Fay v. Merrill

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The ‘‘officially released’’ date that appears near the
beginning of this opinion is the date the opinion was
released as a slip opinion. The operative date for the
beginning of all time periods for filing postopinion
motions and petitions for certification is the ‘‘officially
released’’ date appearing in the opinion.
This opinion is subject to revisions and editorial
changes, not of a substantive nature, and corrections
of a technical nature prior to publication in the
Connecticut Law Journal.
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MARY FAY ET AL. v. DENISE W. MERRILL,
SECRETARY OF THE STATE
(SC 20477)
Heard July 20—officially released August 3, 2020*
Procedural History
Action seeking, inter alia, an order rescinding the
application for absentee ballot for the August, 2020
primary elections prepared by the Secretary of the
State, and for other relief, brought, pursuant to General
Statutes § 9-323, to Richard A. Robinson, Chief Justice
of the Supreme Court, who conducted a hearing on
the plaintiffs’ motion for an order and the defendant’s
motion to dismiss the complaint. Dismissed.
Proloy K. Das, with whom, on the brief, was Matthew
A. Ciarleglio, for the appellants (plaintiffs).
William Tong, attorney general, with whom, on the
brief, were Clare Kindall, solicitor general, and Michael
K. Skold, Maura Murphy Osborne, and Alma R. Nunley,
assistant attorneys general, for the appellee (defen-
dant).
William M. Bloss filed a brief for the Connecticut
Democratic Party as amicus curiae.
Andrew S. Knott filed a brief for the Public Interest
Legal Foundation as amicus curiae.
Opinion
ROBINSON, C. J. The four plaintiffs, who are candi-
dates in the August 11, 2020 primary election (August
primary) for the Republican Party’s nomination for the
office of United States Representative for Connecticut’s
First and Second Congressional Districts,1 brought this
original jurisdiction proceeding pursuant to General
Statutes § 9-3232 against the defendant, Denise W. Mer-
rill, in her official capacity as the Secretary of the State.
The plaintiffs sought declaratory and injunctive relief
challenging the defendant’s ‘‘ruling of an election offi-
cial,’’ which added a seventh category for absentee
voting, ‘‘COVID-19,’’ to the application for absentee bal-
lots (application) for the August primary in contempla-
tion of the ongoing coronavirus disease-19 (COVID-19)
global pandemic. The plaintiffs claimed that the defen-
dant’s change to the application violates article sixth,
§ 7, of the Connecticut constitution3 because (1) she
acted pursuant to Governor Ned Lamont’s Executive
Order No. 7QQ,4 which itself violates article sixth, § 7,
of the Connecticut constitution, and (2) it expanded
the application beyond the existing limitations set forth
by General Statutes § 9-135.5 The plaintiffs also claimed
that the application is inconsistent with the terms of
Executive Order No. 7QQ. The defendant moved to
dismiss the complaint, contending, inter alia, that the
court lacked jurisdiction under § 9-323 because that
election contest statute does not apply to primaries,
and, in any event, the plaintiffs’ constitutional challenge
is not one that is cognizable under the election contest
statutes. After a hearing held on July 20, 2020, this court
granted the motion to dismiss for lack of subject matter
jurisdiction under § 9-323.6 This written opinion fol-
lowed.
The pleadings and the record reveal the following
undisputed facts and procedural history. On March 10,
2020, Governor Lamont declared a public health and
civil preparedness emergency ‘‘throughout the [s]tate
. . . as a result of the [COVID-19] outbreak in the
United States and Connecticut . . . .’’7 Connecticut’s
congressional and presidential preference primary was
rescheduled to August 11, 2020, from its originally
scheduled date of April 28, 2020, because of the COVID-
19 pandemic. Given the public health risk posed by in
person voting during the ongoing pandemic, particu-
larly with respect to the ‘‘significant portion of poll
workers and volunteers [who] are [sixty years old] or
older,’’ Governor Lamont determined that ‘‘providing
an alternative to [in person] voting could be particularly
helpful in reducing the risk of transmission during
voting among this population . . . .’’8 Accordingly, on
May 20, 2020, he issued Executive Order No. 7QQ pursu-
ant to his powers under General Statutes § 28-9 (b) (1).9
To provide that alternative to in person voting, Execu-
tive Order No. 7QQ, inter alia, ‘‘modified [§ 9-135] to
provide that, in addition to the enumerated eligibility
criteria set forth in subsection (a) of that statute, an
eligible elector may vote by absentee ballot for the
[August primary] if he or she is unable to appear at his
or her polling place during the hours of voting because
of the sickness of COVID-19. For purposes of this modi-
fication, a person shall be permitted to lawfully state
[that] he or she is unable to appear at a polling place
because of COVID-19 if, at the time he or she applies
for or casts an absentee ballot for the [August primary],
there is no federally approved and widely available
vaccine for prevention of COVID-19. It shall not consti-
tute a misrepresentation under subsection (b) of [§] 9-
135 . . . for any person to communicate the provisions
of this modification to any elector or prospective absen-
tee ballot applicant.’’ (Emphasis added.)
In late June, 2020, the defendant, acting in her capac-
ity as Commissioner of Elections with general supervi-
sory authority over elections in Connecticut, issued the
application for the August primary. The application
added ‘‘COVID-19’’ as a new, seventh reason for
requesting an absentee ballot; it is listed first among
the reasons for ‘‘expect[ing] to be unable to appear at
the polling place during the hours of voting,’’10 with an
adjacent bold notation that ‘‘[a]ll voters are able to
check this box, pursuant to Executive Order [No.]
