Opinion
No. CV 10-6013904-S
September 17, 2010
MEMORANDUM OF DECISION
This dispute arises from the Democratic primary election for the first assembly district of the House of Representatives of the General Assembly. Pursuant to General Statutes § 9-329a, the plaintiff, Kenneth Green, commenced this action on August 24, 2010, against Olga Iris Vazquez, the Hartford Democratic registrar of voters, in her official capacity; Anne E. Wall, the Bloomfield Democratic registrar of voters, in her official capacity; and Matthew D. Ritter, Green's opponent for the Democratic nomination for the general election for representative from the first assembly district. In his amended complaint, the plaintiff makes the following allegations. The plaintiff is the incumbent representative of the first assembly district. In seeking the Democratic Party's nomination, the plaintiff ran against Ritter, the party-endorsed candidate, in the Democratic primary held on August 10, 2010. At the conclusion of the primary, and the canvass of the votes cast, Green was declared the winner by a margin of two votes.
General Statutes § 9-329a provides in relevant part: "(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 . . . (2) elector or candidate who alleges that there has been a mistake in the count of the votes cast 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 send a copy of the complaint by first-class mail, or deliver a copy of the complaint by hand, 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 . . .
"(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 machines 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."
Vazquez, Wall, and Ritter are collectively referred to as the defendants.
The amended complaint is the operative complaint, and any references to the complaint are to the amended complaint unless otherwise specified.
Green received a total of 1152 votes, and Ritter received a total of 1150 votes. The break-down was as follows. In Hartford district one, Green received 243 votes and Ritter received 163. In Hartford district second, Green received 57 votes, and Ritter received 102. Green received 178 votes in Hartford district three, and Ritter received 377. In Hartford district four, Green received 105 votes, and Ritter received 103. All numbers for the Hartford districts included absentee ballots. In Bloomfield district three, Green received 277 votes, and Ritter received 179. In Bloomfield district four, Green received 239, and Ritter received 194 votes. With respect to the absentee ballots for Bloomfield, which were calculated separately from those cast at the polls and combined, Green received 53, and Ritter received 38 votes. Although in her amended answer to the amended complaint, Vazquez denied the Hartford district three's total for Ritter, at the time of closing argument, there was no dispute between the parties of the vote totals for either the canvass or the recanvass.
Because the result of the election was sufficiently close, a mandatory recanvass was conducted pursuant to General Statutes § 9-311a. A recanvass took place on August 16, 2010 for the involved Hartford voting districts and August 17, 2010 for the involved Bloomfield voting districts. The Bloomfield recanvass resulted in no change to each district's vote totals as certified at the conclusion of the August 10 canvass. As a result of a recanvass for the Hartford districts, however, Green lost one vote in Hartford district one; Ritter gained one absentee ballot vote in Hartford district three; and Ritter gained two votes in Hartford district four. Accordingly, following the recanvass, Ritter led Green by a margin of two votes. The plaintiff alleges that the elections officials conducting the primary made erroneous rulings by which he is aggrieved and seeks the ordering of a new primary.
General Statutes § 9-311a provides: "For purposes of this section, state, district and municipal offices shall be as defined in section 9-372 except that the office of presidential elector shall be deemed a state office. Forthwith after a regular or special election for municipal office, or forthwith upon tabulation of the vote for state and district offices by the Secretary of the State, when at any such election the plurality of an elected candidate for an office over the vote for a defeated candidate receiving the next highest number of votes was either (1) less than a vote equivalent to one-half of one per cent of the total number of votes cast for the office but not more than two thousand votes, or (2) less than twenty votes, there shall be a recanvass of the returns of the voting machine or voting machines and absentee ballots used in such election for such office unless such defeated candidate or defeated candidates, as the case may be, for such office file a written statement waiving this right to such canvass with the municipal clerk in the case of a municipal office, or with the Secretary of the State in the case of a state or district office. In the case of state and district offices, the Secretary of the State upon tabulation of the votes for such offices shall notify the town clerks in the state or district, as the case may be, of the state and district offices which qualify for an automatic recanvass and shall also notify each candidate for any such office. When a recanvass is to be held the municipal clerk shall promptly notify the moderator, as defined in section 9-311, who shall proceed forthwith to cause a recanvass of such returns of the office in question in the same manner as is provided in said section 9-311. In addition to the notice required under section 9-311, the moderator shall before such recanvass is made give notice in writing of the time when, and place where, such recanvass is to be made to each candidate for a municipal office which qualifies for an automatic recanvass under this section. Nothing in this section shall preclude the right to judicial proceedings on behalf of a candidate under any provision of chapter 149. For the purposes of this section, "the total number of votes cast for the office" means in the case of multiple openings for the same office, the total number of electors checked as having voted in the state, district, municipality or political subdivision, as the case may be. When a recanvass of the returns for an office for which there are multiple openings is required by the provisions of this section, the returns for all candidates for all openings for the office shall be recanvassed. No one other than a recanvass official shall take part in the recanvass. If any irregularity in the recanvass procedure is noted by a candidate, he shall be permitted to present evidence of such irregularity in any contest relating to the election."
Following the recanvass, Ritter had 1153 votes, and Green had 1151 votes.
