Price v. Independent Party of CT--State Central

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JOHN R. PRICE ET AL. v. INDEPENDENT PARTY
OF CT—STATE CENTRAL ET AL.
(SC 19769)
Heard September 29—officially released September 29, 2016*
Kyle R. Barrett and Joseph L. Rini, for the named
plaintiff.
Thomas P. Willcutts and Joseph L. Rini, for the plain-
tiff Michael Telesca.
Bryan Thomas Cafferelli and Matthew Joseph
Grimes, Jr., for the named defendant et al.
Maura B. Murphy-Osborne, assistant attorney gen-
eral, for the defendant Denise Merrill, secretary of
the state.
Benjamin S. Proto, Jr., for the defendant Daniel
Carter.
Michael Duff, self-represented.
Opinion
PALMER, J. This case involves a dispute between two
factions of this state’s Independent Party. The question
before the court is whether it has original jurisdiction,
pursuant to General Statutes § 9-323,1 to remedy certain
alleged violations of party procedure and election law
by caucus officials of one of those factions, the named
defendant, the Independent Party of CT—State Central,2
pertaining to its nomination of the defendant Daniel
Carter for the United States Senate. After an expedited
hearing on September 29, 2016, the court concluded
that the plaintiffs, John R. Price, the nominee for the
United States Senate of the other faction, the Indepen-
dent Party of Connecticut, and Michael Telesca, an elec-
tor and registered member of the Independent Party of
Connecticut, had failed to establish that the court had
jurisdiction to entertain their claims under § 9-323. The
court therefore granted the motion to dismiss filed by
the Independent Party of CT—State Central and Carter.
This written opinion followed.
I
BACKGROUND
The record reveals the following undisputed factual
and procedural history. In Connecticut, the Indepen-
dent Party is composed of two factions: the Indepen-
dent Party of Connecticut, which is based in the city
of Waterbury, and the Independent Party of CT—State
Central, which is based in the city of Danbury. After
proper notice, each faction hosted separate party cau-
cuses in late August, 2016, following which two different
nominees for the United States Senate were certified
to the secretary of the state: the Independent Party of
CT—State Central nominated Carter, and the Indepen-
dent Party of Connecticut nominated Price.3 On Septem-
ber 2, 2016, after receiving the competing nominations,
the secretary of the state notified the two factions that,
in accordance with existing policy and General Statutes
§ 9-250,4 neither name would be placed on the ballot
under the Independent Party line unless one nominee
withdrew.
Approximately two weeks later, on September 13, an
action was filed in the Superior Court in the judicial
district of Hartford, seeking to resolve the ongoing dis-
pute over which faction properly controlled the Inde-
pendent Party. Independent Party of CT—State Central
v. Merrill, Superior Court, judicial district of Hartford,
Docket No. HHD-CV-16-6071180-S (filed September 13,
2016). Following the filing of a motion to dismiss the
claims relating specifically to the United States Senate
race for lack of subject matter jurisdiction, both Carter
and Price withdrew from the case. On September 23,
the plaintiffs filed the present action in the Supreme
Court, alleging various violations of party rules and
election statutes during the caucus of the Independent
Party of CT—State Central,5 and seeking relief under
§ 9-323. On September 26, the plaintiffs sought a judg-
ment declaring that the caucus of the Independent Party
of CT—State Central was invalid. The plaintiff also filed
a motion for a permanent injunction compelling, inter
alia, Carter to withdraw his nomination and the defen-
dant Denise Merrill, the secretary of the state, to place
Price’s name on the Independent Party line on the
November, 2016 ballot.6 Significantly, the plaintiffs did
not allege any error on the part of the secretary of the
state. On September 27, the secretary of the state filed
a memorandum in opposition to the plaintiffs’ motion
for injunctive relief, and, on September 28, the Indepen-
dent Party of CT—State Central and Carter filed a
motion to dismiss on the ground that the court lacked
jurisdiction because (1) a ‘‘caucus’’ is not an ‘‘ ‘elec-
tion’ ’’ for purposes of § 9-323; and (2) caucus adminis-
trators are not ‘‘ ‘election officials’ ’’ under the statute,
as the plaintiffs alleged. The secretary of the state like-
wise argued that the plaintiffs could not prevail because
they were not ‘‘aggrieved by any ruling of the secretary
[of the state],’’ and, further, because their claims were
‘‘barred by the doctrine of laches.’’
