Opinion
No. CV 07-402 23 14 S
October 24, 2007
MEMORANDUM OF DECISION
PROCEDURAL BACKGROUND
On September 11, 2007, a Democratic primary election for municipal office was held in Bridgeport, Connecticut. The petitioner, Christopher Caruso, was a mayoral candidate in this primary. The petitioner lost the primary election to his opponent, respondent William Finch, by 270 votes. The petitioner brings this action under General Statutes § 9-329a(a)(1) alleging, inter alia, that the election officials conducting the primary made numerous improper rulings, rulings by which the petitioner claims to be aggrieved. The petitioner filed his complaint with this court on September 25, 2007, the last day of the fourteen-day statutory period provided by § 9-329a.
Statutes § 9-329a(a)(1) provides in relevant part: "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 . . . may bring his complaint to any judge of the Superior Court for appropriate action."
The complaint was subsequently amended on September 28th, and again on October 4, 2007.
The original complaint alleged violations of General Statutes § 9-328, the statute governing general elections that is inapplicable to primaries. Petitioner's first amended complaint, filed September 28, 2007 (captioned simply "Amended Complaint"), added additional allegations, but is similarly devoid of any specific references to § 9-329a. The respondents filed a motion to dismiss for lack of jurisdiction on October 1, 2007, asserting that the petitioner had failed to properly cite the correct statutory authority. The motion to dismiss was denied following a hearing, but the court also ordered petitioner to amend his complaint, pursuant to Practice Book Section 10-60(a)(1), to specify the precise statutory grounds of § 9-329a underlying the petitioner's claims. Specifically, the court ordered petitioner to clarify which of the three enumerated grounds for jurisdiction pursuant to § 9-329a(a) was implicated in the present case. The court began hearing evidence on October 3, 2007. Petitioner responded to the court's order on October 4, 2007 with a second amended complaint, which added yet additional allegations, additions which were allowed by the court. However, the second amended complaint still failed to sufficiently clarify the statutory grounds of § 9-329a(a), as ordered by the court. On October 5, 2007, the third day of evidence, petitioner attempted for the first time, by way of a third amended complaint, to allege the additional ground of a mistake in the count of the votes cast, pursuant to § 9-329a(a)(2). Coming well into the evidentiary portion of the hearing, and ten days after the deadline had passed for filing such complaints, this third amended complaint was stricken by the court pursuant to a motion by the respondents, and the parties continued the hearing under § 9-329a(a)(1), which concerns the issue of petitioner's aggrievement due to rulings of election officials.
The respondents in this matter include the city of Bridgeport, Hector Diaz, town clerk, Thomas Kanasky, head moderator for said election, Santa Ayala, Democratic registrar of voters for the city of Bridgeport, Joseph Borges, Republican registrar of voters for the city of Bridgeport, Patricia Howard, deputy Democratic registrar of voters for the city of Bridgeport, William Finch, the mayoral primary candidate who won the September 11, 2007 primary, and Jeffrey Garfield, executive director and general counsel of the State Elections Enforcement Commission.
The petitioner makes no claim against Garfield.
Pursuant to § 9-329a, an expedited hearing was commenced on October 3, 2007, and continued through October 15, 2007. The court heard from twenty-three witnesses, encompassing six and a half days of testimony, and received sixty exhibits into evidence.
It should be noted that during the course of the expedited hearing, the court heard arguments and testimony regarding the present case, as well as the companion case of Simmons-Cook v. Bridgeport, Docket No. CV 07 4022308.
DISCUSSION
The right to contest an election is not a right that existed at common law. It is strictly a creature of statute. Elections belong to the political branch of government, and in the absence of special statutory provisions, are beyond the control of judicial power. Further, the rule is stated that statutes providing for election contests should be strictly construed. 29 C.J.S., Elections § 254, et seq. (2005). Accordingly, this court is conscious of the limits of its authority, and recognizes and respects the statutory scheme of Title 9, which leaves the selection of a political party's standard bearer for public office up to the rank and file members of such party, through the process of a primary election. When a candidate for such office invokes the process of § 9-329a, however, it becomes our unsought responsibility to resolve the issues the judicial system is forced to confront. The statute wisely limits the scope of judicial review of elections, lest every election end in litigation. The existing case law also serves to define and interpret the already narrow scope of § 9-329a, and makes clear that judicial restraint is appropriate.