Originally the plaintiff also alleged that there had been a mistake in the count of the votes cast at the primary and sought additional orders that: (1) all materials relevant to the primary and recanvasses be impounded and preserved under seal; (2) all voting lists be made available to the parties for inspection and copying; (3) all voting materials be unlocked, all ballot boxes, including those for the Republican primaries, be opened and that all votes cast be recounted by such special masters or persons appointed by the court; and (4) the plaintiff is the declared winner of the primary. At closing argument, the plaintiff represented to the court that he had abandoned these claims and requests concerning a recount and sought only the ordering of a new primary as a remedy.
All three defendants individually allege, by way of special defense, that the plaintiff waived the right to challenge the alleged violations of election law by his failure to raise those claims to election officials prior to, and during, the primary, original canvass and recanvass.
The defendants also asserted both estoppel and waiver as special defenses, but abandoned these claims at closing argument. Also at closing argument, the plaintiff orally answered the defendants' remaining special defenses by denying them.
Pursuant to § 9-329a, on August 24, 2010, the parties were ordered to appear for an expedited hearing on August 27, 2010. On that day, this court granted Ritter's motion in limine concerning statutory voting secrecy by agreement of the parties and heard evidence. Evidence was also heard on August 31 and September 1, 2010. The hearing concluded with oral argument on September 3, 2010.
I FINDINGS OF FACT
Based on the evidence presented by the parties, the court makes the following findings of fact.
A Bloomfield
During June of 2010, Wall appointed all certified moderators, assistant registrars, official checkers, ballot clerks and tabulator tenders to serve at the district three and four polling places for the August 10, 2010 Democratic primary. On July 6, 2010, however, the Bloomfield registrars of voters, Wall and the Republican registrar, received a newsletter from deputy secretary of the state Lesley Mara indicating that under General Statutes § 9-436(e), each candidate has the right to submit a list of designees for primary polling place official positions in their respective districts. This was the first time that the Bloomfield registrars of voters became aware of the candidates' right to designate polling place officials of their own choosing. Despite his candidacy for first assembly district representative in eight previous elections, the plaintiff first learned of this right from Vazquez shortly before he approached Wall on July 13, 2010 to submit names as his designees for such positions. Wall, however, told the plaintiff that she had already appointed and trained all the primary polling place officials, but that the plaintiff should feel free to designate unofficial poll checkers to serve as his representatives at the primary. The plaintiff then gave Wall a piece of paper with at least two names of persons he wished to designate. Wall took the list of names from the plaintiff and attempted to contact them to see if they were interested in working the polls as unofficial poll checkers.
General Statutes § 9-436 provides in relevant part: "(e) 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 and who shall be deemed a primary official. The registrar may also appoint a deputy head moderator to assist the head moderator in the performance of his duties. A deputy head moderator shall also be deemed to be a primary official. 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, provided, if a party-endorsed candidate is a member of a party other than the one holding the primary, such primary officials, except voting machine mechanics, shall be enrolled party members of the party holding the primary. Names of designees and alternate designees for such positions shall be submitted in writing by party-endorsed candidates and contestants to the registrar not later than ten days before the primary, except that names of designees and alternate designees for the position of moderator shall be so submitted not later than twenty-one days before the primary and, if such lists are not so presented, all such appointments shall be made by the registrar but in the above-mentioned proportion. The registrar shall notify all such candidates and contestants of their right to submit a list of designees under this section. Notwithstanding any other provision of this section, the 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 in accordance with section 9-229, but only to the extent of such insufficiency. Primary central counting moderators and absentee ballot counters shall also be deemed primary officials. No primary official shall perform services for any candidate at the primary on primary day."
These officials included "certified moderators, assistant registrars, official checkers, ballot clerks and tabulator tenders" for each voting district. (See Plaintiff's Exhibit 5.)
There was some conflicting testimony as to how many names the plaintiff submitted to Wall. Green testified that there were two names written on the piece of paper, while Wall testified that the paper had three names written on it. The actual number of names submitted is not material to the resolution of this matter.
The Bloomfield registrars of voters sent the plaintiff a letter dated July 14, 2010 which stated that they had only been made aware of a candidate's right to appoint primary polling place officials by the July 6, 2010 newsletter, and had already filled all such positions. The letter also indicated that the plaintiff should feel free to submit a list of unofficial poll checkers to serve at the primary in writing to the registrars by August 8, 2010, and concluded "[w]e hope that you will trust our judgment in the selection of our workers, and we would be happy to visit with you to share their names." The letter included a handwritten note from Wall indicating that she was sending the letter as a courtesy although they had "already chatted." The note further stated: "I called both ladies and chatted with Mrs. Brown who said she would assist in making phone calls." (See Plaintiff's Exhibit 5.) The plaintiff made no further requests and took no further action with respect to the appointment of polling place officials in Bloomfield. On the day of the primary, neither the plaintiff, nor Ritter, had designated any polling place officials at the Bloomfield polling locations, nor had either candidate been invited to do so by Wall at any time prior to August 10, 2010.
On the morning of the primary, at approximately 6:00 a.m., one of the tabulators in Bloomfield district three was not functioning properly. The problem only affected the ballot box and was, in any case, rectified promptly. During the time that specific tabulator was out of commission, voters were told to place their ballot in the auxiliary bin for manual counting later in the day.
