Fay v. Merrill ( 2021 )

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beginning of this opinion is the date the opinion was
released as a slip opinion. The operative date for the
beginning of all time periods for filing postopinion
motions and petitions for certification is the ‘‘officially
released’’ date appearing in the opinion.
This opinion is subject to revisions and editorial
changes, not of a substantive nature, and corrections
of a technical nature prior to publication in the
Connecticut Law Journal.
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MARY FAY ET AL. v. DENISE W. MERRILL,
SECRETARY OF THE STATE
(SC 20486)
Robinson, C. J., and Mullins, Kahn, Ecker and Moll, Js.
Argued August 6, 2020—officially released February 11, 2021*
Procedural History
Action seeking, inter alia, an order rescinding the
application for absentee ballot for the August, 2020
primary elections prepared by the Secretary of the
State, and for other relief, brought to the Superior Court
in the judicial district of Hartford and tried to the court,
Moukawsher, J.; judgment for the defendant, from
which the plaintiffs, upon certification by the Chief
Justice pursuant to General Statutes § 52-265a that a
matter of substantial public interest was at issue,
appealed to this court. Appeal dismissed in part;
affirmed.
Proloy K. Das, with whom were Matthew A. Ciarleg-
lio and, on the brief, Rachel Snow Kindseth, for the
appellants (plaintiffs).
Michael K. Skold, assistant attorney general, with
whom were Clare Kindall, solicitor general, and, on
the brief, William Tong, attorney general, and Maura
Murphy Osborne and Alayna M. Stone, assistant attor-
neys general, for the appellee (defendant).
William M. Bloss filed a brief for the Connecticut
Democratic Party et al. as amici curiae.
Opinion
ROBINSON, C. J. The principal issue in this public
interest appeal is whether Governor Ned Lamont’s
Executive Order No. 7QQ,1 which was later ratified by
the legislature; see Public Acts, Spec. Sess., July, 2020,
No. 20-3, § 16 (Spec. Sess. P.A. 20-3); and which modi-
fied General Statutes (Rev. to 2019) § 9-1352 by adding
‘‘COVID-19’’ as a permissible reason for absentee voting,
violates article sixth, § 7, of the Connecticut constitu-
tion.3 The four plaintiffs, who were candidates for the
Republican Party’s nomination for United States Con-
gress for Connecticut’s First and Second Congressional
Districts,4 appealed directly pursuant to General Stat-
utes § 52-265a5 from the judgment of the trial court in
favor of the defendant, Denise W. Merrill, Secretary of
the State, in this action seeking declaratory and injunc-
tive relief with respect to the defendant’s change of
the absentee ballot application for the August 11, 2020
primary election (August primary) to add coronavirus
disease 2019 (COVID-19) as a new reason for requesting
an absentee ballot pursuant to Executive Order No.
7QQ. Following deliberations after an expedited oral
argument held on August 6, 2020, we ruled from the
bench that (1) the plaintiffs were aggrieved and had
standing to bring the declaratory judgment action, (2)
we could not consider, for the first time on appeal, the
defendant’s special defense of laches as an alternative
ground for affirming the judgment of the trial court,
and (3) Executive Order No. 7QQ does not violate arti-
cle sixth, § 7, because the phrase ‘‘unable to appear at
the polling place on the day of election because of . . .
sickness,’’ as used in that constitutional provision, is
not limited to an illness suffered by the individual voter
that renders that person physically unable to travel to
the polling place. Accordingly, we affirmed the judg-
ment of the trial court and indicated that a written
opinion would follow. This is that opinion.
The pleadings and the record reveal the following
undisputed facts and procedural history. On March 10,
2020, Governor Lamont declared a public health and
civil preparedness emergency ‘‘throughout the [s]tate
. . . as a result of the [COVID-19] outbreak in the
United States and Connecticut . . . .’’ COVID-19 is a
‘‘respiratory disease that spreads easily from person to
person and may result in serious illness or death,’’ and
‘‘public health experts have indicated that persons
infected with COVID-19 may not show symptoms, and
transmission or ‘shedding’ of the coronavirus that
causes COVID-19 may be most virulent before a person
shows any symptoms . . . .’’ The United States Centers
for Disease Control and Prevention have ‘‘recom-
mended that people with mild symptoms consistent
with COVID-19 be assumed to be infected with the
disease,’’ and ‘‘public health experts have recom-
mended that, to prevent transmission of COVID-19, and
in light of the risk of asymptomatic transmission and
a significant rate of false negative tests, everyone should
assume they can be carrying COVID-19 even when
[they] have received a negative test result or do not
have symptoms . . . .’’
Given the greater danger of COVID-19 to ‘‘elderly
registered voters [who] consistently demonstrate the
highest rate of voter turnout’’ and the ‘‘significant por-
tion of poll workers and volunteers [who] are [sixty
years old] or older,’’ Governor Lamont determined that
‘‘providing an alternative to [in person] voting could be
particularly helpful in reducing the risk of transmission
during voting among this population . . . .’’ Accord-
ingly, on May 20, 2020, he issued Executive Order No.
7QQ pursuant to his powers under General Statutes
§ 28-9 (b) (1)6 to provide that alternative to in person
voting for the August primary.
Specifically, Executive Order No. 7QQ, inter alia,
‘‘modified [§ 9-135] to provide that, in addition to the
enumerated eligibility criteria set forth in subsection (a)
of that statute, an eligible elector may vote by absentee
ballot for the [August primary] if he or she is unable
to appear at his or her polling place during the hours
of voting because of the sickness of COVID-19. For
purposes of this modification, a person shall be per-
mitted to lawfully state he or she is unable to appear
at a polling place because of COVID-19 if, at the time
he or she applies for or casts an absentee ballot for the
[August primary], there is no federally approved and
widely available vaccine for prevention of COVID-19.
It shall not constitute a misrepresentation under subsec-
tion (b) of [§] 9-135 . . . for any person to communi-
cate the provisions of this modification to any elector
or prospective absentee ballot applicant.’’ (Emphasis
added.)
In late June, 2020, the defendant, acting pursuant
to her general supervisory authority over elections in
Connecticut, issued the application for absentee ballots
for the August primary (application). The application
added ‘‘COVID-19’’ as a new, seventh reason for
requesting an absentee ballot; it is listed first among
the reasons for ‘‘expect[ing] to be unable to appear at
the polling place during the hours of voting,’’7 with an
adjacent notation in bold print that ‘‘[a]ll voters are able
to check this box, pursuant to Executive Order [No.]
7QQ.’’8 (Emphasis omitted.)
As previously stipulated by the parties, ‘‘[t]he defen-
dant anticipate[d] a significant increase in the use of
absentee ballots this year and, working with a third-
party mailing vendor (vendor), ha[d] mailed 1,274,414
applications to active registered voters between June
26 and July 1, 2020.9 As of July 15, 2020, more than
100,000 voters ha[d] completed and returned their appli-
cations to local election officials for processing; 107,743
applications ha[d] been processed as of that date. The
information contained in each application [was] then
downloaded by the defendant’s office onto a computer
file, which was provided to the vendor approximately
every other day beginning on July 17, 2020. The vendor
was scheduled to mail the appropriate absentee ballots
to the approved voters once those ballots were finalized
after July 21, 2020.’’ (Footnote in original.) Fay v. Mer-
rill, 336 Conn. , , A.3d (2020).
On July 1, 2020, the plaintiffs filed a petition and
complaint with a single Supreme Court justice pursuant
to General Statutes §§ 9-323, 52-29 and 52-471, claiming
that the application was a ‘‘ruling of an election official’’
that violated article sixth, § 7, as well as a violation of
Executive Order No. 7QQ and § 9-135. After a hearing
held on July 20, 2020, Chief Justice Robinson granted
the defendant’s motion to dismiss that proceeding for
lack of subject matter jurisdiction, concluding that § 9-
323 does not apply to primaries, including those for
federal congressional office. See Fay v. Merrill, supra,
336 Conn. .
That same day, the plaintiffs brought the present
action in the trial court pursuant to General Statutes
§§ 9-329a, 52-29 and 52-471. The plaintiffs first claimed
that Executive Order No. 7QQ violates article sixth,
§ 7, of the Connecticut constitution because (1) the
constitutional provision ‘‘expressly commits the pre-
scription of absentee voting procedure to the General
Assembly—not to the governor,’’ and (2) the executive
order ‘‘broadens the use of absentee ballots, in contra-
vention of the strict reasons for which absentee ballots
may be used in Connecticut elections as set forth in
article sixth, § 7.’’10 Second, the plaintiffs claimed that
the defendant’s ‘‘decision to expand absentee voting
based on Executive Order No. 7QQ, rather than [to]
limit absentee voting in accordance with the restrictions
set forth by the legislature in . . . § 9-135, was a ruling
of an election official’’ that violated the Connecticut
constitution because (1) the defendant ‘‘lacks the con-
stitutional authority to alter the parameters of who is
entitled to vote by absentee ballot,’’ (2) ‘‘[t]he reasons
that electors may vote by absentee ballot are strictly
limited by the Connecticut constitution and can . . .
be expanded [only] by the electorate,’’ and (3) the appli-
cation ‘‘expands the use of absentee ballots for reasons
beyond [the six] specifically prescribed in article sixth,
§ 7, of the state constitution.’’11 Claiming to be aggrieved
as candidates and electors by these various violations,
the plaintiffs sought a judgment declaring that the appli-
cation is unconstitutional and based on an erroneous
interpretation of Executive Order No. 7QQ and § 9-135.
They also sought an ex parte prohibitory injunction
precluding the defendant from mailing or distributing
copies of the application to any Connecticut voters and
an ex parte mandatory injunction directing her to recall
any copies already mailed or distributed to any Connect-
icut voters.
On July 22, 2020, after a hearing, the trial court issued
a memorandum of decision concluding that the defen-
dant properly issued the application pursuant to Execu-
tive Order No. 7QQ, insofar as the executive order did
not violate article sixth, § 7, because the phrase
‘‘because of sickness,’’ as used therein, encompassed
‘‘a sickness of a nearly unique character,’’ namely, the
public health emergency presented by the COVID-19
pandemic. The court described Executive Order No.
7QQ as ‘‘far from saying [that] the law means any sick-
ness, anywhere, anytime,’’ with fatality statistics dem-
onstrating that ‘‘COVID-19 is the scourge of the earth’’
and a ‘‘sickness of a lethality and ubiquity unknown for
[one] hundred years.’’12 The court further rejected the
plaintiffs’ claim that Executive Order No. 7QQ was
unconstitutional under article sixth, § 7, because that
provision permits only the General Assembly to act
with respect to absentee ballots. The court deemed that
argument inconsistent with the governor’s emergency
powers as delegated by the legislature under § 28-9 (b)
(1), the constitutionality of which the plaintiffs did
not question.
Although it reached the merits of the constitutional
issues, the trial court also rejected several jurisdictional
and procedural defenses advanced by the defendant.
First, the court determined that any lack of jurisdiction
over the constitutional claims under § 9-329a, the pri-
mary contest statute, was immaterial because, ‘‘at a
minimum, the court has jurisdiction under . . . § 52-
29, the declaratory judgment statute.’’ Second, the trial
court rejected the defendant’s claim that the plaintiffs
were not aggrieved, reasoning that they ‘‘are not ordi-
nary voters. They are candidates for office with direct
interests at stake and with immediate conduct—encour-
aging or discouraging absentee ballots—hanging in the
balance.’’ Finally, given its decision on the merits, the
trial court deemed the defendant’s laches defense moot.
Accordingly, the trial court rendered judgment for the
defendant. This public interest appeal followed. See
footnote 5 of this opinion.
During the pendency of this appeal, the General
Assembly passed Spec. Sess. P.A. 20-3, ‘‘An Act Con-
cerning Absentee Voting and Reporting of Results at
the 2020 State Election, Expanding Election Day Regis-
tration and Ratifying Certain Provisions of an Executive
Order that Relate to the August 11, 2020, Primary,’’
which Governor Lamont signed into law on July 31,
2020. Spec. Sess. P.A. 20-3, inter alia, extends the
COVID-19 provisions of Executive Order No. 7QQ to
the state election scheduled for November 3, 2020. See
Spec. Sess. P.A. 20-3, §§ 1 and 2.13 It also ratifies Execu-
tive Order No. 7QQ in its entirety. See Spec. Sess. P.A.
20-3, § 16;14 see also Office of Legislative Research, Bill
Analysis, HB 6002 (as amended by House ‘‘A’’ and ‘‘D’’),
An Act Concerning Absentee Voting and Reporting of
Results at the 2020 State Election and Election Day Reg-
istration (2020) p. 2, available at https://www.cga.ct.gov/
2020/BA/PDF/2020HB-06002-R01SS1-BA.PDF (last vis-
ited February 9, 2021). As we previously noted, after an
expedited oral argument held on August 6, 2020, we
rendered judgment affirming the judgment of the trial
court, indicating that this written opinion would follow.