7QQ.’’ (Emphasis omitted.) The ‘‘special instructions’’
at the bottom of the application provide in relevant
part: ‘‘The [s]tate . . . via Executive Order [No.] 7QQ,
as interpreted by the [defendant] pursuant to [General
Statutes § 9-3], has determined [that] (1) . . . having
a [preexisting] illness allows you to vote by absentee
ballot because your [preexisting] illness would prevent
you from appearing at your [designated] polling place
or (2) . . . absent a widely available vaccine, the exis-
tence of the COVID-19 virus allows you to vote by absen-
tee ballot if you so choose for your own safety. To
receive your absentee ballot please complete and sign
this application (be sure to check ‘Illness’ for reason
(1) or ‘COVID-19’ for reason (2) above) and return it to
your [t]own [c]lerk using the enclosed postage prepaid
envelope. . . .’’ (Emphasis in original.)
The defendant anticipates a significant increase in
the use of absentee ballots this year and, working with
a third-party mailing vendor (vendor), has mailed
1,274,414 applications to active registered voters
between June 26 and July 1, 2020.11 As of July 15, 2020,
more than 100,000 voters have completed and returned
their applications to local election officials for pro-
cessing; 107,743 applications have been processed as
of that date. The information contained in each applica-
tion is then downloaded by the defendant’s office onto
a computer file, which was provided to the vendor
approximately every other day beginning on July 17,
2020. The vendor was scheduled to mail the appropriate
absentee ballots to the approved voters once those bal-
lots were finalized on July 21, 2020.
On July 1, 2020, the plaintiffs brought this petition
and complaint pursuant to General Statutes §§ 9-323,
52-29, and 52-471, claiming that the defendant’s prepara-
tion and issuance of the application pursuant to Execu-
tive Order No. 7QQ constituted a ‘‘ruling of an election
official’’ for purposes of § 9-323. The plaintiffs first
claimed that Executive Order No. 7QQ violates article
sixth, § 7, of the Connecticut constitution because (1)
that constitutional provision ‘‘expressly commits the
prescription of absentee voting procedure to the Gen-
eral Assembly—not to the [g]overnor,’’ and (2) the exec-
utive order ‘‘broadens the use of absentee ballots, in
contravention of the strict reasons for which absentee
ballots may be used in Connecticut elections as set
forth in article sixth, § 7.’’12 See footnote 3 of this opin-
ion. Second, the plaintiffs claimed that the defendant’s
‘‘decision to expand absentee voting based on Execu-
tive Order No. 7QQ, rather than limit absentee voting
in accordance with the restrictions set forth by the
legislature in . . . § 9-135, was a ruling of an election
official’’ that violated the Connecticut constitution
because (1) the defendant ‘‘lacks the constitutional
authority to alter the parameters of who is entitled to
vote by absentee ballot,’’ (2) ‘‘[t]he reasons that electors
may vote by absentee ballot are strictly limited by the
Connecticut constitution and can . . . be expanded
[only] by the electorate,’’ and (3) the application
‘‘expands the use of absentee ballots for reasons beyond
those specifically prescribed in article sixth, § 7, of the
state constitution.’’ See footnote 3 of this opinion.
Finally, the plaintiffs claimed that the defendant’s ‘‘deci-
sion to add a new category called ‘COVID-19’ and her
failure to include the restrictions contained in Execu-
tive Order No. 7QQ concerning that reason—i.e., the
voter being unable to appear and the unavailability of
a vaccine—[constitute] a ruling of an election official’’
that ‘‘ignored the important qualification’’ to that effect
in Executive Order No. 7QQ. Claiming to be aggrieved
as candidates and electors by these various violations,
the plaintiffs sought a judgment declaring that the appli-
cation is both unconstitutional and based on an errone-
ous interpretation of Executive Order No. 7QQ and § 9-
135. The plaintiffs also sought a prohibitory injunction
precluding the defendant from mailing or distributing
copies of the application to any Connecticut voters
and a mandatory injunction directing her to recall any
copies already mailed or distributed to any Connecti-
cut voters.
On July 7, 2020, this court issued a case management
order directing the parties to file briefs by July 17, 2020,
with oral argument initially scheduled for July 22, 2020.13
That same day, the defendant moved to dismiss this
case. Subsequently, on July 16, 2020, the plaintiffs
moved for an order ‘‘(1) enjoining the defendant . . .
from issuing absentee ballots for COVID-19 reasons on
July 21, 2020, until this court has had the opportunity
to issue a decision in this matter, or (2) alternatively,
rescheduling the hearing currently scheduled for July
22, 2020, for July 20, 2020.’’ This court then sua sponte
scheduled a hearing for July 20, 2020, limited to the
issues raised in the defendant’s motion to dismiss and
the plaintiffs’ motion for an order.
After the July 20, 2020 hearing, this court granted the
defendant’s motion to dismiss for lack of jurisdiction
under § 9-323 and took no action on the plaintiffs’
motion for an order.14 The court indicated that a written
decision would be forthcoming. This is that decision.
