Cohen v. Rossi ( 2023 )

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BARRY LEE COHEN v. NANCY ROSSI ET AL.
(SC 20737)
Robinson, C. J., and McDonald, D’Auria,
Ecker, Alexander and Keller, Js.
Syllabus
The plaintiff, the Republican mayoral candidate for the city of West Haven
in the November, 2021 election, sought a writ of mandamus compelling
the defendants, including H, the West Haven city clerk, and certain other
West Haven election officials, to set aside the mayoral election results.
The plaintiff appeared to have lost the election by a slim margin, but
the closeness of the election triggered an automatic recanvass, and
the certified election results following the recanvass showed that the
plaintiff had lost by thirty-two votes. The plaintiff claimed, inter alia,
that the election officials had failed to adequately comply with various
statutes governing the absentee ballot process, including the provision
(§ 9-140c (a)) requiring, inter alia, the municipal clerk to endorse over
his or her signature, on each outer ballot envelope as the clerk receives
it, the date and time it is received, the provision (§ 9-140c (j)) requiring
the municipal clerk and the registrars of voters, each time the clerk
delivers absentee ballots to the registrars for counting, to execute affida-
vits of delivery and receipt stating the number of ballots delivered, and
the provision (§ 9-140b (a)) governing the manner in which voters or
certain designated persons must return absentee ballots to the municipal
clerk. The evidence established that the West Haven City Clerk’s Office
received 720 absentee ballot envelopes either by United States mail, in-
person delivery, or through a voter’s or designee’s depositing the ballot
in one of three secure drop boxes that are located throughout West
Haven. Typically, upon receipt by the City Clerk’s Office, the absentee
ballots, sealed in inner and outer envelopes, were time-stamped,
endorsed by H using a stamp with a facsimile of her signature, and
logged into the electronic state database, from which an absentee ballot
report was produced. H testified that she personally retrieved the absen-
tee ballot envelopes from the drop boxes about, or at least, one half of
the time, and that an employee of the City Clerk’s Office retrieved them
the other one half of the time. Of the 720 absentee ballot envelopes,
711 were counted while 9 were rejected and not counted. Of the 711
counted absentee ballot envelopes, there were 8 outer envelopes for
which there was no entry in the election day absentee ballot report.
Additionally, 14 of the 711 ballots were received on election day but
were not immediately time-stamped and endorsed by H, who testified
that she was not present in the City Clerk’s Office on election day. The
14 ‘‘same day’’ ballots had been received by the City Clerk’s Office before
3 p.m. on election day, but they were held until the count was complete
so that they initially could be divided into districts and checked against
the official books for each district. When it was discovered that the
same day ballots did not contain H’s endorsement, and it was confirmed
that they had been timely received, the Office of the Secretary of the
State advised the election officials to have the assistant city clerk, R,
endorse the ballots by hand and to count them, which R did. In addition,
there was testimony that no affidavits of delivery and receipt had been
executed in connection with the absentee ballots. Following trial, the
plaintiff raised the additional claim that H had violated § 9-140b (c) (2),
which provides in relevant part that ‘‘the municipal clerk shall retrieve
[the absentee ballot envelopes] from the secure drop box,’’ insofar as
H failed to personally retrieve at least 200 absentee ballots from the
drop boxes. In arriving at that figure, the plaintiff relied on evidence
that, of the 711 counted outer envelopes, 273 were postmarked and 25
were returned in-person, and inferred that 413 absentee ballots were
returned through the drop boxes. On the basis of that inference and
H’s testimony that she had retrieved the ballots about one half of the
time, the plaintiff argued that it was fair to conclude that at least 200
absentee ballots were retrieved by someone other than H. The trial court
ultimately concluded that substantial violations of the election statutes
had occurred and that 9 absentee ballots had been improperly counted
or unaccounted for. In so concluding, the court disagreed with the
plaintiff’s claim that certain absentee ballots were returned by improp-
erly designated persons, in violation of § 9-140b (a), but agreed that the
failure of H and the registrars of voters to execute affidavits of delivery
and receipt constituted a clear violation of § 9-140c (j), which was
enacted to prevent fraud in the absentee ballot process by establishing
chain of custody procedures. The trial court nevertheless determined
that the reliability of the election results was not seriously in doubt
because, even if the court assumed that the 9 improperly counted or
unaccounted for absentee ballots favored the plaintiff, he still would
have lost by 23 votes. Accordingly, the court denied the plaintiff’s
requested relief and rendered judgment for the defendants. Thereafter,
the trial court certified certain questions of law to this court for review
pursuant to statute (§ 9-325). Held:
1. The plaintiff could not prevail on his claim that the plain language of § 9-
140b (c) (2) required the municipal clerk to personally retrieve the
absentee ballots from the secure drop boxes:
With respect to the plaintiff’s claim that H’s testimony established that
she violated § 9-140b (c) (2) by using designees to retrieve at least 200
ballots from the drop boxes, the plaintiff failed to refer to evidence in
the record establishing exactly how many ballots were retrieved by
someone other than H, the plaintiff’s counsel did not ask H or any other
witness how many ballots were retrieved by someone other than H, the
trial court made no factual findings in that regard, H’s testimony that
her employees would retrieve the ballots from the drop boxes one half
of the time did not reveal the number of ballots someone else retrieved,
insofar as different drop boxes might have contained vastly different
numbers of ballots, and this court declined to overturn the election results
on the basis of the plaintiff’s unsupported inferences and simplistic logic.
With respect to whether § 9-140b (c) (2) required the municipal clerk to
personally retrieve the absentee ballots from the secure drop boxes,
although the plain language of the statute appeared to require the munici-
pal clerk to personally retrieve the ballots, when § 9-140b was viewed
in relationship to related statutes and the entire statutory scheme govern-
ing the absentee ballot process, which indicated the legislature’s contem-
plation that the municipal clerk has the authority to and would delegate
tasks to his or her designees, this court concluded that § 9-140b (c) (2)
merely requires the municipal clerk, or his or her designee, to retrieve
the absentee ballots from the secure drop boxes.
Moreover, even if it was appropriate to look to the legislative history of
§ 9-140b to ascertain the statute’s meaning, this court rejected the plain-
tiff’s argument that a 2021 amendment (Spec. Sess. P.A. 21-2, § 102) to
§ 9-140b (c) (2) indicated a legislative intent to permit only the municipal
clerk to retrieve absentee ballots from the drop boxes insofar as that
amendment omitted a requirement from § 9-140b (c) (2) that a police
officer escort the municipal clerk or the municipal clerk’s ‘‘designee’’
when retrieving absentee ballots from drop boxes located outside of the
building in which the clerk’s office is located, as that argument failed
to reconcile § 9-140b (c) (2) with the broader statutory scheme pertaining
to the absentee ballot process, which plainly contemplates that the
municipal clerk will delegate tasks to his or her designees and is author-
ized to do so.
Furthermore, a contrary interpretation would lead to the implausible
result that the municipal clerk would be required to carry out nearly the
entire absentee ballot process without assistance from anyone in his or
her office and to complete the virtually impossible task of personally
ensuring that all ballots are received before the close of the polls, even
when there are multiple drop boxes located throughout the municipality.
Accordingly, in the absence of express statutory language requiring the
municipal clerk to personally retrieve the ballots from the secure drop
boxes, this court declined to interpret the legislature’s 2021 deletion of
language in § 9-140b (c) (2) to mean that only the clerk may carry out
the statute’s directive, and, in the present case, H delegated the responsi-
bility of retrieving the absentee ballots to her subordinates about one
half of the time, there was no allegation that someone outside of the
City Clerk’s Office retrieved the ballots, and, accordingly, the defendants
complied with the statute.
2. The plaintiff could not prevail on his claims that the fourteen ‘‘same day’’
absentee ballots were improperly counted because the election officials
did not substantially comply with § 9-140c (a), which requires the munici-
pal clerk’s endorsement, and because those ballots were treated differ-
ently from other, similarly situated absentee ballots:
a. The trial court correctly determined that, although there was not strict
compliance with the mandates of § 9-140c (a), insofar as H failed to
endorse the fourteen same day absentee ballots when they were received,
there was nevertheless substantial compliance with the statute:
Although the provisions of § 9-140c (a) regarding a municipal clerk’s
endorsement of the absentee ballot envelope when it is received, which
were designed to mitigate the risk of fraud in the absentee voting process,
are mandatory, this court previously had determined that only substan-
tial, rather than strict, compliance with the requirements of § 9-140c (a)
is necessary and that the issue of whether an anomalous endorsement
constitutes substantial compliance with § 9-140c (a) must be determined
by reference to the purpose of the statutory requirement, the role played
by the requirement viewed in the context of the statutory scheme, the
degree of adherence to strict compliance shown, and the basic policy
against dis–franchisement of voters who are not at fault for any lack of
strict compliance by elections officials.
In the present case, it was undisputed that the election officials failed
to strictly comply with § 9-140c (a), insofar as H did not endorse the
fourteen same day absentee ballots when they were received using the
stamp with her signature that she customarily used, but H was not
present in the City Clerk’s Office on election day and could not have
personally endorsed the outer envelopes of the ballots.
Moreover, in the absence of the municipal clerk or the clerk’s ability to
carry out his or her duties, assistant town clerks, pursuant to statute
(§ 7-19), have all the powers and may perform all the duties of the
municipal clerk, the assistant city clerk and the highest ranking election
official present, namely, R, thus was permitted to endorse the fourteen
ballots received on election day, and, in view of the fact that R’s initials
were written in her own handwriting, it would have been difficult, in the
absence of forgery, for an individual to somehow include an unauthorized
absentee ballot.
Furthermore, the slight delay between the receipt and R’s endorsement
of the ballots was attributable to the time it took to obtain guidance
from the Office of the Secretary of the State, the plaintiff did not allege
that anyone tampered with the ballots, the possibility of fraudulent activ-
ity seemed particularly fanciful in light of evidence from the absentee
ballot report, which showed that the fourteen same day ballots were
from eligible voters and were properly delivered on election day prior
to the close of the polls, and R’s testimony, which indicated that the
handwritten initials on each ballot were her initials and that she person-
ally wrote them on each outer envelope, and the strong public policy
against disenfranchising voters who are not at fault for problems with
their ballots, also strongly militated against rejecting the fourteen same
day ballots.
b. The plaintiff’s claim that the trial court’s inclusion of the fourteen
same day absentee ballots created disparate treatment among other,
similarly situated absentee ballots was unavailing:
Notwithstanding the plaintiff’s reliance on the testimony of an absentee
ballot counter that, during the initial count, she rejected an unspecified
number of absentee ballots that lacked H’s endorsement, and the testi-
mony of the head absentee ballot moderator that nine absentee ballots
received on election day ‘‘could have been rejected’’ due to the lack of
an endorsement by H, this court could not determine, on the basis of
the record before it, why each of the foregoing ballots was rejected or
could have been rejected, the plaintiff failed to establish that the fourteen
same day ballots were similarly situated to the ballots referenced by
those individuals, and this court declined to overturn the election without
evidence establishing the circumstances surrounding the rejected ballots.
