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State Supreme Court: GOP Gets Top Ballot Line In November

By CHRISTOPHER KEATING

September 26, 2012

The Connecticut Supreme Court ruled unanimously Wednesday that the Republican Party will be placed on the top line on November's election ballot in all races.

In a 7–0 ruling, the court said the state's top elections official had been wrong to rule that the Democrats belonged on the top line after the election of Gov. Dannel P. Malloy in 2010.

Malloy won the governor's race, but he did it with votes on both the Democratic and Working Families lines in the state's closest gubernatorial contest in more than 50 years. Republican Tom Foley won more votes on the Republican line than Malloy did on the Democratic line — prompting the court to rule that Republicans should have the top ballot line through the next gubernatorial election in 2014.

As a result, Republicans Mitt Romney, Linda McMahon, Andrew Roraback, and all state Republican legislative candidates will be on the top line for their respective races on Nov. 6.

Proloy K. Das, a Hartford attorney who argued the case for the Republicans, said, "We thought we belonged on top as a matter of law.''

While it is unclear exactly how the top line will affect the results, Republicans and Democrats have been jockeying for any possible advantage in the elections, which are expected to be close.

Secretary of the State Denise Merrill, the state's chief elections official whose ruling had been challenged in court, said it was unknown how the ballot line would affect the outcome. "It's dubious,'' Merrill said before the ruling. "Remember Sen. Lieberman. He was on the third line, and people found him in 2006.''

Lieberman, who has served in the U.S. Senate for 24 years, had run that year as a petitioning candidate who gained a place on the ballot despite losing to Greenwich entrepreneur Ned Lamont in the Democratic primary.

Democrats had harshly criticized the Republicans for filing the civil lawsuit last month, saying it was frivolous. Gov. Dannel P. Malloy had ripped the lawsuit during a conference call from China with reporters two weeks ago: "For a party that complains about the use of courts, the Republicans in our state have decided to utilize it as much as possible."

After Wednesday's court ruling, Malloy's chief adviser, Roy Occhiogrosso, said: "Democrats have done just fine over the past 20 years, no matter where we are on the ballot. The Republicans might be able to change their ballot position, but they seem unable or unwilling to change their positions on issues of importance to the people of Connecticut. That's why they keep losing elections. Changing rows won't change the outcome."

Former Chief State's Attorney Austin McGuigan, representing the state Republican Party, after the ruling rejected the dismissive complaints by Democrats that the Republicans were wasting the court's time.

"I will say,'' McGuigan said, "for a frivolous argument, we did OK.''

Since the election is set for Nov. 6 and absentee ballots must be mailed soon to American troops overseas, the state Supreme Court moved with lightning speed. Court cases and appeals can often take years, but the ballot case was filed in August and then skipped arguments in the state Superior Court and Appellate Court before being fast-tracked to the seven-member Supreme Court. Oral arguments were held Sept. 12, and additional briefs were filed before the court finally ruled Wednesday.

The court's brief order was as follows:

"The court responds to the reserved questions and the jurisdictional questions on which it ordered supplemental briefs as follows:

(1) Did the plaintiff, the Republican Party of Connecticut, have an available administrative remedy in the present case? Yes.

(2) If so, did the plaintiff exhaust the administrative remedy? Yes.

(3) Is the complaint barred by sovereign immunity? No.

(4) Does General Statutes § 9-249a require that the Republican Party's candidates for office be placed on the first line of the ballots for the November 6, 2012 election? Yes.

"A full written opinion on these issues will follow. This is the unanimous decision of the Court.''

A GOP Victory

Republicans were happy Wednesday, saying in written statements that their interpretation of the law had been vindicated.

"I regret that it was necessary to file a legal action in response to the Secretary of State's incorrect interpretation of election law, but I am pleased that our Republican candidates will have their rightful place on the top ballot line for the Nov. 6, 2012 election,'' state GOP Chairman Jerry Labriola said.

House Republican Leader Larry Cafero said: "The law is the law. The Supreme Court, we believe, arrived at the right decision based on what the statute says, not a public official's interpretation. Our legal team did a great job.''

"I'm disappointed that the Secretary of [the] State's office and the Office of the Attorney General chose to defend partisan political interests rather than mete out the public responsibilities of their office,'' said Senate Republican leader John McKinney of Fairfield. "Our attorneys did an excellent job of arguing our case, and I want to say a special thank you to State Sen. Len Fasano, my right hand in the Senate Republican office for the past five years and the first person to identify the mistake that was made with the ordering of the ballots in 2011 and the mistake the Secretary of the State's office was about to repeat in 2012."

But attorney Susan Kinsman, a spokeswoman for state Attorney General George Jepsen, responded: "Sen. McKinney appears not to realize that it is the legal responsibility of the Office of the Attorney General to represent and defend state agencies in court. We respect the court's decision and are pleased the ballot issue has been settled in time for the Secretary of the State and municipalities to prepare for the general election."

Fasano, the North Haven attorney who spotted the error, said, "While I wish the Secretary of [the] State's Office had conceded their error prior to the court proceedings, I'm pleased that we ultimately got to the correct result."

The Republican Party sued Merrill, who ruled against the Republicans by saying that the Democrats would keep the top line on this year's ballot. Republicans had questioned an original decision by Merrill, a longtime Democrat, to place the Democrats on the top line in the 2011 municipal elections after charging that Merrill made a mistake last year because of the complicated results of the 2010 race for governor.

The top party on the line is traditionally the party of the winning candidate for governor, but the Republicans wanted that reversed because of Foley's vote count.

The lawsuit, filed for the Republicans by Das and Richard P. Healey of the Hartford law firm of Rome McGuigan, noted that Foley won 560,874 votes on the Republican line and Malloy won 540,970 votes on the Democratic line. Malloy's 26,308 votes on the Working Families Party line helped make the difference in the closest gubernatorial election in five decades.

"We needed a quick decision,'' Das said in a telephone interview. "That's what's great about our Supreme Court. They alter their schedules to be fair to all parties.''