In the motion to dismiss, the defendant contended,
inter alia, that this court lacks subject matter jurisdic-
tion under § 9-323. First, the defendant claims that the
plaintiffs ‘‘cannot sue under the statute they have cho-
sen or in this forum’’ because § 9-323, ‘‘by its terms
. . . applies [only] to elections, not primaries,’’ as the
term ‘‘primary’’ is defined by General Statutes § 9-372
(11).15 To this end, the defendant argues that this case
should have been brought in the Superior Court under
General Statutes § 9-329a,16 which governs disputes aris-
ing during or out of primaries. In response, the plaintiffs
rely on Price v. Independent Party of CT—State Cen-
tral, 323 Conn. 529, 147 A.3d 1032 (2016), and the plain
language of both §§ 9-323 and 9-329a in support of the
proposition that § 9-323 applies to federal congressional
primary elections because § 9-329a is expressly limited
to primaries for state, district or municipal office, pri-
maries for town committees, and the presidential pref-
erence primary, and does not include federal congres-
sional primaries. They also rely on General Statutes
§ 9-381a,17 which governs the procedure applicable in
primary elections, to argue that § 9-323 governs federal
primary elections because § 9-323 does not specifically
exclude primary elections from its ambit. The plaintiffs
further argue that a ‘‘primary’’ is commonly understood
to be an ‘‘election’’ to nominate candidates for office.
They further contend that the defendant incorrectly
relies on the definition of ‘‘primary’’ in § 9-372 (11)
because this court’s decisions in Feehan v. Marcone,
331 Conn. 436, 204 A.3d 666, cert. denied, U.S. ,
140 S. Ct. 144, 205 L. Ed. 2d 35 (2019), and Republican
Party of Connecticut v. Merrill, 307 Conn. 470, 55 A.3d
251 (2012), establish that particular definition is inappli-
cable to the election contest statutes. The court, how-
ever, agrees with the defendant and concludes that it
lacks jurisdiction because § 9-323 does not apply to
primaries; instead, § 9-329a provides the proper vehicle
for the plaintiffs’ challenge in the Superior Court
because a federal congressional primary is one for ‘‘dis-
trict office’’ under that statute.
‘‘A motion to dismiss . . . properly attacks the juris-
diction of the court, essentially asserting that the plain-
tiff cannot as a matter of law and fact state a cause
of action that should be heard by the court. . . . A
determination regarding a . . . court’s subject matter
jurisdiction is a question of law, particularly when it
presents questions of constitutional and statutory inter-
pretation. . . .
‘‘Depending on the record before it, a . . . court rul-
ing on a motion to dismiss for lack of subject matter
jurisdiction . . . may decide that motion on the basis
of: (1) the complaint alone; (2) the complaint supple-
mented by undisputed facts evidenced in the record;
or (3) the complaint supplemented by undisputed facts
plus the court’s resolution of disputed facts. . . . Dif-
ferent rules and procedures will apply, depending on
the state of the record at the time the motion is filed.’’
(Citations omitted; internal quotation marks omitted.)
Feehan v. Marcone, supra, 331 Conn. 446. In the present
case, the court relies on the complaint supplemented
by undisputed facts, as evinced in the stipulation filed
by the parties.
Whether § 9-323 applies to federal congressional pri-
maries ‘‘presents a question of statutory construction
over which we exercise plenary review. . . . When
construing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we seek 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, Gen-
eral Statutes § 1-2z directs us first to consider the text
of the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common-law principles governing the same general
subject matter . . . . The test to determine ambiguity
is whether the statute, when read in context, is suscepti-
ble to more than one reasonable interpretation. . . .
Previous case law interpreting the statute remains
instructive, because we do not write on a clean slate
when this court previously has interpreted a statute
. . . .’’ (Internal quotation marks omitted.) Id., 470–71.
Beginning with the previous case law, the court first
looks to Price v. Independent Party of CT—State Cen-
tral, supra, 323 Conn. 531–32, in which Justice Richard
N. Palmer considered a challenge brought under § 9-
323 to the Independent Party’s caucus for purposes of
choosing its candidates for the United States Senate.
The plaintiffs posit that, in Price, the Secretary of the
State challenged the applicability of § 9-323 to the minor
party caucus and that the court ‘‘did not find that argu-
ment dispositive’’ because it concluded instead that
the minor party ‘‘caucus officials’’ whose rulings were
challenged were not ‘‘ ‘election official[s]’ ’’ for pur-
poses of the statute. Id., 543. Price does not directly
support the plaintiffs, however, because the decision
does not acknowledge, let alone address, an argument
that § 9-323 does not apply to federal congressional
primary elections.
Accordingly, the court turns to the text of § 9-323,
which provides in relevant part that ‘‘[a]ny elector or
candidate who claims that he is aggrieved by any ruling
of any election official in connection with any election
. . . for a senator in Congress and for representative
in Congress or any of them . . . may bring his com-
plaint to any judge of the Supreme Court . . . .’’
(Emphasis added.) Accordingly, the court must deter-
mine whether a primary is an ‘‘election’’ within the
contemplation of § 9-323. The term ‘‘election,’’ as used
in § 9-323, is defined by General Statutes § 9-1 (d), which
is the broadly applicable definitions provision that
applies to the election contest statutes. See Feehan v.
Marcone, supra, 331 Conn. 473. Section 9-1 (d) defines
‘‘election’’ as ‘‘any electors’ meeting at which the elec-
tors choose public officials by use of voting tabulators
or by paper ballots as provided in section 9-272 . . . .’’