The predominant authority that provides the basic legal underpinnings of this court's analysis is the Supreme Court's decision in Bortner v. Woodbridge, 250 Conn. 241, 736 A.2d 104 (1999). Bortner addressed a plaintiff's action to challenge the results of an election for the elementary board of education in the town of Woodbridge. The trial court originally granted a new election, but on appeal, this judgment was reversed. In reaching its decision, the Supreme Court engaged in a thorough analysis of General Statutes § 9-328, the statute providing the court with jurisdiction to hear a complaint regarding the general election of municipal officers. Although Bortner did not consider § 9-329a, the statute presently at issue, this court has compared the language of § 9-328 and § 9-329a and has found the text of each to be correlative in that each statute provides judicial review for a candidate aggrieved by a "ruling of an election official." To the extent that Bortner fleshes out the definition of a "ruling," this court adopts this interpretation as it analyzes petitioner's claims.
In Bortner, the Supreme Court determined the applicable standard that must be met in order for a court to order a new election pursuant to § 9-328. Looking to the actual text of the statute, the court emphasized the language of "if he finds any error in the rulings of the election official" and noted that this language "makes clear that, as a predicate for the ordering of a new election under § 9-328, there must be . . . an error or errors `in the rulings of' an election official . . ." Id. The statutory language relied upon in Bortner to reach this conclusion is mirrored in the text of § 9-329a. The court further concluded that the phrase, "ruling of an election official," is to be accorded its ordinary meaning. Looking to several definitions of "ruling," the court stated that "[a] t the least, 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 authoritative legal requirement, applicable to the election process." Id., 268. Cases following Bortner have dismissed claims brought under § 9-329a for failure to establish the prima facie element of a "ruling of an election official." See Oliveira v. Carnell, Superior Court, judicial district of New London, Docket No. CV 02 0561348 (February 28, 2002, Leuba, J.).
Section 9-329a(b) provides in relevant part: "Such judge shall thereupon, if he finds any error in the rulings of the election official . . ."
As a preliminary matter, the court notes that exactly what constitutes a ruling under Bortner is a highly disputed issue lying at the heart of this case, and each side advanced very different interpretations of Bortner. Over the course of the hearing, the petitioner argued that more than twenty sections of Title 9 were violated by various election officials. According to the petitioner, the registrar of voters is charged with enforcing the provisions of Title 9 as it relates to the specific election. Therefore, any violation of the statute constitutes a decision made by the registrar of voters, and as an election official, that amounts to a "ruling" under Borter. In contrast, the respondents argue that this interpretation of Bortner is overly broad. They rely on the plain language of Bortner in support of the proposition that not every decision made by an election official amounts to a ruling.
Regarding the petitioner's argument that the scope of a ruling under § 9-329a includes any violation of a statute contained in Title 9, the court finds this interpretation to be overly broad, and unsupported by existing caselaw. Bortner and its progeny do not stand for the proposition that any violation of Title 9 opens the entire primary election to judicial review under § 9-329a. The powers and duties of this court are circumscribed by the provisions of § 9-329a. Despite petitioner's claims, violations of Title 9 do not thereby become reductionist shorthand for rulings.
