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Ballot-Line Fight Goes To Supreme Court Wednesday

By CHRISTOPHER KEATING

September 09, 2012

The state Supreme Court, moving swiftly, will hear oral arguments Wednesday on whether Republicans should replace Democrats at the top of the ballot in November.

In a lawsuit that it filed just last month, the state Republican Party argued that it should receive the top ballot line after the complicated results of the 2010 gubernatorial election.

The high court's ruling will have a direct effect in November, when much of Connecticut's political world is up for election: a U.S. Senate seat, all five congressional offices, 151 seats in the state House of Representative and 36 in the state Senate.

The matter will be determined by the seven Supreme Court justices, who have been nominated by governors and approved by the legislature through the years.

Although Democrat Dannel P. Malloy won the governor's race in 2010, he did it with a combination of votes from both the Democratic Party and the union-backed Working Families Party. In the tight race, Republican Tom Foley captured more votes on the Republican line than Malloy did on the Democratic line. With that result, Republicans say that their party should get the top line because they received more votes than any other party.

The GOP sued Secretary of the State Denise Merrill, who ruled that the Democrats should keep the top line on the 2012 ballot. Republicans had questioned an original decision by Merrill, a longtime Democrat, to place the Democrats on the top line for the 2011 municipal elections.

But Merrill says the precise wording of the law means that the party of the candidate with the most votes overall — Malloy and the Democrats, in this case — should go on top.

The case is highly unusual because many lawsuits do not reach the state's highest court for years. In this case, the lawsuit was filed at Superior Court on Aug. 9, and it is reaching oral arguments on September 12 — lightning speed in a court system that is known for taking years for criminal cases and often 20 years in death-penalty appeals. Some other political cases have moved quickly, including the high court's decision that then-Secretary of the State Susan Bysiewicz was not qualified to run as attorney general in 2010 because she did not have enough legal experience.

The schedule moved even faster this time because the two sides agreed to skip both the trial and appellate courts and head directly to the Supreme Court, a spokesman for Merrill said. Election Day is Nov. 6 — eight weeks from the oral arguments.

"The courts realize they have to move this along,'' House Republican leader Larry Cafero of Norwalk said in an interview. "This got right to the Supreme Court immediately. The ballots have to be printed, so time is of the essence.''

"Political pundits and strategists and statisticians might argue it's a small numerical advantage to be on the top line,'' Cafero said. "Democrats have done quite well, thank you very much, in the congressional races and the Senate races.''

Cafero, though, said there is a much simpler reason for the lawsuit.

"It might sound corny, but first of all, it's the law,'' Cafero said. "It matters because we have a law, and laws are meant to be followed. We've caught it, and it needs to be corrected.''

But the state attorney general's office, arguing on behalf of Merrill, says in a 37-page legal brief that the case should be dismissed because Merrill acted within her legal boundaries. In addition, attorneys are invoking the doctrine of sovereign immunity, which prevents some lawsuits from being filed against the state.

"A court plainly lacks jurisdiction over this action,'' said the brief, written by state Solicitor General Gregory T. D'Auria and other attorneys. "The state has not consented to this suit, and no plaintiff has taken advantage of statutorily available remedies. There is no allegation of any constitutional violation, and the Secretary's conduct in interpreting and administering [the law] is fully within the scope of her statutory authority. Courts should therefore permit the Secretary to undertake her purely administrative duty of preparing the ballot without interference.''

The lawsuit, filed for the Republicans by attorneys Proloy K. Das and Richard P. Healey of the Hartford law firm of Rome McGuigan, states that Foley won 560,874 votes on the Republican line and that Malloy won 540,970 on the Democratic line. Malloy's 26,308 votes on the Working Families Party line proved to be the difference in the closest gubernatorial election in more than 50 years.

The two sides have interpreted the law in sharply different ways.

To back up their case, Republicans cited the 1994 election that vaulted Republican George Pataki into becoming the governor in New York. Pataki defeated incumbent Gov. Mario Cuomo, but only after the votes of the Republican and Conservative Party lines were added together. As a Democrat, Cuomo captured more votes on his line than Pataki did on the Republican line, and the Democrats kept the top line on the ballot for the next four years.

But Merrill maintains that there are differences in the precise language of the laws between New York and Connecticut, leading to a different result. Merrill was elected in the statewide election at the same time as Malloy in November 2010.

The important distinction, according to Merrill and the attorney general's office, is the difference between the overall votes for the candidate versus the votes for a particular party.

"Significantly, the word 'polled' in [the statute] immediately follows, and refers to, the phrase 'candidate for governor,' not the word 'party,'" the attorney general's brief states. "Given this word order, the determining factor in deciding ballot order is which candidate for governor polled the highest number of votes in the last-preceding election, not which party polled the highest number of votes for governor. … The Secretary correctly determined that the Democratic Party's candidates should be placed on the top line of the ballot.''