I
AGGRIEVEMENT
Because it implicates our subject matter jurisdiction,
we begin with the defendant’s contentions that the
plaintiffs lack standing because they are not aggrieved
and that, ‘‘if they are aggrieved, any relief in this case
should be limited to the specific primary races in which
they are candidates.’’15 Relying on this court’s recent
decision in Lazar v. Ganim, 334 Conn. 73, 220 A.3d 18(2019), and the Pennsylvania Supreme Court’s decision
in Kauffman v. Osser, 441 Pa. 150, 271 A.2d 236 (1970),
the defendant contends that the plaintiffs have failed
to explain how Executive Order No. 7QQ has ‘‘harmed
them or their candidacies’’ beyond the ‘‘abstract asser-
tion that [it] has changed the essential character of the
elections in which the plaintiffs are candidates’’ and
their ‘‘general interests in having a fair and honest elec-
tion . . . .’’ (Emphasis omitted; internal quotation
marks omitted.)
In response, the plaintiffs argue that the trial court
correctly determined that they were ‘‘personally
aggrieved’’ because all four of them are candidates in
the August primary, and two will be candidates in the
November 3 general election, which gives them ‘‘an
interest in knowing who is eligible to vote and the
manner in which those votes may be cast.’’ The plaintiffs
further contend that the anticipated significant increase
in absentee voting; see footnote 9 of this opinion and
accompanying text; will change ‘‘the essential charac-
ter’’ of the election as one from a ‘‘snapshot’’ of the
primary voting day with 95 percent of the votes cast in
person to one in which 80 percent of the votes will be
cast by mail over a three week period. The plaintiffs
further rely on this court’s ‘‘broad jurisdiction’’ over
declaratory judgment actions under § 52-29. With
respect to remedies, the plaintiffs cite, among other
cases, Lighthouse Landings, Inc. v. Connecticut
Light & Power Co., 300 Conn. 325, 15 A.3d 601 (2011),
and argue that a declaratory judgment in their favor
will do nothing more than declare the expansion of
absentee voting under Executive Order No. 7QQ to be
unconstitutional; they posit that no additional relief is
required at this time, acknowledging that, under Light-
house Landings, Inc., additional proceedings for spe-
cific relief may well take place. We agree with the plain-
tiffs and conclude that, as candidates in an affected
primary election, they were sufficiently aggrieved by
Executive Order No. 7QQ to have standing to bring this
declaratory judgment action.
‘‘It is a basic principle of our law . . . that the plain-
tiffs must have standing in order for a court to have
jurisdiction to render a declaratory judgment. . . .
Standing is the legal right to set judicial machinery in
motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . When
standing is put in issue, the question is whether the
person whose standing is challenged is a proper party
to request an adjudication of the issue. . . . [Because]
[s]tanding requires no more than a colorable claim of
injury . . . a [party] ordinarily establishes . . . stand-
ing by allegations of injury [that he or she has suffered
or is likely to suffer]. Similarly, standing exists to
attempt to vindicate arguably protected interests. . . .
‘‘Put differently, an action for a declaratory judgment,
valuable as it has become in modern practice, is not a
procedural panacea for use on all occasions. . . . In
providing statutory authority for courts to grant declara-
tory relief, the legislature did not intend to broaden
their function so as to include issues which would not
be such as could be determined by the courts in ordinary
actions. . . . The declaratory judgment procedure con-
sequently may be employed only to resolve a justiciable
controversy where the interests are adverse, where
there is an actual bona fide and substantial question
or issue in dispute or substantial uncertainty of legal
relations which requires settlement. . . . A party pur-
suing declaratory relief must therefore demonstrate, as
in ordinary actions, a justiciable right in the controversy
sought to be resolved, that is, contract, property or
personal rights . . . as such will be affected by the
[court’s] decision. . . . A party without a justiciable
right in the matter sought to be adjudicated lacks stand-
ing to raise the matter in a declaratory judgment
action. . . .
‘‘Thus, [s]tanding is established by showing that the
party claiming it is authorized by statute to bring suit
or is classically aggrieved. . . . The fundamental test
for determining [classical] aggrievement encompasses
a [well settled] twofold determination: first, the party
claiming aggrievement must successfully demonstrate
a specific, personal and legal interest in [the subject
matter of the challenged action], as distinguished from
a general interest, such as is the concern of all members
of the community as a whole. Second, the party claiming
aggrievement must successfully establish that this spe-
cific personal and legal interest has been specially and
injuriously affected by the [challenged action]. . . .
Aggrievement is established if there is a possibility, as
distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected. . . .
‘‘Finally, it is well settled that [i]t is the burden of
the party who seeks the exercise of jurisdiction in his
favor . . . clearly to allege facts demonstrating that he
is a proper party to invoke judicial resolution of the
dispute. . . . It is well established that, in determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.
. . . Because a determination regarding the trial court’s
subject matter jurisdiction raises a question of law, our
review is plenary.’’ (Citations omitted; internal quota-
tion marks omitted.) Travelers Casualty & Surety Co.
of America v. Netherlands Ins. Co., 312 Conn. 714,
727–29, 95 A.3d 1031 (2014).
This court’s decision in Bysiewicz v. DiNardo, 298
Conn. 748, 6 A.3d 726 (2010), is instructive on the issue
of aggrievement. In Bysiewicz, this court held that a
declared candidate for the Office of the Attorney Gen-
eral had standing to bring a declaratory judgment action
seeking construction of General Statutes § 3-124 and a
determination of that statute’s constitutionality. Id., 759;
see id., 760 (noting that candidate’s ‘‘declared intention
to run for the [O]ffice of [the] [A]ttorney [G]eneral and
her particular interest in avoiding the great effort and
expense of running for that office if her qualifications
to serve in that office could be successfully challenged
upon her election are sufficient to confer standing on
her to bring this action’’). The court observed that,
although a challenge to the candidate’s qualifications
via ‘‘a quo warranto action would not be ripe until the
plaintiff actually took office, [o]ne great purpose [of a
declaratory judgment action] is to enable parties to
have their differences authoritatively settled in advance
of any claimed invasion of rights, that they may guide
their actions accordingly and often may be able to keep
them within lawful bounds . . . . In light of the poten-
tial injury to the plaintiff’s interests if her claims are
not adjudicated until after the election, as well as the
potential injury to the public’s interest in avoiding
voter confusion and disruptions in the election pro-
cess, including the possibility of a vacancy in the [O]ffice
of [the] [A]ttorney [G]eneral, we conclude that the
action was ripe when it was brought even though the
plaintiff had not yet been nominated or elected to the
[O]ffice of [the] [A]ttorney [G]eneral.’’ (Citation omit-
ted; emphasis added; footnote omitted; internal quota-
tion marks omitted.) Id., 760–61; see also Corren v.
Sorrell, 151 F. Supp. 3d 479, 491–92 (D. Vt. 2015) (con-
cluding that strategic campaign considerations give pro-
spective candidate standing to challenge public election
finance laws); George v. Watertown, 85 Conn. App. 606,
614–15, 858 A.2d 800 (noting that party need not actually
seek relief under subdivision regulation to have stand-
ing to challenge its constitutionality by declaratory judg-
ment action), cert. denied, 272 Conn. 911, 863 A.2d
702 (2004).
The defendant attacks the plaintiffs’ standing based
on our decision in Lazar v. Ganim, supra, 334 Conn. 73,
which involved a challenge to the Bridgeport mayoral
primary based on alleged improprieties in the handling
of absentee ballots. Id., 76–77. In Lazar, we concluded
that the plaintiffs, who were several registered voters,
were not ‘‘aggrieved by the ruling of an election official’’
under § 9-329a (a) (1) ‘‘because they had no specific
personal interest that was affected by the improprieties
complained of.’’ Id., 91–92. In so concluding, we
observed that ‘‘[t]he only harm that the [voters] have
claimed is that the election was unfair as a result of
the improprieties, and an unfair election affects every
voter,’’ thus implicating the ‘‘well established’’ rule ‘‘that
a claim of injury to a general interest that all members
of the community share is not sufficient to establish
standing.’’ (Internal quotation marks omitted.) Id. We
stated that, ‘‘if an elector were improperly denied his
right to vote, the elector would have standing to bring
an action pursuant to § 9-329a (a) (1) and could ask
the court to correct the results to include his vote.
Moreover, we find it unlikely that the legislature
intended to create the situation in which, after every
primary election, thousands of potential plaintiffs
would have standing to seek a new primary based on
the rulings of an election official that did not personally
affect them. It is more likely that the legislature intended
that the proper party to seek that particular form of
relief would be a losing candidate who could establish
that the improper ruling of an election official had ren-
dered the results unreliable.’’ (Emphasis in original.)
Id., 88–89; see id., 89–90 (distinguishing cases brought
by candidates). The defendant’s reliance on Lazar is
misplaced. In contrast to Lazar, the plaintiffs in the
present case specifically pleaded their interest as candi-
dates as well as electors.16 This candidate status gives
them a personal interest that is distinct from that of an
ordinary voter, particularly given the potential effect of
widespread absentee voting on their campaign strate-
gies. See Corren v. Sorrell, supra, 151 F. Supp. 3d 491–
92. Accordingly, we conclude that the trial court cor-
rectly determined that the plaintiffs were aggrieved for
purposes of this declaratory judgment action.17
II
LACHES
Relying on Price v. Independent Party of CT—State
Central, 323 Conn. 529, 147 A.3d 1032 (2016), along
with federal district court cases considering recent chal-
lenges to the expansion of absentee balloting during
the COVID-19 pandemic; see Curtin v. Board of Elec-
tions, 463 F. Supp. 3d 653 (E.D. Va. 2020); Paher v.
Cegavske, Docket No. 3:20-cv-00243-MMD-WGC, 2020
WL 2748301 (D. Nev. May 27, 2020); the defendant con-
tends that this action is untimely under the equitable
defense of laches.18 The defendant specifically argues
that the plaintiffs unreasonably and purposefully
delayed filing this action given that they did not bring
the § 9-323 proceeding to this court until July 1, 2020,
which was six weeks after the issuance of Executive
Order No. 7QQ and slightly more than one month before
the August primary, and they ‘‘then wasted another
three weeks pursuing [that] baseless action’’ before fil-
ing the present action. Given the intensely factual
nature of the laches defense and the lack of necessary
factual development on the trial court record, we
decline to consider the defendant’s laches claim for the
first time on appeal as an alternative ground on which
to affirm the judgment of the trial court.
By way of background, we note that ‘‘(1) [l]aches
consists of an inexcusable delay [that unduly] preju-
dices the defendant, and (2) [t]he burden is on the party
alleging laches to establish that defense.’’ (Internal quo-
tation marks omitted.) Price v. Independent Party of
CT—State Central, supra, 323 Conn. 544. ‘‘A conclusion
that a plaintiff has been guilty of laches is one of fact
for the trier and not one that can be made [as a matter
of law], unless the subordinate facts found make such
a conclusion inevitable . . . . The defense of laches,
if proven, bars a plaintiff from seeking equitable relief
. . . . First, there must have been a delay that was
inexcusable, and, second, that delay must have preju-
diced the defendant. . . . The mere lapse of time does
not constitute laches . . . unless it results in prejudice
to the [opposing party] . . . as where, for example,
the [opposing party] is led to change his position with
respect to the matter in question.’’19 (Internal quotation
marks omitted.) Glastonbury v. Metropolitan District
Commission, 328 Conn. 326, 341–42, 179 A.3d 201(2018).
We decline to apply the doctrine of laches in the first
instance on appeal as an alternative ground on which
to affirm the judgment of the trial court. Although the
defendant filed affidavits20 establishing the potential
prejudice in the event that the trial court issued orders
affecting the August primary,21 the plaintiffs have not
had the opportunity to establish the reasonableness of
the timing of their filings as a matter of fact because
the trial court declined to address the laches issue.
Given the procedural circumstances of this case, we
decline to consider the intensely factual defense of
laches in the first instance as an alternative ground on
which to affirm the judgment of the trial court. See
Deane v. Kahn, 317 Conn. 157, 182–83, 116 A.3d 259(2015) (declining to consider easement by implication
as alternative ground for affirming erroneous judgment
of easement by necessity because ‘‘[w]e decline to sur-
mise whether the trial court would have made any addi-
tional factual findings if it had rendered judgment on
other counts of the plaintiff’s complaint, especially in
light of the fact that this opinion clarified what evidence
is probative of the parties’ intent with respect to the
scope and use of an easement’’); Doe v. West Hartford,
168 Conn. App. 354, 359 n.4, 147 A.3d 1083 (2016)
(whether to consider alternative grounds for affirmance
not ruled on by trial court is discretionary decision for
appellate court), aff’d, 328 Conn. 172, 177 A.3d 1128(2018). Accordingly, we now turn to the merits of the
plaintiffs’ constitutional claims.
III
CONSTITUTIONAL CLAIMS
The plaintiffs contend that Executive Order No. 7QQ
violates article sixth, § 7, because (1) neither the defen-
dant nor the governor has the power to expand absentee
voting, and, therefore, the executive order ‘‘usurp[ed]
a power reserved for the electorate and the General
Assembly,’’ and (2) the ‘‘sickness’’ referred to in article
sixth, § 7, does not encompass a pandemic involving
an infectious disease such as COVID-19 without regard
to the ‘‘individual health circumstances’’ of a particular
voter, including with respect to whether that voter is
physically ‘‘unable to appear’’ at the polls in person.22
In considering the plaintiffs’ challenge to Executive
Order No. 7QQ, we apply the same presumption of
constitutionality and burden of proof that applies to
challenges to statutes, particularly given its subsequent
ratification by the legislature. See, e.g., Ex parte Endo,
323 U.S. 283, 299–300, 65 S. Ct. 208, 89 L. Ed. 243 (1944);
Ritchie v. Polis, 467 P.3d 339, 342 (Colo. 2020); Straus
v. Governor, 459 Mich. 526, 534, 592 N.W.2d 53 (1999);
Stroup v. Kapleau, 455 Pa. 171, 177, 313 A.2d 237 (1973).