Having clarified the definition of a ruling to be applied by this court, the court also notes that in order to recover under § 9-329a, the petitioner must establish more than the occurrence of an incorrect ruling by an election official, as defined by Bortner. The petitioner must also demonstrate causation, in that as a result of the error, the result of the election is seriously in doubt. By the plain language of § 9-329a(b)(3), a judge may order a new primary only "if he finds that but for the error in the ruling of the election official . . . the result of such primary might have been different and he is unable to determine the result of such primary." (Emphasis added.). This "but for" language applicable solely to primaries marks a significant departure from the otherwise similar text shared with the general election statute, § 9-328. See Osario-Fuentes v. Smith, Superior Court, judicial district of New Haven, Docket No, 1CV 04 0486751 1 (April 12, 2004, Arnold, J.) (applying but for test to claim under § 9-329a); Zevin v. Board of Canvassers, Superior Court, judicial district of Hartford, Docket No. 555078 (November 2, 1995, Langenbach, J.) (15 Conn. L. Rptr. 358) (same). In Penn v. Irizarry, 220 Conn. 682, 600 A.2d 1024 (1991), a case directly addressing § 9-329a, the Supreme Court stated that the plaintiff's burden on the issue of but for causation is, in essence, two fold. "Even if the plaintiff establishes that the result might have been different, the plaintiff can not prevail unless the court is also unable to determine the result." (Emphasis added; internal quotation marks omitted.) Id., 687. The court then upheld the decision of the trial court denying a new election, finding that it was "reasonably clear from the memorandum of decision that the [trial] judge concluded that he was able to determine the result of the contested primary, because he found that the various irregularities relied upon had not affected the outcome." Id., 688.
Therefore, in order to recover under § 9-329a, the petitioner has the burden to establish more than just a violation of Title 9; rather, the petitioner must satisfy, by a preponderance of the evidence, three distinct elements established by caselaw: 1) a ruling of an election official, as defined by Bortner, (2) that was in error, and (3) as a result of this improper ruling, the result of the election might have been different and the court is unable to determine the outcome. Due to the number of statutory violations by election officials alleged by petitioner, the court has separated its analysis chronologically into three categories: violations in the weeks preceding the primary election, violations occurring on September 11, primary election day, and finally, violations occurring after the close of polls.
"The usual civil standard of preponderance of the evidence is the appropriate burden of persuasion applicable to an action under General Statutes § 9-329a." In re Election for Second Congressional District, 231 Conn. 602, 629 n. 25, 653 A.2d 79 (1994).
Violations leading up to the election
The petitioner alleges numerous violations of statutes contained in Title 9 that relate to procedures leading up to the primary on September 11, 2007. These violations include: (1) failure to advertise for primary election, pursuant to General Statutes § 9-16; (2) failure to appoint polling place moderators twenty days in advance of primary, pursuant to General Statutes § 9-229(a); (3) Failure to appoint head moderator twenty days in advance of primary; (4) Failure to properly train and certify head moderator, as required by General Statutes § 9-229(a)-(c); (5) The appointment of a Republican head moderator without first exhausting the pool of Democratic moderators; (6) Failure to notify the Caruso campaign of right to submit a list of designees for moderator positions; (7) Failure to provide the names of moderators to the Municipal Clerk for public inspection, and failing to provide Caruso campaign with a list when requested; (8) The appointment of Republicans, rather than Democrats, as poll workers; and (9) Failure to ensure that polling place positions be divided as equally as possible between the candidates.
Many of these alleged violations, however, do not satisfy the definition of a "ruling" as defined by Bortner. There is no allegation or facts to support the contention that an election official decided a question regarding many of these statutes. Furthermore, the petitioner incorrectly contends that the registrar's "conscious disregard of non-discretionary mandates constitutes a ruling that is challengeable as conduct interpreting a statute applicable to the electoral process." (Emphasis added.) Blacks Law Dictionary defines "interpretation" as "the art or process of discovering and ascertaining the meaning of the statute . . . The discovery and representation of the true meaning of any signs used to convey ideas." Thus, an interpretation of a statute, an act that satisfies the definition of a "ruling" under Bortner, requires the election official to look to the statute, ascertain what it is meant to convey, and then apply that interpretation to the primary.
The respondents maintain that these violations constitute a garden variety of allegations typically arising from the election process, and, therefore, do not fall within the narrow ambit of § 9-329a(a)(1). Rather than "rulings," the respondents maintain that these violations are administrative decisions that amount to ministerial, rather than discretionary acts. The court agrees with this characterization as applied to a majority of the petitioner's pre-election claims. Moreover, even if this court found that the petitioner had sustained its burden of establishing an improper ruling, many of his claims are still deficient in that the petitioner has repeatedly failed to establish that but for the violation the results of the primary might have been different and the court is unable to determine the result. While the petitioner spent several days developing his case, he failed to demonstrate that, as a result of the actions of election officials, people were unable to vote for the candidate of their choice. Thus, even when the petitioner establishes a potentially improper ruling, he fails to satisfy the third prong necessary to prevail under § 9-329a.