(Emphasis added.) Because ‘‘primary’’ is not a statu-
torily defined term for purposes of the election contest
statutes, the court looks to the common understand-
ing of that term, as expressed in the dictionary, to deter-
mine whether it is an ‘‘election’’ as defined by § 9-323.18
See, e.g., Kuchta v. Arisian, 329 Conn. 530, 537, 187
A.3d 408 (2018). In contrast to § 9-1 (d), the online
dictionaries relied on by the plaintiffs define the word
‘‘primary’’ as ‘‘an election in which qualified voters
nominate or express a preference for a particular can-
didate or group of candidates for political office,
choose party officials, or select delegates for a party
convention.’’ (Emphasis added.) Merriam-Webster Online
Dictionary, available at http://www.merriam-webster.com/
dictionary/primary (last visited July 31, 2020); see also
Dictionary.com, available at http://www.dictionary.com/
browse/primary (last visited July 31, 2020) (defining ‘‘pri-
mary’’ as ‘‘a preliminary election in which voters of each
party nominate candidates for office, party officers, etc.,’’
or ‘‘a meeting of the voters of a political party in an
election district for nominating candidates for office,
choosing delegates for a convention, etc.; caucus’’). The
focus on the choice of ‘‘candidates’’ in a primary, as
opposed to the choice of ‘‘public officials’’ in an elec-
tion, as defined by § 9-1 (d), strongly suggests that a
primary is not an ‘‘election’’ for purposes of § 9-323,
particularly given the existence of a related statute to
govern primary contests, namely, § 9-329a.
The plaintiffs contend, however, that this reading of
§ 9-323 leaves them without a remedy because § 9-329a
is limited to primaries for ‘‘state, district or municipal
office,’’ primaries for town committees, and the presi-
dential preference primary, with federal congressional
primary elections being ‘‘[n]oticeably absent’’ from § 9-
329a. This argument is belied by the plain language of
§ 9-329a (a), which provides that ‘‘[a]ny . . . elector or
candidate aggrieved by a ruling of an election official
in connection with any primary held pursuant to (A)
section 9-423, 9-425 or 9-464 . . . may bring his com-
plaint to any judge of the Superior Court for appropriate
action.’’ (Emphasis added.) General Statutes § 9-423,
which is contained in chapter 153 and governs primaries
for ‘‘state, district or municipal office,’’ is expressly
cross-referenced in § 9-329a. The definitions in § 9-372,
which apply to § 9-423; see Feehan v. Marcone, supra,
331 Conn. 472–73; clearly and unambiguously establish
that federal congressional seats, be they for the House
of Representatives or the Senate, are ‘‘state’’ or ‘‘dis-
trict’’ offices within the meaning of that primary statute.
Section 9-372 defines ‘‘state office’’ as ‘‘any office for
which all the electors of the state may vote and includes
the office of Governor, Lieutenant Governor, Secretary,
Treasurer, Comptroller, Attorney General and senator
in Congress, but does not include the office of elector
of President and Vice-President of the United States
. . . .’’ (Emphasis added.) General Statutes § 9-372 (14).
Similarly, a seat in the United States House of Represen-
tatives would be a ‘‘ ‘[d]istrict office,’ ’’ which is ‘‘an
elective office for which only the electors in a district,
as defined in subdivision (3) of this section, may vote
. . . .’’ General Statutes § 9-372 (4); see General Stat-
utes § 9-372 (3) (‘‘ ‘[d]istrict’ means any geographic por-
tion of the state which crosses the boundary or bound-
aries between two or more towns’’). Thus, § 9-329a
plainly and unambiguously furnishes a remedy for dis-
putes arising from federal congressional primaries. To
allow the plaintiffs the extraordinary relief of bypassing
the Superior Court and proceeding directly to this court
under § 9-323 would render § 9-329a superfluous, which
is not a permissible reading of the statutory scheme.
See, e.g., State v. Davalloo, 320 Conn. 123, 140–41, 128
A.3d 492 (2016). Accordingly, the court concludes that,
under the plain and unambiguous language of the elec-
tion contest statutes, § 9-329a, which required the plain-
tiffs to initiate this action in the Superior Court, governs
challenges in the primary context, and this court lacks
jurisdiction under § 9-323, which applies only to general
elections for federal officials.19
The plaintiffs contend, however, that, should this
court determine that jurisdiction over this case lies
under § 9-329a rather than § 9-323,20 it should have trans-
ferred the case to the Superior Court pursuant to Prac-
tice Book § 65-421 and then decided the case ‘‘as a matter
of judicial economy’’ while sitting in its capacity as a
Superior Court judge. See General Statutes § 51-198
(a) (Supreme Court justices are also Superior Court
judges). The court declines to do so because Practice
Book § 65-4 is a ministerial rule that, by its plain lan-
guage, is applicable only to matters within the jurisdic-
tion of the Supreme and Appellate Courts; it says noth-
ing about cases that belong in the Superior Court in the
first instance.22 See E. Prescott, Connecticut Appellate
Practice & Procedure (6th Ed. 2019) § 4-5:1, p. 296.
Accordingly, this court concludes that not only jurisdic-
tion, but assignment to the proper judicial authority,
lies in the Superior Court in the judicial district of
Hartford.23
The defendant’s motion to dismiss is granted; no
action is necessary on the plaintiffs’ motion for an order.
* July 20, 2020, the date that the order of dismissal was issued, is the
operative date for all substantive and procedural purposes.
1
The plaintiffs are Mary Fay, an elector and candidate for United States
Representative for the First Congressional District, Thomas Gilmer, an elec-
tor and candidate for United States Representative for the Second Congres-
sional District, Justin Anderson, an elector and candidate for United States
Representative for the Second Congressional District, and James Griffin,
an elector and candidate for United States Representative for the First
Congressional District. The plaintiffs became candidates for the nomination
in the August primary by receiving either their party’s endorsement or the
support of 15 percent of the delegates at the Republican Party conventions
held in May, 2020.