3. The trial court correctly concluded that the failure by H and the registrars
of voters to execute affidavits of delivery and receipt, as required by
§ 9-140c (j), was insufficient to establish that the reliability of the election
results was seriously in doubt:
Although H and the registrars of voters failed to comply with § 9-140c
(j) by not executing affidavits of delivery and receipt each time absentee
ballots were transferred to the Office of the Registrar of Voters, that
failure was overcome by the sworn testimony of the various election
officials who failed to complete the affidavits, which the trial court
credited and which established the chain of custody for the ballots,
including H’s testimony that the City Clerk’s Office and the registrars of
voters transferred all of absentee ballots that the City Clerk’s Office
received to the Office of the Registrar of Voters every day at the close
of business and the testimony of multiple election officials regarding the
various steps they had taken to maintain the chain of custody.
Moreover, the evidence established that there was no mistake in the
vote count and that the chain of custody was properly maintained, as
election officials credibly testified that the City Clerk’s Office and the
Office of the Registrar of Voters reviewed the absentee ballot reports
against the ballots themselves and that the number of absentee ballots
matched the reports each time, and the plaintiff failed to adduce evidence
demonstrating that the chain of custody had been broken.
Nevertheless, the court emphasized that the purpose of the affidavit of
delivery and receipt required by § 9-140c (j) is to prevent fraud in the
absentee ballot process by establishing the chain of custody of the ballots,
that the affidavits of delivery and receipt are statutorily mandated by
the legislature, and that statutory compliance is necessary, not only to
maintain strong and unwavering public confidence in elections, but also
to facilitate the timely, efficient, and proper resolution of election dis-
putes that end up in court.
4. The trial court correctly concluded that the plaintiff failed to satisfy his
burden of proving that certain absentee ballots had been returned by
persons who were not authorized to do so by § 9-140b (a) and, therefore,
did not substantially comply with the requirements of that statutory pro-
vision:
In the case of each of the challenged absentee ballots, the plaintiff did
not establish the relationships between the absentee voter and the person
who delivered the ballot or the circumstances surrounding the return
of the challenged ballot by requesting the absentee ballot application
for each voter, subpoenaing to testify the voter or the individual who
delivered the voter’s ballot, or questioning anyone from the City Clerk’s
Office regarding the process of accepting an absentee ballot from a
designee or an immediate family member, and there was no evidence
to suggest that the City Clerk’s Office failed to perform its duties under
§ 9-140b (a) of having a designee or family member sign his or her name
in the clerk’s presence or of checking the identification of the designee
or family member.
Moreover, the plaintiff’s exclusive reliance on the outer envelopes of
the challenged ballots could not serve to establish that the persons who
returned the ballots were not qualified designees under § 9-140b (a)
because there was no information, for example, regarding whether any
of the voters were ill or physically disabled and, therefore, allowed to
designate someone to return his or her ballot pursuant to § 9-140b (a)
(1) or (3), or whether certain designees were ‘‘immediate family’’ mem-
bers, as that term is defined by the statute.
5. The plaintiff could not prevail on his claim that the trial court incorrectly
had concluded that eight absentee ballot envelopes for which there was
no entry logged in the absentee ballot report were returned to the City
Clerk’s Office in substantial compliance with § 9-140b (a):
Although the evidence demonstrated that there was a discrepancy insofar
as eight of the counted absentee ballot envelopes were not included in
the absentee ballot report, the plaintiff failed to present any evidence,
and did not contend on appeal, that the outer envelopes corresponding
to these ballots lacked H’s endorsement under § 9-140c (a), the record
of the eight ballots that were returned to the City Clerk’s Office was H’s
endorsement on each outer envelope, and, in the absence of evidence
that the ballots did not otherwise comply with the requirements of §§ 9-
140b and 9-140c (a), this court could not conclude that the counting of
these ballots constituted a mistake of an election official and declined
to disenfranchise those voters because of a discrepancy in the absentee
ballot report.
Nevertheless, the court emphasized that election officials must strive to
comply with all statutory requirements pertaining to the absentee ballot
process, including the requirement in § 9-140c (a) that the municipal
clerk maintain a list of the names of applicants who return absentee
ballots, as a failure to comply with the statutory mandates increases
the risk of fraud in the absentee voting process and the risk that the
municipality could face litigation, along with burdens of establishing the
integrity of the electoral process and of demonstrating that the reliability
of the election results is not seriously in doubt.
6. This court declined to review the plaintiff’s claim that the trial court
incorrectly had concluded that the reliability of the election results was
not in serious doubt and that there was no mistake in the vote count
on the basis of certain additional evidence in the record, as that claim
was inadequately briefed:
The plaintiff provided no legal analysis or support with respect to the
additional evidence that purportedly supported his claim, his cursory
assertions regarding the various alleged discrepancies left this court
unable to ascertain exactly what alleged error the plaintiff was claiming
with respect to the additional evidence, he raised at least four separate
instances of claimed irregularities in less than two pages of briefing, and
the trial court did not even address some of the additional evidence on
which the plaintiff’s appellate claim was based.
(Three justices concurring in part in two separate opinions)
Argued September 16, 2022—officially released June 20, 2023
Procedural History
Action seeking a writ of mandamus compelling the
defendants, inter alia, to set aside the results of the
2021 election for mayor of the city of West Haven, and
for other relief, brought to the Superior Court in the
judicial district of New Haven and tried to the court,
Wilson, J.; thereafter, the court, Wilson, J., denied the
defendants’ motion to dismiss and rendered judgment
for the defendants; subsequently, the plaintiff filed a
reservation of questions of law with the trial court,
which certified certain questions of law and transferred
the reservation to this court. Affirmed.
Vincent M. Marino, with whom was Barbara M.
Schellenberg, for the appellant (plaintiff).
William M. Bloss, with whom were Karen Baldwin
Kravetz and Edwin J. Maley, Jr., and, on the brief,
Patrick L. Deegan, for the appellees (defendants).
Opinion
McDONALD, J. This appeal concerns a contested
mayoral election in the city of West Haven and requires
us to interpret and apply various statutory provisions
that govern the absentee ballot process. Following an
automatic recanvass, which was triggered by the close-
ness of the election, the plaintiff, the Republican may-
oral candidate, Barry Lee Cohen, brought this action
pursuant to General Statutes § 9-328 against the defen-
dants, the Democratic mayoral candidate, Nancy Rossi,
and certain West Haven election officials,1 challenging
the results of the election. The plaintiff asserted that
the West Haven election officials failed to adequately
comply with various statutory requirements regarding
absentee ballots. The trial court agreed that the election
officials failed to strictly comply with certain statutory
requirements but nevertheless concluded that the plain-
tiff failed to establish that the reliability of the results
of the election was seriously in doubt. Accordingly, the
trial court denied the plaintiff’s requested relief. This
appeal followed. Following oral argument, we issued a
per curiam ruling on October 4, 2022, affirming the
judgment of the trial court. We indicated at that time
that a full opinion would follow. This is that opinion.
The following facts and procedural history are rele-
vant to the appeal. At the close of voting on November
2, 2021, the results established that Rossi appeared to
have won the election by a margin of twenty-nine votes.
Given the closeness of the race, however, an automatic
recanvass occurred. See General Statutes § 9-311a. The
plaintiff attended the recanvass with his attorney and
campaign manager. The certified election results fol-
lowing the recanvass confirmed that Rossi had won the
election. Specifically, the results indicated that Rossi
had received 4275 votes and the plaintiff had received
4243 votes, expanding Rossi’s margin of victory to 32
votes.
On November 15, 2021, the plaintiff brought this
action for a writ of mandamus pursuant to § 9-328,
asserting that the election officials had failed to ade-
quately comply with the requirements regarding absen-
tee ballots set forth in General Statutes §§ 9-12, 9-140,
9-140a, 9-140b, 9-140c, and 9-150a. In his complaint, the
plaintiff alleged that the election officials (1) failed to
seal the outer and inner envelopes of absentee ballots
in a depository envelope with nonreusable tape, as
required by § 9-150a (f), (2) failed to endorse the names,
voting district, and time of count on each absentee
ballot depository envelope, as required by § 9-150a (f),
(3) processed and counted absentee ballots that should
have been rejected, (4) failed to process and count
absentee ballots in substantial compliance with the
requirements outlined in the General Statutes, (5) failed
to properly maintain the chain of custody of the absen-
tee ballots in accordance with statutorily mandated pro-
cedures, (6) failed to properly endorse the depository
envelopes in accordance with statutorily mandated pro-
cedures, (7) failed to properly endorse the absentee
ballots’ outer envelopes, as required by § 9-140c (a), (8)
failed to prepare affidavits reflecting the times that the
ballots changed hands, and (9) admitted votes from
persons who were not qualified to be electors in the
election.
The trial court held a hearing that extended over five
months, during which the parties presented evidence
over the course of six days. Relevant to this appeal, the
evidence established that absentee ballots were received
by the West Haven City Clerk’s Office in one of three
ways: (1) delivery by United States mail, (2) delivery
by an elector or designee depositing them in one of three
secure drop boxes located throughout West Haven, or
(3) in-person delivery. Typically, upon receipt, the absen-
tee ballots, sealed in inner and outer envelopes, would
be time-stamped, endorsed by the city clerk, and logged
into the electronic state database, before being placed
in a city vault. Section 9-140c (a) requires the municipal
clerk to execute ‘‘an affidavit attesting to the accuracy
of all such endorsements . . . .’’ The absentee ballots
would then be delivered to the registrars of voters. See
General Statutes § 9-140c (e). Each time the absentee
ballots are transferred from the municipal clerk’s office
to the office of the registrar of voters, the clerk and
the registrars are required to ‘‘execute an affidavit of
delivery and receipt stating the number of ballots deliv-
ered.’’ General Statutes § 9-140c (j). The city clerk of
West Haven, Patricia C. Horvath, and an absentee ballot
counter both testified, however, that they were not
aware of any absentee ballot affidavits executed in con-
nection with the election.
There was a total of 720 absentee ballots in the city
vault, 9 of which were stored separately as rejected
ballot sets and 711 of which represent counted ballots.
The 9 rejected absentee ballots were not counted. Out
of the 711 counted ballots, there were 8 electors for
whom outer envelopes existed in the vault but who are
not reflected in the November 3, 2021 absentee ballot
report. These 8 ballots were, however, time-stamped,
endorsed and reported to the registrars of voters for
recording. Indeed, all 711 outer envelopes of counted
ballots contained Horvath’s endorsement and time of
receipt. Fourteen absentee ballots that were received
on election day, however, were not immediately time-
stamped and endorsed by Horvath. Hours after these
fourteen ‘‘same day’’ absentee ballots were received on
election day, at the direction of the Office of the Secre-
tary of the State, the outer envelopes of these ballots
were hand initialed, ‘‘[r]ec’d SR [denoting Sharon
Recchia, the assistant city clerk] 3:00 p.m.’’ The outer
envelopes were also stamped, ‘‘NOV—2 2021.’’
After the plaintiff rested his case, the defendants
orally moved to dismiss for failure to make out a prima
facie case pursuant to Practice Book § 15-8. The trial
court issued a memorandum of decision on February
14, 2022, denying the defendants’ motion to dismiss.