For example, the petitioner's claim that the registrar failed to advertise the election pursuant to § 9-16 does not fall within the definition of a ruling under Bortner. The same applies to the claim that the registrar failed to provide the names of moderators to the town clerk for public inspection pursuant to § 9-229(a). The registrar did not decide a question or interpret a statute. Furthermore, the petitioner fails to establish any evidence that but for the failure to properly advertise the upcoming primary or provide a list for public inspection at least twenty days in advance of the primary, the results of the primary might have been different. These claims, therefore, must fail.
Turning next to the petitioner's claim that he was aggrieved by the registrar's failure to adhere to the twenty-day deadline for submitting a list of moderators, the court finds adequate evidence to establish the existence of a ruling as set forth in Bortner. The registrar of voters conceded that she purposely extended the deadlines as a result of the new optical scan voting technology and paper ballots that were used in this election for the first time. However, this court is not persuaded that the decision was improper. Pursuant to Public Act 07-194, this system replaced the old lever-activated voting machines, and these changes to the mechanics of voting necessitated the retraining and recertification of all Bridgeport election officials prior to primary day. Evidence was also submitted to establish that the official decision by the Secretary of State's office to implement the new optical scanners for the September 11 primary was not made until the end of July, approximately forty days prior to that date.
Regarding the propriety of the registrar's decision to extend deadlines, the court found it significant that Michael Kozik, the managing attorney of the Elections Division of the Secretary of State's office, conceded that the timelines for training and certifying election workers for this primary called for "special action," and that the failure of the registrar to hold candidates to deadlines for submitting a list of designees "seemed a fair and reasonable attempt to, if not remedy, at least mitigate the situation." Furthermore, in a letter dated September 7, 2007, from Susan Bysiewicz, Secretary of State, to Andrew Grossman, Caruso campaign manager, Bysiewicz stated that in the event that proper notice was not received by the campaign, the registrar would be advised that she "should not hold the candidates to these deadlines for submitting lists of designees."
Petitioner also fails to establish that, as a result of the ruling to extend the deadline, the results of the primary might have been different, and that the court is unable to determine the outcome. Although the petitioner argues that the failure to timely appoint moderators, as required by § 9-229(a), resulted in understaffing at the polls, he was unable to offer evidence that the understaffing resulted in even one person not voting for the candidate of their choice. Arguments and speculation by counsel are insufficient to establish this third prong of the court's analysis. The mere fact that the registrar extended the deadline does not establish, by a preponderance of the evidence, that but for such error, the result of such primary might have been different, and the court is thereby unable to determine the outcome. The petitioner, therefore, fails to meet his burden under § 9-329a.
Section 9-229(a) provides in relevant part: "In the case of a primary, the registrar . . . shall so appoint such moderators and alternate moderators at least twenty days before the election or primary. The registrars shall submit a list of the names of such moderators and alternate moderators to the municipal clerk, which list shall be made available for public inspection by such clerk."
In a related claim, the petitioner also claims aggrievement by the registrar's failure to notify the Caruso campaign of their right to submit a list of designees for moderator positions. Section 9-436(e) provides in pertinent part: "The registrar shall notify all such candidates and contestants of their right to submit a list of designees under this section." The parties dispute the interpretation of this notice requirement and whether oral notice, rather than written, is sufficient. The court also heard conflicting testimony regarding what type, or if any, notice was given to the Caruso campaign of their right to submit a designee. The court, however, need not determine whether such notice was given, or what form of notice satisfies the statute. Even if the Caruso campaign did not receive proper notice from the registrar, the evidence indicates that the Caruso campaign was in fact aware of its right to submit a list. Since the purpose of § 9-436(e) is to ensure that parties are aware of their right to submit a list; if the party is in fact aware without receiving actual notice, then the party is not aggrieved even if formal notice is not provided.