2
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 and shall cause notice of the hearing to be given to the
Secretary of the State and the State Elections Enforcement Commission.
. . .’’ See also General Statutes § 51-199 (b) (5) (‘‘any election or primary
dispute brought to the Supreme Court pursuant to section 9-323 or 9-325’’
shall be ‘‘taken directly to the Supreme Court’’); In re Election of the United
States Representative for the Second Congressional District, 231 Conn.
602, 608–12, 653 A.2d 79 (1994) (describing procedure under § 9-323 for
postelection complaints, including appointment of panel of three Supreme
Court justices to try case).
3
Article sixth, § 7, of the Connecticut constitution provides: ‘‘The general
assembly may provide by law for voting in the choice of any officer to be
elected or upon any question to be voted on at an election by qualified
voters of the state who are unable to appear at the polling place on the day
of election because of absence from the city or town of which they are
inhabitants or because of sickness or physical disability or because the
tenets of their religion forbid secular activity.’’
4
Executive Order No. 7QQ provides in relevant part: ‘‘1. Absentee Voting
Eligibility During COVID-19 Pandemic. Section 9-135 . . . is modified to
provide that, in addition to the enumerated eligibility criteria set forth in
subsection (a) of that statute, an eligible elector may vote by absentee ballot
for the [August primary] if he or she is unable to appear at his or her polling
place during the hours of voting because of the sickness of COVID-19. For
purposes of this modification, a person shall be permitted to lawfully state
[that] he or she is unable to appear at a polling place because of COVID-
19 if, at the time he or she applies for or casts an absentee ballot for the
[August primary], there is no federally approved and widely available vaccine
for prevention of COVID-19. It shall not constitute a misrepresentation under
subsection (b) of [§] 9-135 . . . for any person to communicate the provi-
sions of this modification to any elector or prospective absentee ballot
applicant.
‘‘2. Notice of Modification Required on Inner Envelope. [General Statutes
§] 9-137 . . . is modified to provide that it shall not constitute a false state-
ment for an elector to represent his or her eligibility to vote by absentee
ballot pursuant to the modifications of [§] 9-135 in [§] 1 of this order, and
the inner envelope described in [§] 9-137 shall contain a notice describing
the modification in [§] 1 of this order.
‘‘3. Authority for Secretary of the State to Modify Absentee Ballot Applica-
tions, Envelopes, and Printed Materials Regarding Eligibility. Notwithstand-
ing any provision of [t]itle 9 of the . . . General Statutes or any other law
or regulation to the contrary, the [defendant] shall be authorized to modify
any required notice, statement, or description of the eligibility requirements
for voting by absentee ballot on any printed, recorded, or electronic material
in order to provide accurate information to voters about the modifications
to absentee voter eligibility and related requirements of this order. . . .’’
5
General Statutes § 9-135 provides: ‘‘(a) Any elector eligible to vote at a
primary or an election and any person eligible to vote at a referendum may
vote by absentee ballot if he or she is unable to appear at his or her polling
place during the hours of voting for any of the following reasons: (1) His
or her active service with the armed forces of the United States; (2) his or
her absence from the town of his or her voting residence during all of the
hours of voting; (3) his or her illness; (4) his or her physical disability; (5)
the tenets of his or her religion forbid secular activity on the day of the
primary, election or referendum; or (6) the required performance of his or
her duties as a primary, election or referendum official, including as a town
clerk or registrar of voters or as staff of the clerk or registrar, at a polling
place other than his or her own during all of the hours of voting at such
primary, election or referendum.
‘‘(b) No person shall misrepresent the eligibility requirements for voting
by absentee ballot prescribed in subsection (a) of this section, to any elector
or prospective absentee ballot applicant.’’
6
As previously stated at the conclusion of the July 20, 2020 hearing, the
court is grateful to all counsel for their professionalism in providing a very
high quality of briefing and argument on an expedited basis.
7
In issuing the executive order, Governor Lamont stated that ‘‘COVID-19
is a respiratory disease that spreads easily from person to person and may
result in serious illness or death’’ and that ‘‘public health experts have
indicated that persons infected with COVID-19 may not show symptoms,
and transmission or ‘shedding’ of the coronavirus that causes COVID-19
may be most virulent before a person shows any symptoms . . . .’’ The
United States Centers for Disease Control and Prevention ‘‘has recom-
mended that people with mild symptoms consistent with COVID-19 be
assumed to be infected with the disease,’’ and ‘‘public health experts have
recommended that, to prevent transmission of COVID-19, and in light of
the risk of asymptomatic transmission and a significant rate of false negative
[test results], everyone should assume they can be carrying COVID-19 even
when [they] have received a negative test result or do not have symp-
toms . . . .’’
8
On May 6, 2020, the defendant’s office issued a legal opinion explaining
that the definition of ‘‘illness’’ under § 9-135 (a) is not ‘‘limited to some
affliction that leaves an individual debilitated or bedridden.’’ Given the
increased risk from COVID-19 to individuals with conditions such as diabe-
tes, chronic lung disease, or cancer, the defendant defined the term ‘‘illness’’
to include (1) ‘‘any registered voter who has a [preexisting] illness . . .
because that voter’s illness would prevent them from appearing at their
[designated] polling place safely because of the [COVID-19] virus’’; (emphasis
omitted); and (2) ‘‘individuals who may have been in contact with a COVID-
19 infected individual such as healthcare workers, first responders, individu-
als who are caring for someone at increased risk, as well as those [who]
feel ill or think they are ill because of the possibility of contact with the
COVID-19 virus . . . .’’