A tabulator is the machine by which voters submit their vote for counting. Although no technical expert testimony was heard as to how a tabulator operates, it was generally understood that after a voter has physically marked their ballot, the voter brings the ballot to the tabulator and feeds the ballot into a slot on the top of the machine. The tabulator, much like a fax machine, accepts the ballot, scans it optically in order to "read" the ballot and count the voter's vote, and collects the physical ballot in an internal bin.
At approximately 6:45 a.m. on the day of the primary, Marvin Mink, a longtime friend of the plaintiff, entered the polling location for Bloomfield district three to vote. Although voting records reveal he had voted in 2008 using optical scan voting machine technology, Mink testified that he was not comfortable with it, was unsure how to use it, and was not offered any instruction from polling place officials. Mink testified that when he approached the tabulator, but before he inserted his ballot, he observed an electronic screen on the tabulator to read sixteen. When he proceeded to insert his ballot into the tabulator, the screen flashed an error message. He was not precise about the error message he saw. Nevertheless, the tabulator accepted his ballot anyway, although the counter continued to read sixteen. Mink further testified that he was concerned that his vote had not been counted and spoke to a woman seated near the tabulator who did nothing to address Mink's concerns. He then left the polling place without speaking to any other polling official. The moderator at Bloomfield's district three polling place, Sharon Dexler, whom Mink knew and chatted with when he first arrived at the polling place before voting that morning, did not at that time learn of any problem experienced by Mink. After he left, Mink telephoned the plaintiff to discuss his concern that a tabulator at the polling place for Bloomfield district three was not working properly.
As noted in footnote 11, while no expert testimony was heard as to the functioning of the tabulator, it was generally understood that this externally viewable electronic screen displays a count of the total votes the machine has accepted, but does not publicly display for whom the votes have been cast.
There was conflicting testimony as to whether this exchange actually occurred. Although Mink testified that he did not know the woman or her name, testimony at trial made it clear that the woman working as a "tabulator tender" at that time and place, and thus, the woman that would have been seated near the tabulator was Pauline Robinson, although Mink's description of her was somewhat off the mark. Robinson testified that she did not recall any male voter ever indicating a problem with the tabulator. The discrepancy is discussed later in this opinion.
Sometime later in the morning, the plaintiff visited the polling location for Bloomfield district three to discuss the incident brought to his attention by Mink. When he attempted to enter the polling place, an election official informed him that he, as a candidate, was not permitted to be there. When the plaintiff requested to speak to Dexler, she agreed to speak to him outside of the polling location. When the plaintiff expressed his concern that not all of the votes were being counted due to some tabulator malfunction, Dexler indicated that she was aware of a problem that had occurred earlier in the morning and that the problem had been rectified. Although the plaintiff testified that, in his discussion with Dexler, he was referring to Mink's problem, Dexler testified that she had no knowledge of Mink's issue and believed that the plaintiff was referring to the tabulator problem that had occurred at 6:00 a.m. when the polls first opened.
Leonard Bloom, a resident of Bloomfield district four, voted by absentee ballot, which was returned on July 27, 2010. On August 9, 2010, one day before the primary, Bloom died. Election officials did not learn of his demise until after his voting envelope was opened and counted. Therefore, Bloom's absentee ballot was counted and reflected in the results of both the original canvass and the recanvass.
Prior to the primary, Carlos Carbrero had moved to Bloomfield district four from Bloomfield district three. He had previously registered to vote in district three but his name had been removed from the active list of voters and placed on the inactive list. On the day of the primary, however, Carbrero voted in district three after filling out an application for restoration of elector to the official checklist containing all active voters. It is undisputed that following restoration, Carbrero would have been eligible to vote in Bloomfield district four where the ballot used was exactly the same as in district three. The proper procedure for the primary polling place officials at Bloomfield district three would have been to direct Carbrero to the polling place for district four.
B Hartford
Prior to conducting the recanvass for the first assembly district in the afternoon of August 16, 2010, Hartford election officials conducted a mandatory recanvass for the fourth assembly district in the morning. When Bradley Jones, the head moderator for the counting of absentee ballots, opened the ballot transfer case that he believed contained the absentee ballots for the fourth assembly district race, he found that he had mistakenly opened the ballot transfer case containing the absentee ballots for the first assembly district race. After announcing the mistake to the crowd gathered for the fourth assembly district recanvass, he zipped the ballot transfer case closed and placed it on a table in the room. Although Jones left the room for ten minutes during a lunch break, there is no evidence that the ballot transfer case containing the first assembly district's absentee votes was tampered with or even left unattended for any period of time.
II LEGAL PRINCIPLES
The court first reviews the general principles articulated by our Supreme Court governing the judiciary's "limited role in elections." Caruso v. Bridgeport, 285 Conn. 618, 637, 941 A.2d 266 (2008). "[U]nder our democratic form of government, an election is the paradigm of the democratic process designed to ascertain and implement the will of the people . . . The purpose of the election statutes is to ensure the true and most accurate count possible of the votes for the candidates in the election . . . Those statutes rest on the bedrock principle that the purpose of the voting process is to ascertain the intent of the voters . . . In implementing that process . . . when an individual ballot is questioned, no voter is to be disfranchised on a doubtful construction, and statutes tending to limit the exercise of the ballot should be liberally construed in his [or her] favor . . . Our election laws . . . generally vest the primary responsibility for ascertaining that intent and will on the election officials, subject, of course, to the court's appropriate scope of review when the officials' determination is challenged in a judicial proceeding . . . We look, therefore, first and foremost to the election officials to manage the election process so that the will of the people is carried out." (Citations omitted; internal quotation marks omitted.) Bortner v. Woodbridge, 250 Conn. 241, 254, 736 A.2d 104 (1999).