A September 7, 2007 letter from Susan Bysiewicz, Secretary of State, to Caruso campaign manager Andrew Grossman was admitted into evidence. In the letter, the Secretary of State explains: Section 9-436(e) "requires Registrars to advise candidates of their right to submit lists of designees. However, it does not specify how long before the deadline this notification should be given, nor does it specify that the notification must be in writing." Pursuant to General Statutes § 9-3, the Secretary of State, by virtue of her office, is the Commissioner of Elections of the state, and the Secretary's written opinions, shall be presumed as correctly interpreting and effectuating the administration of primaries.
The court heard testimony from Stacy Zimmerman, second in command at the Caruso campaign. Although Zimmerman testified that the campaign did not receive notice, he admitted on cross examination that he was aware of the candidate's right to designate poll workers. He also admitted that he was aware of the candidate's obligation to offer a list of designees 21 days in advance of the election. The court also heard the testimony of William Garrett, who served as campaign chairman for the petitioner. Garrett testified that he had over 25 years of campaign experience, and admitted he was aware in advance that many poll workers would be needed for the primary, and that there was a deadline for the appointment of these workers.
The alleged failure to provide adequate notice to the Caruso campaign set in motion a chain of events that resulted in further claims of aggrievement, including the claim that the registrar failed to equally divide poll positions among the campaigns as required by § 9-436(e). In analyzing this claim, the court is mindful of the extenuating circumstances that surrounded this particular primary election as a result of the implementation of new optical scan voting technology, the use of new paper ballots, and the ultimate need to retrain every poll worker within a short period of time. Although the petitioner traces the lack of Caruso poll workers back to the registrar's failure to provide proper notice, this claim has already been found lacking. Therefore, to recover for this claim under § 9-329a, the petitioner must establish the sufficiency of this claim in its own right, and has failed to do so. It is not established that the insufficient number of Caruso poll workers was caused by an improper ruling made by the registrar's office. Evidence was submitted to establish that the statutory deadlines for the appointment of poll workers were extended by the registrar, who testified that the Caruso campaign was the only party that took advantage of the extensions. The Caruso campaign submitted lists of poll workers in the days leading up to the election, and the registrar assigned poll workers to positions as she was notified of new names, and made training sessions available to such workers. Unfortunately, the campaign had problems filling all of the poll positions, which in turn led to the campaign being underrepresented at the polls. If anything, the registrar's decision to allow the Caruso campaign to submit names of poll workers right up until the eve of the primary was an effort to accommodate, not prejudice, the petitioner. The decision to extend the deadline is the only perceived Bortner ruling made by an election official as to this issue, and was decidedly not improper, particularly because the campaign that benefited from the extended deadline is the very campaign that is now attempting to cast doubt on its propriety by claiming aggrievement. Furthermore, based on the evidence presented, the petitioner has not established that but for the lack of equal representation at the polls the results of the election might have been different. Although in an ideal primary, each party would be equally represented, the fact that the Caruso campaign was not, does not in itself indicate that the results might have been different and the court is unable to determine the result.
Section 9-436(e) states in pertinent part: "Each registrar's appointments of primary polling place officials, except moderators of polling places, and of designees to conduct supervised voting of absentee ballots pursuant to sections 9-159q and 9-159r shall be divided equally, as nearly as may be, between designees of the party-endorsed candidates and designees of one or more of the contestants . . ."
The claims regarding the appointment of the head moderator fail for the same reasons. While the evidence establishes that a head moderator was not appointed at least twenty days in advance of the election, the petitioner has not presented any evidence to demonstrate that but for this late appointment, the election results might have been different, and the court is unable to determine the result.
Likewise, regarding the head moderator's lack of certification, the petitioner fails to offer any evidence that the head moderator's lack of training had an effect on the outcome of the election. Furthermore, a representative from the Secretary of State testified that it is not improper for a registrar to provide training for an official in an emergency situation. This testimony is bolstered by the text of § 9-229, which provides in subsection (a): "Each person appointed to serve as moderator or alternate moderator shall be certified by the Secretary of the State," but later states in subsection (d) that "[i] f all such sessions have been conducted at the time of appointment of the new moderator, the new moderator shall receive instruction from the registrars who appointed the new moderator." The head moderator testified to receiving such instruction from the registrar, in substance if not in form.
