack Obama, and Linda McMahon will be before Chris Murphy, for example. The Merrill legal team downplayed the importance of ballot order, noting in one footnote that it is not clear that the Republicans were legally aggrieved by Merrill’s initial decision.