"Moreover, [t]he delicacy of judicial intrusion into the electoral process . . . strongly suggests caution in undertaking such an intrusion . . . Finally, we have recognized that voters have a powerful interest in the stability of [an] election because the ordering of a new and different election would result in their election day disfranchisement . . . [This] background counsels strongly that a court should be very cautious before exercising its power under the [statutes governing election contests] to vacate the results of an election and to order a new election." (Citations omitted; emphasis in original; internal quotation marks omitted.) Caruso v. Bridgeport, supra, 285 Conn. 637-38.
Further, to the extent this court is required to interpret certain statutory provisions, the court sets forth the principles that guide the court's interpretation of those statutes. "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, General 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 relationship, the meaning of such text is plain and unambiguous 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 . . . Statutory provisions governing election contests are strictly construed." (Citation omitted; internal quotation marks omitted.) Id., 638-39.
The relevant provisions of § 9-329a, as more fully set forth in footnote 1, provide: "(a) Any (1) elector or candidate aggrieved by a ruling of an election official in connection with any primary . . . (2) elector or candidate who alleges that there has been a mistake in the count of the votes cast at such primary, or (3) . . . may bring his complaint to any judge of the Superior Court for appropriate action . . ."
"(b) . . . Such judge shall, on the day fixed for . . . 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 machines 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 . . . certify the result of his finding or decision to the Secretary of the State . . . Such judge may (1) determine the result of such primary; (2) . . . 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 . . . the result of such primary might have been different and he is unable to determine the result of such primary."
The plain language of § 9-329a(a) permits three types of plaintiffs to bring a complaint thereunder: (1) any elector or candidate aggrieved by a ruling of an election official in connection with any primary held pursuant to certain statutes or a special act; (2) any elector or candidate who alleges that there has been a mistake in the count of the votes cast at such primary, or (3) any candidate in such a primary who alleges that he is aggrieved by a violation of any provision of certain identified statutes, none of which are relevant to the present matter. See General Statutes § 9-329a. The plain language of § 9-329a(b) permits a judge to order any voting machines to be unlocked or any ballot boxes to be opened and a recount of the votes cast, including absentee ballots, to be made; determine the result of the primary; order a change in the existing primary schedule; or order a new primary.
In the present case, the plaintiff expressly claims to be entitled to relief only under § 9-329a(a)(1) as a "candidate aggrieved by a ruling of an election official" in connection with a primary. Furthermore, the plaintiff, in making that claim, seeks under § 9-329a(b) only the remedy that a new primary be ordered.
Although the plaintiff's complaint alleged that there had also "been a mistake in the count of the votes cast," the plaintiff represented during closing argument that he had abandoned that claim, and that he wished to withdraw all allegations relevant to that claim. Therefore, this court need not consider § 9-329a(a)(2).
Our Supreme Court has previously adjudicated claims brought under § 9-329a(a)(1) seeking that a new primary be ordered under § 9-329a(b). See Caruso v. Bridgeport, supra, 285 Conn. 630; Simmons-Cook v. Bridgeport, 285 Conn. 657, 660-61, 941 A.2d 291 (2008). It most recently interpreted and applied § 9-329a in Caruso v. Bridgeport, 285 Conn. 618, 941 A.2d 266 (2008), in which the plaintiff, a candidate in the Democratic primary for the office of the mayor of the city of Bridgeport, sued the defendant, the Democratic registrar of voters for the city, requesting that the trial court order a new primary election. Caruso v. Bridgeport, supra, 285 Conn. 620-21, 623.
In Caruso, the trial court denied the plaintiff's request to order a new primary, and rendered judgment for the defendants. Id., 624. On appeal, among other issues, the plaintiff argued that "the trial court applied an improper standard in determining whether he was entitled to a new primary election . . ." Id., 648. In addressing the plaintiff's argument, the Supreme Court discussed two cases in which it had previously adopted standards for granting a new election where such statutory relief was sought: Penn v. Irizarry, 220 Conn. 682, 600 A.2d 1024 (1991) and Bortner v. Woodbridge, 250 Conn. 241, 736 A.2d 104 (1999). Id., 648-49.
In Bortner, the plaintiff brought an action pursuant to General Statutes § 9-328, rather than § 9-329a. Id., 643. Nevertheless, the Caruso court discussed the standard the Bortner court used for reviewing the plaintiff's action, under § 9-328 in that case, and then provided that "we now conclude that the Bortner reliability standard is applicable to actions brought pursuant to § 9-329a." Id., 649 n. 25. Therefore, the court adopted the following standard for the granting of relief under § 9-329a: "[T]he plaintiff must show (1) there were substantial violations of the requirements of the statute . . . and (2) as a result of those violations, the reliability of the result of the election is seriously in doubt." (Emphasis in original; internal quotation marks omitted.) Id., 649.