The petitioner also disputes the registrar's decision to appoint a Republican to serve as a head moderator in the Democratic primary election. The petitioner argues that § 9-436(e) requires the registrar to appoint a Democratic head moderator unless a suitable candidate cannot be found. Only after exhausting the pool of Democratic moderators, can the registrar appoint a Republican for this role. This reading of the statute, however, is incorrect. While the statute requires the Democratic registrar to exhaust the pool of available Democrats before appointing a Republican to the role of a moderator, it does not require the same procedure for the appointment of head moderator. Instead, the statute allows the registrar to appoint any moderator as head moderator. "The registrar shall designate one of the moderators so appointed by the registrar to be head moderator or shall appoint as head moderator an elector who is not also moderator of a polling place . . ."§ 9-436(e). Applying the Bortner test to this situation, this court finds that even if these facts could be read to support the finding of a ruling, it is not improper. The registrar was not required by statute to exhaust the pool of available Democratic moderators, and, moreover, while conceivably more appropriate to appoint a Democrat as head moderator in a Democratic primary, the registrar provided reasonable grounds to support her decision, including Kanasky's extensive experience as a poll worker and moderator at numerous elections over the course of many years. Additionally, the claim also fails as a result of the lack of evidence that but for the appointment of a Republican head moderator, the outcome of the primary might have been different, and this court is unable to determine the result.
Section 9-436(e) provides in relevant part: "[T] he registrar shall appoint as moderators only persons who are certified to serve as moderators or alternate moderators pursuant to section 9-229, unless there is an insufficient number of such persons who are enrolled members of the registrar's party in the municipality or political subdivision holding the primary, in which case the registrar may appoint a new moderator . . . but only to the extent of such insufficiency."
Violations during the election
A large thrust of the petitioner's claim focuses on the understaffing of the polls on election day. While the underlying claims have previously been addressed, it is also submitted by the petitioner as a statutory violation in its own right. General Statutes § 9-436(d) describes the polling positions to be filled on election day, and provides the subscribed number of poll workers to fill these positions. The petitioner submitted extensive evidence, by way of testimony and exhibits, to establish the understaffing of the polls in violation of this statute. Applying the Bortner analysis, the petitioner argues that the registrar made a ruling by allowing the election to go forward with inadequate staffing at the polls. This argument is unsupported by any statutory authority that grants the registrar the ability to cancel the election in the event that it is understaffed. The court also notes that admittedly, some poll workers did not report for duty as scheduled on primary day, including some persons previously designated by the petitioner.
Furthermore, even if this court were to find that an incorrect ruling was made, the petitioner has failed to submit any evidence that the understaffing at the polls may have affected the outcome of the election, and the court is unable to determine the result. In fact, lengthy testimony was provided that effectively undermines the central premise of petitioner's case. Rather than establishing that the results might have been different, the overwhelming evidence demonstrates that the election results were not affected, despite small problems occurring at the polls. The court heard from several moderators present at the understaffed polls, and reviewed several moderator diaries containing a report on the activities at that polling location on primary day. The evidence indicates that minor problems occurred at several locations, but the moderators' testimony was devoid of reports of significant problems that could have affected the election result. For example, one moderator, Anita Cooper, was one of two election officials present at Columbus school. Despite the understaffing, Ms. Cooper attested that she did not encounter any problems. Another moderator, Mary Anne Pirazzoli, indicated several small problems occurred at her polling place throughout the day, but admitted that such problems were common, and ultimately concluded in her moderator report that "everything was working out fine." A similar situation occurred at Park City School, moderated by Antonio Diaz, a supporter of the petitioner. His moderator book contained no markings, as he admitted that he would only use the book to write down serious problems; no notations thereby indicating no serious problems. Based on this testimony, the court finds that the petitioner has not sustained his burden of establishing that but for the understaffing of the polls, the results might have been different and the court is unable to determine the outcome.