Thus, ‘‘[d]etermining the constitutionality of a statute
presents a question of law over which our review is
plenary. . . . It [also] is well established that a validly
enacted statute carries with it a strong presumption
of constitutionality, [and that] those who challenge its
constitutionality must sustain the heavy burden of prov-
ing its unconstitutionality beyond a reasonable doubt.
. . . The court will indulge in every presumption in
favor of the statute’s constitutionality . . . . There-
fore, [w]hen a question of constitutionality is raised,
courts must approach it with caution, examine it with
care, and sustain the legislation unless its invalidity
is clear.’’ (Internal quotation marks omitted.) Doe v.
Hartford Roman Catholic Diocesan Corp., 317 Conn.
357, 405, 119 A.3d 462 (2015).
‘‘In State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d
1225 (1992), we enumerated the following six factors
to be considered in construing the state constitution:
(1) persuasive relevant federal precedents; (2) the text
of the operative constitutional provisions; (3) historical
insights into the intent of our constitutional forebears;
(4) related Connecticut precedents; (5) persuasive prec-
edents of other state courts; and (6) contemporary
understandings of applicable economic and sociologi-
cal norms, or as otherwise described, relevant public
policies. . . .
‘‘The Geisler factors serve a dual purpose: they
encourage the raising of state constitutional issues in
a manner to which the opposing party . . . can
respond; and they encourage a principled development
of our state constitutional jurisprudence. Although in
Geisler we compartmentalized the factors that should
be considered in order to stress that a systematic analy-
sis is required, we recognize that they may be inextrica-
bly interwoven. . . . [N]ot every Geisler factor is rele-
vant in all cases. . . . Moreover, a proper Geisler
analysis does not require us simply to tally and follow
the decisions favoring one party’s state constitutional
claim; a deeper review of those decisions’ underpin-
nings is required because we follow only persuasive
decisions.’’ (Internal quotation marks omitted.) Feehan
v. Marcone, 331 Conn. 436, 449, 204 A.3d 666, cert.
denied, U.S. , 140 S. Ct. 144, 205 L. Ed. 2d 35(2019); see State v. Purcell, 331 Conn. 318, 351–52, 203
A.3d 542 (2019) (rejecting previous approach under
Geisler that ‘‘generally . . . assumed that the federal
precedent factor weighs against the defendant if the
United States Supreme Court has squarely decided the
issue to the contrary under the federal constitution . . .
or the federal courts are unanimous that the court
would reach such a decision’’ in favor of approach that
‘‘consider[s] the merits of the on point decision itself,’’
particularly ‘‘[w]hen . . . the issue to be decided is
largely policy driven,’’ based on departure from previ-
ous Supreme Court precedents, or ‘‘if the factual
assumptions or legal underpinnings of a prior decision
have been materially undermined by events since the
Supreme Court considered the matter’’). The Geisler
analysis applies to cases in which the state constitution
has no federal analogue, as well as those in which the
claim is that the state constitution provides greater
protection than does the federal constitution. See, e.g.,
Feehan v. Marcone, supra, 449–50. Accordingly, we now
turn to the plaintiffs’ specific constitutional claims.
A
Challenge to Governor’s Authority To
Issue Executive Order No. 7QQ
The plaintiffs first argue that the text of article sixth,
§ 7, solely and squarely commits authority over absen-
tee voting to the General Assembly, which renders
Executive Order No. 7QQ void as a matter of law. See,
e.g., Caldwell v. Meskill, 164 Conn. 299, 306–307, 320
A.2d 788 (1973) (governor’s partial veto power is limited
to ‘‘distinct items of appropriation’’); State v. Stoddard,
126 Conn. 623, 626–27, 633, 13 A.2d 586 (1940) (holding
that legislature improperly delegated its authority over
regulation of sale of milk products to executive branch
agency by failing to prescribe applicable standards and
principles). In response, the defendant claims, inter alia,
that the plaintiffs’ separation of powers challenge to
Executive Order No. 7QQ was rendered moot during
the pendency of this appeal by Spec. Sess. P.A. 20-3,
§ 16, which legislatively ratified Executive Order No.
7QQ.23 See footnote 14 of this opinion. We agree with
the defendant and conclude that the legislature’s ratifi-
cation of Executive Order No. 7QQ rendered the plain-
tiffs’ separation of powers claim moot.
A separation of powers challenge to executive action
is rendered moot by legislative ratification of the chal-
lenged executive action. See We the People of Connecti-
cut, Inc. v. Malloy, 150 Conn. App. 576, 581–82, 92 A.3d
961 (2014) (separation of powers challenge to gover-
nor’s executive orders allowing personal care atten-
dants to bargain collectively was rendered moot by
passage of legislation that ‘‘entirely replaced’’ executive
orders); Fletcher v. Commonwealth, 163 S.W.3d 852, 859
(Ky. 2005) (challenge to governor’s emergency budget
action as violating legislature’s appropriations power
was rendered moot by legislature’s enactment of bill
ratifying governor’s actions but reaching issue as capa-
ble of repetition, yet evading review); see also
Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297,
301–302, 57 S. Ct. 478, 81 L. Ed. 659 (1937) (‘‘[i]t is well
settled that Congress may, by enactment not otherwise
inappropriate, ratify . . . acts which it might have
authorized . . . and give the force of law to official
action unauthorized when taken’’ (citation omitted;
internal quotation marks omitted)). Accordingly, we
conclude that the legislature’s ratification in its entirety
of Executive Order No. 7QQ via Spec. Sess. P.A. 20-3,
§ 16, rendered moot any claim that Governor Lamont
usurped the legislative power over absentee balloting.24
Accordingly, we dismiss the plaintiffs’ separation of
powers claim as moot and do not reach its merits.25
B
Whether ‘‘Sickness’’ Encompasses COVID-19 Without
Regard to Circumstances of Individual Voter
Finally, we turn to the plaintiffs’ claim that the word
‘‘sickness,’’ as used in article sixth, § 7, does not permit
the extension of a blanket exemption for COVID-19
for any and all voters but, instead, requires that the
individual voter be actually ‘‘unable to appear’’ at the
polling place because of that voter’s personal sickness
or individual risk of susceptibility to COVID-19. Observ-
ing that there is no stand-alone federal constitutional
right to an absentee ballot; see, e.g., McDonald v. Board
of Election Commissioners, 394 U.S. 802, 809–10, 89 S.
Ct. 1404, 22 L. Ed. 2d 739 (1969); the plaintiffs cite the
Texas Supreme Court’s recent decision in In re State,
602 S.W.3d 549, 560 (Tex. 2020), holding that the lack
of COVID-19 immunity is not a ‘‘ ‘physical condition’ ’’
under that state’s absentee voting statute, along with the
interpretation of the word ‘‘sickness’’ in an insurance
policy in Rocci v. Massachusetts Accident Co., 226 Mass.
545, 116 N.E. 477 (1917), to contend that the plain mean-
ing of the word ‘‘sickness’’ in article sixth, § 7, refers
to an individual voter’s condition of being sick. They
cite case law from this court; see, e.g., Keeley v. Ayala,
328 Conn. 393, 406–407, 179 A.3d 1249 (2018); along
with public hearing testimony from members of the
Connecticut Town Clerks Association urging the legis-
lature to reject all mail or ‘‘no excuse’’ absentee bal-
loting in arguing that expanded absentee balloting
raises the risk of fraud and mistakes leading to potential
disenfranchisement.26 They also view as ‘‘particularly
telling’’ the failure of any of the speakers in support of
the House Resolution that was ratified as article sixth,
§ 7, to mention the global 1918 influenza pandemic that
had occurred approximately one decade before.
In response, the defendant contends that the COVID-
19 exemption in Executive Order No. 7QQ is constitu-
tional under article sixth, § 7. The defendant first relies
on dictionary definitions of the word ‘‘sickness’’ that
refer broadly to ‘‘a specific disease’’ without reference
to an individual person’s condition, observing that such
clause of article sixth, § 7, is worded differently from
the religious tenets language in the same constitutional
provision that is plainly and unambiguously linked to
the practice of a specific voter. The defendant argues
that the broader definition of ‘‘sickness’’ to include an
illness not suffered by the voter personally is supported
by the Arkansas Supreme Court’s decision in Forrest
v. Baker, 287 Ark. 239, 698 S.W.2d 497 (1985), and posits
that the Texas Supreme Court’s recent decision in In re
State, supra, 602 S.W.3d 549, is based on distinguishable
statutory language. Beyond those Connecticut cases
establishing principles of constitutional interpretation,
particularly that the state constitution is ‘‘a living docu-
ment’’ that is an ‘‘instrument of progress’’; (internal
quotation marks omitted) Kerrigan v. Commissioner
of Public Health, 289 Conn. 135, 156, 957 A.2d 407(2008) ; the defendant also relies heavily on the Superior
Court’s construction of the phrase ‘‘unable to appear’’
in Parker v. Brooks, Superior Court, judicial district of
New Haven, Docket No. CV-XX-XXXXXXX-S (October 20,
1992) (7 Conn. L. Rptr. 492). The defendant deems the
history of article sixth, § 7, to be less than instructive, inso-
far as the remarks in the history of the House Resolution
that was enacted as article sixth, § 7, are the speakers’
‘‘anecdotal personal experiences that prompted them
to support absentee voting,’’ none of which ‘‘express[es]
an opinion about the full scope of that constitutional
language or whether it could include the circumstances
at issue here.’’ With respect to federal case law, the defen-
dant cites several federal district court decisions inval-
idating certain limitations on absentee voting in light
of the COVID-19 pandemic. She also argues that the
United States Supreme Court’s venerable compulsory
vaccination decision in Jacobson v. Massachusetts, 197
U.S. 11, 26–27, 25 S. Ct. 358, 49 L. Ed. 643 (1905),
‘‘strongly counsels’’ in support of sustaining Executive
Order No. 7QQ, which was an exercise of the police
power intended to protect, rather than to restrict, the
fundamental right to vote during the COVID-19 pan-
demic, which, as of the time this appeal was argued,
had already taken more than 4300 lives in Connecticut
alone. We agree with the defendant’s reading of article
sixth, § 7, and conclude that the word ‘‘sickness,’’ as
used therein, encompasses the existence of a specific
disease such as the COVID-19 pandemic addressed by
Executive Order No. 7QQ and is not limited to an illness
suffered by an individual voter.
1
Constitutional Language
We begin with the text of article sixth, § 7, which
provides: ‘‘The general assembly may provide by law
for voting in the choice of any officer to be elected or
upon any question to be voted on at an election by
qualified voters of the state who are unable to appear
at the polling place on the day of election because
of absence from the city or town of which they are
inhabitants or because of sickness or physical disability
or because the tenets of their religion forbid secular
activity.’’ (Emphasis added.) The plaintiffs raise two
significant points as to the constitutional language.
First, they argue that ‘‘unable,’’ for purposes of ‘‘unable
to appear,’’ means ‘‘helpless’’ or ‘‘incompetent,’’ which
would constitute a complete inability to get to the polls.
Second, they argue that ‘‘sickness’’ narrowly refers to a
condition personal to the voter rather than an infectious
disease affecting the community at large like COVID-19.
‘‘In dealing with constitutional provisions we must
assume that infinite care was employed to couch in
scrupulously fitting language a proposal aimed at estab-
lishing or changing the organic law of the state. . . .
Unless there is some clear reason for not doing so,
effect must be given to every part of and each word
in the constitution. . . . Moreover, we do not supply
constitutional language that the drafters intentionally
may have chosen to omit.’’ (Citation omitted; internal
quotation marks omitted.) Connecticut Coalition for
Justice in Education Funding, Inc. v. Rell, 295 Conn.
240, 273, 990 A.2d 206 (2010) (plurality opinion); see
Sheff v. O’Neill, 238 Conn. 1, 26–27, 678 A.2d 1267 (1996)
(considering education clause in article eighth, § 1, of
Connecticut constitution in light of prohibition of segre-
gation in article first, § 20). As with statutes, we consult
dictionaries to determine the ordinary meaning of state
constitutional provisions. See, e.g., State v. Damato-
Kushel, 327 Conn. 173, 186, 173 A.3d 357 (2017); Con-
necticut Coalition for Justice in Education Funding,
Inc. v. Rell, supra, 279; Stolberg v. Caldwell, 175 Conn.