Thereafter, the defendants presented evidence, and the
parties submitted posttrial memoranda. In his posttrial
memorandum, the plaintiff raised an additional claim,
namely, that Horvath had violated § 9-140b (c) (2) by
failing to personally retrieve at least 200 absentee bal-
lots from drop boxes, thereby invalidating those bal-
lots.2 Specifically, Horvath testified that, about ‘‘[h]alf
the time,’’ she would retrieve the absentee ballots from
the drop boxes and the other one half of the time it
would be one of her employees.
On June 24, 2022, the trial court issued a memoran-
dum of decision in which it concluded that ‘‘the plaintiff
[had] met his burden of proving by a preponderance
of the evidence that substantial violations of election
statutes occurred. Indeed, the evidence presented show[ed]
a concerning lack of overall compliance with statutory
guidelines by election officials . . . .’’ In addition, the
trial court concluded that six absentee ballots that did
not specify the relationship between the absentee voter
and the person who delivered the ballot were improp-
erly accepted because they were not in substantial com-
pliance with § 9-140b. The trial court also concluded
that an additional absentee ballot was improperly
counted because the individual voter was not a bona
fide resident of West Haven, as defined by § 9-12 (a). The
court also noted that two additional absentee ballots
marked as returned were unaccounted for. Neverthe-
less, the court explained that, ‘‘[e]ven if [it] assumed
that rejecting all seven of these absentee ballots would
favor the plaintiff and that the two missing absentee
ballots favored the plaintiff, he still would have lost the
mayoral election by twenty-three votes. Thus, the court
cannot conclude that the reliability of the [election’s
result] is seriously in doubt.’’ (Emphasis in original.)
Accordingly, the trial court denied the plaintiff’s requested
relief and rendered judgment for the defendants.
Thereafter, the trial court certified questions of law
and a finding of facts to the Chief Justice in accordance
with General Statutes § 9-325,3 and this court requested
that the parties file briefs and scheduled oral argument.
Following oral argument, we issued a per curiam ruling
on October 4, 2022, affirming the judgment of the trial
court. Additional facts will be set forth as necessary.
On appeal, the plaintiff raises numerous claims of
error relating to the absentee ballot process in the elec-
tion. Specifically, he claims that (1) the plain language
of § 9-140b limits the retrieval of absentee ballots from
the secure drop boxes to the municipal clerk, (2) the
trial court erroneously concluded that the fourteen
‘‘same day’’ absentee ballots substantially complied
with § 9-140c (a), in the absence of any statutory compli-
ance by the municipal clerk, (3) the trial court’s inclu-
sion of the fourteen ‘‘same day’’ absentee ballots in the
vote count created disparate treatment among similarly
situated absentee ballots, (4) the trial court erred in
concluding that the affidavit of delivery and receipt
required by § 9-140c (j) is secondary to the municipal
clerk’s endorsement, (5) the trial court erred in conclud-
ing that the absentee ballots belonging to Lenora Tomp-
orowski, Terry Rose Carlington, Eric S. Holland, and
Carmela A. Arminio substantially complied with § 9-
140b (a), (6) the trial court erred in concluding that the
eight absentee ballot outer envelopes found in the city
vault that were missing from the absentee ballot report
were returned to the City Clerk’s Office in substantial
compliance with § 9-140b (a), and (7) the trial court
erred in concluding that the reliability of the results of
the election was not in serious doubt and that there
was no mistake in the vote count. The defendants dis-
agree with each of the plaintiff’s claims and contend that
the trial court properly denied the plaintiff’s requested
relief because the plaintiff failed to satisfy his burden
of proving by a preponderance of the evidence that the
reliability of the results of the mayoral election was
seriously in doubt.4 We agree with the defendants.
Before turning to the plaintiff’s claims, we summarize
the general principles guiding judicial review of those
claims. Section 9-328 provides in relevant part: ‘‘Any
. . . candidate claiming to have been aggrieved by any
ruling of any election official in connection with an
election for any municipal office . . . or any . . . can-
didate claiming that there has been a mistake in the
count of votes cast for any such office at such election
or primary . . . may bring a complaint to any judge of
the Superior Court for relief therefrom. . . . Such
judge shall forthwith order a hearing to be had upon
such complaint, upon a day not more than five nor less
than three days from the making of such order . . . .
Such judge shall, on the day fixed for such hearing and
without unnecessary delay, proceed to hear the parties.
. . . Such judge shall thereupon, if he finds any error
in the rulings of the election official or any mistake in
the count of the votes, certify the result of his finding
or decision to the Secretary of the State . . . .’’
We have explained that ‘‘[§] 9-328 cannot be read
in a vacuum. It must be read against its fundamental
governmental background. That background counsels
strongly that a court should be very cautious before
exercising its power under the statute to vacate the
results of an election and to order a new election.
‘‘First, under our democratic form of government,
an election is the paradigm of the democratic process
designed to ascertain and implement the will of the
people. . . . The purpose of the election statutes is to
ensure the true and most accurate count possible of
the votes for the candidates in the election. . . . In
implementing [the voting] process, moreover, when an
individual ballot is questioned, no voter is to be disfran-
chised on a doubtful construction, and statutes tending
to limit the exercise of the ballot should be liberally
construed in his [or her] favor. . . . We look . . . first
and foremost to the election officials to manage the
election process so that the will of the people is car-
ried out.
‘‘Second, § 9-328 authorizes the one unelected branch
of government, the judiciary, to dismantle the basic
building block of the democratic process, an election.
Thus, [t]he delicacy of judicial intrusion into the elec-
toral process . . . strongly suggests caution in under-
taking such an intrusion. As we have indicated,
therefore, § 9-328 provides for remedies only under nar-
rowly defined circumstances . . . and for limited types
of claims . . . .
‘‘Third, § 9-328 requires a court, in determining whether
to order a new election, to arrive at a sensitive balance
among three powerful interests, all of which are integral
to our notion of democracy, but which in a challenged
election may pull in different directions. One such inter-
est is that each elector who properly cast his or her
vote in the election is entitled to have that vote counted.
Correspondingly, the candidate for whom that vote prop-
erly was cast has a legitimate and powerful interest in
having that vote properly recorded in his or her favor.
When an election is challenged on the basis that particu-
lar electors’ votes for a particular candidate were not
properly credited to him, these two interests pull in the
direction of ordering a new election. The third such
interest, however, is that of the rest of the electorate
who voted at a challenged election, and arises from the
nature of an election in our democratic society, as we
explain in the discussion that follows. That interest
ordinarily will pull in the direction of letting the election
results stand.
‘‘An election is essentially—and necessarily—a snap-
shot. It is preceded by a particular election campaign,
for a particular period of time, which culminates on a
particular date, namely, the officially designated elec-
tion day. In that campaign, the various parties and candi-
dates presumably concentrate their resources—financial,
political and personal—on producing a victory on that
date. When that date comes, the election records the
votes of those electors, and only those electors, who
were available to and took the opportunity to vote—
whether by machine lever, write-in or absentee ballot—
on that particular day.’’ (Citations omitted; internal quo-
tation marks omitted.) Bortner v. Woodbridge, 250
Conn. 241, 253–55, 736 A.2d 104 (1999).
‘‘Moreover, that snapshot can never be duplicated.
The campaign, the resources available for it, the totality
of the electors who voted in it, and their motivations,
inevitably will be different a second time around. Thus,
when a court orders a new election, it is really ordering
a different election. It is substituting a different snap-
shot of the electoral process from that taken by the
voting electorate on the officially designated election
day.
‘‘Consequently, all of the electors who voted at the
first, officially designated election . . . have a power-
ful interest in the stability of that election because the
ordering of a new and different election would result
in their election day disfranchisement. The ordering of
a new and different election in effect disfranchises all
of those who voted at the first election because their
validly cast votes no longer count, and the second elec-
tion can never duplicate the complex combination of
conditions under which they cast their ballots.
‘‘All of these reasons strongly suggest that, although
a court undoubtedly has the power to order a new election
pursuant to § 9-328 and should do so if the statutory
requirements have been met, the court should exercise
caution and restraint in deciding whether to do so. A
proper judicial respect for the electoral process man-
dates no less.’’ (Emphasis altered.) Id., 256–57.
Most fundamentally, we have explained that, ‘‘in
order for a court to overturn the results of an election
and order a new election pursuant to § 9-328, the court
must be persuaded that . . . (1) there were substantial
violations of the requirements of the statute . . . and
(2) as a result of those violations, the reliability of the
result of the election is seriously in doubt.’’ Id., 258.
‘‘[A]lthough the underlying facts are to be established
by a preponderance of the evidence and are subject on
appeal to the clearly erroneous standard; see Practice
Book § 60-5; the ultimate determination of whether,
based on those underlying facts, a new election is called
for—that is, whether there were substantial violations
of the statute that render the reliability of the result of
the election seriously in doubt—is a mixed question of
fact and law that is subject to plenary review on appeal.’’
Bortner v. Woodbridge, supra, 250 Conn. 258. With these
principles in mind, we turn to the dispositive issues of
this appeal.
I
ABSENTEE BALLOT RETRIEVAL
FROM DROP BOXES
The plaintiff first claims that the plain language of
§ 9-140b (c) (2), providing that ‘‘the municipal clerk
shall retrieve [the ballots] from the secure drop box,’’
requires the municipal clerk herself to retrieve absentee
ballots from each drop box location. In support of this
contention, the plaintiff relies largely on an amendment
to subsection (c) of § 9-140b in which the legislature
deleted, among other things, language that allowed a
‘‘clerk’s designee’’ to retrieve the ballots from certain
drop boxes. See Public Acts, Spec. Sess., June, 2021,
No. 21-2, § 102 (Spec. Sess. P.A. 21-2). The plaintiff
contends that, because the statutory text provides that
the municipal clerk herself must retrieve absentee bal-
lots from drop boxes, Horvath’s testimony established
that she violated § 9-140b (c) (2) by using designees
to retrieve at least 200 ballots from drop boxes. The
defendants contend that the trial court correctly deter-
mined that a clerk’s designee was permitted to retrieve
absentee ballots from drop boxes because proscribing
the clerk from using a designee would require a statu-
tory interpretation that would lead to an absurd result.
The following additional facts are relevant to this
claim. At trial, Horvath testified that the City Clerk’s
Office placed secure absentee ballot drop boxes through-
out West Haven. An employee of the City Clerk’s Office
would frequently retrieve the absentee ballots placed
in the drop boxes, bring them back to that office, and
log them in. Horvath initially testified that she had per-
sonally retrieved the ballots from the drop boxes about
‘‘[h]alf the time . . . .’’ She went on to clarify that she
personally retrieved the ballots ‘‘[a]t least [half the
time]. Half or more . . . .’’ The rest of the time, another
employee of the City Clerk’s Office would retrieve
the ballots.
The trial court rejected the plaintiff’s reading of the
statute, concluding that ‘‘the legislature’s purpose for
amending § 9-140b (c) (2) was to make the drop boxes
permanent for future elections and to omit the require-
ment that a police officer escort the [municipal] clerk
or her employees when retrieving absentee ballots from
drop boxes around the town or city. There is no indica-
tion that the amendment’s purpose was to require that
only the municipal clerk herself retrieve the absentee
ballots from the drop boxes.’’ The court also noted that
there are many tasks assigned to the municipal clerk
throughout the absentee ballot statutes, and none of
them references the clerk’s designee, ‘‘but that does
not mean the municipal clerk must perform all of these
statutory duties personally.’’ The court concluded that
Horvath delegated the responsibility to her subordi-
nates and that did not run afoul of § 9-140b (c) (2).