In a related vein, the petitioner claims that the understaffing of the polls also resulted in several election officials acting in more than one capacity. While this situation is not ideal, to order a new primary under § 9-329a, the petitioner must prove more. There is no evidence submitted to establish that but for the involvement of election officials in multiple roles, the result of the election might have been different and the court is unable to determine the result.
The petitioner makes several other claims of aggrievement as a result of the running of the polls on election day. Many of these claims, however, share a common deficiency in failing to meet the high standards under § 9-329a. For one, the petitioner alleges that he is aggrieved by the registrar's failure to prepare inactive voter lists and distribute copies to the polls on election day. See General Statutes § 9-42(c). This claim, however, was not sufficiently developed during the hearing. Although the petitioner elicited testimony that several polling locations did not have copies of the inactive voter list, this court did not hear evidence of a single voter that was unable to vote as a result of the absence of an inactive voter list. This claim is insufficiently proven and must fail.
Section 9-42(c) provides in relevant part: "The registrars of voters shall cause the inactive registry list compiled under section 9-35 to be completed and printed and deposited in the town clerk's office and shall provide a sufficient number of copies for use in the polling place on election day."
The claims relating to poll workers allegedly instructing voters to vote for the petitioner's opponent are also deficient. First, this claim does not fall within the definition of a ruling under Bortner. Second, the petitioner has failed to submit evidence of even one voter changing their vote as a result of the instructions given at the poll. Likewise, the claims arising from the late opening of the polls at Longfellow School, or a translator potentially instructing voters how to vote do not rise to the level of actions that could overturn the results of an election. See Penn v. Irizarry, Superior Court, judicial district of Fairfield, Docket No. CV 91 0287556 (October 11, 1991, Lewis, J.), aff'd 220 Conn. 682, 600 A.2d 1024 (1991).
Similar issues were addressed by the court in Penn v. Irizarry, Superior Court, judicial district of Fairfield, Docket No. CV 91 0287556 (October 11, 1991, Lewis, J.) aff'd 220 Conn. 682, 600 A.2d 1024(1991), and the court found that these claims to be insufficient grounds for a new election. In Penn, the plaintiff claimed aggrievement on several grounds, including polls opening late, moderators leaving polls unattended, and inappropriate interactions with voters by a machine tender. The court found these allegations to not involve rulings; instead, the court looked to all the alleged irregularities and stated: "In summary then the plaintiff is not complaining about any ruling of an election official or about the propriety of the count, but seeks a new primary because of the activities of [the machine tender] at the polling booth . . ." Id. The court ultimately concluded that the results of the election were not affected by these irregularities.
Violations after close of polls
Likewise, the petitioner's claim of aggrievement as a result of the failure to immediately return ballots to the municipal clerk after voting, and the return of ballots in unsealed bags is also deficient under Bortner. According to the moderator's handbook in effect for the primary election, the moderator of each polling place was required to return the ballots to a central location for counting at the close of polls. There is no evidence of a ruling under Bortner. Furthermore, even though the petitioner submitted testimony to establish that at least two poll workers forgot the ballots at the polls and had to be escorted back to retrieve the ballots, he does not establish that this mistake might have changed the result of the election. The act of accidentally leaving ballots behind at the polls does not constitute a ruling under Bortner. The decision of the head moderator to accept ballots that were left unattended, however, may qualify as a ruling, but the claim still fails because there is no evidence that the ballots were tampered with during the time they were unattended, or before they were sealed. Absent this type of showing, the court cannot see how the delay in retrieving the ballots impacted tile results of the election in any way. Review under § 9-329a is not intended to cover any and all perceived mistakes or errors that occur in the primary election process.