Because § 9-323 provides that a case filed thereunder
shall be resolved expeditiously by a justice of the
Supreme Court, the court conducted a hearing on Sep-
tember 29, 2016. After the hearing, the court granted
the defendants’ motion to dismiss. The court will review
the jurisdictional claims first.
II
JURISDICTION UNDER § 9-323
For this court to exercise original jurisdiction under
§ 9-323, a candidate for the United States Senate or an
elector must claim that he or she is ‘‘aggrieved by any
ruling of any election official in connection with any
election for . . . a senator in Congress . . . .’’7 Fur-
thermore, upon bringing the matter before the court,
the plaintiff must ‘‘set out the claimed errors of such
election official . . . .’’ General Statutes § 9-323; cf.
Bortner v. Woodbridge, 250 Conn. 241, 259, 736 A.2d
104 (1999) (‘‘as a predicate for the ordering of a new
election under [General Statutes] § 9-328, there must
be either [1] an error or errors ‘in the rulings of’ an
election official, or [2] a ‘mistake in the count of the
votes’ ’’).
Over the past forty years, this court has from time
to time considered the meaning of the phrase ‘‘rulings
of an election official’’ as it is used in several closely
related statutes. See, e.g., Caruso v. Bridgeport, 285
Conn. 618, 639, 941 A.2d 266 (2008) (construing General
Statutes § 9-329a [a], relating to ‘‘ ‘ruling[s] of an elec-
tion official in connection with any primary’ ’’); Bortner
v. Woodbridge, supra, 250 Conn. 244 n.3 (construing
§ 9-328, concerning aggrievement by ‘‘ ‘any ruling of any
election official in connection with an election for any
municipal office or a primary for justice of the peace’ ’’);
Scheyd v. Bezrucik, 205 Conn. 495, 498 n.1, 535 A.2d
793 (1987) (same); Wrinn v. Dunleavy, 186 Conn. 125,
127 n.2, 440 A.2d 261 (1982) (construing § 9-329a [a],
relating to ‘‘ruling[s] of an election official in connection
with any primary’’). Most recently, in Wrotnowski v.
Bysiewicz, 289 Conn. 522, 958 A.2d 709 (2008), Chief
Justice Rogers observed that ‘‘[this court’s] analysis of
the phrase ‘ruling of any election official’ in Scheyd,
Bortner and Caruso is equally applicable to § 9-323.’’
Id., 528.
Accordingly, under § 9-323, ‘‘a ruling of an election
official must involve some act or conduct by the official
that (1) decides a question presented to the official, or
(2) interprets some statute, regulation or other authori-
tative legal requirement, applicable to the election pro-
cess.’’ Bortner v. Woodbridge, supra, 250 Conn. 268; see
also Wrotnowski v. Bysiewicz, supra, 289 Conn. 526–27.
Such rulings ‘‘include conduct that comes within the
scope of a mandatory statute governing the election
process, even if the election official has not issued a
ruling in any formal sense.’’ (Emphasis omitted; internal
quotation marks omitted.) Wrotnowski v. Bysiewicz,
supra, 527, quoting Caruso v. Bridgeport, supra, 285
Conn. 647. Nonetheless, the court will not find a party
aggrieved by a ruling when the ruling is made ‘‘in confor-
mity with the law.’’ (Internal quotation marks omitted.)
Wrotnowski v. Bysiewicz, supra, 527, quoting Scheyd
v. Bezrucik, supra, 205 Conn. 503.