Accordingly, the trial court concluded that Horvath’s
delegation of her retrieval responsibility under the stat-
ute was not an error in the ruling of an election official
for purposes of § 9-328.
At the outset, we note that the plaintiff has failed
to provide this court with any record evidence that
establishes how many ballots were retrieved by some-
one other than Horvath herself. The plaintiff asserts that
‘‘[t]he evidence showed that more than 200 absentee
ballots were retrieved by someone other than [Hor-
vath].’’ In support of that assertion, however, the plain-
tiff relies on numerous assumptions. Namely, the
plaintiff reasons that ‘‘[t]here [were] 711 absentee outer
envelopes, with 273 of these outer envelopes with post-
marks. . . . According to the November 3, 2021 absen-
tee ballot report, 25 absentee ballot sets were returned
‘in person.’ . . . Therefore, it is reasonable to conclude
that 413 absentee ballot sets were returned through the
drop boxes.’’ (Citations omitted.) The plaintiff reasons
that, because Horvath testified that, about ‘‘[h]alf the
time,’’ she would retrieve the absentee ballots from the
drop boxes and the other one half of the time it would
be one of her employees, it is fair to conclude that at
least 200 absentee ballots were retrieved by someone
other than Horvath. We disagree. The trial court made
no factual findings regarding how many absentee bal-
lots were retrieved by someone other than Horvath,
and the plaintiff never asked Horvath, or any other
witness, how many ballots were retrieved by someone
other than Horvath herself. Indeed, the plaintiff raised
this issue for the first time in his posttrial brief. That
Horvath retrieved the ballots about ‘‘[h]alf the time’’
does not inform the court of the number of ballots
someone other than Horvath retrieved because differ-
ent drop boxes might have contained vastly different
numbers of ballots. Retrieving the ballots one half of
the time could have amounted to, for example, 2 ballots
or 200 ballots, or anything in between. The trial court
did not draw any inference regarding the number of
ballots at issue, and we decline to do so. We will not
lightly overturn election results, especially not on the
basis of such simplistic logic and unsupported infer-
ences. See, e.g., Bortner v. Woodbridge, supra, 250 Conn.
254–55. Nevertheless, because Horvath testified that
she did not retrieve all the absentee ballots personally,
we consider the merits of the plaintiff’s claim to deter-
mine whether that was permissible under the statute.
This court previously has held that the requirements
of § 9-140b are mandatory. See Wrinn v. Dunleavy, 186
Conn. 125, 145–46, 440 A.2d 261 (1982) (interpreting
predecessor statute). ‘‘Accordingly, the return of ballots
in a manner not substantially in compliance with § 9-
140b will result in their invalidation, regardless of
whether there is any proof of fraud. . . . Whether fraud
has been committed in the handling of certain absentee
ballots is irrelevant to the question of whether there has
been substantial compliance with all of the mandatory
provisions of the absentee voting law. . . . Had the
legislature chosen to do so, it could have enacted a reme-
dial scheme under which ballots would . . . be invali-
dated [only] upon a showing of fraud or other related
irregularity. The legislature has instead enacted a regu-
latory scheme designed to prevent fraud as far as practi-
cable by mandating the way in which absentee ballots
are to be handled. The validity of the ballot, therefore,
depends not on whether there has been fraud, but on
whether there has been substantial compliance with the
mandatory requirements.’’ (Citation omitted; internal
quotation marks omitted.) Keeley v. Ayala, 328 Conn.
393, 411, 179 A.3d 1249 (2018).
Whether the mandatory nature of § 9-140b requires
the municipal clerk personally to retrieve the absentee
ballots from the secure drop boxes is a different ques-
tion, and one of statutory interpretation over which our
review is plenary. See, e.g., LaFrance v. Lodmell, 322
Conn. 828, 833–34, 144 A.3d 373 (2016). We review § 9-
140b and the relevant statutory scheme in accordance
with General Statutes § 1-2z and our familiar principles
of statutory construction. See, e.g., Sena v. American
Medical Response of Connecticut, Inc., 333 Conn. 30,
45–46, 213 A.3d 1110 (2019). In doing so, we are mindful
that the meaning of § 9-140b must, in the first instance,
‘‘be ascertained from the text of the statute itself and its
relationship to other statutes.’’ General Statutes § 1-2z.
We begin with the text of § 9-140b. Subsection (a) of
§ 9-140b provides the manner in which an absentee ballot
must be returned to the municipal clerk’s office, includ-
ing by United States mail. Subsection (c) (1) defines
‘‘mailed’’ as ‘‘(A) sent by the United States Postal Service
or any commercial carrier, courier or messenger service
recognized and approved by the Secretary of the State,
or (B) deposited in a secure drop box designated by
the municipal clerk for such purpose, in accordance
with instructions prescribed by the Secretary.’’ (Empha-
sis added.) General Statutes § 9-140b (c) (1). Subsection
(c) (2) provides that, ‘‘[i]n the case of absentee ballots
mailed under subparagraph (B) of subdivision (1) of
this subsection, beginning on the twenty-ninth day before
each election, primary or referendum, and on each
weekday thereafter until the close of the polls at such
election, primary or referendum, the municipal clerk
shall retrieve from the secure drop box described in
said subparagraph each such ballot deposited in such
drop box.’’ (Emphasis added.) General Statutes § 9-140b
(c) (2). ‘‘Municipal clerk’’ is defined in title 9 of the
General Statutes simply as ‘‘the town clerk in or for
the municipality to which reference is made, unless
otherwise provided by charter or special act.’’ General
Statutes § 9-1a; see also General Statutes § 9-1 (g)
(defining ‘‘[m]unicipal clerk’’ as ‘‘the clerk of a munici-
pality’’).
The plain language of § 9-140b appears to require
the municipal clerk to personally retrieve the absentee
ballots from each secure drop box. We note, however,
that, when § 9-140b is viewed in relationship to other
related statutes, it is clear that the clerk may designate
tasks to his or her designees. There are numerous
responsibilities assigned to the ‘‘municipal clerk’’
throughout the absentee ballot statutes, and none of
them references the clerk’s designee or the clerk’s assis-
tants. See, e.g., General Statutes § 9-135a (b) (requiring
municipal clerk to prepare modified absentee ballot in
situations in which offices are to be voted on without
party designation); General Statutes § 9-135a (c)
(requiring municipal clerk to prepare and print separate
absentee ballots for unaffiliated electors); General Stat-
utes § 9-135b (a) (requiring municipal clerk to prepare
absentee ballots and to have them printed); General
Statutes § 9-135b (c) (requiring municipal clerk to file
printed absentee ballot and affidavit stating number of
ballots printed with Secretary of the State); General
Statutes § 9-140 (a) (requiring municipal clerk to accept
applications for absentee ballots and to maintain log
of absentee ballot applications); General Statutes § 9-
140 (c) (requiring municipal clerk to check name of
each absentee ballot applicant against registry list and
to send applicants notice if name does not appear on
list); General Statutes § 9-140 (e) (requiring municipal
clerk, upon receipt of absentee ballot application, to
write serial number of absentee ballot voting set on
application form, to issue voting sets to applicants in
consecutive ascending order, and to maintain list of
numbers and corresponding applicants); General Stat-
utes § 9-140 (g) (requiring municipal clerk to mail absen-
tee voting sets to applicants in accordance with prescribed
timelines); General Statutes § 9-140 (i) (requiring munici-
pal clerk to file executed applications in alphabetical
order of applicant); General Statutes § 9-140c (a)
(requiring municipal clerk to retain absentee ballot
envelopes, to endorse each envelope over his signature
with date and precise time of its receipt, to make affida-
vit attesting to accuracy of all such endorsements, and
to deliver such affidavit, at close of polls, to head moder-
ator, who will endorse it and return it for clerk to pre-
serve for 180 days); General Statutes § 9-140c (b)
(allowing municipal clerk to sort absentee ballots into
voting districts in accordance with prescribed time-
lines); General Statutes § 9-140c (d) (requiring munici-
pal clerk to seal unopened ballots in package and to
retain them in safe place); General Statutes § 9-140c (e)
(requiring municipal clerk to receive certain absentee
ballots, to deliver certain ballots to registrars of voters,
and to provide accompanying duplicate checklist to
registrars); General Statutes § 9-140c (f) (requiring
municipal clerk to sort certain absentee ballots into
voting districts and to retain ballots until they are deliv-
ered to registrars of voters); General Statutes § 9-140c
(g) (requiring municipal clerk to deliver certain absen-
tee ballots to registrars of voters).
Moreover, other references in the General Statutes
indicate that the legislature contemplated that the
municipal clerk will delegate tasks to his or her desig-
nees and is authorized to do so. For example, General
Statutes § 7-19 provides in relevant part that ‘‘[e]ach
town clerk may, unless otherwise provided by charter
or ordinance, appoint assistant town clerks, who, hav-
ing taken the oath provided for town clerks, shall, in
the absence or inability of the town clerk, have all the
powers and perform all the duties of the town clerk.
. . .’’5 Section 9-140b itself suggests that someone other
than the municipal clerk properly could receive and
process absentee ballots. Specifically, subsection (d)
of § 9-140b provides in relevant part that ‘‘[n]o person
shall have in his possession any official absentee ballot
or ballot envelope . . . except . . . any person
authorized by a municipal clerk to receive and process
official absentee ballot forms on behalf of the munici-
pal clerk, any authorized primary, election or referen-
dum official or any other person authorized by any
provision of the general statutes to possess a ballot or
ballot envelope.’’ (Emphasis added.) Retrieving absen-
tee ballots from the drop boxes certainly constitutes
‘‘receiv[ing] and process[ing]’’ absentee ballots. Accord-
ingly, we conclude that, when read in the context of
the entire absentee ballot statutory scheme, § 9-140b
(c) (2) requires the municipal clerk, or his or her desig-
nee, to retrieve the absentee ballots from each secure
drop box.
Although we need not look to the legislative history
of the statute given our conclusion that the plain mean-
ing of the statute requires the municipal clerk or his
or her designee to retrieve the absentee ballots, we
acknowledge that the plaintiff’s primary argument on
appeal relies on the fact that General Statutes (Rev. to
2021) § 9-140b (c) (2) was amended by the legislature
during a special session in June, 2021. See Spec. Sess.
P.A. 21-2, § 102. That subdivision previously provided
in relevant part: ‘‘In the case of absentee ballots mailed
under subparagraph (B) of subdivision (1) of this sub-
section . . . the municipal clerk shall (A) retrieve from
the secure drop box described in said subparagraph
each such ballot deposited in such drop box, and (B)
if the drop box is located outside a building other than
the building where the clerk’s office is located, arrange
for the clerk or the clerk’s designee to be escorted by a
police officer during such retrieval.’’ (Emphasis added.)