Section 9-328 is a remedial statute similar to § 9-329a but it deals with complaints arising out of municipal elections.
The Supreme Court more succinctly stated the burden on a plaintiff to obtain relief under § 9-329a(a)(1) in Simmons-Cook v. Bridgeport, 285 Conn. 657, 941 A.2d 291 (2008), a companion case to Caruso, decided on the same day. In that case, the court provided: "A plaintiff seeking relief under § 9-329a(a)(1) must establish that, but for the error in the ruling of the election official . . . the result of such primary might have been different and [the judge] is unable to determine the result of such primary . . . Moreover, the court must be persuaded that (1) there were substantial violations of the requirements of the statute . . . and (2) as a result of those violations, the reliability of the result of the election is seriously in doubt . . . [A]lthough the underlying facts . . . are to be established by a preponderance of the evidence . . . the ultimate determination of whether, based on those underlying facts, a new election is called for — that is, whether there were substantial violations of the statute that render the reliability of the result of the election seriously in doubt — is a mixed question of fact and law . . ." (Citations omitted; internal quotation marks omitted.) Simmons-Cook v. Bridgeport, supra, 285 Conn. 667-68.
The above statement of the law in Simmons-Cook clarified that the Supreme Court's application of the first element of the Bortner reliability standard to § 9-329a, in both Caruso and Simmons-Cook, that there must be "substantial violations of the requirements of the statute . . ." (emphasis added); without explicitly stating what the appropriate statute is, was intended to reference § 9-329a. See id. Given that interpretation, the requirement that there must be "substantial violations of the requirements of [§ 9-329a]" remains somewhat ambiguous, as § 9-329a itself does not set forth requirements governing the operation of a primary or other election, only a process for judicial resolution of alleged violations of other statutes governing a primary or other election that had some effect on the primary or other election. See General Statutes § 9-329a. But given the Supreme Court's decisions in Caruso and Bortner, as analyzed below, it is also clear that the phrase "violations of the requirements of [§ 9-329a]" is intended to reference the type of misconduct in the operation of a primary or other election for which § 9-329a is designed to provide a remedy.
In Bortner, the Supreme Court stated that "as a predicate for the ordering of a new election under § 9-328, there must be either (1) an error or errors `in the rulings of' an election official, or (2) a `mistake in the count of the votes.'" Bortner v. Woodbridge, supra, 250 Conn. 259. In Caruso, the Supreme Court recognized that the same predicates exist for the ordering of a new election under § 9-329a. CT Page 18461 Caruso v. Bridgeport, supra, 633 n. 13, citing Bortner v. Woodbridge, supra, 259.
As previously noted, the plaintiff claims only that there has been an error or errors in the rulings of an election official, rather than a mistake in the count of the votes. In discussing the analysis that a trial court should follow to determine whether there have been such errors, the Supreme Court in Caruso and Bortner subdivided the issue into two parts before reaching a final conclusion. As stated in Caruso, the court provided that first, it must be determined whether "the actions challenged by the plaintiff colorably constitute rulings of an election official within the meaning of § 9-329a. Caruso v. Bridgeport, supra, 633 n. 13 ("[w]e note that a determination that the actions challenged by the plaintiff colorably constitute rulings of an election official within the meaning of § 9-329a is a `predicate for the ordering of a new election' under § 9-329a(b)"). Second, in Bortner, the court stated that it must be determined whether there was error in the rulings of the election official. See Bortner v. Woodbridge, supra, 250 Conn. 268 ("[m]oreover, there must be an `error in the rulings of the election official' in order to supply a basis for a new election"); see also General Statutes § 9-329a(b) ("[s]uch judge shall thereupon, if he finds any error in the ruling of the election official . . . certify the result of his finding or decision . . .").
As to the first part of the above determination, whether the actions challenged by the plaintiff constitute rulings of an election official, the Supreme Court in Caruso stated that "[t]he parties in the present case do not dispute that the phrase `ruling of an election official' in § 9-329a(a) has the same meaning as the phrase `ruling of any election official' as used in § 9-328 . . . Accordingly, we conclude that our analysis of § 9-328 in Bortner is equally applicable to § 9-329a." (Citation omitted.) Caruso v. Bridgeport, supra, 285 Conn. 646. The analysis of the meaning of the phrase "ruling of any election official" in Bortner was that "a ruling of 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." Bortner v. Woodbridge, supra, 250 Conn. 268.
As to the second part of the determination the Supreme Court in Bortner, as cited by Caruso, stated that to find "`error in the rulings of the election official,' election officials must have engaged in conduct that incorrectly either (1) decided a question presented to them applicable to the election process, or (2) interpreted some statute, regulation or other authoritative legal statement [or] requirement applicable to that process." (Emphasis added.) Caruso v. Bridgeport, supra, 285 Conn. 644, citing Bortner v. Woodbridge, supra, 250 Conn. 268.
Based on the foregoing analysis, this court concludes that the Supreme Court in Caruso, by including the language quoted from Bortner above, intended to not only adopt Bortner's analysis of what constitutes a "ruling of an election official," but also implicitly adopted Bortner's analysis of what constitutes " error in the rulings of an election official." This conclusion follows from Caruso, even though the Caruso court only determined that the Bridgeport Democratic registrar's conduct constituted rulings, and did not explicitly explain whether they were in error: "Applying this interpretation of the word ruling as used in § 9-329a to the plaintiff's claims in the present case, we agree with the plaintiff that [the Bridgeport Democratic registrar of voters] alleged failure to comply with the mandates of §§ 9-229(a) and § 9-436(d) and (e) colorably constituted rulings of an election official." Caruso v. Bridgeport, supra, 285 Conn. 647.