Unlike the plaintiff in Wrotnowski, the plaintiffs in the
present case do not mount a constitutional challenge to
the actions of the secretary of the state. See Wrotnowski
v. Bysiewicz, supra, 289 Conn. 528 (plaintiff complained
‘‘only that the existing election laws governing presiden-
tial elections are not adequate to ensure compliance
with . . . the federal constitution’’). Indeed, they make
no claim of any incorrect ruling by the secretary of the
state. Instead, they contend that certain caucus officials
of the Independent Party of CT—State Central failed
to adhere to the requirements of General Statutes §§ 9-
372 and 9-452, which govern nominations by minor par-
ties8 for elective office. Specifically, the plaintiffs claim
that various officials were registered as Republicans,
not Independent Party members, and that the party
affiliations and residences of caucus attendees were
never verified. Such actions, were they to constitute
breaches of mandatory statutory requirements, might
well constitute ‘‘rulings’’ under the broad standard
drawn by this court in Caruso. See Caruso v. Bridge-
port, supra, 285 Conn. 647 (‘‘[w]hen an election statute
mandates certain procedures, and the election official
has failed to apply or to follow those procedures, such
conduct implicitly constitutes an incorrect interpreta-
tion of the requirements of the statute and, therefore,
is a ruling’’). The court declines to decide this issue,
however, because the alleged statutory violations have
not been identified with any specificity9 and because
the case may be resolved more readily by asking a
different question: whether the caucus officials should
be considered ‘‘election official[s]’’ for the purposes of
§ 9-323 or something else entirely.
Unlike the question of what constitutes a ‘‘ruling,’’
this court has never had occasion to consider the mean-
ing of ‘‘election official.’’ Nor is that term clearly defined
by statute. Rather than creating a normative definition,
the legislature has chosen to list positions that qualify
as election officials.10 These positions include ‘‘modera-
tor[s],’’ ‘‘official checkers,’’ ‘‘registrars of voters,’’ ‘‘assis-
tant registrars of voters,’’ ‘‘appointed challengers,’’
‘‘voting tabulator tenders,’’ and ‘‘ballot clerks,’’ as well
as ‘‘[h]ead moderators, central counting moderators
and absentee ballot counters appointed pursuant to law
. . . .’’ General Statutes § 9-258 (a); see also Regs.,
Conn. State Agencies § 9-242a-6 (adding ‘‘demonstra-
tors’’). This court’s cases have assumed that the term
‘‘election official’’ applies to the secretary of the state;
Butts v. Bysiewicz, 298 Conn. 665, 676, 5 A.3d 932
(2010); municipal town clerks and selectmen; Miller v.
Schaffer, 164 Conn. 8, 11, 320 A.2d 1 (1972); and ‘‘ballot
caller[s]’’ and ‘‘talliers . . . .’’ In re Election for Second
Congressional District, 231 Conn. 602, 618, 653 A.2d
79 (1994).
In the present case, the plaintiffs have not alleged
that the officials at the caucus of the Independent Party
of CT—State Central were appointed to any of these
positions. They claim only that caucus officials perform
a function analogous to those of the election officials
listed by statute and should therefore be treated simi-
larly.11 Thus, the precise question presented is whether
the term ‘‘election official’’ in § 9-323 is broad enough
to encompass those officials responsible for administer-
ing a minor party caucus. For the following reasons,
the court concludes that it is not.
To ascertain the meaning of ‘‘election official’’ within
the context of § 9-323, it is appropriate to look to estab-
lished principles of statutory construction. ‘‘When con-
struing a statute, [the court’s] fundamental objective is
to ascertain and give effect to the apparent intent of
the legislature. . . . In other words, [the court] seek[s]
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs [the court] first to con-
sider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered.’’ (Footnote
omitted; internal quotation marks omitted.) Caruso v.
Bridgeport, supra, 285 Conn. 638–39. ‘‘The test to deter-
mine ambiguity is whether the statute, when read in
context, is susceptible to more than one reasonable
interpretation.’’ (Internal quotation marks omitted.)
State v. Orr, 291 Conn. 642, 651, 969 A.2d 750 (2009).
First, although the term ‘‘election official’’ is not
expressly defined by statute, the term ‘‘election’’ is stat-
utorily defined as ‘‘any electors’ meeting at which the
electors choose public officials by use of voting tabula-
tors or by paper ballots . . . .’’ General Statutes § 9-1
(d).12 The Independent Party of CT—State Central and
Carter contend that the caucus of the Independent Party
of CT—State Central cannot be considered an ‘‘elec-
tion’’ because its function was not to choose public
officials but merely to nominate candidates for public
office. This argument has persuasive force and counsels
against including caucus officials within the scope of
§ 9-323.
Second, to the extent that the meaning of the term
‘‘election official’’ can be discerned by reference to stat-
utory provisions and case law, as previously explained,
it does not include caucus officials for minor parties.