General Statutes (Rev. to 2021) § 9-140b (c) (2). The
plaintiff contends that the legislature modified the stat-
ute to exclusively permit the municipal clerk herself to
retrieve absentee ballots from the drop boxes when it
deleted the language permitting the clerk’s designee to
retrieve absentee ballots with the assistance of a police
officer. Even if we were to agree with the plaintiff that
it is appropriate to look to the legislative history of the
statute, we are not persuaded that the plaintiff’s reading
of the statute is correct.
First, the plaintiff’s interpretation of the statute improp-
erly ignores the requirement of § 1-2z that the meaning
of the statute shall ‘‘be ascertained from the text of the
statute itself and its relationship to other statutes.’’
(Emphasis added.) General Statutes § 1-2z. The plaintiff
fails to reconcile § 9-140b (c) (2) with the broader statu-
tory scheme pertaining to the absentee ballot process,
which plainly contemplates that the municipal clerk
will delegate tasks to his or her designees and is author-
ized to do so.
Second, it would be implausible to conclude that
the municipal clerk is required to retrieve all absentee
ballots from the drop boxes herself simply because
there is no mention of a clerk’s designee. Such a reading
would also require the clerk to carry out nearly the
entire absentee ballot process without the help of any-
one in her office because the other relevant statutory
provisions do not reference a designee. As we explained,
there are numerous statutes governing the absentee
ballot process, and none of them references the munici-
pal clerk’s designee or assistant. Many municipalities
have multiple drop boxes—West Haven had three—and
the municipal clerk must ensure that all ballots are
accepted before the close of polls. It would be virtually
impossible for the municipal clerk to personally ensure
all ballots are received before the close of polls when
there are multiple drop boxes located throughout the
municipality. Requiring a single person to carry out the
entire absentee ballot procedure under such circum-
stances, without any assistance, would grind the admin-
istration of an election nearly to a halt. The legislature
could not have intended such an implausible result. Cf.
Wilkins v. Connecticut Childbirth & Women’s Center,
314 Conn. 709, 723, 104 A.3d 671 (2014) (‘‘[i]t is axiom-
atic that [w]e must interpret the statute so that it does
not lead to absurd or unworkable results’’ (internal
quotation marks omitted)).
The plaintiff would have a stronger argument that
the legislature intended to remove the ability of the
municipal clerk to designate someone to pick up the
ballots if the only change to the statute was that the
legislature removed the ‘‘or the clerk’s designee’’ lan-
guage and not the entirety of General Statutes (Rev. to
2021) § 9-140b (c) (2) (B). Subparagraph (B), which was
deleted in its entirety, required a police officer to escort
the clerk or his or her designee when that person retrieved
ballots from certain drop boxes. The bill analysis of
Senate Bill No. 1202, the bill that amended General
Statutes (Rev. to 2021) § 9-140b (c) (2), provides the
following context as to the purpose of the amendment:
‘‘The bill eliminates a requirement that applied during
the 2020 state election under which a police officer had
to escort the [municipal] clerk in retrieving absentee
ballots from any drop box located outside of a building
other than the clerk’s office building. The bill also
makes technical and conforming changes.’’ Office of
Legislative Research, Bill Analysis for Senate Bill No.
1202, as amended by House ‘‘A,’’ House ‘‘G,’’ House ‘‘H,’’
and Senate ‘‘A,’’ An Act Concerning Provisions Related
to Revenue and Other Items To Implement the State
Budget for the Biennium Ending June 30, 2023 (2021) p.
100, available at https://www.cga.ct.gov/2021/BA/PDF/
2021SB-01202-R02SS1-BA.PDF (last visited June 9, 2023).
‘‘Although the comments of the [O]ffice of [L]egislative
[R]esearch are not, in and of themselves, evidence of
legislative intent, they properly may bear on the legisla-
ture’s knowledge of interpretive problems that could
arise from a bill.’’ Harpaz v. Laidlaw Transit, Inc., 286
Conn. 102, 124 n.15, 942 A.2d 396 (2008). In the absence
of express language in the statute requiring the munici-
pal clerk to perform the task herself, we decline to
interpret the legislature’s deletion of this language to
mean that only the clerk may carry out the directive,
insofar as the legislature may have removed this lan-
guage because it was unnecessary in light of the entire
absentee ballot statutory scheme. We are unpersuaded
that the purpose of the amendment was to remove the
language that acknowledged that the municipal clerk
may designate someone to retrieve the ballots.
Here, Horvath delegated the responsibility of retriev-
ing the absentee ballots from the secure drop boxes to
her subordinates about ‘‘[h]alf the time . . . .’’ There
is no allegation that someone outside the City Clerk’s
Office retrieved the ballots. Therefore, we conclude
that the defendants complied with the statute, and there
is no error in the ruling of an election official for pur-
poses of § 9-328.
II
FOURTEEN ‘‘SAME DAY’’ ABSENTEE BALLOTS
We next turn to the plaintiff’s two claims concerning
the fourteen ‘‘same day’’ absentee ballots that he argues
were improperly counted because they (1) failed to
substantially comply with § 9-140c (a), insofar as they
were not endorsed by Horvath, the city clerk, at the
time they were received, and (2) were treated differ-
ently from other, similarly situated ballots.
The following additional facts are relevant to these
claims. There was testimony throughout the hearing
before the trial court that twelve to fifteen absentee
ballots that had been retrieved from three drop boxes
in West Haven on election day were delivered by the
registrars of voters to the central counting room at
approximately 5:30 p.m. The parties ultimately agreed
that there were actually fourteen such ‘‘same day’’ bal-
lots. The head absentee ballot moderator, Catherine
Conniff, asked the registrars to hold these ballots until
the count was complete because they needed to be
divided into districts and checked against the official
books for each district. The ballots were brought back
to the central counting room before 8 p.m. for counting,
and it was discovered that they did not contain Hor-
vath’s endorsement.
Election officials agreed that they should contact the
Office of the Secretary of the State to seek guidance on
how to handle these ballots. Conniff and the Democratic
registrar of voters of West Haven, Sherri Lepper, called
the Office of the Secretary of the State and reached
Heather Augeri. Once it was confirmed that the ballots
had been received by the City Clerk’s Office no later
than 3 p.m. on election day, the election officials were
advised to have the assistant city clerk, Recchia, endorse
the ballots by hand and to count them. Recchia did as
instructed, and the outer envelopes of these ballots were
hand marked, ‘‘[r]ec’d SR 3:00 p.m.’’ The outer enve-
lopes were also stamped, ‘‘NOV—2 2021.’’ The election
officials then returned to the counting room with the
ballots, and they were counted. A document titled ‘‘Affi-
davit of Delivery and Receipt of Absentee Ballot’’ was
signed by Recchia and Lepper, and delivered to Conniff.
The trial court reasoned that, although strict compli-
ance with § 9-140c (a) was plainly lacking because Hor-
vath did not endorse these ballots at the time of receipt
and the City Clerk’s Office did not follow its customary
procedure of marking the ballots with a stamp, only
substantial compliance with the statute was required.
The court concluded that the evidence was undisputed
that, after election officials conferred with an employee
at the Office of the Secretary of the State, Recchia
endorsed the fourteen unendorsed outer envelopes, and
those endorsements substantially complied with § 9-
140c (a).
A
The plaintiff first claims that the trial court incor-
rectly concluded that the fourteen ‘‘same day’’ absentee
ballots substantially complied with § 9-140c (a), in the
absence of any statutory compliance by Horvath. Spe-
cifically, the plaintiff contends that the evidence demon-
strated that these ballots were not returned to the City
Clerk’s Office, as required by statute; rather, they were
returned to the Office of the Registrar of Voters before
going to the City Clerk’s Office. As a result, the plaintiff
contends, the City Clerk’s Office did not endorse the
ballots at the time they were received, as required by
§ 9-140c (a). Instead, those ballots were endorsed hours
after they were received. The defendants contend that
the trial court correctly determined that the fourteen
‘‘same day’’ ballots substantially complied with § 9-140c
(a) because, although they were not initially endorsed,
they were ultimately endorsed by Recchia after it was
confirmed that they were properly received on election
day from eligible absentee ballot voters. We agree with
the defendants.
Section 9-140c (a) provides in relevant part: ‘‘The
municipal clerk shall endorse over his signature, upon
each outer envelope as he receives it, the date and
precise time of its receipt. . . .’’ We have previously
explained that ‘‘[t]he provisions of § 9-140c (a) regard-
ing the date and time of the [municipal] clerk’s receipt
of an absentee ballot envelope, and the [municipal] clerk’s
signature, are mandatory because they are designed to
mitigate the risk of fraud that is inherent in the absentee
voting process. . . . That does not mean, however, that
strict, as opposed to substantial, compliance with those
provisions is required. Rather, there must be substantial
compliance with the statutory requirements.’’ (Citation
omitted.) In re Election of the United States Represen-
tative for the Second Congressional District, 231 Conn.
602, 651, 653 A.2d 79 (1994).
In In re Election of the United States Representative
for the Second Congressional District, this court
addressed irregularities in the handling of absentee bal-
lots in Stonington, Old Saybrook, Ledyard, and Nor-
wich. Id., 648. In each city or town, the clerk’s office
had a stamp that it typically used on absentee ballot
outer envelopes as the ballots arrived. Id., 649–50. The
plaintiff challenged 413 absentee ballot outer envelopes
that were endorsed as follows. In Stonington, the outer
envelope entered into evidence was stamped: ‘‘RECEIVED
FOR RECORD STONINGTON, CT. 94 NOV—8 AM 9:55
RUTH WALLER TOWN CLERK.’’ (Internal quotation
marks omitted.) Id., 649. Three absentee ballot outer
envelopes in Old Saybrook were stamped: ‘‘RECEIVED
OCTOBER 14 1994.’’ (Internal quotation marks omit-
ted.) Id. In Ledyard, although the town clerk had a stamp
facsimile of her cursive signature that she customarily
affixed to each outer envelope upon receipt, six outer
envelopes lacked that cursive facsimile because the
ballots arrived when the clerk was recovering from
heart surgery and was out of the office. Id., 650. The
clerk’s assistant failed to affix the clerk’s cursive facsim-
ile, and the envelopes were stamped: ‘‘RECEIVED FOR
RECORD AT LEDYARD, CT. 94 OCT 26 AM 10:31
ATTEST: PATRICIA KARNS TOWN CLERK.’’ (Internal
quotation marks omitted.) Id. In Norwich, the clerk
had a stamp facsimile of her cursive signature that she
customarily used, but the evidence established that one
outer envelope lacked that cursive facsimile and was
stamped: ‘‘RECEIVED 94 NOV—7 AM 9:03 BEVERLY
C. MULDOON TOWN-CITY CLERK NORWICH, CONN.’’
(Internal quotation marks omitted.) Id.