Therefore, the proper question to ask when determining, under the first element of the Bortner reliability standard, as required by Caruso and Simmons-Cook, whether there have been "violations of the requirements of [§ 9-329a];" Simmons-Cook v. Bridgeport, supra, 285 Conn. 668; is whether the plaintiff has shown the type of misconduct in the operation of a primary for which § 9-329a is designed to provide a remedy. See Caruso v. Bridgeport, supra, 285 Conn. 646-47; Bortner v. Woodbridge, supra, 250 Conn. 268. When the plaintiff's claims are brought under § 9-329a(a)(1), specifically, the appropriate question is whether there has been " error in the rulings of an election official" (emphasis added); see Caruso v. Bridgeport, supra, 646-47; Bortner v. Woodbridge, supra, 268; which is found when "election officials . . . have engaged in conduct that incorrectly either (1) decided a question presented to them applicable to the election process, or (2) interpreted some statute, regulation or other authoritative legal statement [or] requirement applicable to that process." (Emphasis added.) Caruso v. Bridgeport, supra, 644.
III ANALYSIS
The first element of the Bortner reliability standard, as has been adopted to apply to allegations made under § 9-329a(a)(1), as well as the second element, are applied individually to each of the plaintiff's claims below. The plaintiff asserts that the combined effect of these claims is to render the result of the primary seriously in doubt and that the only remedy is a new primary election.
A Bloomfield Wall's Conduct Pursuant to § 9-436(e) and the Consequences Alleged by the Plaintiff
The plaintiff's first claim involves certain failures to comply with the requirements of § 9-436(e) by Wall. Specifically, the plaintiff claims that (1) Wall failed to give the plaintiff notice of his right to submit a list of designed polling place officials as required by § 9-436(e); (2) when the plaintiff asked her to appoint individuals designated by him, Wall refused to do so; and (3) as a result of her refusal, Wall deprived the plaintiff of his right to have his designees at the polls and at the recanvass in violation of § 9-436(e).
The relevant provisions of § 9-436(e), as more fully set forth above in footnote 9, are as follows: "Each registrar's appointments of primary polling place officials . . . and of designees to conduct supervised voting of absentee ballots . . . 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 . . . Names of designees and alternate designees for such positions shall be submitted in writing by party-endorsed candidates and contestants to the registrar not later than ten days before the primary, except that names of designees and alternate designees for the position of moderator shall be so submitted not later than twenty-one days before the primary and, if such lists are not so presented, all such appointments shall be made by the registrar but in the abovementioned proportion. The registrar shall notify all such candidates and contestants of their right to submit a list of designees under this section."
The plain and unambiguous language of § 9-436(e) requires a registrar of voters to notify all primary candidates of their right to submit a list of designees for positions as primary polling place officials and to conduct supervised absentee ballot voting. During her testimony at trial, Wall admitted that she failed to notify either the plaintiff or Ritter of his right to submit a list of designees. Caruso is instructive as to whether this failure constitutes an error in the ruling of an election official.
In Caruso, one of the plaintiff's claims on appeal was that the Bridgeport Democratic registrar "consciously disregarded . . . § 9-436(e) when she failed to notify the plaintiff's campaign of its right to submit a list of designees for moderator and other poll worker positions, failed to apportion one half of the poll worker positions to the plaintiff's campaign and, just four days before the primary election, appointed a Republican as head moderator . . . Caruso v. Bridgeport, supra, 285 Conn. 630-31. In evaluating whether these claims constituted rulings of an election official, the Supreme Court stated that "the test . . . that a ruling of an election official must involve some act or conduct by the official that . . . interprets some statute, regulation or other authoritative legal requirement, applicable to the election process . . . is broad enough to include conduct that comes within the scope of a mandatory statute governing the election process, even if the election official has not issued a ruling in any formal sense. When an election statute mandates certain procedures, and the election official has failed to apply or to follow those procedures, such conduct implicitly constitutes an incorrect interpretation of the requirements of the statute and, therefore, is a ruling." (Citation omitted; internal quotation marks omitted.) Id., 647. The court concluded: "Applying this interpretation of the word ruling as used in § 9-329a to the plaintiff's claims in the present case, we agree with the plaintiff that [the Bridgeport Democratic registrar's] alleged failure to comply with the mandates of . . . § 9-436[(e)] . . . colorably constituted rulings of an election official." Id.
Given the remarkable similarity of the claims in Caruso to those presently being considered, the court concludes that Wall's failure to give the candidates notice of their rights to submit designees for poll worker positions constituted an error in the ruling of an election official.
The plaintiff also argues, in his post-trial memorandum that Wall refused to appoint his designees for primary polling place officials, although he requested that she do so before the deadlines prescribed by § 9-436(e) for submitting names of designees had passed. The plaintiff's own testimony was that he only attempted to submit names as designees for official primary polling place workers at his July 13, 2010 meeting with Wall, and that he submitted two names for such purpose. Nevertheless, Wall informed the plaintiff that all official polling place worker positions had already been filled, but that the persons submitted by the plaintiff could work as unofficial poll workers.