Furthermore, whereas it might be appropriate to treat
as election officials those other officials who share simi-
lar functions, such treatment is far less appropriate
when the statutes also articulate specific qualifications
for election officials. The General Statutes prescribe at
least two such qualifications: (1) election officials must
be trained; see General Statutes § 9-249; and (2) ‘‘[a]ll
election officials shall be sworn to the faithful perfor-
mance of their duties . . . .’’ General Statutes § 9-231.
Caucus officials are not required to swear an oath or
undergo training. This is compelling, if not dispositive,
evidence of the legislature’s intent to exclude ‘‘ruling[s]’’
by caucus officials from the purview of § 9-323.
Third, narrowly construing the term ‘‘election offi-
cial’’ accords with the broader statutory framework for
conducting nominations. A closer inspection of that
framework reveals that election officials and caucus
officials not only have different qualifications but also
serve different functions. In this state, major parties
may be required to hold primaries13 to select nominees
for state office when such nominations are contested.
See General Statutes § 9-415 (a).14 Much like elections,
such primaries are carefully regulated by the state. See,
e.g., General Statutes § 9-381a (‘‘[e]xcept as otherwise
provided by statute, the provisions of the general stat-
utes concerning procedures relating to regular elections
shall apply as nearly as may be . . . to primaries held
under the provisions of this chapter’’); see also General
Statutes § 9-381 (applying provisions of General Stat-
utes §§ 9-382 through 9-450, which govern major parties,
to ‘‘the nomination by a major party of any candidate
for an elective office’’). Indeed, the registrar of voters
is charged with appointing and training ‘‘primary offi-
cials,’’ such as moderators, checkers, challengers, ballot
clerks, voting tabulator tenders, and assistant regis-
trars, to oversee the operation of the primary elections.
General Statutes § 9-436 (c) and (d).
In contrast, minor parties are left largely to their own
devices during the nomination process. The procedure
by which a minor party endorses a nominee is not
governed by statute; instead, it is ‘‘prescribed in the
rules of such party . . . .’’ General Statutes § 9-451.
Furthermore, such limited filings and notice as are
required by statute are to be made by ‘‘the presiding
officer of the committee, meeting or other authority
making such nomination . . . .’’ General Statutes § 9-
452; see also General Statutes § 9-452a (‘‘presiding offi-
cer’’ shall give written notice of party meetings). Insofar
as listed election officials, such as registrars of voters,
are involved, they are merely required to ‘‘promptly
verify and correct the names on [the] . . . list [of nom-
inees]’’ filed by the party. General Statutes § 9-452. Thus,
whereas elections and primaries are conducted by
trained officials appointed by the state and municipali-
ties, according to rules prescribed by statute, party cau-
cuses of the type involved in the present case are
structured and conducted almost exclusively by party
operatives. In light of the significant disparity between
the two procedures, it is unlikely that the legislature
intended the term ‘‘election official’’ in § 9-323 to
include those individuals who administer party cau-
cuses.
As a practical matter, this makes sense. Election offi-
cials are charged with certain, narrowly defined respon-
sibilities. Their ‘‘ruling[s],’’ for purposes of § 9-323, are
therefore confined to a relatively discrete set of actions
involving the operation of the electoral process. Insofar
as they are responsible for making rulings pertaining
to that process, that function is intentionally nonparti-
san. In contrast, were the court to accept the plaintiffs’
argument, a host of decisions involving party power
and party procedure would be subject to expedited
review by the court. As the court has observed, how-
ever, statutes like § 9-323 ‘‘[authorize] the one unelected
branch of government, the judiciary, to dismantle the
basic building block of the democratic process, an elec-
tion. Thus, [t]he delicacy of judicial intrusion into the
electoral process . . . strongly suggests caution in
undertaking such an intrusion.’’ (Citation omitted; inter-
nal quotation marks omitted.) Bortner v. Woodbridge,
supra, 250 Conn. 254; cf. Reform Party of Connecticut
v. Bysiewicz, 254 Conn. 789, 796, 760 A.2d 1257 (2000)
(‘‘[q]uestions . . . concerning the make-up of the con-
vention, the resolution of challenges to delegates and
procedures of the convention are political questions
left for the party to resolve’’). Likewise, it is unlikely that
the legislature intended for § 9-323 to embroil courts in
the minutia of procedures that it commended explicitly
to the good judgment of the political parties themselves
or in the political decisions made by party operatives
on behalf of the party.
