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GOP, Democrats Battle In High Court Over Ballot Position

By CHRISTOPHER KEATING

September 12, 2012

Time is running out on exactly how the election ballot will look this November in all 169 towns in Connecticut.

With towns needing to be notified of the ballot order by Saturday and overseas ballots needing to be mailed to members of the military by September 21, the state Supreme Court is moving to act quickly.

The state's highest court analyzed the issue Wednesday, debating over the precise wording in the law to determine which party should be placed at the top of the ballot. Both Republicans and Democrats are fighting to be at the top, ostensibly because it would provide an expected advantage as the first party to be seen by voters.

Time is running out on exactly how the election ballot will look this November in all 169 cities and towns in Connecticut.

With municipalities needing to be notified of the ballot order by Saturday, and overseas ballots needing to be mailed to members of the military by Sept. 21, the state Supreme Court is moving quickly to resolve which party comes out on top.

The high court Wednesday parsed the wording of the law that governs which party gets listed first. Both Republicans and Democrats are fighting for the spot to be the first party on the ballot.

During one hour of oral arguments, the justices debated the ambiguity of the language, which comes down to the difference between the political party and the person winning the race for governor. The passage in question takes up only 17 words in the law.

The law says the parties will be listed on the ballot based on "the party whose candidate for governor polled the highest number of votes in the last-preceding election.''

The problem is figuring out what those words mean.

The Republicans say they mean that the GOP should be listed first, based on the complicated results of the 2010 election for governor. Democrat Dannel P. Malloy won the gubernatorial race, but it was done with a combination of votes from the Democratic Party and the union-backed Working Families Party. But the Republicans note that their candidate, Tom Foley, won more votes on the Republican line than Malloy won on the Democratic line. As such, they say the Republicans should be listed first.

Av Harris, a spokesman for Secretary of the State Denise Merrill, says the case is highly important.

"This isn't just an academic exercise,'' Harris said outside the Supreme Court in Hartford. "This is something that is going to impact every voter in the state of Connecticut'' when they cast their ballots in less than two months.

Political candidates through the years have sought additional lines on the ballot. Both Republican Linda McMahon and Democrat Chris Murphy will have two ballot lines this November. McMahon will also appear on the Independent Party line, while Murphy will appear under the Working Families Party banner. By having his name on two lines in 2010, Malloy was able to capture the governor's office by adding the two totals together.

During the back and forth over the language in court on Wednesday, longtime Supreme Court Justice Flemming L. Norcott said, "All this is evidence of the complete ambiguity of it.''

At one point, Associate Attorney General Gregory T. D'Auria, who argued the case on behalf of the state, said the transcripts of the debate of legislators who wrote the law do not help much.

"The legislative history, at best, is ambiguous,'' D'Auria told the justices.

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.

Although Democrats were listed at the top in the 2011 municipal elections, Republicans only noticed the discrepancy recently and filed a lawsuit last month. Due to the timing of the upcoming election, any deliberations at the Superior Court and Appellate Court level were skipped so the case could be sent immediately to the state Supreme Court.

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.''

In a telephone conference call with reporters on Wednesday morning from China, Malloy criticized the Republicans for filing the lawsuit and said the Supreme Court would make its ruling. "Whatever happens, happens,'' Malloy said.

State Rep. Stephen Dargan, a veteran West Haven Democrat, said the precise advantage of the ballot position is unclear.

"I was reading that the top line could give you an extra 2 percent,'' Dargan said Wednesday. "I don't know if that is true. I really don't think it makes a big difference. I just want to know where I am on the ballot.''

Courant Staff Writer Dan Haar contributed to this report