586, 594, 402 A.2d 763 (1978), appeal dismissed sub
nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496,
70 L. Ed. 2d 374 (1981).
Turning to the plaintiffs’ first argument, we note that
the word ‘‘unable’’ is broadly defined as ‘‘lacking the
necessary power, competence, etc., to accomplish some
specified act . . . .’’ (Emphasis added.) Diction-
ary.com, available at https://www.dictionary.com/
browse/unable# (last visited February 9, 2021); see also
American Heritage College Dictionary (4th Ed. 2007)
pp. 3, 1490 (defining ‘‘unable’’ as opposite of ‘‘[h]aving
sufficient power or resources’’); Webster’s Third New
International Dictionary (2002) p. 2481 (defining
‘‘unable’’ as ‘‘not able’’ and synonymous with ‘‘unquali-
fied,’’ ‘‘incompetent,’’ ‘‘inefficient,’’ ‘‘impotent,’’ or
‘‘helpless’’). Read in context, the text of article sixth,
§ 7, suggests that physical inability to get to the polling
place on election day is not the sine qua non for render-
ing a voter ‘‘unable to appear’’ there. Instead, that deter-
mination of ability is squarely within the individual vot-
er’s control or judgment. For example, a voter who
requests an absentee ballot because of the tenets of his
or her religion may well be physically able to get to the
polling place but has nevertheless made the personal
decision to adhere to religious tenets that would forbid
the act of in person voting. Second, a strict reading of
‘‘unable’’ does not account for the voter who may be
physically able to get to the polling place, but only after
a great deal of exertion or obtaining assistance from
others. See Parker v. Brooks, supra, 7 Conn. L. Rptr.
494. The plaintiffs’ purely physical focus in reading the
term ‘‘unable’’ is inconsistent with the fact that it is
entirely subject to the individual actions and motiva-
tions of the voter.27
This brings us to the plaintiffs’ contention that the
word ‘‘sickness’’ encompasses solely a condition per-
sonal to the voter rather than an infectious disease
affecting the community at large like COVID-19. One
dictionary defines ‘‘sickness’’ in relevant part as ‘‘[t]he
condition of being sick; illness,’’ or ‘‘[a] disease; a mal-
ady.’’ (Emphasis added.) American Heritage College
Dictionary, supra, p. 1287. Another dictionary defines
it as ‘‘a particular disease or malady,’’ or ‘‘the state
or an instance of being sick; illness.’’ Dictionary.com,
available at https://www.dictionary.com/browse/sickness#
(last visited February 9, 2021).
These definitions tend to support the defendant’s
interpretation of article sixth, § 7. First, the word ‘‘sick-
ness’’ has a second meaning beyond a particular voter’s
‘‘condition of being sick,’’ insofar as it encompasses a
‘‘disease’’ or ‘‘a particular disease or malady.’’28 This is
particularly so when it is read in juxtaposition with the
religious tenets reason, which, in contrast to the word
‘‘sickness’’ standing alone, uses language that is per-
sonal to the specific voter by referring to ‘‘the tenets of
their religion [that] forbid secular activity.’’ (Emphasis
added.) Conn. Const., art. VI, § 7. The presence of this
language tying religious observance to the voter person-
ally, in the absence of similar words so limiting ‘‘sick-
ness,’’ strongly suggests that the term ‘‘sickness’’ is capa-
cious enough to include an identified illness such as
COVID-19 that has created a public health emergency.
Although the text of article sixth, § 7, is supportive
of the defendant’s reading, the plaintiffs’ reading is also
reasonable, which renders the provision sufficiently
ambiguous so as not to render the textual factor disposi-
tive of this issue. Accordingly, ‘‘we necessarily must
continue with our review of the other Geisler factors.’’
Connecticut Coalition for Justice in Education Fund-
ing, Inc. v. Rell, supra, 295 Conn. 279.
2
Constitutional History
We now consider the history of absentee voting under
the Connecticut constitution. Approximately seventy
years prior to the adoption of article sixth, § 7, the 1818
constitution was temporarily amended to allow soldiers
serving in the Civil War to vote in the 1864 election by
absentee ballot. See W. Horton, The Connecticut State
Constitution (2d Ed. 2012) p. 161. This temporary
amendment was a response to this court’s decision in
Opinion of the Judges of the Supreme Court, 30 Conn.
591 (1862), which had declared unconstitutional a stat-
ute that allowed soldiers fighting in the Civil War to
vote for state officers by absentee ballot; the court
relied on existing constitutional language requiring that
voters cast their votes in their towns on election day.
See id., 600–601; see also id., 594–96 (contrasting provi-
sions of Pennsylvania constitution and concluding that
Connecticut constitution was ‘‘explicit in its direction’’
as to place of election, namely, ‘‘an ‘electors’ meeting,’
composed of the electors in the respective towns quali-
fied to vote in the town’’ (emphasis omitted)).
Nearly seventy years later, in 1932, the electorate
adopted article sixth, § 7, as article XXXIX of the amend-
ments to the 1818 constitution.29 See W. Horton, supra,
pp. 160–61. Proponents of the proposed amendment
reported wide, popular support from their towns for
absentee voting and observed that Connecticut was one
of the few states that did not provide for absentee voting
at the time. See Conn. Joint Standing Committee Hear-
ings, Constitutional Amendments, 1929 Sess., pp. 2–4.
The discussion of the term ‘‘sickness’’ was very brief
and limited to supporters’ anecdotes about their ill or
infirm relatives who had not been able to vote in per-
son.30 Id., p. 3. Although we agree with the plaintiffs
that it is somewhat curious that none of the speakers’
remarks mentioned the 1918 global influenza pandemic,
which took place approximately one decade before, we
do not draw any inferences from their silence on that
point, given the limited nature of the discussion and the
lack of opposition on the record before the committee.
Accordingly, the very limited history of article sixth, § 7,
does not shed light on whether the provision’s framers
intended for it to encompass an illness not suffered by
the voter personally, such as a pandemic generally, and
we move on to the next Geisler factor.
3
Connecticut Case Law
Beyond this court’s 1862 decision in Opinion of the
Judges of the Supreme Court, supra, 30 Conn. 591, the
most significant Connecticut authority on point is the
Superior Court’s decision by then Judge Vertefeuille in
Parker v. Brooks, supra, 7 Conn. L. Rptr. 494, interpre-
ting § 9-135, which is worded similarly to article sixth,
§ 7. In Parker, the court rejected a claim that numerous
elderly and disabled voters, who had conditions such
as heart disease, diabetes, and arthritis and lived in a
New Haven apartment building, were not ‘‘unable to
appear’’ for purposes of § 9-135 because they could
venture out of their apartments at times, some with
assistance. Id., 493–94. Citing this court’s decision in
Wrinn v. Dunleavy, 186 Conn. 125, 440 A.2d 261 (1982),
Judge Vertefeuille found that the construction of § 9-
135 urged in Parker was ‘‘not consistent with a liberal
interpretation designed to further the right of suffrage,’’
as required by this court’s decision in Wrinn v. Dun-
leavy, supra, 142, and certain sister state cases. See
Parker v. Brooks, supra, 494. The court relied on its
observations of ‘‘the tenant-absentee voters as they tes-
tified in this matter. Although not bedridden or limited
to the confines of their apartments, many of them are
frail and walk or move about only with difficulty. If
they were deprived of the right to cast absentee ballots,
many of them would not vote at all rather than going to
the polls. A liberal construction of the absentee voting
statute is necessary to preserve their right to vote.’’
(Emphasis added.) Id.; see id. (noting that voter’s repre-
sentation on his or her absentee ballot application
reflects ‘‘the voter’s expectations’’ rather than his or
her physical capabilities on day of election). Parker,
then, supports the defendant’s contention that a voter’s
ability to appear is uniquely subjective and should be
liberally construed in favor of the right to vote,31
although it does not shed any light on the meaning
of ‘‘sickness.’’
4
Federal Case Law
This case differs from those involving the typical
Geisler analysis because there are no federal cases
directly on point, given the lack of a federal constitu-
tional analogue to article sixth, § 7. A brief review of
federal case law nevertheless provides important con-
text for Executive Order No. 7QQ. The United States
Supreme Court’s 1905 decision in Jacobson v. Massa-
chusetts, supra, 197 U.S. 26–27, which upheld compul-
sory vaccination laws, has long been cited for the propo-
sition that a state has broad police powers in the area
of public health, which may include the restriction of
personal liberties through measures such as quaran-
tines. See, e.g., South Bay United Pentecostal Church
v. Newsom, 89 U.S. 3148, 140 S. Ct. 1613, 1614, 207 L.
Ed. 2d 154 (2020) (Roberts, C. J., concurring in denial
of application for injunctive relief) (rejecting church’s
first amendment free exercise challenge to California
executive order imposing 25 percent occupancy cap on
worship services because of COVID-19); Elim Roma-
nian Pentecostal Church v. Pritzker, 962 F.3d 341,
346–47 (7th Cir. 2020) (rejecting church’s first amend-
ment free exercise challenge to Illinois executive order
limiting public gatherings to ten people due to COVID-
19), petition for cert. filed, 89 U.S.L.W. 3148 (U.S. Octo-
ber 22, 2020) (No. 20-569); Bayley’s Campground, Inc.
v. Mills, 463 F. Supp. 3d 22, 35 (D. Me. 2020) (considering
state’s powers under Jacobson in light of significant
burden on fundamental right to travel and denying
motion for preliminary injunction of governor’s four-
teen day quarantine order because ‘‘[i]t is not at all
clear that there are any less restrictive means for the
state to . . . meet [its] goal of curbing COVID-19,’’ with
such measures being ‘‘matters of public policy to be
implemented by politicians and to be evaluated by vot-
ers, not by unelected judges’’), aff’d, 985 F.3d 153 (1st
Cir. 2021). But see Roman Catholic Diocese of Brooklyn
v. Cuomo, U.S. , 141 S. Ct. 63, 66–67, 208 L. Ed.
2d 206 (2020) (applying strict scrutiny and enjoining
enforcement of executive order capping attendance at
religious services held in ‘‘red’’ or ‘‘orange’’ COVID-19
zones because order was not narrowly tailored, and
religious institutions were treated much more strictly
than either essential or nonessential businesses in those
zones, which did not have similar caps).
Beyond the state’s police power under Jacobson,
Executive Order No. 7QQ, which was intended to pro-
tect the fundamental right to vote, is consistent with
the United States constitution’s grant of ‘‘broad powers’’
to the ‘‘[s]tates . . . to determine the conditions under
which the right of suffrage may be exercised . . .
absent of course the discrimination [that] the [c]onstitu-
tion condemns.’’ (Citations omitted.) Lassiter v. Board
of Elections, 360 U.S. 45, 50–51, 79 S. Ct. 985, 3 L. Ed.
2d 1072 (1959); see Texas Democratic Party v. Abbott,
961 F.3d 389, 407 (5th Cir. 2020) (observing that article
one, § 4, of United States constitution ‘‘gives the states
authority over [t]he Times, Places and Manner of hold-
ing Elections for Senators and Representatives . . .
which power is matched by state control over the elec-
tion process for state offices’’ (citation omitted; internal
quotation marks omitted)). But see Democratic
National Committee v. Wisconsin State Legislature,
U.S. , 141 S. Ct. 28, 34 n.1, 208 L. Ed. 2d 247 (2020)
(Kavanaugh, J., concurring in denial of application to
stay) (concluding that text of article two of United
States constitution means that ‘‘the state courts do not
have a blank check to rewrite state election laws for
federal elections’’ and that, as matter of federal constitu-
tional law, ‘‘a state court may not depart from the state
election code enacted by the legislature’’); Bush v. Gore,
531 U.S. 98, 112–13, 121 S. Ct. 525, 148 L. Ed. 2d 388(2000) (Rehnquist., C. J., concurring) (stating that arti-
cle II, § 2, of United States constitution, governing
appointment of presidential electors, presents ‘‘[an]
exceptional [case] in which the [c]onstitution imposes
a duty or confers a power on a particular branch of a
[s]tate’s government,’’ namely, state legislatures, giving
‘‘the text of the election law itself, and not just its
interpretation by the courts of the [s]tates . . . inde-
pendent significance’’). There is no independent federal
constitutional right to vote by an absentee ballot so
long as all eligible voters are provided with the right
to vote. See McDonald v. Board of Election Commis-
sioners, supra, 394 U.S. 808–10 (state was not required
to provide pretrial detainees incarcerated in their home
counties with absentee ballots, even though detainees
held outside their home counties would qualify for
absentee ballots, given lack of proof that those detained
in their home counties had been barred from voting).
States may, however, make rational classifications as
to who may receive an absentee ballot, but they may
not impose discriminatory, undue or irrational burdens
on their use, particularly in a way that constitutes an
outright denial of the franchise. See O’Brien v. Skinner,
414 U.S. 524, 530, 94 S. Ct. 740, 38 L. Ed. 2d 702 (1974)
(proof of complete denial of right to vote to pretrial
detainees held in home counties was equal protection
violation when ‘‘they are simply not allowed to use the
absentee ballot and are denied any alternative means
of casting their vote although they are legally qualified
to vote’’); McDonald v. Board of Election Commission-
ers, supra, 807 (concluding that, ‘‘once the [s]tates grant
the franchise, they must not do so in a discriminatory
manner,’’ particularly with respect to suspect classifica-
tions, including race and wealth); Price v. Board of
Elections, 540 F.3d 101, 112 (2d Cir. 2008) (denial of
absentee ballot in party county committee elections
was unconstitutionally arbitrary given ‘‘that the state’s
proffered reasons have such infinitesimal weight that
they do not justify the burdens imposed’’); see also
footnote 36 of this opinion (discussing Anderson-Bur-
dick framework for evaluating election laws that burden
right to vote).