Nevertheless, the court recognizes that the judiciary
has a role to play in promoting fair play even within
the nomination process. See Butts v. Bysiewicz, supra,
298 Conn. 674 (‘‘[c]ommon sense, as well as constitu-
tional law, compels the conclusion that government
must play an active role in structuring elections; as a
practical matter, there must be a substantial regulation
of elections if they are to be fair and honest and if some
sort of order, rather than chaos, is to accompany the
democratic processes’’ [internal quotation marks omit-
ted]). Thus, rather than foreclosing, or even discourag-
ing, adjudication of disputes arising during that broader
electoral process, this decision should be read nar-
rowly, as barring only one avenue of relief for the alleg-
edly unlawful or improper actions of caucus officials,
that is, by motion to a justice of the Supreme Court
under § 9-323.
In sum, the court concludes that officials administer-
ing minor party caucuses are not ‘‘election official[s]’’
for purposes of § 9-323. Thus, the plaintiffs are not
aggrieved under § 9-323 by the actions of those officials.
III
LACHES
The secretary of the state has also raised as a defense
the doctrine of laches in connection with the plaintiffs’
motion for injunctive relief. The court will address the
issue briefly in the hope that doing so will encourage
parties involved in future election disputes to pursue
their claims with due urgency.15
This court has held that (1) ‘‘[l]aches consists of an
inexcusable delay [that unduly] prejudices the defen-
dant,’’ and (2) ‘‘[t]he burden is on the party alleging
laches to establish that defense.’’ (Internal quotation
marks omitted.) Cummings v. Tripp, 204 Conn. 67, 88,
527 A.2d 230 (1987). Although the defense has been
raised in this court on several occasions in connection
with election disputes, it has not so far been discussed
in any depth. See, e.g., Wrotnowski v. Bysiewicz, supra,
289 Conn. 526. In the absence of controlling precedent,
the lower courts of this state have occasionally been
called on to navigate such claims on their own. See
Gasparino v. Bysiewicz, Superior Court, judicial dis-
trict of Hartford, Docket No. CV-04-4002077-S (Septem-
ber 13, 2004) (37 Conn. L. Rptr. 879, 881 and n.6) (court’s
concern over delay of two months in filing of request
for injunction to add name to ballot was insufficient to
bar such request); Plymouth v. Church-Dlugokenski,
48 Conn. Supp. 481, 487–92, 852 A.2d 882 (2003) (chal-
lenge to validity of town referendum was barred by
doctrine of laches when such challenge was raised
approximately six months after referendum); Sherman
v. Kemish, 29 Conn. Supp. 198, 200, 279 A.2d 571 (1971)
(doctrine of laches was inapplicable in action seeking
local recall election when defendant was not unduly
prejudiced); Fry v. Close, 8 Conn. Supp. 390, 393 (1940)
(delay of two weeks in challenging ballot listing was
sufficient to sustain laches defense).
In the present case, the facts pertinent to the claim
of laches are undisputed. First, the particular contro-
versy in this case—over a United States Senate line on
the ballot—is an outgrowth of a dispute over control
of the this state’s Independent Party that has been ongo-
ing for at least several years. See Independent Party
of CT v. Dietter, Superior Court, judicial district of
Waterbury, Docket No. CV-12-5016387-S (September 28,
2012) (‘‘[t]he parties to this action are competing offi-
cers and nominees of the Independent Party of Connect-
icut, seeking the placement of party endorsed nominees
on the ballot for the general election’’). Second, the
caucus at issue, that is, the caucus of the Independent
Party of CT—State Central, occurred on August 23,
2016, and the Senate nomination of that faction of the
Independent Party was filed with the secretary of the
state by August 29, 2016. Thus, even if the plaintiffs
could not have anticipated the alleged procedural short-
comings of the caucus, they were certainly aware by
late August, 2016, that specific and immediate action
needed to be taken. In fact, in light of the history and
ongoing nature of the dispute between the two factions,
the plaintiffs knew or should have known much earlier
that that dispute would need to be addressed before this
election cycle. Following the caucuses, the secretary of
the state sent notice to both candidates that neither
name would be placed on the ballot. From that date,
September 2, 2016, until September 13, 2016, no action
was taken.16 Not until September 23 did the plaintiffs
initiate the present action under § 9-323.