9
General Statutes § 28-9 (b) (1) provides in relevant part: ‘‘Following the
Governor’s proclamation of a civil preparedness emergency pursuant to
subsection (a) of this section or declaration of a public health emergency
pursuant to section 19a-131a, the Governor may modify or suspend in
whole or in part, by order as hereinafter provided, any statute, regulation
or requirement or part thereof whenever the Governor finds such statute,
regulation or requirement, or part thereof, is in conflict with the efficient
and expeditious execution of civil preparedness functions or the protection
of the public health. The Governor shall specify in such order the reason
or reasons therefor and any statute, regulation or requirement or part thereof
to be modified or suspended and the period, not exceeding six months
unless sooner revoked, during which such order shall be enforced. Any such
order shall have the full force and effect of law upon the filing of the full
text of such order in the office of the Secretary of the State. . . . Any
statute, regulation or requirement, or part thereof, inconsistent with such
order shall be inoperative for the effective period of such order. Any such
order shall be communicated by the Governor at the earliest date to both
houses of the General Assembly.’’ (Emphasis added.)
10
The other six reasons provided on the application are (1) ‘‘[m]y active
service in the Armed Forces of the United States,’’ (2) ‘‘[m]y absence from
the town during all of the hours of voting,’’ (3) ‘‘[m]y illness,’’ (4) ‘‘[m]y
religious tenets forbid secular activity on the day of the election, primary
or referendum,’’ (5) ‘‘[m]y duties as a primary, election or referendum official
at a polling place other than my own during all of the hours of voting,’’ and
(6) ‘‘physical disability.’’
11
Ordinarily, 3 to 5 percent of voters vote by absentee ballot; the experi-
ence of similar jurisdictions indicates that between 50 and 80 percent of
Connecticut voters will apply for, and likely use, absentee ballots for the
August primary. The printing and mailing of the applications cost the state
approximately $850,000.
12
The plaintiffs also alleged in their petition and complaint that ‘‘[t]here
is no COVID-19 exception in the Connecticut constitution.’’
13
On July 6, 2020, the Connecticut Democratic Party moved to intervene
in this proceeding ‘‘as a third-party plaintiff in order to present arguments
that this court lacks original jurisdiction over this proceeding or, if it has
jurisdiction, [that] it should uphold the actions of Governor Lamont and
[the defendant] in allowing expanded absentee ballot access for the [August
primary].’’ The plaintiffs opposed this motion. On July 8, 2020, this court
denied the motion to intervene, noting the ‘‘unique nature of the statutory
proceeding under . . . § 9-323, [the] language [of which] does not contem-
plate the participation therein of political parties as parties to the proceed-
ing,’’ and emphasizing ‘‘the vigorous defense being provided to the defendant
by the Office of the Attorney General . . . .’’
This court determined, however, that the ‘‘significant interest of the Con-
necticut Democratic Party in the outcome of this proceeding will be accom-
modated by the provision of amicus curiae status’’ and granted it permission
to file an expanded amicus curiae brief. Subsequently, on July 17, 2020, this
court also granted the motion of the Public Interest Legal Foundation to
appear as amicus curiae and to file a brief in support of the plaintiffs.
14
After this court issued its decision on July 20, 2020, the plaintiffs filed
separate motions for reconsideration and for reconsideration en banc. On
July 22, 2020, the plaintiffs subsequently moved to consolidate the motion
for reconsideration en banc with a petition brought to Chief Justice Robinson
pursuant to General Statutes § 52-265a challenging the Superior Court’s
judgment for the defendant in Fay v. Merrill, Superior Court, judicial district
of Hartford, Docket No. HHD-CV-XX-XXXXXXX-S (July 22, 2020), which was
filed on the evening of July 20, 2020, and decided on the morning of July
22, 2020. Chief Justice Robinson granted that § 52-265a petition on July 23,
2020; that appeal is pending under docket number SC 20486.
On July 23, 2020, this court granted the motion for reconsideration but
denied the relief requested therein. That same day, the other nonrecused
members of the Supreme Court joined with this court in dismissing the
motion for reconsideration en banc and in taking no action on the motion
to consolidate. The motion for reconsideration en banc was not cognizable
under the plain language of § 9-323, which contemplates review by more
than one justice of the Supreme Court only in postelection matters. See
General Statutes § 9-323 (‘‘[i]f such complaint is made subsequent to the
election . . . [s]uch judge, with two other judges of the Supreme Court
. . . shall . . . proceed to hear the parties’’); see also In re Election of the
United States representative for the Second Congressional District, 231
Conn. 602, 608–12, 653 A.2d 79 (1994). In contrast to the express provisions
of the other election contest statutes; see General Statutes §§ 9-324, 9-328,
and 9-329a; which govern elections for state offices, municipal offices, and
primaries, respectively, § 9-323 does not provide for further review by the
Supreme Court pursuant to General Statutes § 9-325. Although the availabil-
ity of review en banc may well be desirable as a policy matter in cases
decided by an individual Supreme Court justice under § 9-323, it is not this
court’s province to add a remedy that the plain and unambiguous statutory
language of the election contest statutory scheme, read as a whole, indicates
that the legislature obviously elected to omit. See, e.g., Mayer v. Historic
District Commission, 325 Conn. 765, 780 and n.10, 160 A.3d 333 (2017).