Indeed, concerns attendant to COVID-19 have not
diminished federal deference to state officials’ control
over the election process, including expanded access
to absentee voting, as long as those innovations do not
impose irrational, undue, or discriminatory burdens on
the right to vote.32 One notable example is Texas Demo-
cratic Party v. Abbott, supra, 961 F.3d 389, in which
the United States Court of Appeals for the Fifth Circuit
followed McDonald and held that the equal protection
clause and the twenty-sixth amendment to the United
States constitution did not require Texas ‘‘to give every-
one the right to vote by mail’’ in light of the COVID-19
pandemic. Id., 409. Specifically, the court held that a
Texas statute that afforded voters sixty-five years old
and older the right to vote by mail did not violate the
equal protection rights of younger voters. Id., 402; see
also Texas Democratic Party v. Abbott, 978 F.3d 168,
192–93 (5th Cir. 2020) (merits decision holding that
extension of privilege to older voters was not abridge-
ment of younger voters’ rights under twenty-sixth
amendment). Applying rational basis review because
age is not a suspect class, and observing that Texas
had implemented other safety measures to protect in
person voters, such as social distancing, protective
masks for poll workers, and enhanced sanitizing of facil-
ities and equipment, the court held that there was no
evidence that the absentee balloting rules or other state
action ‘‘absolutely prohibited’’ the younger voters from
exercising their right to vote. (Internal quotation marks
omitted.) Texas Democratic Party v. Abbott, supra, 961
F.3d 404. The Fifth Circuit emphasized that ‘‘[rational
basis] review in equal protection analysis is not a license
for courts to judge the wisdom, fairness, or logic of
legislative choices.’’ (Internal quotation marks omitted.)
Id., 407; see Tully v. Okeson, 977 F.3d 608, 613–17 (7th
Cir. 2020) (following McDonald and upholding denial
of motion for preliminary injunction because plaintiffs
could not show likelihood of success on their claim
that, because of effects of COVID-19, equal protection
clause or twenty-sixth amendment required Indiana to
extend statutorily limited absentee voting to all voters
for upcoming general election, particularly given alter-
natives state provided to in person voting on election
day, such as early voting); Black Voters Matter Fund v.
Raffensperger, 478 F. Supp. 3d 1278, 1285, 1315, 1323–24
(N.D. Ga. 2020) (denying motion for preliminary injunc-
tion on basis of conclusion that requiring voters to
purchase stamps for application and ballot was not poll
tax, with state’s fiscal interest outweighing moderate
burden created by obtaining postage), appeal filed sub
nom. Black Voters Matter Fund v. Secretary of State,
United States Court of Appeals, Docket No. 20-13414
(11th Cir. September 9, 2020); Democracy North Caro-
lina v. North Carolina State Board of Elections, 476
F. Supp. 3d 158, 217–18 (M.D.N.C. 2020) (declining to
‘‘rewrite North Carolina’s election law’’ by issuing
injunctive relief that would, inter alia, expand ‘‘voter
registration via online portals,’’ ‘‘[establish] contactless
drop boxes for absentee ballots,’’ and ‘‘[establish] mech-
anisms to cure deficient absentee ballot requests and
absentee ballots’’). See generally E. Williams, Annot.,
‘‘COVID-19 Related Litigation: Challenges to Election
and Voting Practices During COVID-19 Pandemic,’’ 54
A.L.R. Fed. 3d 383 (2020).
Viewed through the lens of the federal case law, Exec-
utive Order No. 7QQ is consistent with the state’s exer-
cise of its police power to protect the fundamental right
to vote, along with its responsibility under the United
States constitution to superintend elections within Con-
necticut. That federal case law, however, sheds no light
on whether Executive Order No. 7QQ is consistent with
Connecticut’s own state constitutional restrictions on
the use of absentee balloting.
5
Sister State Cases
Our research does not reveal any sister state case
law on point as a matter of state constitutional interpre-
tation.33 Though not involving a constitutional provi-
sion, perhaps the most instructive authority is the
Arkansas Supreme Court’s decision in Forrest v. Baker,
supra, 287 Ark. 239, which considered whether ‘‘sick-
ness in the family’’; id., 243; was a legally sufficient
reason for absentee voting under a statute that allows
absentee voting by ‘‘ ‘[a]ny person who, because of ill-
ness or physical disability will be unable to attend the
polls on election day.’ ’’ (Emphasis added.) Id., 240. The
court concluded that ‘‘two different voters should [not]
be disenfranchised, as a matter of law, because their
application recited ‘sickness in the family’ ’’; id., 243;
observing that ‘‘the complaint [did] not allege that the
application was false or that the sickness in the family
was such that the voter was able to attend the polls.
. . . A voter can have sickness in his family [that] ren-
ders him unable to attend the polls.’’ Id., 243–44.
Although Forrest supports the proposition that the sick-
ness need not be that of the voter personally under
statutory language similar to that of article sixth, § 7,
it is not especially persuasive because it is written in
a conclusory manner without a thorough textual or
historical analysis.
Analytical shortcomings aside, Forrest nevertheless
is more instructive than the Texas Supreme Court’s
recent decision in In re State, supra, 602 S.W.3d 549,
on which the plaintiffs rely heavily.34 That case held
that a voter’s lack of COVID-19 immunity is not by itself
a ‘‘physical disability’’ under § 82.002 (a) of the Texas
Election Code, which provides for voting by mail for
‘‘disability’’ if ‘‘[a] qualified voter . . . has a sickness
or physical condition that prevents the voter from
appearing at the polling place on election day without
a likelihood of needing personal assistance or of injur-
ing the voter’s health.’’ (Emphasis added; internal quota-
tion marks omitted.) Id., 557, 560. The Texas court
emphasized that ‘‘physical condition’’ must be under-
stood in the ‘‘light’’ of the ordinary meaning of ‘‘ ‘disabil-
ity,’ ’’ which ‘‘is the same word the [l]egislature has used
consistently since 1935,’’ and ‘‘ ‘[d]isabled’ normally
means ‘incapacitated by or as if by illness, injury, or
wounds.’ ’’ Id., 560. Observing that ‘‘[i]n no sense can
a lack of immunity be said to be such an incapacity,’’
the Texas court held that ‘‘a lack of immunity to COVID-
19 is not itself a ‘physical condition’ ’’ under that state’s
absentee balloting statute.35 Id. In our view, In re State
is inapposite because it did not consider the breadth
of the meaning of the word ‘‘sickness’’ and because
it is based on statutory language distinguishable from
article sixth, § 7, as more directly linked to the ‘‘quali-
fied voter.’’
Finally, we consider Fisher v. Hargett, 604 S.W.3d
381 (Tenn. 2020), a recent decision from the Tennessee
Supreme Court that rejected a state constitutional chal-
lenge to the election procedures in the Tennessee Elec-
tion COVID-19 Contingency Plan (Tennessee plan). The
Tennessee plan anticipated an increase in absentee
voting but ‘‘[did] not expressly provide . . . for any
expansion of those persons who are eligible to vote
absentee by mail pursuant to the [state’s] statute,’’
which included persons ‘‘unable to appear at the per-
son’s polling place’’ because they are ‘‘hospitalized, ill
or physically disabled,’’ along with the caretakers of
such persons. (Internal quotation marks omitted.) Id.,
387, quoting Tenn. Code Ann. § 2-6-201 (5) (C) (Supp.
2019). The court first agreed with the state’s concession
that ‘‘persons with special vulnerability to COVID-19 or
who are caretakers of persons with special vulnerability
to COVID-19 are eligible to vote absentee by mail pur-
suant to the statutory eligibility requirements’’ and
deemed injunctive relief unnecessary on that point. Id.,
393–94. Turning to those persons without a special vul-
nerability to COVID-19, the court applied the Anderson-
Burdick balancing framework utilized by the United
States Supreme Court to assess incursions on voting
rights36 and determined that the exclusion from absen-
tee voting was a ‘‘moderate’’ one for the voters without
special vulnerabilities given that the Tennessee plan
provided for social distancing, screening, and personal
protective equipment at polling places. Id., 402–403. The
court concluded, however, that the moderate burden
on voters who neither had special vulnerabilities to
COVID-19 nor were the caretakers of such voters was
outweighed by the state’s prophylactic interest in pre-
venting election fraud, along with fiscal and administra-
tive considerations. Id., 403–404. Deeming itself ‘‘con-
strained by the [Tennessee] [c]onstitution’s delegation
to the [l]egislature of the power to regulate the conduct
of . . . elections,’’ the court emphasized that the statu-
tory scheme’s ‘‘preference for [in person] voting . . .
represents a policy choice’’ that extended to those
‘‘made with respect to the conduct of elections during
the COVID-19 pandemic. These policy choices will be
judged by history and by the citizens of Tennessee.
We, however, properly may not and will not judge the
relative merits of them, regardless of our own views.’’37
Id., 404–405. Accordingly, we now turn to our examina-
tion of the public policy issues considered by our state’s
political branches in the promulgation and ratification
of Executive Order No. 7QQ.
6
Economic and Sociological Considerations
With respect to the economic and sociological consid-
erations factor, which is in essence a public policy anal-
ysis, the plaintiffs rely on the perceived shortcomings
of absentee balloting, including statements in decisions
from this court that it is a process that is potentially
more susceptible to election irregularities such as mis-
takes and fraud. See, e.g., Keeley v. Ayala, supra, 328
Conn. 406–407; Wrinn v. Dunleavy, supra, 186 Conn.
142–44. Similarly, they cite legislative committee testi-
mony from representatives of the Connecticut Town
Clerks Association objecting to proposed constitutional
amendments in 2013 and 2020 that would have
expanded vote by mail opportunities on the ground
that mailing delays and irregularities such as missing
signatures and other errors could disenfranchise more
voters. See Conn. Joint Standing Committee Hearings,
Government Administration and Elections, Pt. 1, 2020
Sess., pp. 287–88, written testimony of Mark H. Ber-
nacki, Legislative Committee Chair of the Connecticut
Town Clerks Association (supporting in person early
voting by tabulator but objecting to ‘‘expanding the
current absentee voting process to include no excuse
absentee voting that relies on [mail] delivery’’); Conn.
Joint Standing Committee Hearings, Government
Administration and Elections, Pt. 3, 2013 Sess., pp. 918–
19, written testimony of Antoinette C. Spinelli, Chair
of the Connecticut Town Clerks Association (endorsing
legislation, following proposed amendment to state
constitution, which would support early in person
voting and arguing against no excuse absentee balloting
based on mailing delays and voter errors, while ‘‘recog-
niz[ing] a need to expand the existing categories of
those eligible to vote by absentee ballot to include care-
givers and emergency relief workers’’). The plaintiffs
contend that recent failures of prospective constitu-
tional amendments that would have allowed no excuse
absentee voting, one in 2014 before the electorate and
one in 2019 that did not receive support from three-
fourths of each of the houses of the legislature, evince
the common understanding that article sixth, § 7, does
not presently permit no excuse absentee voting.
The defendant, however, counters these concerns by
relying on the public policies of ‘‘protecting public
health and saving lives,’’ along with ‘‘ensuring that vot-
ers are able to safely exercise their fundamental right
to vote.’’ The defendant argues that her construction
of article sixth, § 7, is ‘‘consistent with the public policy
that states across the nation have adopted, both before
and during the pandemic,’’ with thirty-four states that
‘‘permit all mail or no excuse absentee voting during
normal times’’ and fourteen more that have ‘‘changed
their absentee ballot laws during the pandemic to per-
mit some form of expanded absentee voting.’’ See foot-
note 32 of this opinion.
From a public policy perspective, this case presents
the opposite side of the coin of Texas Democratic Party
v. Abbott, supra, 961 F.3d 389, and Fisher v. Hargett,
supra, 604 S.W.3d 381, insofar as our state’s political
branches, first Governor Lamont through Executive
Order No. 7QQ, and later the legislature through its
ratification of that executive order in Spec. Sess. P.A.
20-3, § 16, have seen fit to expand absentee voting in
response to the COVID-19 pandemic. ‘‘Given the reason-
able policy concerns that support the parties’ respective
state constitutional arguments, in interpreting our
state’s constitution, we must defer to the legislature’s
primary responsibility in pronouncing the public policy
of our state.’’ (Internal quotation marks omitted.) Doe
v. Hartford Roman Catholic Diocesan Corp., supra, 317
Conn. 438; see, e.g., State v. McCleese, 333 Conn. 378,
406, 215 A.3d 1154 (2019) (concluding that state consti-
tution did not require remedy beyond new legislation
affording parole hearing to defendant sentenced in vio-
lation of Miller v. Alabama, 567 U.S. 460, 132 S. Ct.
2455, 183 L. Ed. 2d 407 (2012), and stating that ‘‘we do
not believe that we are better situated than the legisla-
ture to strike an appropriate balance among these com-
peting policies, particularly in an area that is tradition-
ally within the purview of the legislature’’); State v. Skok,
318 Conn. 699, 718–19, 122 A.3d 608 (2015) (rejecting
defendant’s claim that recording of phone conversation
with consent of only one party violated her reasonable
expectation of privacy under state constitution and con-
cluding that statute providing for civil cause of action
for failure to obtain consent to record by all parties to
conversation, with ‘‘multiple, wide-ranging exceptions,’’
‘‘does not reflect a sweeping policy against recording
all private telephone conversations . . . but rather
demonstrates that the legislature has carefully balanced
the concern for protecting citizens’ privacy against mul-
tiple other countervailing policy interests’’); Doe v.