In addressing the plaintiff’s claims that the 413 ballots
did not comply with § 9-140c (a), this court reasoned
that ‘‘[t]he purpose of the signature requirement in § 9-
140c (a) is to avoid fraud in the voting of absentee
ballots. By requiring the [municipal] clerk to sign the
outer envelope, the statute seeks to avoid the risk that
an unauthorized person will somehow include an unau-
thorized absentee ballot among those validly sent and
delivered.’’ Id., 652. We also noted, however, that this
consideration must be weighed against the numerous
procedural rigors in the statutory scheme governing
absentee ballots that act as a significant safeguard
against fraud. Id. This court explained that courts should
also consider ‘‘the extent of deviation from strict com-
pliance’’ when deciding whether there has been substan-
tial compliance. Id., 652–53. Finally, we also explained
that courts should take into consideration whether the
failure of strict compliance was due to the conduct of
the voter or of someone not within his or her control. Id.,
653. In sum, we concluded that ‘‘whether [an anomalous
endorsement] constitute[s] substantial compliance with
§ 9-140c (a) . . . must be determined by reference to
the purpose of the statutory requirement, the role
played by the requirement viewed in the context of
the statutory scheme, the degree of adherence to strict
compliance shown, and the basic policy against disfran-
chisement of voters who are not at fault for any lack
of strict compliance’’ by election officials. Id., 652.
In In re Election of the United States Representative
for the Second Congressional District, this court deter-
mined that, of the 413 absentee ballot outer envelopes
at issue in that case, the 3 absentee ballots from Old
Saybrook were the only ballots that did not substantially
comply with § 9-140c (a). Id., 651–52. This court
explained that ‘‘[t]he stamp on the Old Saybrook enve-
lopes is merely a generic date stamp and contains no
indication, whether by hand signature, stamp facsimile
or printed name and title, that it was received by the
town clerk. Furthermore, there is no time of receipt
indicated on the stamp, as required by the statute. . . .
The minimal adherence to the requirements of § 9-140c
(a) evinced by the endorsements on the three Old Say-
brook envelopes in question leads us to conclude that
they do not substantially comply with the requirements
of § 9-140c (a).’’ (Citation omitted.) Id., 653. We con-
cluded that the remaining ballots did substantially com-
ply with § 9-140c (a), reasoning that, ‘‘[a]lthough a
stamped facsimile of the town clerks’ cursive signature
would arguably have been preferable, we cannot ascribe
critical significance to the difference between such a
cursive facsimile and the printed names and titles of
the town clerks that were rendered on the envelopes
by the town clerks’ time and date stamp machines.
Neither of these types of stamps is readily available to
the public.’’ Id.
Here, there is no dispute that the election officials
failed to strictly comply with the mandates of § 9-140c
(a): Horvath did not endorse the fourteen ‘‘same day’’
absentee ballots herself when they were received using
the date and time stamp with her signature that the
City Clerk’s Office customarily used. Nevertheless, as
the trial court correctly noted, substantial compliance
with § 9-140c (a) is all that was required. Horvath testi-
fied that she was not in the City Clerk’s Office at all
on election day, so she could not have personally
endorsed the outer envelopes of those ballots. Section
7-19 provides in relevant part that ‘‘assistant town clerks
. . . shall, in the absence or inability of the town clerk,
have all the powers and perform all the duties of the
town clerk. . . .’’ As such, Recchia, as the assistant city
clerk, was the highest ranking election official present
and was permitted to endorse the absentee ballots
received on election day.
With respect to the manner in which Recchia endorsed
the ballots, she did not follow the customary practice
of marking the ballots with the stamp that included a
facsimile of Horvath’s signature. Recchia did, however,
endorse the ballots with her own handwritten initials,
as well as the date and approximate time that the City
Clerk’s Office received the ballots. Recchia’s endorse-
ment of the fourteen ‘‘same day’’ absentee ballots is
more similar to the 410 endorsements in In re Election
of the United States Representative for the Second Con-
gressional District that this court concluded substan-
tially complied with § 9-140c (a) than the 3 rejected
endorsements that contained only a generic date stamp.
See In re Election of the United States Representative
for the Second Congressional District, supra, 231 Conn.
649–51. In the present case, the information contained
on the fourteen ‘‘same day’’ ballots—Recchia’s initials,
the date of receipt, and the approximate time of
receipt—is nearly identical to the information required
by § 9-140c (a). See General Statutes § 9-140c (a) (‘‘[t]he
municipal clerk shall endorse over his signature, upon
each outer envelope as he receives it, the date and
precise time of its receipt’’).
Although the plaintiff does not argue that Recchia’s
initials do not satisfy the signature requirement of the
statute, we note that Recchia’s initials were written in
her own handwriting, and, as this court reasoned in In
re Election of the United States Representative for the
Second Congressional District with respect to stamps,
it would be difficult, in the absence of forgery, for an
unauthorized person to somehow include an unautho-
rized absentee ballot.6 See In re Election of the United
States Representative for the Second Congressional
District, supra, 231 Conn. 652. Moreover, the slight
delay between the receipt of the ballots and Recchia’s
endorsements thereon was attributable to the time it
took for election officials to obtain guidance from the
Office of the Secretary of the State—Recchia affixed
her endorsements after she confirmed with election
officials that these ballots were received on election
day during a sweep of the absentee ballot drop boxes.
The plaintiff does not allege that anyone tampered with
the ballots or that they were otherwise invalid, aside
from the failure to strictly comply with § 9-140c (a).
Indeed, on this record, the possibility of fraudulent
activity with respect to the fourteen ‘‘same day’’ absen-
tee ballots seems particularly fanciful in light of (1) the
evidence from the absentee ballot report, which showed
that these ballots were from eligible voters and were
properly delivered on election day prior to the close of
polls, and (2) Recchia’s sworn testimony that the hand-
written initials on each ballot are her initials and that
she personally wrote them on each outer envelope. The
trial court also concluded that any concern of fraud was
further ameliorated by the 11 a.m. barcode scan of each
of the fourteen envelopes.
Finally, the strong public policy against disenfran-
chising voters who are not at fault for problems with
their ballots also strongly militates against rejecting
these ballots. Although we recognize that there was
a lack of ‘‘punctilious adherence’’ to certain statutory
safeguards relating to these ballots; id.; we conclude
that Recchia’s endorsements substantially complied
with § 9-140c (a).
B
The plaintiff also claims that the trial court’s inclusion
of the fourteen ‘‘same day’’ absentee ballots in the vote
count created disparate treatment among similarly situ-
ated ballots. Specifically, he claims that the trial court,
in counting these fourteen ballots, ‘‘ignored its finding
that the absentee ballot counters rejected ballots earlier
in the vote count that lacked [Horvath’s] endorsement.’’
The defendants contend that the trial court did not
disparately treat similarly situated ballots. We conclude
that the plaintiff has failed to establish that the fourteen
‘‘same day’’ absentee ballots were similarly situated to
other rejected ballots.
The plaintiff points to two sources of support for
his contention that the trial court treated the fourteen
‘‘same day’’ absentee ballots differently from other, sim-
ilarly situated ballots. First, he references a single sen-
tence in the trial court’s memorandum of decision in
which the court summarized the evidence presented in
the plaintiff’s case-in-chief. There, the trial court noted
that an absentee ballot counter, Linda McDonough, tes-
tified that she ‘‘rejected absentee ballots in the initial
count that lacked [Horvath’s] endorsement.’’ Second,
the plaintiff cites testimony from Conniff, who testified
that the City Clerk’s Office rejected nine absentee bal-
lots on election day and that ‘‘some of those rejected
ballots could have been rejected due to the ballots’
lacking [Horvath’s] endorsement.’’ (Emphasis added.)
Without citing any additional evidence in the record, the
plaintiff asserts that the fourteen ‘‘same day’’ absentee
ballots were treated differently from the allegedly simi-
larly situated ballots referenced by McDonough and
Conniff. We disagree.
The trial court made no factual findings that the bal-
lots referenced by McDonough and Conniff were simi-
larly situated to the fourteen ‘‘same day’’ absentee
ballots. We do not know why each of these other ballots
was rejected. Conniff’s testimony does not even defini-
tively establish that any of the nine rejected ballots she
references were in fact rejected for lack of Horvath’s
endorsement. Rather, Conniff simply testified that they
‘‘could have been’’ rejected for that reason. (Emphasis
added.) McDonough testified that she rejected an unspeci-
fied number of ballots that lacked Horvath’s endorsement.
We do not know, however, the details surrounding these
ballots. As we explained in part II A of this opinion, the
‘‘same day’’ absentee ballots were ultimately endorsed by
Recchia after she confirmed with other election officials
that the ballots were from eligible voters and were prop-
erly delivered on election day prior to the close of polls.
We have no such information about the ballots referenced
by McDonough. We do not know, for example, whether
Recchia was unable to confirm whether the ballots refer-
enced by McDonough were from eligible voters and prop-
erly delivered to the City Clerk’s Office. It was the
plaintiff’s burden to establish that, as a result of substantial
statutory violations, the reliability of the results of the
election is seriously in doubt. See, e.g., Bortner v. Wood-
bridge, supra, 250 Conn. 258; see also, e.g., Lazar v. Ganim,
Superior Court, judicial district of Fairfield, Docket No.
FBT-CV-XX-XXXXXXX-S (November 1, 2019) (election
case explaining that ‘‘factual findings cannot be based
on speculation or conjecture’’), aff’d, 334 Conn. 73, 220
A.3d 18 (2019). The plaintiff failed to establish the cir-
cumstances surrounding the rejection of these other
absentee ballots, and, therefore, he cannot establish that
the trial court treated the fourteen ‘‘same day’’ ballots
differently from the ballots referenced by McDonough
and Conniff. We decline to overturn an election on the
basis of theoretical arguments without any evidence
regarding the circumstances surrounding these other
rejected ballots.
III
AFFIDAVIT OF DELIVERY AND RECEIPT
Next, we turn to the plaintiff’s contention that the
trial court erred in concluding that the affidavit of deliv-
ery and receipt required by § 9-140c (j) is secondary
to the municipal clerk’s endorsement. Specifically, the
plaintiff contends that the purpose of the affidavit of
delivery and receipt is to confirm that the chain of
custody between the clerk and the registrars of voters
was maintained and to verify an accurate absentee bal-
lot count. In the absence of the affidavit required by
§ 9-140c (j), the plaintiff contends, there is no credible
way to determine the number of absentee ballots
returned in the election. The defendants disagree and
contend that the trial court correctly concluded that
the absence of the affidavit of delivery and receipt is
not, by itself, sufficient reason to question the election
results. The defendants contend that these affidavits
serve to memorialize the transfer of custody of the
absentee ballots from the municipal clerk to the regis-
trars of voters. As a result, the defendants contend,
these affidavits simply memorialize the primary evi-
dence of the chain of custody that is established by the
ballots themselves, other internal reports, and endorse-
ments prepared by the municipal clerk. We agree with
the defendants.
The following additional facts are relevant to this
claim. Deborah Collins, an absentee ballot counter, tes-
tified that she was not aware of any affidavits executed
with respect to absentee ballots in the election. Horvath
testified that the City Clerk’s Office did not execute
affidavits of delivery and receipt when it transferred
absentee ballots for the election to the Office of the
Registrar of Voters.7 As a result, the trial court con-
cluded that there was a clear violation of § 9-140c (j),
which was enacted to prevent fraud in the absentee
ballot process by establishing chain of custody proce-
dures. The court noted, however, that it heard testimony
from all the election officials who had failed to prepare
and execute the statutorily mandated affidavits. The
court credited the testimony from these officials and
concluded that this testimony established that there
was no mistake in the vote count. Accordingly, the court
concluded that, because the affidavits are secondary
evidence to the city clerk’s endorsements, it would not
reject these absentee ballots on the basis of Horvath’s
neglect in failing to execute the affidavits of delivery
and receipt.