Section 9-436(e) requires that each registrar's appointments of primary officials "shall be divided equally, as nearly as may be," between designees of each candidate. While the plaintiff implicitly argues that this language of § 9-436(e) required Wall to appoint the persons submitted by the plaintiff as designees, a strict interpretation of the language of the statute reveals ambiguity as to this issue. While there is no question that the statute requires the registrar to appoint primary officials, the statute is unclear as to the extent of the obligations it imposes on the registrar. For example, is the registrar obligated to appoint officials from the list of designees, and to exhaust those lists before looking at anyone else? Subsection (e) only states that the appointments of designees "shall be divided equally, as nearly as may be."
The language of subsection (e) of the statute is further ambiguous in providing that "if such lists are not so presented, all such appointments shall be made by the registrar but in the above-mentioned proportion." When strictly construed, this portion of the statute concerning the right of the candidates to designate polling officials is logically flawed because it is impossible for a registrar to appoint designees "in the above-mentioned proportion," meaning "equally, as nearly as may be" between the candidates' designees, when no lists have been presented, meaning that no candidate designees exist for the registrar to apportion.
The statute does not provide obvious answers to these and other questions. Given the lack of clear direction in the designee-related portions of the statute, while Wall's failure to appoint the plaintiff's designees as election officials was an error in the ruling of an election official, it is unclear how the result of the election may have been impacted such that the reliability of the result of the election is seriously in doubt.
The ambiguity of these provisions and the import of a registrar's failure to follow them is further complicated by the approach taken by the Supreme Court to this issue in Caruso when it explicitly decided only that certain failures of the Bridgeport Democratic registrar of voters were rulings of an election official, without deciding whether they were in error. See Caruso v. Bridgeport, supra, 285 Conn. 647. Although the court noted that the plaintiff claimed that the evidence showed that sixty-eight of 138 required poll worker positions were left unfilled; id., 651, n. 27; and that his campaign was entitled to sixty-nine poll worker positions and received only nineteen; id., 651, n. 28; instead of explicitly concluding whether these decisions were in error, the court instead moved on to the second part of Bortner reliability analysis in concluding that the plaintiff failed to meet his burden of proving that the effect of these rulings put the election " seriously in doubt . . ." (Emphasis in original.) Id., 652.
The plaintiff claims that Wall's rulings, as detailed above, cast serious doubt on the reliability of the result of the election for a number of reasons. First, the plaintiff argues that Wall's violations of § 9-436(e), are per se violations which, ipso facto, cast serious doubt on the reliability of the result of the election. Second, the plaintiff argues, alternatively, that consequences detrimental to the reliability of the outcome of the election did result from the violations. Specifically, the plaintiff argues that he was deprived of his right to have his designees at the polls and at the recanvass, which had certain effects, namely, that Mink's vote may not have been counted and no election officials investigated his alleged complaint that the tabulator may have malfunctioned; that a Bloomfield voter was incorrectly permitted to vote in Bloomfield's district three when he should have voted in district four; and, that the absentee ballot of the elector who died on August 9, 2010, was improperly counted.
1 The Plaintiff's Argument that a Per Se Rule Exists Applicable to § 9-329a
The plaintiff argues that Wall's violations of § 9-436(e), per se, render the reliability of the result of the election seriously in doubt. In support of this argument, the plaintiff analogizes to Wrinn v. Dunleavy, 186 Conn. 125, 440 A.2d 261 (1982), and In re Election for Second Congressional District, 231 Conn. 602, 653 A.2d 79 (1994), despite conceding during closing argument, that those cases are "not ultimately reconcilable" with Caruso and Bortner. The court rejects the plaintiff's claim of a per se rule and reiterates that Caruso, Simmons-Cook and Bortner are determinative of the resolution of the present case.
In Wrinn, the plaintiff and the named defendant were the candidates for the Democratic Party's nomination for the office of mayor of West Haven. Wrinn v. Dunleavy, 186 Conn. 125, 126-27, 440 A.2d 261 (1982). After both an original canvass and recanvass, the named defendant prevailed over the plaintiff by eight votes, and thereafter, the plaintiff initiated an action under § 9-329a. Id., 127. At trial, the issue was the propriety of the handling of certain absentee ballots pursuant to General Statutes § 9-146(b). Id., 128-29. The trial court found that although there had been deficiencies in complying with § 9-146(b), because there had been "substantial compliance," the plaintiff was not entitled to relief. Id., 130.
On appeal, the plaintiff's certified question of law was: "Did the judge err in concluding that elderly electors . . . substantially complied with mandatory mailing requirements of [§ ]9-146(b) . . . when their ballots were mailed by a person other than persons specifically designated by such statute?" Id., 141. In analyzing this question, the Supreme Court first concluded that certain mailing requirements of § 9-146(b) were mandatory, and then considered whether there had been compliance with those provisions, because, as the court provided, "where the legislature has provided mandatory requirements specifically designed to prevent fraud, at least a substantial compliance with such statutes is necessary." (Internal quotation marks omitted.) Id., 147. The court further explained that the legislature, by specifying particular categories of persons, "has mandated that ballots mailed under § 9-146(b) shall be counted only if mailed by persons who come within one of the specified categories." Id., 148.