Hartford Roman Catholic Diocesan Corp., supra,
436–38 (considering legislative balancing of concerns
of stale evidence and delayed disclosure in upholding
expansion of statute of limitations to revive lapsed sex-
ual abuse claims); State v. Lockhart, 298 Conn. 537,
574–75, 4 A.3d 1176 (2010) (The court declined to adopt
a state constitutional rule requiring the recording of
custodial interrogations because, although that rule
would likely be beneficial, ‘‘[d]etermining [its] parame-
ters . . . requires weighing competing public policies
and evaluating a wide variety of possible rules. . . . In
[the court’s] view, such determinations are often made
by a legislative body because it is in a better position to
evaluate the competing policy interests at play . . . .’’
(Citation omitted.)).
In sum, having considered the Geisler factors, we
conclude that the plaintiffs have not established beyond
a reasonable doubt that Executive Order No. 7QQ, as
ratified by the legislature in Spec. Sess. P.A. 20-3, § 16,
violates article sixth, § 7, of the Connecticut constitu-
tion. We observe most significantly that the constitu-
tional language of ‘‘unable to appear’’ and ‘‘sickness’’
is sufficiently capacious to include the particular dis-
ease of COVID-19. Although the plaintiffs have identi-
fied concerns of election security and disenfranchise-
ment that might arise from hypothetical lapses on the
part of election officials or the voter during the absentee
ballot process, Executive Order No. 7QQ nevertheless
represents a considered judgment by our political
branches that the limited expansion of absentee voting
is an appropriate measure to protect public health and
suffrage rights during the exceptional circumstance of
a pandemic, the likes of which have not been seen in
more than one century. Put differently, our political
branches acted to protect the critical constitutional
right to vote while accommodating public health direc-
tives not to congregate, an act that was consistent with
the text of article sixth, § 7, the plain language of which
permits absentee balloting for far less serious reasons,
such as voluntary absences from town for leisure activi-
ties. We conclude, therefore, that Executive Order No.
7QQ does not violate article sixth, § 7, of the Connecti-
cut constitution.
The appeal is dismissed with respect to the plaintiffs’
separation of powers claim; the judgment is affirmed.
In this opinion the other justices concurred.
* February 11, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Executive Order No. 7QQ provides in relevant part: ‘‘1. Absentee Voting
Eligibility During COVID-19 Pandemic. [General Statutes §] 9-135 . . . is
modified to provide that, in addition to the enumerated eligibility criteria
set forth in subsection (a) of that statute, an eligible elector may vote by
absentee ballot for the August 11, 2020 primary election if he or she is
unable to appear at his or her polling place during the hours of voting
because of the sickness of COVID-19. For purposes of this modification, a
person shall be permitted to lawfully state he or she is unable to appear at
a polling place because of COVID-19 if, at the time he or she applies for or
casts an absentee ballot for the August 11, 2020 primary election, there is
no federally approved and widely available vaccine for prevention of COVID-
19. It shall not constitute a misrepresentation under subsection (b) of [§]
9-135 . . . for any person to communicate the provisions of this modifica-
tion to any elector or prospective absentee ballot applicant.
‘‘2. Notice of Modification Required on Inner Envelope. [General Statutes
§] 9-137 . . . is modified to provide that it shall not constitute a false state-
ment for an elector to represent his or her eligibility to vote by absentee
ballot pursuant to the modifications of [§] 9-135 in [§] 1 of this order, and
the inner envelope described in [§] 9-137 shall contain a notice describing
the modification in [§] 1 of this order.
‘‘3. Authority for Secretary of the State to Modify Absentee Ballot Applica-
tions, Envelopes, and Printed Materials Regarding Eligibility. Notwithstand-
ing any provision of [t]itle 9 of the . . . General Statutes or any other law
or regulation to the contrary, the Secretary of the State shall be authorized
to modify any required notice, statement, or description of the eligibility
requirements for voting by absentee ballot on any printed, recorded, or
electronic material in order to provide accurate information to voters about
the modifications to absentee voter eligibility and related requirements of
this order. . . .’’
2
General Statutes (Rev. to 2019) § 9-135 provides: ‘‘(a) Any elector eligible
to vote at a primary or an election and any person eligible to vote at a
referendum may vote by absentee ballot if he or she is unable to appear at
his or her polling place during the hours of voting for any of the following
reasons: (1) His or her active service with the armed forces of the United
States; (2) his or her absence from the town of his or her voting residence
during all of the hours of voting; (3) his or her illness; (4) his or her physical
disability; (5) the tenets of his or her religion forbid secular activity on the
day of the primary, election or referendum; or (6) the required performance
of his or her duties as a primary, election or referendum official, including
as a town clerk or registrar of voters or as staff of the clerk or registrar,
at a polling place other than his or her own during all of the hours of voting
at such primary, election or referendum.
‘‘(b) No person shall misrepresent the eligibility requirements for voting
by absentee ballot prescribed in subsection (a) of this section, to any elector
or prospective absentee ballot applicant.’’
Hereinafter, all references to § 9-135 are to the 2019 revision.
3
Article sixth, § 7, of the Connecticut constitution provides: ‘‘The general
assembly may provide by law for voting in the choice of any officer to be
elected or upon any question to be voted on at an election by qualified
voters of the state who are unable to appear at the polling place on the day
of election because of absence from the city or town of which they are
inhabitants or because of sickness or physical disability or because the
tenets of their religion forbid secular activity.’’
4
The plaintiffs are Mary Fay, an elector and candidate for United States
Representative for the First Congressional District, Thomas Gilmer, an elec-
tor and candidate for United States Representative for the Second Congres-
sional District, Justin Anderson, an elector and candidate for United States
Representative for the Second Congressional District, and James Griffin,
an elector and candidate for United States Representative for the First
Congressional District.
We note that Fay and Anderson subsequently prevailed in the primary
election held on August 11, 2020, and received the Republican Party’s nomi-
nations for the offices of United States Representative for the First and
Second Congressional Districts, respectively. See M. Pazniokas, ‘‘Recount
Gives GOP Nomination to Justin Anderson in CT-2,’’ The Connecticut Mirror,
August 18, 2020, available at https://ctmirror.org/2020/08/18/recount-gives-
gop-nomination-to-justin-anderson-in-ct-2/ (last visited February 9, 2021); M.
Pazniokas, ‘‘The Connecticut Primary: A Perfunctory Contest for President,
and a Long Wait for Others,’’ The Connecticut Mirror, August 11, 2020, avail-
able at https://ctmirror.org/2020/08/11/the-connecticut-primary-a-perfunctory
-contest-for-president-and-a-long-wait-for-others (last visited February 9,
2021).
5
On July 23, 2020, Chief Justice Robinson granted the plaintiffs’ application
for permission to file an expedited public interest appeal pursuant to § 52-
265a. See General Statutes § 51-199 (b) (9) (‘‘[t]he following matters shall
be taken directly to the Supreme Court . . . any matter brought to the
Supreme Court pursuant to section 52-265a’’). After Chief Justice Robinson
ordered an expedited briefing schedule culminating in an oral argument
held remotely on August 6, 2020, we granted the motion of the Connecticut
Democratic Party, Kate Farrar and Sherry Haller for permission to appear
as amici curiae and to file a brief.
We thank all counsel for their professionalism during the briefing and
argument of this appeal. This high level of professional conduct is particu-
larly noteworthy given the unique exigencies posed by the ongoing COVID-
19 pandemic, which were compounded by the severely damaging effects of
Tropical Storm Isaias two days before oral argument in this case.
6
General Statutes § 28-9 (b) (1) provides in relevant part: ‘‘Following the
Governor’s proclamation of a civil preparedness emergency pursuant to
subsection (a) of this section or declaration of a public health emergency
pursuant to section 19a-131a, the Governor may modify or suspend in
whole or in part, by order as hereinafter provided, any statute, regulation
or requirement or part thereof whenever the Governor finds such statute,
regulation or requirement, or part thereof, is in conflict with the efficient
and expeditious execution of civil preparedness functions or the protection
of the public health. The Governor shall specify in such order the reason
or reasons therefor and any statute, regulation or requirement or part thereof
to be modified or suspended and the period, not exceeding six months
unless sooner revoked, during which such order shall be enforced. Any such
order shall have the full force and effect of law upon the filing of the full
text of such order in the office of the Secretary of the State. . . . Any
statute, regulation or requirement, or part thereof, inconsistent with such
order shall be inoperative for the effective period of such order. Any such
order shall be communicated by the Governor at the earliest date to both
houses of the General Assembly.’’ (Emphasis added.)
7
The other six reasons provided on the application are (1) ‘‘[m]y active
service in the Armed Forces of the United States,’’ (2) ‘‘[m]y absence from
the town during all of the hours of voting,’’ (3) ‘‘[m]y illness,’’ (4) ‘‘[m]y
religious tenets forbid secular activity on the day of the election, primary
or referendum,’’ (5) ‘‘[m]y duties as a primary, election or referendum official
at a polling place other than my own during all of the hours of voting,’’ and
(6) ‘‘[m]y physical disability.’’
8
The ‘‘special instructions’’ at the bottom of the application provide in
relevant part: ‘‘The [s]tate . . . via Executive Order [No.] 7QQ, as interpre-
ted by the [defendant] pursuant to [General Statutes § 9-3], has determined
[that] (1) . . . having a [preexisting] illness allows you to vote by absentee
ballot because your [preexisting] illness would prevent you from appearing
at your [designated] polling place or (2) . . . absent a widely available
vaccine, the existence of the COVID-19 virus allows you to vote by absentee
ballot if you so choose for your own safety. To receive your absentee ballot
please complete and sign this application (be sure to check ‘Illness’ for
reason (1) or ‘COVID-19’ for reason (2) above) and return it to your [t]own
[c]lerk using the enclosed postage prepaid envelope. . . .’’ (Emphasis in
original.)
9
‘‘Ordinarily, 3 to 5 percent of voters vote by absentee ballot; the experi-
ence of similar jurisdictions indicates that between 50 and 80 percent of
Connecticut voters will apply for, and likely use, absentee ballots for the
August primary. The printing and mailing of the applications cost the state
approximately $850,000.’’ Fay v. Merrill, 336 Conn. , n.11, A.3d
(2020).
10
The plaintiffs also pleaded that ‘‘[t]here is no COVID-19 exception in
the Connecticut constitution.’’
11
The plaintiffs also claimed that the defendant’s ‘‘decision to add a new
category called ‘COVID-19’ and her failure to include the restrictions con-
tained in Executive Order No. 7QQ concerning that reason—i.e., the voter
being unable to appear and the unavailability of a vaccine—constitute a
ruling of an election official’’ that ‘‘ignored the important qualification’’ to
that effect in the executive order. The trial court did not address this issue
given the parties’ apparent concession that the ‘‘case would live or die by
[the court’s] ruling’’ as to the constitutionality of Executive Order No. 7QQ,
and it is not before us in this appeal.
12
The trial court noted: ‘‘Suffice it to say that cold and flu season [would
not] be enough. Those circumstances would leave the exception of absentee
balloting swallowing the rule of in person voting. This is a far case from that.’’
13
Spec. Sess. P.A. 20-3 provides in relevant part: ‘‘Section 1. Section 9-
135 of the general statutes is repealed and the following is substituted in
lieu thereof (Effective from passage):
‘‘(a) Any elector eligible to vote at a primary or an election and any person
eligible to vote at a referendum may vote by absentee ballot if [he or she]
such elector or person is unable to appear at [his or her] such elector’s or
person’s polling place during the hours of voting for any of the following
reasons: (1) [His or her] Such elector’s or person’s active service with the
armed forces of the United States; (2) [his or her] such elector’s or person’s
absence from the town of [his or her] such elector’s or person’s voting
residence during all of the hours of voting; (3) [his or her] such elector’s
or person’s illness; (4) [his or her] such elector’s or person’s physical disabil-
ity; (5) the tenets of [his or her] such elector’s or person’s religion forbid
secular activity on the day of the primary, election or referendum; [or] (6)
the required performance of [his or her] such elector’s or person’s duties
as a primary, election or referendum official, including as a town clerk or
registrar of voters or as staff of the clerk or registrar, at a polling place
other than [his or her] such elector’s or person’s own during all of the hours
of voting at such primary, election or referendum; or (7) for the state election
in 2020, the sickness of COVID-19. As used in this section, ‘COVID-19’ means
the respiratory disease designated by the World Health Organization on
February 11, 2020, as coronavirus 2019, and any related mutation thereof
recognized by said organization as a communicable respiratory disease.
‘‘(b) No person shall misrepresent the eligibility requirements for voting
by absentee ballot prescribed in subsection (a) of this section, to any elector
or prospective absentee ballot applicant.
‘‘Sec. 2. Section 9-137 of the general statutes is repealed and the following
is substituted in lieu thereof (Effective from passage):
‘‘(a) Each absentee ballot shall be returned to the municipal clerk, inserted
in an inner envelope which shall be capable of being sealed and which shall
have printed on its face a form containing the following statements:
‘‘ ‘I hereby state under the penalties of false statement in absentee balloting
that I am eligible to vote at the primary, election or referendum in the
municipality in which this absentee ballot is to be cast and that I expect to
be unable to appear at my polling place during the hours of voting at such
primary, election or referendum for one or more of the following reasons:
(1) My active service in the armed forces; (2) my absence from the town
in which I am eligible to vote during all of the hours of voting; (3) my illness
or physical disability; (4) the tenets of my religion which forbid secular
activity on the day of the primary, election or referendum; or (5) my duties
as a primary, election or referendum official.
‘‘ ‘Date . . . .