Section 9-140c (e) directs the municipal clerk to
deliver the absentee ballots to the registrars of voters
for counting. Section 9-140c (j) provides that, ‘‘[e]ach
time absentee ballots are delivered by the clerk to the
registrars pursuant to this section, the clerk and regis-
trars shall execute an affidavit of delivery and receipt
stating the number of ballots delivered. The clerk shall
preserve the affidavit for the period prescribed in sec-
tion 9-150b.’’ General Statutes § 9-150b (i) (2), in turn,
requires the municipal clerk to preserve, as a public
record, the affidavit of delivery and receipt for 180 days
after the election.
Here, there is no question that Horvath and the regis-
trars of voters failed to comply with § 9-140c (j), insofar
as Horvath testified that the City Clerk’s Office never
executed affidavits of delivery and receipt when it trans-
ferred absentee ballots to the Office of the Registrar of
Voters. Election officials are required to comply with
the mandates of § 9-140c (j) and all statutory require-
ments pertaining to the absentee ballot process because
this ‘‘procedural rigor’’ was designed to safeguard
against fraud. In re Election of the United States Repre-
sentative for the Second Congressional District, supra,231 Conn. 652–53; see also, e.g., 26 Am. Jur. 2d 129,
Elections § 333 (2014) (‘‘[t]he procedures required by
the absentee voting laws serve the purposes of enfran-
chising qualified voters, preserving ballot secrecy, pre-
venting fraud, and achieving a reasonably prompt
determination of election results’’ (emphasis added)).
This court previously has recognized ‘‘that there is con-
siderable room for fraud in absentee [ballot] voting and
that a failure to comply with the regulatory provisions
governing absentee [ballot] voting increases the oppor-
tunity for fraud.’’ (Internal quotation marks omitted.)
Keeley v. Ayala, supra, 328 Conn. 407. As such, it is
imperative that election officials comply with the affida-
vit requirement of § 9-140c (j). We have also explained,
however, that, ‘‘[i]f there is to be [disen]franchisement,
it should be because the legislature has seen fit to
require it in the interest of an honest suffrage, and has
expressed that requirement in unmistakable language.’’
(Internal quotation marks omitted.) Id.
In this case, the trial court credited the testimony of
the various election officials who failed to complete
the affidavits of delivery and receipt. This testimony
established that there was no mistake in the vote count
and that the chain of custody of the ballots was properly
maintained. Specifically, the court credited Horvath’s
testimony, which established that the City Clerk’s Office
and the registrars of voters transferred all absentee
ballots that the City Clerk’s Office received to the Office
of the Registrar of Voters every day at the close of
business. The court also noted that, throughout the
hearing, multiple election officials testified to the vari-
ous steps they took to maintain the chain of custody,
and the plaintiff did not provide any evidence that the
chain of custody was broken such that the reliability
of the election results was called into question. Election
officials also credibly testified that the City Clerk’s
Office and the Office of the Registrar of Voters reviewed
the absentee ballot reports against the ballots them-
selves, and the number of absentee ballots matched the
reports each time. On appeal, the plaintiff does not
dispute the trial court’s credibility determination of
these witnesses or claim that the chain of custody was
broken. As a result, the failure of the election officials
to comply with § 9-140c (j) is overcome by their sworn
testimony, credited by the trial court, which established
the chain of custody for these ballots. This court has
explained that a voter should not be disenfranchised
because of the error or mistake of another when that
mistake does not contravene the legislative policy
against voting fraud. See, e.g., Dombkowski v. Messier,
164 Conn. 204, 206–207, 319 A.2d 373 (1972); Scully v.
Westport, 145 Conn. 648, 651–52, 145 A.2d 742 (1958);
Moran v. Bens, 144 Conn. 27, 32, 127 A.2d 42 (1956).
We agree with the trial court that the plaintiff has not
established that the reliability of the results of the elec-
tion is seriously in doubt.
We do not reach this conclusion without reservation.
We agree with the plaintiff that the trial court’s state-
ment—that the affidavit of delivery and receipt required
by § 9-140c (j) is ‘‘secondary evidence’’ to the municipal
clerk’s endorsement—appears to conflate the purpose
of the affidavit of delivery and receipt with the purpose
of the affidavit of endorsement required by § 9-140c (a).
The purpose of the affidavit of delivery and receipt
is to prevent fraud in the absentee ballot process by
establishing the chain of custody of the ballots. By con-
trast, the purpose of the affidavit of endorsement is to
verify the endorsements the municipal clerk is required
to make on the outer envelopes of absentee ballots
pursuant to § 9-140c (a). Additionally, the affidavits are
not ‘‘secondary evidence’’ to the endorsements. The affida-
vits are statutorily mandated by the legislature, and com-
pliance is therefore mandatory, not optional. Indeed, this
case highlights the problems that can arise when a munici-
pality does not comply with the mandates of § 9-140c (j);
namely, the municipality faces the possibility of litigation
and is left to establish the chain of custody through the
testimony of election officials. The affidavits of delivery
and receipt are intended to avoid the need for such testi-
mony by providing contemporaneous documentation of
the chain of custody of the absentee ballots each time
the municipal clerk delivers the ballots to the registrars
of voters. The need to litigate the proper chain of custody
of absentee votes on a ballot-by-ballot basis is clearly
untenable at a systemic level, and local election officials
must satisfy their statutory obligation to follow the pre-
scribed administrative procedures to avoid the potentially
debilitating inefficiencies that would result from noncom-
pliance. As we explained, given the testimony of Horvath
and other election officials, we agree with the trial court
that, although the plaintiff established that the election
officials violated § 9-140c (j) by not completing the affida-
vits of delivery and receipt, he failed to establish that the
reliability of the results of the election is seriously in
doubt. But this conclusion should not obscure the vital
importance of our message to local election officials,
which is the necessity to adhere to the prescribed statu-
tory procedures without deviation. Compliance is neces-
sary, not only to maintain strong and unwavering public
confidence in our elections, but also to facilitate the
timely, efficient, and proper resolution of election disputes
that may end up in court.
IV
RETURN OF ABSENTEE BALLOTS BY
IMPROPERLY DESIGNATED PERSON
The plaintiff next contends that the trial court incor-
rectly concluded that the absentee ballots belonging to
Tomporowski, Carlington, Holland, and Arminio substan-
tially complied with § 9-140b (a).8 The plaintiff argues that
each of these absentee ballots was returned by someone
who was not statutorily authorized to do so. The defen-
dants contend that the trial court correctly concluded that
the plaintiff had failed to satisfy his burden of proving
that these four absentee ballots did not substantially com-
ply with § 9-140b (a). We agree with the defendants.
At trial, the plaintiff claimed that eleven absentee ballots
were returned by an improperly designated person. The
trial court agreed with the plaintiff regarding six of the
challenged ballots but found that ‘‘five absentee ballot
outer envelopes [including those belonging to Tomporow-
ski, Carlington, Holland, and Arminio] contain[ed] the
information that § 9-140b (a) requires. . . . The plaintiff
has not provided evidence that the designees for these
absentee ballot voters are not qualified designees under
§ 9-140b (a) (3) or (4). Without such proof, the plaintiff has
failed to carry his burden of proving that these absentee
ballots were submitted in violation of § 9-140b.’’ (Foot-
note omitted.)
Section 9-140b (a) provides in relevant part: ‘‘An absen-
tee ballot shall be cast at a primary, election or referendum
only if: (1) It is mailed by (A) the ballot applicant, (B) a
designee of a person who applies for an absentee ballot
because of illness or physical disability, or (C) a member
of the immediate family of an applicant who is a student,
so that it is received by the clerk of the municipality in
which the applicant is qualified to vote not later than the
close of the polls; (2) it is returned by the applicant in
person to the clerk by the day before a regular election,
special election or primary or prior to the opening of the
polls on the day of a referendum; (3) it is returned by a
designee of an ill or physically disabled ballot applicant,
in person, to said clerk not later than the close of the
polls on the day of the election, primary or referendum;
(4) it is returned by a member of the immediate family
of the absentee voter, in person, to said clerk not later
than the close of the polls on the day of the election,
primary or referendum . . . . A person returning an
absentee ballot to the municipal clerk pursuant to subdivi-
sion (3) or (4) of this subsection shall present identifica-
tion and, on the outer envelope of the absentee ballot,
sign his name in the presence of the municipal clerk, and
indicate his address, his relationship to the voter or his
position, and the date and time of such return. As used
in this section, ‘immediate family’ means a dependent
relative who resides in the individual’s household or any
spouse, child, parent or sibling of the individual.’’
As we have previously explained, ‘‘the requirements of
§ 9-140b are mandatory. . . . Accordingly, the return of
ballots in a manner not substantially in compliance with
§ 9-140b will result in their invalidation, regardless of
whether there is any proof of fraud.’’ (Citation omitted.)
Keeley v. Ayala, supra, 328 Conn. 410–11. In Keeley, this
court noted that ‘‘[§] 9-140b, read as a whole, reflects
a clear legislative intent to maintain distance between
partisan individuals and the casting and submission of
absentee ballots, undoubtedly in recognition of the poten-
tial for undue influence, intimidation or fraud in the use
of those ballots.’’ Id., 411. This court further observed
that, ‘‘[w]ith respect to who may choose a ‘designee’ for
an absentee voter, the language used in § 9-140b manifests
[a legislative intention] that a ‘designee’ be a person whom
the absentee voter, himself or herself, selects to return
his or her ballot. Specifically, that statutory provision
indicates that ‘a designee of an ill or physically disabled
ballot applicant’ may return the ballot in person . . .
General Statutes § 9-140b (a) (3); and otherwise that ‘a
designee of a person who applies for an absentee ballot
because of illness or physical disability’ may return the
ballot by mail. . . . General Statutes § 9-140b (a) (1) (B).’’
(Emphasis in original.) Keeley v. Ayala, supra, 412.
Here, the plaintiff failed to subpoena these voters or
the individuals who delivered their ballots. The plaintiff
also did not question anyone from the City Clerk’s Office
regarding the process of accepting an absentee ballot
from a designee or an immediate family member. There
is also no evidence to suggest that the City Clerk’s Office
failed to perform its duties of having a designee or family
member sign his or her name in the clerk’s presence and
of checking the identification of the designee or family
member. Rather, the plaintiff relies exclusively on the
outer envelopes to establish his case. This evidence alone
cannot establish that the designees who returned the bal-
lots were not qualified designees under § 9-140b (a). For
example, there is no information regarding whether any of
these voters were ill or physically disabled and, therefore,
allowed to designate someone to return their ballot pursu-
ant to § 9-140b (a) (1) or (3). There is also no evidence
that certain designees were not ‘‘immediate family,’’ as
that term is defined. See General Statutes § 9-140b (a)
(‘‘[a]s used in this section, ‘immediate family’ means a
dependent relative who resides in the individual’s house-
hold or any spouse, child, parent or sibling of the individ-
ual’’). Moreover, the trial court found, as a matter of fact,
that these absentee ballot outer envelopes contained the
information required by § 9-140b (a). We cannot conclude
that this finding was clearly erroneous. See, e.g., Bortner
v. Woodbridge, supra, 250 Conn. 258 (‘‘underlying facts
are to be established by a preponderance of the evidence
and are subject on appeal to the clearly erroneous stan-
dard’’); see also, e.g., Practice Book § 60-5 (‘‘[t]he court
may reverse or modify the decision of the trial court if it
determines that the factual findings are clearly errone-
ous’’). Had the plaintiff wished to establish the relation-
ships and circumstances surrounding the return of these
absentee ballots, he could have requested the absentee
ballot applications for each voter or subpoenaed these
individuals to testify. He did not. Accordingly, we agree
with the trial court that the plaintiff failed to satisfy his
burden of proving that these absentee ballots were submit-
ted in violation of § 9-140b (a).