The electoral machinery of the state has been far
less indecisive. By the time this case was heard on
September 29, 2016, overseas and military ballots had
already been issued. Printing of absentee ballots was
underway, and programming of voting machines was
imminent. At the hearing, the secretary of the state
confirmed that, in the event of reprinting, absentee bal-
lots would be delayed to a ‘‘certainty,’’ in violation of
the requirements of General Statutes § 9-140 (f),17 and
perhaps in violation of article sixth, § 7, of the Connecti-
cut constitution,18 as implemented by § 9-140 (f). Costs
associated with reprinting and reprogramming would
run at least $218,000 and would be borne by the cities
and towns affected. Given these considerations, the
court finds that the secretary of the state has met her
burden of establishing prejudicial delay. See, e.g., Fish-
man v. Schaffer, 429 U.S. 1325, 1330, 97 S. Ct. 14, 50
L. Ed. 2d 56 (1976) (citing printing of Presidential, over-
seas and absentee ballots as ‘‘factors militating against
the extraordinary relief’’ of injunction placing candidate
on ballot).
The court also finds that the plaintiffs’ delay is ‘‘inex-
cusable . . . .’’ (Internal quotation marks omitted.)
Cummings v. Tripp, supra, 204 Conn. 88. Indeed, given
its proximity to the election, the delay of nearly two
weeks between the letter from the secretary of the state
and the filing of any court action might be considered
inexcusable. Other courts have found delays nearly as
short to be inexcusable. See, e.g., Kay v. Austin, 621
F.2d 809, 810, 813 (6th Cir. 1980) (equitable relief was
barred by doctrine of laches when candidate filed action
eleven days after discovering that his name was not on
ballot). But this finding need not rest on those two
weeks, or even on the time between the September 13,
2016 filing of the action in the Superior Court and the
September 23 filing with this court. Instead, the court
finds that the failure to address ongoing questions of
party control until mid-September—only two weeks
before ballot preparation was scheduled to begin—con-
stitutes inexcusable delay.19 The courts need not shoul-
der the burden of resolving internecine conflicts on
a truncated timeline simply because the parties have
inexplicably failed to press their claims at an earlier
date.
Thus, even if the plaintiffs’ claims fell within the pur-
view of § 9-323, the doctrine of laches would operate
as an independent and adequate ground to dismiss the
plaintiffs’ action. Although it may not be possible to
articulate a precise timeline according to which dis-
putes must be brought before the court under § 9-323,
it should be clear that parties seeking preelection reso-
lution of such conflicts must act with all due haste.
The plaintiffs’ motion for a permanent injunction is
denied and the motion to dismiss filed by the defendants
the Independent Party of CT—State Central and Carter
is granted.
* September 29, 2016, the date that the order of dismissal was released,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 9-323 provides in relevant part: ‘‘Any elector or candi-
date who claims that he is aggrieved by any ruling of any election official
in connection with any election for presidential electors and for a senator
in Congress and for representative in Congress or any of them, held in his
town, or that there was a mistake in the count of the votes cast at such
election for candidates for such electors, senator in Congress and representa-
tive in Congress, or any of them, at any voting district in his town, or any
candidate for such an office who claims that he is aggrieved by a violation
of any provision of section 9-355, 9-357 to 9-361, inclusive, 9-364, 9-364a or
9-365 in the casting of absentee ballots at such election, may bring his
complaint to any judge of the Supreme Court, in which he shall set out the
claimed errors of such election official, the claimed errors in the count or
the claimed violations of said sections. . . . If such complaint is made prior
to such election, such judge shall proceed expeditiously to render judgment
on the complaint . . . .’’
2
John L. Dietter, Donna L. LaFrance, and Roger Palanzo, all of whom are
alleged to be officers of the Independent Party of CT—State Central, Michael
Duff, who served as the caucus chairman of the Independent Party of CT—
State Central, Daniel Carter, the nominee of the Independent Party of CT—
State Central for United States Senate, and Denise Merrill, the secretary of
the state, also have been named as defendants in the present action.