‘‘ ‘. . . . (Signature)’
‘‘(b) Notwithstanding the provisions of subsection (a) of this section, for
the state election in 2020, each inner envelope in which an absentee ballot
is returned to the municipal clerk shall have printed on its face a form
containing the following statements:
‘‘ ‘I hereby state under the penalties of false statement in absentee ballot-
ing that I am eligible to vote at the primary, election or referendum in the
municipality in which this absentee ballot is to be cast and that I expect to
be unable to appear at my polling place during the hours of voting at such
primary, election or referendum for one or more of the following reasons:
(1) My active service in the armed forces; (2) my absence from the town
in which I am eligible to vote during all of the hours of voting; (3) my illness
or physical disability; (4) the tenets of my religion which forbid secular
activity on the day of the primary, election or referendum; (5) my duties as
a primary, election or referendum official; or (6) the sickness of COVID-19.
‘‘ ‘Date . . . .
‘‘ ‘. . . . (Signature)’ ’’
We note that the additions to the statute made by the act are underlined
and the deletions are in brackets.
14
Spec. Sess. P.A. 20-3, § 16, provides: ‘‘(Effective from passage) Notwith-
standing any provision of the general statutes, any provisions of sections 1
to 5, inclusive, of Executive Order No. 7QQ of Governor Ned Lamont, dated
May 20, 2020, that relate to the August 11, 2020, primary, are ratified.’’
15
We note that, in his order granting the § 52-265a petition; see footnote
5 of this opinion; Chief Justice Robinson directed the parties ‘‘to address
the following issues in their briefs: (1) the extent to which the plaintiffs are
aggrieved by Executive Order No. 7QQ and the defendant’s issuance of the
[application]; and (2) the appropriate remedy, including whether the issue
of aggrievement may limit the scope of relief that can be granted to the
primary election in which the plaintiffs are candidates.’’
16
We similarly find distinguishable two other cases relied on by the defen-
dant, namely, Kauffman v. Osser, supra, 441 Pa. 152–53, 157, which held that
voters lacked standing to bring a constitutional challenge to Pennsylvania’s
absentee ballot statute, and Paher v. Cegavske, 457 F. Supp. 3d 919, 926–27
(D. Nev. 2020), in which the court held that registered voters who claimed
injury by vote dilution lacked standing to challenge Nevada’s all mail primary
created in response to the COVID-19 pandemic. Both of these cases are
distinguishable because they were not brought by candidates.
17
At oral argument before this court, we discussed with the parties
whether a grant of a declaratory judgment for the plaintiffs would have an
immediate effect on the August primary, for either the Republican Party
primary in which they were running, or the simultaneously conducted Demo-
cratic Party primary. As the plaintiffs pointed out, this court addressed the
preclusive effects of declaratory judgments in Lighthouse Landings, Inc.
v. Connecticut Light & Power Co., supra, 300 Conn. 325, which observed:
‘‘Under § 33 of the Restatement (Second) of Judgments, ‘[a] valid and final
judgment in an action brought to declare rights or other legal relations of
the parties is conclusive in a subsequent action between them as to the
matters declared, and, in accordance with the rules of issue preclusion, as
to any issues actually litigated by them and determined in the action.’ 1
Restatement (Second), [Judgments] § 33 [p. 332 (1982)].’’ (Emphasis added.)
Lighthouse Landings, Inc. v. Connecticut Light & Power Co., supra, 352.
We stated that ‘‘a declaratory judgment, in and of itself, has no res judicata
effect on any other claims brought, or to be brought, in a separate action.’’
Id., 354. ‘‘[A] plaintiff who wins a declaratory judgment may go on to seek
further relief, even in an action on the same claim which prompted the
action for a declaratory judgment. This further relief may include damages
which had accrued at the time the declaratory relief was sought . . . .’’
(Internal quotation marks omitted.) Glastonbury v. Metropolitan District
Commission, 328 Conn. 326, 337, 179 A.3d 201 (2018), quoting Lighthouse
Landings, Inc. v. Connecticut Light & Power Co., supra, 361 (Palmer, J.,
dissenting); accord 1 Restatement (Second), supra, § 33, comment (c), p.
335. Accordingly, we agree with the plaintiffs that, if they had prevailed in
this appeal, further proceedings would have been necessary to determine
what effect, if any, a declaratory judgment for the plaintiffs would have had
on the August primary, either in this action with respect to the Republican
Party primary or in a separate proceeding with respect to the Democratic
Party primary. See footnote 21 of this opinion.
18
We address the special defense of laches before addressing the constitu-
tional issues in this case because of the ‘‘general rule that [c]onstitutional
issues are not considered unless absolutely necessary to the decision of a
case.’’ (Internal quotation marks omitted.) State v. Apt, 319 Conn. 494, 526,
126 A.3d 511 (2015).
19
For examples of the application of the doctrine of laches in the context
of elections law cases during the COVID-19 pandemic, see Curtin v. Board
of Elections, supra, 463 F. Supp. 3d 659 (‘‘The limited record here supports
the conclusion that [the] [p]laintiffs had an incentive to file suit as soon as
these injuries became apparent in order to rectify the perceived wrong prior
to the actual commencement of the absentee ballot period. The disputed
COVID-19 [g]uidance was issued to local registrars on March 16, 2020, and
to the public on March 17, 2020, and the absentee ballot period began May
8 or 9, 2020, yet, [the] [p]laintiffs did not file suit until May 13, 2020. Ulti-
mately, the [c]ourt finds that [the] [p]laintiffs failed to demonstrate the
requisite diligence.’’); Paher v. Cegavske, supra, 2020 WL 2748301, *5 (finding
timing of request for preliminary injunctive relief unreasonable when
brought twenty-six days before primary and after ‘‘[mail in] ballots [had]
been sent to Nevada voters and a substantial number of eligible voters . . .
[had] already sent in their [mail in] ballots,’’ and ‘‘[t]he state [had] also made
significant monetary investments and efforts to implement the [primary
plan] and on media and marketing campaigns to inform Nevada voters of
how to exercise their right to vote via mail’’).
20
Largely reflecting the rapid speed at which this case was filed and
decided in the trial court, we note that the defendant did not file an answer
that properly raised laches as a special defense subject to reply by the
plaintiffs. See, e.g., Practice Book §§ 10-50 and 10-56; Doe v. Hartford Roman
Catholic Diocesan Corp., 317 Conn. 357, 397–98, 119 A.3d 462 (2015).
21
As was discussed at oral argument before this court, the actual enforce-
ment of any declaratory judgment that could have been rendered in the
plaintiffs’ favor with respect to the August primary would have raised signifi-
cant practical issues for consideration by a trial court in the first instance.
Consideration of these issues presumably would implicate the factors identi-
fied by the United States Supreme Court in Purcell v. Gonzalez, 549 U.S.
1, 127 S. Ct. 5, 166 L. Ed. 2d 1 (2006), which held that a court considering
injunctive relief in an election law matter is ‘‘required to weigh, in addition
to the harms attendant upon issuance or nonissuance of an injunction,
considerations specific to election cases and its own institutional proce-
dures. Court orders affecting elections, especially conflicting orders, can
themselves result in voter confusion and consequent incentive to remain
away from the polls. As an election draws closer, that risk will increase.’’
(Emphasis added.) Id., 4–5; see Veasey v. Perry, 769 F.3d 890, 895 (5th Cir.
2014) (reconciling stay decisions of United States Supreme Court under
Purcell and observing that ‘‘the common thread is clearly that the decision
[being stayed] would change the rules of the election too soon before the
election date’’).
The Purcell principle remains applicable in the context of COVID-19. See,
e.g., Republican National Committee v. Democratic National Committee,
U.S. , 140 S. Ct. 1205, 1206–1208, 206 L. Ed. 2d 452 (2020) (staying
District Court order that would have required Wisconsin to count absentee
ballots postmarked after its primary election day on April 7, so long as they
were actually received by municipal clerks by extended deadline of April
13, because that order ‘‘fundamentally alters the nature of the election,’’
given need for potentially unworkable subsequent orders enjoining ‘‘the
public release of any election results for six days after election day’’ because
‘‘information . . . released during that time . . . would gravely affect the
integrity of the election process’’ and result in ‘‘judicially created confusion’’);
Paher v. Cegavske, supra, 2020 WL 2748301, *5–6 (denying request for injunc-
tive relief in federal constitutional challenge brought twenty-six days before
primary to decision of two Nevada counties to make mail in ballots more
accessible to registered voters in light of COVID-19 pandemic because ‘‘the
election [was] days away and Nevadans [were] already exercising their right
to vote’’ via early voting, and grant of injunctive relief would ‘‘completely
upend the June [p]rimary’’).
22
We note that, in their reply brief, the plaintiffs raise an additional claim
that the ‘‘constitutional provision for absentee voting . . . applies [only] to
an ‘election,’ not a primary.’’ They argue that the language of article sixth,
§ 7—referring to ‘‘ ‘voting in the choice of any officer to be elected’—makes
the same distinction between an election and a primary that the defendant
already successfully argued to this court’’ in connection with its subject
matter jurisdiction under the election contest statutes, namely, that an
‘‘[e]lection,’’ as defined by General Statutes § 9-1 (d), is an election for
officers, as compared to a ‘‘primary,’’ the plain meaning of which is restricted
to a preliminary election to choose candidates. See Fay v. Merrill, supra,
336 Conn. (‘‘the plain and unambiguous language of the election contest
statutes, § 9-329a, which required the plaintiffs to initiate this action in the
Superior Court, governs challenges in the primary context, and this court
lacks jurisdiction under § 9-323, which applies only to general elections for
federal officials’’). We decline to reach the merits of this claim, as it is a
new claim raised for the first time in a reply brief. See, e.g., Haughwout v.
Tordenti, 332 Conn. 559, 567 n.12, 211 A.3d 1 (2019).
23
The defendant further contends that Executive Order No. 7QQ was
legislatively authorized by the governor’s broad emergency power under
§ 28-9 (b) (1) to ‘‘modify . . . any statute . . . .’’ See footnote 6 of this
opinion. In response, the plaintiffs argue that § 28-9 (b) cannot be read
to allow that modification because the first clause of the absentee ballot
amendment textually commits control over absentee balloting to the legisla-
ture. Given the ratification of Executive Order No. 7QQ by § 16 of Spec.
Sess. P.A. 20-3, we need not consider whether § 28-9 (b), which expressly
shares legislative power with the executive branch on a temporary emer-
gency basis, rendered the executive order constitutional.
24
The plaintiffs argue in their reply brief that a live controversy remains
as to the constitutionality of Executive Order No. 7QQ after its ratification
by the legislature, but they do not respond to the defendant’s specific argu-
ment that the ratification cured any defect in the governor’s specific authority
to address the topic of absentee voting. The plaintiffs do, however, ask us
to apply the doctrine of vacatur to the trial court’s decision should we deem
the separation of powers challenge moot. Outside of a single citation to
State v. Singleton, 274 Conn. 426, 876 A.2d 1 (2005), the plaintiffs do not
explain why they are entitled to the ‘‘extraordinary remedy’’ of vacatur. In
re Emma F., 315 Conn. 414, 431, 107 A.3d 947 (2015). Accordingly, we deem
this request inadequately briefed and decline to consider it further. See,
e.g., State v. McCleese, 333 Conn. 378, 424, 215 A.3d 1154 (2019).
25
In ruling from the bench after oral argument, we initially affirmed the
judgment of the trial court in its entirety. Given the jurisdictional implications
of our conclusion that the plaintiffs’ separation of powers claim is moot,
the rescript of this opinion has been corrected to indicate that the appeal
is dismissed with respect to that claim. See, e.g., State v. Campbell, 328
Conn. 444, 463–66, 180 A.3d 882 (2018) (dismissing penalty phase challenge
in death penalty appeal as rendered moot by abolition of death penalty and
unripe by virtue of fact that defendant had not yet been resentenced).
26
To this end, the plaintiffs observe that there have been numerous failed
attempts to amend the state constitution to expand the use of absentee
ballots, including the electorate’s rejection in 2014 by a 40,000 vote margin of
an amendment that would have ‘‘remove[d] restrictions concerning absentee
ballots and . . . permit[ted] a person to vote without appearing at a polling
place on the day of an election’’; K. Sullivan; Office of Legislative Research,
Ballot Question and Explanatory Text for Proposed Constitutional Amend-
ment, August 19, 2014, p. 1; and the 2019 failure in the legislature of an
attempt to put no excuse absentee voting on the ballot as a constitutional
amendment. See Substitute House Joint Resolution No. 161 (2019).
27
As was discussed at oral argument before this court, using the example
of a Hartford area voter attending a pool party on the shoreline for a full
day on election day, a voter may create his or her inability to appear at the
polling place that day merely by absenting him or herself from town.
28
We note that the plaintiffs rely on the defendant’s March 2, 2012 testi-
mony before the Government Administration and Elections Committee in
support of a constitutional amendment that would have amended article
sixth, § 7, ‘‘to remove the current barriers . . . that allow voting by absentee
ballot for only specified reasons,’’ which would then enable the ‘‘General
Assembly . . . to consider other ways to cast a ballot without appearing
in person at [the] poll on election day.’’ Conn. Joint Standing Committee
Hearings, Government Administration and Elections Committee, Pt. 1, 2012
Sess., pp. 213–14, testimony of Secretary of the State Denise W. Merrill.