15
General Statutes § 9-372 (11) provides: ‘‘ ‘Primary’ means a meeting of
the enrolled members of a political party and, when applicable under section
9-431, 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 . . . .’’
16
General Statutes § 9-329a provides: ‘‘(a) Any (1) elector or candidate
aggrieved by a ruling of an election official in connection with any primary
held pursuant to (A) section 9-423, 9-425 or 9-464, or (B) a special act, (2)
elector or candidate who alleges that there has been a mistake in the count
of the votes cast at such primary, or (3) candidate in such a primary who
alleges that he is aggrieved by a violation of any provision of sections 9-
355, 9-357 to 9-361, inclusive, 9-364, 9-364a or 9-365 in the casting of absentee
ballots at such primary, may bring his complaint to any judge of the Superior
Court for appropriate action. In any action brought pursuant to the provisions
of this section, the complainant shall file a certification attached to the
complaint indicating that a copy of the complaint has been sent by first-
class mail or delivered to the State Elections Enforcement Commission. If
such complaint is made prior to such primary such judge shall proceed
expeditiously to render judgment on the complaint and shall cause notice
of the hearing to be given to the Secretary of the State and the State Elections
Enforcement Commission. If such complaint is made subsequent to such
primary it shall be brought, not later than fourteen days after such primary,
or if such complaint is brought in response to the manual tabulation of
paper ballots, described in section 9-320f, such complaint shall be brought,
not later than seven days after the close of any such manual tabulation, to
any judge of the Superior Court.
‘‘(b) Such judge shall forthwith order a hearing to be held upon such
complaint upon a day not more than five nor less than three days after the
making of such order, and shall cause notice of not less than three days to
be given to any candidate or candidates in any way directly affected by the
decision upon such hearing, to such election official, to the Secretary of
the State, the State Elections Enforcement Commission and to any other
person or persons, whom such judge deems proper parties thereto, of the
time and place of the hearing upon such complaint. Such judge shall, on
the day fixed for such hearing, and without delay, proceed to hear the parties
and determine the result. If, after hearing, sufficient reason is shown, such
judge may order any voting tabulators to be unlocked or any ballot boxes
to be opened and a recount of the votes cast, including absentee ballots,
to be made. Such judge shall thereupon, if he finds any error in the ruling
of the election official, any mistake in the count of the votes or any violation
of said sections, certify the result of his finding or decision to the Secretary
of the State before the tenth day following the conclusion of the hearing.
Such judge may (1) determine the result of such primary; (2) order a change
in the existing primary schedule; or (3) order a new primary if he finds that
but for the error in the ruling of the election official, any mistake in the
count of the votes or any violation of said sections, the result of such
primary might have been different and he is unable to determine the result
of such primary.
‘‘(c) The certification by the judge of his finding or decision shall be final
and conclusive upon all questions relating to errors in the ruling of such
election official, to the correctness of such count, and, for the purposes of
this section only, such alleged violations, and shall operate to correct any
returns or certificates filed by the election officials, unless the same is
appealed from as provided in section 9-325. In the event a new primary is
held pursuant to such Superior Court order, the result of such new primary
shall be final and conclusive unless a complaint is brought pursuant to this
section. The clerk of the court shall forthwith transmit a copy of such
findings and order to the Secretary of the State.’’
17
General Statutes § 9-381a provides: ‘‘Except as otherwise provided by
statute, the provisions of the general statutes concerning procedures relating
to regular elections shall apply as nearly as may be, in the manner prescribed
by the Secretary of the State, to primaries held under the provisions of
this chapter.’’
18
The court agrees with the plaintiffs that the definition of ‘‘primary’’ used
in § 9-372 (11), on which the defendant relies, is inapplicable to the election
contest statutes, including § 9-323. See Feehan v. Marcone, supra, 331 Conn.
472–73 (concluding that definition of ‘‘municipal election’’ in § 9-372 (7)
did not render General Statutes § 9-328, which governs municipal election
contests, applicable to state legislative election because § 9-372 expressly
does not apply to election contest statutes in chapter 149, requiring court
instead to follow definitions of ‘‘municipal office’’ and ‘‘state election’’ as
set forth in § 9-1 (h), (i) and (s)); Republican Party of Connecticut v. Merrill,
supra, 307 Conn. 492 (concluding that ‘‘[t]he definitions in § 9-372 . . . do
not, by their own terms, apply to the ballot ordering statute’’ because General
Statutes § 9-249a ‘‘is conspicuously absent from the list of statutes to which
the definitions in § 9-372 apply’’).
19
The court briefly addresses the defendant’s argument that, under Wrot-
nowski v. Bysiewicz, 289 Conn. 522, 958 A.2d 709 (2008), and Scheyd v.
Bezrucik, 205 Conn. 495, 535 A.2d 793 (1987), even if it is assumed that § 9-
323 is applicable to federal congressional primaries, this case ‘‘fundamentally
is a challenge to the constitutionality of Executive Order [No.] 7QQ, and
this court lacks jurisdiction to consider such claims under § 9-323.’’ Whether
the plaintiff is aggrieved by a ruling of an elections official implicates the
court’s subject matter jurisdiction under the election contest statutes. Arci-
niega v. Feliciano, 329 Conn. 293, 300–301 n.4, 184 A.3d 1202 (2018); see
id., 302–303 (defining term ‘‘ruling of an election official’’).