V
ABSENTEE BALLOT REPORT
We next address the plaintiff’s contention that the trial
court incorrectly concluded that the eight absentee ballot
outer envelopes found in the city vault that were missing
from the absentee ballot report were returned to the City
Clerk’s Office in substantial compliance with § 9-140b (a).
Specifically, the plaintiff argues that the evidence revealed
that a comparison of the outer envelopes against the
absentee ballot report dated November 3, 2021, shows
that there were 8 absentee ballot outer envelopes included
within the 711 outer envelopes of counted absentee ballots
that were not logged as returned in the November 3,
2021 absentee ballot report. The plaintiff also notes that a
similar comparison against the December 2, 2021 absentee
ballot report shows that only 2 of the 8 absentee ballots
appear logged. As a result, it is the plaintiff’s contention
that, as of thirty days following the election, there was
no record of 6 counted absentee ballots being returned
to the City Clerk’s Office. The defendants disagree and
contend that the trial court correctly concluded that the
plaintiff failed to satisfy his burden of proving that these
ballot envelopes found in the city vault were not returned
to the City Clerk’s Office in substantial compliance with
§ 9-140b (a).
Relevant to this claim, the trial court explained that
the eight absentee ballots found in the city vault that were
missing from the absentee ballot report are not evidence
of noncompliance with the absentee ballot statutory
requirements. The court noted that the primary evidence
of returned absentee ballots is the § 9-140c (a) require-
ment that the municipal clerk mark each outer envelope
as the municipal clerk’s office receives it with her endorse-
ment and the precise date and time of receipt. The court
also noted that the plaintiff did not present any evidence
that the outer envelopes of these eight absentee ballots
lacked the clerk’s § 9-140c (a) certification. Accordingly,
the court concluded that it would ‘‘not overturn an elec-
tion on theoretical arguments without any evidentiary
basis. The plaintiff bears the burden of proving that there
was a mistake in the count of the vote, and he cannot
rely on mere conjecture to meet that burden.’’ We agree
with the trial court.
Section 9-140c (a) requires, among other things, that
the municipal clerk ‘‘keep a list of the names of the appli-
cants who return absentee ballots to the clerk under sec-
tion 9-140b. The list shall be preserved as a public record
as required by section 9-150b.’’ In this case, the evidence
demonstrated a discrepancy of eight ballots that were not
included in the November 3, 2021 absentee ballot report
but were in the city vault. The plaintiff failed to present
any evidence to the trial court, however, that the outer
envelopes of these ballots lacked the clerk’s § 9-140c (a)
endorsement, and he does not contend otherwise on
appeal. ‘‘[U]nder our system of government, the plaintiff
bears the heavy burden of proving by a preponderance of
the evidence that any irregularities in the election process
actually, and seriously, undermined the reliability of
the election results before the courts will overturn an
election.’’ (Emphasis altered.) Caruso v. Bridgeport, 285
Conn. 618, 653, 941 A.2d 266 (2008). As the trial court
concluded, the plaintiff failed to meet the heavy burden
of establishing that these eight absentee ballots should
be invalidated because they were not entered into the
November 3, 2021 absentee ballot report. In the absence
of evidence that these ballots did not otherwise comply
with the requirements of §§ 9-140b and 9-140c (a), we
decline to disenfranchise these voters because of a dis-
crepancy in the absentee ballot report. Contrary to the
plaintiff’s assertion, there is a record of these ballots being
returned to the City Clerk’s Office—Horvath’s endorse-
ment on each outer envelope. Accordingly, we cannot
conclude that the counting of these ballots was a mistake
of an election official.
We emphasize, however, that election officials must
take care to comply with all statutory requirements per-
taining to the absentee ballot process, including main-
taining an accurate list of the names of applicants who
return absentee ballots, as required by § 9-140c (a). As
we explained in part III of this opinion, the requirements
of the absentee ballot statutory scheme were designed to
safeguard against fraud. See, e.g., In re Election of the
United States Representative for the Second Congres-
sional District, supra, 231 Conn. 652–53; see also, e.g.,
26 Am. Jur. 2d, supra, § 333, p. 129. When election officials
fail to comply with the various statutory mandates, the
risk of fraud increases, and the municipality faces the risk
of litigation and the burdens of establishing the integrity
of the electoral process and of demonstrating that the
reliability of the results of the election is not seriously
in doubt.
VI
MISCELLANEOUS CLAIMS
Finally, the plaintiff contends, in his brief, that the trial
court incorrectly concluded that the reliability of the
results of the election was not in serious doubt and that
there was no mistake in the vote count. In this section
of his brief, the plaintiff points to ‘‘[a]dditional evidence’’
that he asserts further supports his contention that the
reliability of the results of the election is in serious doubt.
To the extent the plaintiff is raising new claims with
respect to this ‘‘[a]dditional evidence’’ that we have not
already addressed in parts I through V of this opinion,
we conclude that these claims are inadequately briefed.
‘‘We repeatedly have stated that [w]e are not required to
review issues that have been improperly presented to this
court through an inadequate brief. . . . Analysis, rather
than mere abstract assertion, is required in order to avoid
abandoning an issue by failure to brief the issue properly.
. . . [When] a claim is asserted in the statement of issues
but thereafter receives only cursory attention in the brief
without substantive discussion or citation of authorities,
it is deemed to be abandoned. . . . For a reviewing court
to judiciously and efficiently . . . consider claims of
error raised on appeal . . . the parties must clearly and
fully set forth their arguments in their briefs. . . . In addi-
tion, briefing is inadequate when it is not only short,
but confusing, repetitive, and disorganized.’’ (Citations
omitted; internal quotation marks omitted.) Burton v.
Dept. of Environmental Protection, 337 Conn. 781, 803,
256 A.3d 655 (2021). Here, the plaintiff provides no legal
analysis or legal support with respect to the ‘‘[a]dditional
evidence’’ he mentions in this section of his brief. The
plaintiff’s cursory assertions of the various alleged dis-
crepancies leave this court unable to ascertain exactly
what alleged error the plaintiff is claiming with respect
to some of this ‘‘[a]dditional evidence . . . .’’ In less than
two pages of his brief, the plaintiff raises at least four
separate instances of claimed irregularities. ‘‘Although the
number of pages devoted to an argument in a brief is not
necessarily determinative, relative sparsity weighs in favor
of concluding that the argument has been inadequately
briefed.’’ State v. Buhl, 321 Conn. 688, 726, 138 A.3d 868(2016). The trial court did not even address some of the
‘‘[a]dditional evidence’’ the plaintiff now points to in sup-
port of his contention that the reliability of the results of
the election was in serious doubt. Accordingly, we decline
to review this claim.
In sum, we agree with the trial court that, with respect
to certain claims of the plaintiff, ‘‘the evidence presented
show[ed] a concerning lack of overall compliance with
statutory guidelines by [West Haven] election officials
. . . .’’ The failure to comply with the statutory proce-
dures increases the risk of fraud and can affect the overall
integrity of the electoral process. Election officials should
use care and follow the statutory guidelines. Based on
our review of the record, we conclude that, despite the
lack of compliance by the election officials, the trial court
correctly found that the plaintiff failed to satisfy his bur-
den of proving that the reliability of the results of the
mayoral election was seriously in doubt.
The judgment is affirmed.
In this opinion ALEXANDER and KELLER, Js., con-
curred.
1
The defendants are Rossi; Patricia C. Horvath, in her official capacity as
the city clerk of West Haven; Jo Ann Callegari, in her official capacity as the
Republican registrar of voters of West Haven; Sherri Lepper, in her official
capacity as the Democratic registrar of voters of West Haven; George M.
Chambrelli IV, in his official capacity as the head moderator of the election;
and Catherine Conniff, in her official capacity as the head absentee ballot
moderator of the election.
2
As the trial court noted, the plaintiff raised this argument for the first time
in his posttrial memorandum; he did not plead a violation of § 9-140b (c) (2)
in his complaint. The court also noted that the plaintiff attempted to file an
amended complaint that it denied ‘‘due to the urgency of the current action,
but that complaint also did not allege a violation of § 9-140b (c) (2).’’ The
defendants, however, did not argue before the trial court that they had been
prejudiced by the late introduction of this allegation, and, therefore, the court
addressed the argument. Similarly, because the defendants do not argue that
we cannot properly review this claim on appeal, we address it on the merits.
3
The Chief Justice subsequently ruled that no action was necessary on the
plaintiff’s application for certification to appeal pursuant to General Statutes
§ 52-265a in light of the trial court’s certification pursuant to § 9-325.
4
The defendants also contend that, if we disagree with the plaintiff’s sixth
claim—that the trial court erred in concluding that the eight absentee ballot
outer envelopes found in the city vault that were missing from the absentee
ballot report were returned to the City Clerk’s Office in substantial compliance
with § 9-140b (a)—then the plaintiff’s second, third and fifth claims are moot
because only eighteen total votes are at issue with respect to those claims,
which would not cast the reliability of the results of the election in serious
doubt. Given the number of claims on appeal and the different numbers of
ballots related to each claim, we cannot conclude that any claims would be
moot as a result of a finding in favor of the defendants on any one claim.
5
We note that Horvath was not present in the City Clerk’s Office on election
day. As a result, the retrieval of ballots from the drop boxes on election day
by an assistant clerk would plainly be permissible under § 7-19 because that
statute permits assistant municipal clerks to perform all the duties of the
municipal clerk in the absence of the municipal clerk.
6
As the trial court noted, the legislature has not defined ‘‘signature’’ in the
absentee ballot context. It has, however, addressed signatures in another section
of title 9 of the General Statutes. See General Statutes § 9-453m (‘‘[t]he use of
titles, initials or customary abbreviations of given names by the signer of a
nominating petition shall not invalidate such signature if the identity of the
signer can be readily established by reference to the signature on the petition
and the name of a person as it appears on the last-completed registry list at
the address indicated or of a person who has been admitted as an elector since
the completion of such list’’ (emphasis added)). Here, Recchia was readily
identifiable from her initials, and she authenticated her initials on these ballots
in court.
7
Horvath also testified that, as far as she was aware, no one prepared or
executed affidavits of endorsement for the election, as required by § 9-140c
(a). George M. Chambrelli IV, the head moderator of the election, testified that
he did not submit an affidavit to Horvath to certify that her endorsements were
accurate. On appeal, however, the plaintiff does not challenge the failure of
the City Clerk’s Office to execute affidavits of endorsement.
8
Additionally, the plaintiff previously challenged the absentee ballot belong-
ing to Lesley Bode. On appeal, however, the plaintiff no longer challenges
Bode’s ballot.