This amendment would have allowed the legislature to study and implement
modern measures such as ‘‘voting by mail, early voting, regional voting or
what we call [no excuse] absentee balloting, where [a voter] wouldn’t . . .
need a specific reason to use an absentee ballot . . . .’’ Id., p. 214. The
defendant suggested that a constitutional amendment was necessary, citing
as an example the blizzard in October, 2011, when residents who were
located in their towns but unable to get to their polling places because of
blocked roadways could not vote by absentee ballot because, ‘‘under our
current [absentee ballot] laws, these kinds of emergencies don’t qualify as
one of the reasons in our statutes or [state] constitution for someone to
vote absentee.’’ Id., p. 216. The defendant then went on to state: ‘‘In fact, a
spouse who is a caregiver to the husband or wife who doesn’t want to leave
the ailing spouse’s bedside is not even allowed to vote by absentee ballot,
because you have to be disabled yourself in order to get an absentee ballot.
These are the kinds of restrictions that I think need to change. The only way
to do it is to remove this language from the [state] constitution . . . .’’ Id.
We agree with the plaintiffs that the interpretation of an elections law
provision by the secretary of the state, who is the state’s chief elections
official, may be a persuasive indication of the provision’s meaning, albeit
one not binding on us. See, e.g., Republican Party of Connecticut v. Merrill,
307 Conn. 470, 488–89 n.21, 55 A.3d 251 (2012); accord State v. Santiago,
318 Conn. 1, 71, 122 A.3d 1 (2015) (‘‘it is noteworthy that [the] [c]hief [s]tate’s
[a]ttorney . . . who heads the Division of Criminal Justice and represents
the state in this matter, has himself publicly taken the position that, following
a prospective repeal, any efforts to execute those already on death row
would be unlikely to pass constitutional muster’’). At oral argument before
this court, however, counsel for the defendant contended that we should
not consider her 2012 testimony in interpreting article sixth, § 7, because
it (1) did not address the context of a public health emergency like COVID-
19, and (2) was vague with respect to whether she had referred to the
constitution or the statutes as imposing the applicable limitations. We agree
with the defendant and do not consider her 2012 testimony before the
legislature to be a persuasive interpretation of article sixth, § 7, as applied
in the context of a pandemic.
29
The portion of article sixth, § 7, providing ‘‘or because the tenets of
their religion forbid secular activity’’ was added in 1964 by article XII of
the amendments to the 1955 constitution. See W. Horton, supra, p. 160. We
note that there was no recorded debate with respect to that provision. See id.
30
One member of the public speaking in support of the amendment stated:
‘‘I would like to illustrate an instance in my own family—my father is
[seventy-eight] years old and he has always voted, and [has] taken a great
deal of interest in voting the Republican ticket. On account of illness he
has to go to Florida or California, or some other warm climate. In order to
have the privilege of voting he has in the past had to go to a [s]ummer camp
in Maine and register there. For the last [ten] or [twelve] years he has
voted there.
‘‘I also have an [u]ncle who is [t]reasurer of the [t]own of Wethersfield
and a short time ago he was seriously ill, and has since died. During the
past election he was made seriously ill from the fact that he could not vote.
The doctor would not allow him to go to town to vote.’’ Conn. Joint Standing
Committee Hearings, Constitutional Amendments, 1929 Sess., p. 3.
31
The plaintiffs, relying on a decision by the State Elections Enforcement
Commission, disagree with the Superior Court’s application of a liberal
construction of § 9-135 in Parker. See In re DeCilio, State Elections Enforce-
ment Commission, File No. 2017-057 (March 23, 2018). In In re DeCilio, the
elections agency determined that absentee balloting under § 9-135 consti-
tutes an exception to the ‘‘default rule . . . in Connecticut’’ of in person
voting, cited this court’s decision in Commission on Human Rights &
Opportunities v. Sullivan, 285 Conn. 208, 222, 939 A.2d 541 (2008), for the
general proposition that statutory exceptions are strictly construed, and
then strictly construed § 9-135 in concluding that an ‘‘unofficial’’ or ‘‘party
checker’’ is not an ‘‘elections official’’ entitled to cast an absentee ballot
under § 9-135. We reject the approach of the elections commission in In re
DeCilio because it is inconsistent with decisions of both this court and the
majority of our sister states, which construe absentee balloting statutes
liberally in furtherance of the right to vote; these cases hold only that
‘‘substantial,’’ rather than ‘‘strict,’’ compliance is necessary with the statutory
provisions governing absentee balloting in order to protect the sanctity of
the vote by preventing fraud. See, e.g., Erickson v. Blair, 670 P.2d 749, 754
(Colo. 1983); Wrinn v. Dunleavy, supra, 186 Conn. 141–42; Dombkowski v.
Messier, 164 Conn. 204, 209, 319 A.2d 373 (1972); Boardman v. Esteva, 323
So. 2d 259, 264 (Fla. 1975); Adkins v. Huckabay, 755 So. 2d 206, 218 (La.
2000); McCavitt v. Registrars of Voters, 385 Mass. 833, 844, 434 N.E.2d 620(1982); Shambach v. Bickhart, 577 Pa. 384, 392, 845 A.2d 793 (2004); see
also M. Dransfield, Annot., ‘‘Construction and Effect of Absentee Voters’
Laws,’’ 97 A.L.R.2d 257, 266–67, § 5 (1964) (discussing national split in
authority).
These cases, however, are of limited persuasive value insofar as they
consider the effect of a voter’s failure to comply strictly with the technical
requirements of absentee balloting, as opposed to the different and more
fundamental question of whether a voter should be permitted to vote absen-
tee in the first place. Our independent research has identified one case
extending this principle of liberal construction to the interpretation of a
state constitution’s absentee ballot clause, which we find persuasive given
the purpose of article sixth, § 7, namely, to make the fundamental right to
vote more accessible to qualified voters. See In re Lawrence, 353 Mo. 1028,
1034, 185 S.W.2d 818 (1945) (applying liberal construction ‘‘in aid of the
right of suffrage’’ in concluding that state constitution’s absentee ballot
clause did not require ‘‘mere physical presence within the state on the day
of election as a condition of eligibility to vote a civilian absentee ballot’’
(internal quotation marks omitted)); cf. State ex rel. School District of the
City of Jefferson, Cole County v. Holman, 349 S.W.2d 945, 947 (Mo. 1961)
(applying liberal construction to statute in resolving question of ‘‘at what
elections may a voter who comes within the provisions of the absentee
voting laws cast an absentee ballot’’ and distinguishing that issue from
strict construction historically applied to voters’ obligations under absentee
ballot laws).
32
Numerous cases challenging a variety of state restrictions in the context
of COVID-19 illustrate the proposition that, once a state provides for absentee
voting, it may not impose irrational or undue burdens on the exercise of
that right. These decisions invalidated restrictions such as witnessing
requirements, signature matching, and voter paid postage as undue burdens
on the exercise of the right to vote via absentee ballot as not justified by
their minimal levels of effectiveness in advancing the state’s interest in
preventing election fraud. See People First of Alabama v. Merrill, 467 F.
Supp. 3d 1179, 1211–19 (N.D. Ala. 2020), appeal dismissed, United States
Court of Appeals, Docket No. 20-12184-GG (11th Cir. July 17, 2020); Thomas
v. Andino, Docket Nos. 3:20-cv-01552-JMC and 3:20-cv-01730-JMC, 2020 WL
2617329, *21 (D.S.C. May 25, 2020); League of Women Voters of Virginia v.
Virginia State Board of Elections, 458 F. Supp. 3d 442, 452–54 (W.D. Va.
2020); Lewis v. Hughs, 475 F. Supp. 3d 597, 615–16 (W.D. Tex. 2020), aff’d,
Docket No. 20-50654, 2020 WL 5511881 (5th Cir. September 4, 2020), order
withdrawn, Docket No. 20-50654, 2020 WL 6066178 (5th Cir. October 2,
2020). But see Democracy North Carolina v. North Carolina State Board
of Elections, 476 F. Supp. 3d 158, 207–208 (M.D.N.C. 2020) (concluding, inter
alia, that single witness requirement and voter identification requirement
for absentee ballots were not undue burden on right to vote during COVID-19
pandemic, given factual findings that those activities could be accomplished
safely while maintaining social distancing and using other precautions such
as masks, particularly given state’s interest in maintaining election integrity,
as highlighted by recent high profile instance of absentee ballot fraud).
33
The defendant suggests that this paucity of sister state case law is
largely the result of the vast majority—thirty-four states and the District of
Columbia—offering no excuse absentee or all mail voting before the pan-
demic, with fourteen more—Alabama, Arkansas, Connecticut, Delaware,
Indiana, Kentucky, Louisiana, Massachusetts, Missouri, New Hampshire,
New York, South Carolina, Tennessee, and West Virginia—expanding the
right in some fashion because of the pandemic. See E. Kamarck et al.,
Brookings Institute, Voting by Mail in a Pandemic: A State-by-State Scorecard
(last modified November, 2020), available at https://www.brookings.edu/
research/voting-by-mail-in-a-pandemic-a-state-by-state-scorecard/ (last vis-
ited February 9, 2021); National Conference of State Legislatures, [Voting
Outside the Polling Place]: Table 1: States with No-Excuse Absentee Voting
(May 1, 2020), available at https://www.ncsl.org/research/elections-and-cam-
paigns/vopp-table-1-states-with-no-excuse-absentee-voting.aspx (last visited
February 9, 2021).
34
We note that the discussion of sickness in Rocci v. Massachusetts Acci-
dent Co., supra, 226 Mass. 545, on which the plaintiffs also rely, is inapposite.
In that case, there was no question that the policyholder himself was sick
with a respiratory illness. See id., 549–50. The question before the court
concerned whether he had been ‘‘necessarily and continuously confined
within the house’’ for purposes of benefits under his sickness indemnity
policy when he had been removed from his own house to other dwellings
during the benefit period. (Internal quotation marks omitted.) Id., 552; see
id., 552–53.
35
In so concluding, the Texas court determined that allowing the phrase
‘‘physical condition’’ to mean ‘‘physical state of being’’ would ‘‘swallow the
other categories of voters eligible for [mail in] voting. A voter’s location
during an election period is certainly a physical state of being. So are age,
incarceration, sickness, and childbirth, even participation in a program. To
give ‘physical condition’ so broad a meaning would render the other [mail
in] voting categories surplusage. Further, such an interpretation would
encompass the various physical states of the entire electorate. Being too
tired to drive to a polling place would be a physical condition. The phrase
cannot be interpreted so broadly consistent with the [l]egislature’s historical
and textual intent to limit [mail in] voting.’’ In re State, supra, 602 S.W.3d 559.
36
Under the Anderson-Burdick framework, it is understood that ‘‘[e]lec-
tion laws will invariably impose some burden upon individual voters. Each
provision of a code, whether it governs the registration and qualifications
of voters, the selection and eligibility of candidates, or the voting process
itself, inevitably affects—at least to some degree—the individual’s right to
vote and his right to associate with others for political ends. . . . Conse-
quently, to subject every voting regulation to strict scrutiny and to require
that the regulation be narrowly tailored to advance a compelling state inter-
est, as [the] petitioner suggests, would tie the hands of [s]tates seeking to
[en]sure that elections are operated equitably and efficiently. . . . Accord-
ingly, the mere fact that a [s]tate’s system creates barriers . . . tending to
limit the field of candidates from which voters might choose . . . does not
of itself compel close scrutiny. . . .
‘‘Instead . . . a more flexible standard applies. A court considering a
challenge to a state election law must weigh the character and magnitude
of the asserted injury to the rights protected by the [f]irst and [f]ourteenth
[a]mendments that the plaintiff seeks to vindicate against the precise inter-
ests put forward by the [s]tate as justifications for the burden imposed by
its rule, taking into consideration the extent to which those interests make
it necessary to burden the plaintiff’s rights. . . .
‘‘Under this standard, the rigorousness of our inquiry into the propriety
of a state election law depends upon the extent to which a challenged
regulation burdens [f]irst and [f]ourteenth [a]mendment rights. Thus, as we
have recognized when those rights are subjected to severe restrictions, the
regulation must be narrowly drawn to advance a state interest of compelling
importance. . . . But when a state election law provision imposes only
reasonable, nondiscriminatory restrictions upon the [f]irst and [f]ourteenth
[a]mendment rights of voters, the [s]tate’s important regulatory interests are
generally sufficient to justify the restrictions.’’ (Citations omitted; internal
quotation marks omitted.) Burdick v. Takushi, 504 U.S. 428, 433–34, 112 S.
Ct. 2059, 119 L. Ed. 2d 245 (1992); see Anderson v. Celebrezze, 460 U.S. 780,
788–89, 103 S. Ct. 1564, 75 L.Ed.2d 547 (1983).
37
Given that it decided Fisher on the eve of Tennessee’s own August
primary, the Tennessee Supreme Court ‘‘recogniz[ed] that absentee ballots
already have been cast for the August 6, 2020 election consistent with
the trial court’s temporary injunction, and mindful of the goal of avoiding
alterations to election rules on the eve of an election . . . the absentee
ballots of all Tennessee registered voters who timely requested and submit-
ted an absentee ballot by mail for the August 6, 2020 election pursuant to
the trial court’s temporary injunction and which absentee ballots otherwise
meet the requirements of the absentee voting statutes shall be duly counted.’’
Fisher v. Hargett, supra, 604 S.W.3d 385.