It is well established that our election contest statutes ‘‘may not [be]
use[d] . . . to challenge a law or regulation under which the election or
primary election is held by claiming aggrievement in the election official’s
obedience to the law. In such a case the plaintiff may well be aggrieved by
the law or regulation, but he or she is not aggrieved by the election official’s
rulings which are in conformity with the law.’’ Wrinn v. Dunleavy, 186
Conn. 125, 134 n.10, 440 A.2d 261 (1982). This court has followed this footnote
from Wrinn in concluding that courts lack jurisdiction under the election
contest statutes to consider constitutional challenges to underlying election
laws, reasoning that ‘‘[c]onstitutional adjudication . . . requires study and
reflection and may therefore, as a general matter, be deemed less appropriate
for accelerated disposition.’’ (Internal quotation marks omitted.) Wrotnow-
ski v. Bysiewicz, supra, 289 Conn. 527–28; see id., 528–29 (Chief Justice
Chase T. Rogers dismissed complaint filed under § 9-323 challenging Secre-
tary of State’s failure to verify natural born citizenship of presidential candi-
date as ‘‘claim[ing] only that the existing election laws governing presidential
elections are not adequate to ensure compliance with article two, § 1, of
the federal constitution’’); Scheyd v. Bezrucik, supra, 205 Conn. 502–503
(concluding that challenge to constitutionality of minority representation
statute, General Statutes § 9-167a, was not cognizable under General Statutes
§ 9-328, which governs municipal election contests).
Having considered these authorities, the court concludes that the election
contest statutes, including § 9-323, do not confer jurisdiction over the plain-
tiffs’ fundamental constitutional challenges to Executive Order No. 7QQ,
which the defendant—acting as an elections official—implemented via the
application. If § 9-323 had conferred jurisdiction in this case, the court would,
however, have had jurisdiction over the plaintiffs’ claim that the application
is not itself faithful to Executive Order No. 7QQ.
20
The plaintiffs correctly note that their failure to plead the correct statute
did not render their complaint defective, given that the defendant has been
‘‘sufficiently apprised of the nature of the action . . . .’’ (Emphasis omitted;
internal quotation marks omitted.) Flannery v. Singer Asset Finance Co.,
LLC, 312 Conn. 286, 302, 94 A.3d 553 (2014); see also Spears v. Garcia, 66
Conn. App. 669, 675–76, 785 A.2d 1181 (2001), aff’d, 263 Conn. 22, 818 A.2d
37 (2003). But cf. Practice Book § 10-3 (a).
21
Practice Book § 65-4 provides in relevant part: ‘‘Any appeal or cause
brought to the Supreme Court or the Appellate Court which is not properly
within the jurisdiction of the court to which it is brought shall not be
dismissed for the reason that it was brought to the wrong court but shall
be transferred by the appellate clerk to the court with jurisdiction and
entered on its docket. . . .’’
22
Moreover, even if Practice Book § 65-4 allowed the transfer envisioned
by the plaintiffs, it have would been highly imprudent for this court, as an
appellate jurist, to have acted as a Superior Court judge in this particular
matter. Unlike § 9-323, § 9-329a (c) provides an expedited appellate remedy
with the Supreme Court pursuant to General Statutes § 9-325. See footnote
16 of this opinion. Were this court to try this case while sitting as a Superior
Court judge, it would have disqualified itself from participating in its final
resolution, rendering that practice highly inadvisable in a case of such
import. See Practice Book § 1-22 (a) (‘‘nor may the judicial authority sit in
appellate review of a judgment or order originally rendered by such author-
ity’’); cf. Practice Book § 60-6 (‘‘[w]ithout the permission of the chief justice,
the justices of the Supreme Court . . . will not, as judges of the Superior
Court . . . pass orders which may be the subject of an appeal, unless it
appears that there is a necessity for prompt action, and that no other judges
having jurisdiction over the matter can conveniently act’’).
23
Given the court’s conclusion that it lacks jurisdiction under § 9-323 and
that this matter should not have proceeded further before this court under
§ 9-329a, it declines to consider the defendant’s argument that, under, for
example, Lazar v. Ganim, 334 Conn. 73, 87, 220 A.3d 18 (2019), the plaintiffs
are not aggrieved because ‘‘they have not articulated a specific, personal
and legal interest that has been injured by the defendant’s conduct’’ other
than ‘‘their general and abstract interests in having a fair and honest election
and not having their votes diluted by what they believe are illegal absentee
voting procedures.’’ (Internal quotation marks omitted.) Because this issue
will be litigated in the public interest appeal challenging the Superior Court’s
judgment for the defendant in Fay v. Merrill, Superior Court, judicial district
of Hartford, Docket No. HHD-CV-XX-XXXXXXX-S (July 22, 2020); see footnote
14 of this opinion; this court refrains from considering the issue of
aggrievement at this point.
Because it is a special defense that does not implicate this court’s subject
matter jurisdiction, the court also need not address at this time the defen-
dant’s claim that the doctrine of laches bars this action. See, e.g., Price v.
Independent Party of CT—State Central, supra, 323 Conn. 544 (‘‘[t]his court
has held that (1) [l]aches consists of an inexcusable delay [that unduly]
prejudices the defendant, and (2) [t]he burden is on the party alleging laches
to establish that defense’’ (internal quotation marks omitted)). But see id.,544–47 (addressing laches claims in dictum). Similarly, the court need not
consider the defendant’s argument that it should abstain from exercising
jurisdiction over this case, which involves an impending election, under the
principle announced in Purcell v. Gonzalez, 549 U.S. 1, 4–5, 127 S. Ct. 5,
166 L. Ed. 2d 1 (2006).