The petitioner also claims to be aggrieved by the failure to properly certify the tally sheets of each poll location at the end of the day. Several complaints related to this process are raised by the petitioner, including the use of pencil by election officials, and the fact that several election officials signed the results in multiple capacities due to previously discussed staffing issues. Regarding the use of pencil, the petitioner fails to cite any statutory authority requiring the use of ink to complete the checklists at each poll. The only time the use of ink is specified by statute is in the final certification of votes to be signed by the assistant registrar at each poll. General Statutes § 9-307. Once again, this claim stands as an example of the type of issue that does not fall within the purview of § 9-329a. The decision to complete or to mark some forms in pencil is not the result of a question presented to an election official, nor does it interpret a statute. The petitioner has also failed to establish that but for the decision to check off names in pencil, the results of the election might have been different. No evidence of tampering was submitted by the petitioner, and this court is not persuaded to accept argument and speculation of counsel in the absence of actual evidence. The petitioner's claim of aggrievement by the decision of election officials to certify the results and sign in multiple capacities is also inadequately proven. There is no evidence of a question presented to an election official, or a statute interpreted. This claim also fails because the petitioner has not established that but for the improper certification; the results would have been different.
Finally, the petitioner claims that a representative from his campaign was denied access to the room where the absentee ballot count was being conducted. The court heard contradictory testimony on this issue. The representative from the Caruso campaign, William Hennessey, testified that he was asked to leave by the registrar, and was not allowed back into the room until after the counting had commenced. This testimony was corroborated by the testimony of the town clerk, Hector Diaz. The registrar, however, testified that she asked Mr. Hennessey to leave while she contacted the Secretary of State's office in order to determine if he should be allowed in the room. It was her testimony that she told the staff not to begin counting until after she determined if Hennessey's presence in the room was appropriate. The decision to make Hennessey leave the absentee ballot count was an improper ruling under Bortner. However, no evidence was submitted to establish that this ruling might have affected the outcome of the election and the court is unable to determine the result. The court found it significant that Hennessey testified that he had no knowledge that the vote count was in error, or that the results were changed as a result of his absence. His mere absence from the room is insufficient to establish the high burden required to order a new primary.
CONCLUSION
Before this court, the petitioner has aired a multitude of grievances about the September 11, 2007 primary held in Bridgeport. Many contentious issues arising out of this primary, however, are not amenable to judicial resolution, representing as they do deeply held political views beyond the scope of the court's inquiry. Recognizing that no election could ever be without its detractors, and that over 8,500 people exercised their right to vote in the primary on September 11, 2007, it would be an act of judicial overreaching to deprive the citizens of Bridgeport of the right to have the results of that primary election stand and be counted without clear reasons to do so. The statute enacted by the legislature expresses the intent of the will of the people, and it is also the people's will that elections are about. Petitioner is asking this court to order a new primary election in Bridgeport. If it were to do so, however, this court would be crafting a remedy out of all proportion to any violations of Title 9. Moreover, that remedy would harm both the public interest and the very fairness interests this court is attempting to protect. Because it is the will of the people of the city of Bridgeport, as expressed in this primary, that this court must also consider, it can grant petitioner the new election he seeks under § 9-329a(b)(3) only if it can be said, in fairness, that the will of the people of Bridgeport did not accurately and legally manifest itself in the results, and this court is unable to determine the outcome. The court listened to all the testimony. The conduct of the election officials did not prevent a fair exercise of the peoples' right to vote in this primary. Therefore, there is insufficient evidence to substantiate petitioner's claims that the interests of justice warrant a new primary.
Because the present case involves the outcome of a primary election, it is infused with a public interest. Political contests inherently produce strong emotions on both sides. This primary was no exception, compounded by the fact that this was the first election using the new paper ballot system and optical scan voting technology, all under time constraints. Therefore, it is possible that certain aspects of this primary were not as well managed as a fully staffed operation might have been. But that possibility, even if true, is not the real issue. This court will neither indulge in speculation as to what might have been, nor order a new primary on that basis alone. The discrepancies are not sufficient to change the results of the election. The issue is whether the results of the primary of September 11, 2007 can survive this challenge as a matter of law. The answer is yes.
It is therefore ORDERED BY THE COURT that Petitioner's requested relief is hereby denied, and the court further certifies the results of the Bridgeport Democratic primary held on September 11, 2007 to the Office of the Secretary of State.
CT Page 17537