3
Carter is also the nominee for the Republican Party.
4
General Statutes § 9-250, which details various aspects of ballot prepara-
tion, provides in relevant part: ‘‘No column, under the name of any political
party or independent organization, shall be printed on any official ballot,
which contains more candidates for any office than the number for which
an elector may vote for that office.’’
5
The complaint sets forth the following allegations: ‘‘The August 23, 2016
caucus of the Independent Party of CT—State Central violated the . . .
General Statutes and the filed rules applicable to the caucus in the follow-
ing ways:
‘‘A. The caucus was called to order by Mark Boughton, the mayor of
Danbury, a registered Republican voter, who could not by virtue of his
Republican registration have . . . presided over the caucus for [the] . . .
[Independent Party of CT—State Central] as he was not a registered Indepen-
dent voter, in violation of [General Statutes §§] 9-372 and 9-452.
‘‘B. Roger Polanzo, who was claimed to be the secretary [and] deputy
treasurer of the Independent Party of CT—State Central and who actively
participated as an election official for the caucus, is listed with the secretary
of the state as a member of the Republican party and therefore could not
be involved in issuing notices, presenting a slate of over 100 nominations
for offices in multiple districts throughout the state and in Congress or filing
papers with the [secretary of the state] as he is not a registered member
of the Independent Party, all in violation of [§§] 9-372 and 9-452.
‘‘C. The nominations were done as a slate for all offices throughout the
state and for congressional offices allowing caucus attendees to vote for
nominations for persons running in districts other than the districts in which
they resided, in violation of . . . [§] 9-372.
‘‘D. At no time during the caucus were any of the persons in attendance
checked to verify that the attendees were registered members of the Indepen-
dent Party or otherwise authorized to vote in the caucus, in violation of [§]
9-372.’’
6
In their complaint, the plaintiffs also appear to request a writ of manda-
mus ordering the secretary of the state to place Price on the ballot. The
plaintiffs cannot satisfy the demanding requirements of their claim for a
writ of mandamus for the same reasons that they cannot prevail on their
claims for declaratory and injunctive relief. See, e.g., Miles v. Foley, 253
Conn. 381, 391, 752 A.2d 503 (2000) (writ of mandamus will be granted ‘‘only
[when] the plaintiff has a clear legal right to have done that which he seeks,’’
and ‘‘[t]he writ is proper only when [1] the law imposes on the party against
whom the writ would run a duty the performance of which is mandatory
and not discretionary; [2] the party applying for the writ has a clear legal
right to have the duty performed; and [3] there is no other specific adequate
remedy’’ [internal quotation marks omitted]). Those reasons are set forth
hereinafter.
7
The plaintiffs claim that they are aggrieved by, inter alia, ‘‘rulings of
election [officials] in connection with the election of a senator in Congress’’
and ‘‘by the counting of the ballots’’ from an allegedly invalid caucus.
Although the plaintiffs question the validity of that caucus vote, they do not
claim that there was any ‘‘mistake in the count of the votes’’ under § 9-323.
Thus, only the first prong of the statute is at issue in the present case.
8
‘‘ ‘Minor party,’ ’’ as defined by § 9-372 (6), ‘‘means a political party or
organization which is not a major party and whose candidate for the office
in question received at the last-preceding regular election for such office,
under the designation of that political party or organization, at least one
per cent of the whole number of votes cast for all candidates for such office
at such election . . . .’’
‘‘ ‘Major party,’ ’’ as defined by § 9-372 (5), ‘‘means (A) a political party
or organization whose candidate for Governor at the last-preceding election
for Governor received, under the designation of that political party or organi-
zation, at least twenty per cent of the whole number of votes cast for all
candidates for Governor, or (B) a political party having, at the last-preceding
election for Governor, a number of enrolled members on the active registry
list equal to at least twenty per cent of the total number of enrolled members
of all political parties on the active registry list in the state . . . .’’
9
The plaintiffs claim that the defendants violated §§ 9-372 and 9-452, but
they fail to identify the specific provisions that prohibit cross enrollment
or mandate verification of attendee affiliation. Under the circumstances,
there is no reason for the court to speculate.
10
Some other states have articulated a specific, normative definition. See,
e.g., Cal. Elec. Code § 320 (Deering Supp. 2016) (‘‘ ‘Elections official’ means
any of the following: [a] A clerk or any person who is charged with the duty
of conducting an election. [b] A county clerk, city clerk, registrar of voters,
or elections supervisor having jurisdiction over elections within any county,
city, or district within the state.’’); Ark. Admin. Code 108.00.2-200 (a) (‘‘[e]lec-
tion [o]fficial—a person who is a member of the county board of election
commissioners, a person who performs election coordinator duties, a person
who is a poll worker designated by a county board of election commissioners
to be an election clerk, election judge, or election sheriff, or a deputy county
clerk or a person assigned by a county clerk to conduct early voting’’);
W. Va. Code R. § 153-26-2.1 (‘‘ ‘[e]lection official’ means any office holder,
government employee or individual who has been delegated responsibilities
or duties in the conduct or administration of elections by the provisions of
Chapter 3 or any other provision of the West Virginia Code’’); but see Mont.
Admin. R. 44.3.2202 (1) (‘‘ ‘[e]lection official’ means an election administra-
tor, election deputy, or election judge’’).
11
The plaintiffs allege that the defendants Donna L. LaFrance, Roger
Polanzo, and Michael Duff ‘‘acted as . . . election official[s] . . . .’’
12
‘‘Caucus’’ is separately defined as ‘‘any meeting . . . of the enrolled
members of a political party within a municipality or political subdivision
thereof for the purpose of selecting party-endorsed candidates for a primary
to be held by such party or for the purpose of transacting other business
of such party . . . .’’ General Statutes § 9-372 (1).
13
A ‘‘primary’’ is ‘‘a meeting of the enrolled members of a political party
and, when applicable . . . unaffiliated electors, held during consecutive
hours at which such members or electors may, without assembling at the
same hour, vote by secret ballot for candidates for nomination to office or
for town committee members . . . .’’ General Statutes § 9-372 (11).
14
General Statutes § 9-415 (a) provides: ‘‘If a candidacy for nomination
by a political party to a state office is filed by or on behalf of any person
other than a party-endorsed candidate within the time specified in subsection
(a) of section 9-400 and in conformity with the provisions of section 9-400,
a primary shall be held in each municipality of the state to determine the
nominee of such party for such office, except as provided in section 9-416a.’’
15
Ordinarily, a court does not address the merits of a claim once it has
determined that it lacks subject matter jurisdiction. See, e.g., Sousa v. Sousa,
322 Conn. 757, 770, 143 A.3d 578 (2016) (court without subject matter
jurisdiction lacks discretion to consider merits of claim or claims asserted).
Given the relative sparsity of precedent under § 9-323, however, the court
will address the laches claim asserted by the secretary of the state to
underscore the need for the speedy filing of challenges under that provision.
See Wrotnowski v. Bysiewicz, supra, 289 Conn. 528–29 and n.8 (although
concluding that it lacked subject matter jurisdiction over case because
plaintiff did not have standing under § 9-323, court observed that plaintiff
could not prevail on merits of his claim that he was entitled to writ of
mandamus, even if he had standing).
16
On September 13, 2016, the only action taken in connection with the
present case was the filing of an action in the Superior Court pertaining to,
inter alia, the subject matter of the present case, namely, the placement on
the ballot of the Independent Party’s candidate for the United States Senate.
17
General Statutes § 9-140 (f) provides in relevant part: ‘‘Absentee voting
sets shall be issued beginning on the thirty-first day before an election
. . . .’’
18
Article sixth, § 7, of the Connecticut constitution provides: ‘‘The general
assembly may provide by law for voting in the choice of any officer to be
elected or upon any question to be voted on at an election by qualified
voters of the state who are unable to appear at the polling place on the day
of election because of absence from the city or town of which they are
inhabitants or because of sickness, or physical disability or because the
tenets of their religion forbid secular activity.’’
19
Even if the parties before the court do not include the full leadership
cohort of the Waterbury and Danbury factions of the Independent Party,
the present claim is inextricable from the underlying dispute. The factions’
delays must therefore be imputed to their nominees.