While the trial court found substantial compliance with the statute, the Supreme Court disagreed, concluding: "Because the twenty-six absentee voters in this case did not substantially comply with the mandatory provisions of § 9-146(b) their votes may not be counted . . . Thus, the trial judge erred in holding that there had been substantial compliance with the requirements of § 9-146(b), because, in fact, there had been no compliance at all. Therefore, the answer to the plaintiff's certified question of law is that the trial judge did err in finding `substantial compliance' with the mandatory requirements of § 9-146(b)." (Emphasis in original.) Id., 149-50.
As for a remedy, the plaintiff sought to "be declared the winner of the Democratic party primary on the ground that after the invalidation of the twenty-six absentee ballots in question and the resulting correction of the returns, his vote total would exceed that of the named defendant by sixteen votes." Id., 150. But the court focused on the legislative policy of § 9-329a, namely that "[t]he limitation on the remedies applicable to a primary challenge suggests that the legislature intended certain disputes about primaries to be resolved with a new primary even when, as in this case, a winner could be determined under the remedies specifically applicable in election challenges." CT Page 18468 Id., 151. The court held: "Because of the apparent policy of the legislature that primary disputes such as the present one involving absentee ballots are to be resolved by a new primary, we have decided to order such a primary in this case." Id., 152.
The court notes that, at the time of the Wrinn decision, the language of § 9-329a was different in several respects, including limiting the language permitting the court to "determine the result of such primary" to the specific circumstance where the trial court "finds that the improper actions of the election official prevented persons entitled to vote from voting at such primary and after allowing such persons to vote by sealed paper ballots, he finds the results of such primary will be different." (Internal quotation marks omitted.) Wrinn v. Dunleavy, supra, 186 Conn. 151. That limitation on a court's ability to "determine the result of such primary" was subsequently removed from the statute. See General Statutes § 9-329a(b).
Based on Wrinn, especially the Supreme Court's discussion of substantial compliance, the plaintiff argues that any violation of § 9-436(e) is a failure to substantially comply with the statute, and, per se, seriously undermines the reliability of the result of the election, and requires a new primary. Such an argument is not supported by Wrinn. Instead, the court finds that Wrinn supports the Bortner reliability standard as adopted by Caruso. As has been stated, under Caruso, the plaintiff must show that (1) there were substantial violations of the requirements of § 9-329a, which, when the claims are brought under § 9-329a(a)(1), means error in the rulings of an election official; and (2) that as a result of those violations, the reliability of the result of the election is seriously in doubt. This is precisely the type of analysis in which the Wrinn court engaged.
In Wrinn, the court addressed whether there was error in the rulings of an election official, "such `ruling' being the counting of the absentee ballots;" id., 139; pursuant to § 9-146(b). Id., 150. The court determined that there was error in that there was no compliance with the statute "at all." Id. Thereafter, the court held that the plaintiff was entitled to a new primary, without specifically discussing whether the error in the counting of the absentee ballots put the reliability of the result of the election seriously in doubt because it had already implicitly reached that conclusion by finding that the result of the election was wrong, "because the plaintiff would have won the primary had these ballots not been counted . . ." Id., 139. Contrary to the plaintiff's argument that, in Wrinn, the violation of the statute, per se, caused the court to order a new election, the court ordered a new election because the statutory violation caused twenty-six absentee ballots to be invalidated, and, because the parties stipulated that the ballots had been cast for the defendant; id., 129; the outcome of the election had been wrongfully determined in favor of the defendant, and the plaintiff was the winner in fact. Because the then applicable version of § 9-329a did not permit the court to "determine the result," the court could not subtract the invalid votes from the defendant's total, and declare the plaintiff the winner. Instead, the only remedy available was to order a new election as was provided in that version of § 9-329a. See id., 151.
It is important to note that the Supreme Court's discussion of "substantial compliance" with § 9-146(b) in Wrinn was limited to the determination of whether the absentee ballots in question were valid ballots, and thus, whether there was error in the election official's decision to count them. The court's discussion of substantial compliance in the context of § 9-140c(a) in In re Election for Second Congressional District was similarly limited. See In re Election for Second Congressional District, 231 Conn. 602, 651-54, 653 A.2d 79 (1994).
At closing argument, the plaintiff herein employed the substantial compliance language in Wrinn to further his per se argument because the plaintiff in that case was not required to show fraud to obtain a new election. The discussion of fraud arose in that case because, as the court recognized, "there is considerable room for fraud in absentee voting and . . . a failure to comply with the regulatory provisions governing absentee voting increases the opportunity for fraud." (Internal quotation marks omitted.) Wrinn v. Dunleavy, supra, 186 Conn. 143-44. The court explained: "Whether fraud has been committed in the handling of certain absentee ballots is irrelevant to the question of whether there has been substantial compliance with all of the mandatory provisions of the absentee voting law . . . Had the legislature chosen to do so, it could have enacted a remedial scheme under which ballots would only be invalidated upon a showing of fraud or other related irregularity. The legislature has instead enacted a regulatory scheme designed to prevent fraud as far as practicable by mandating the way in which absentee ballots are to be handled. The validity of the ballot, therefore, depends not on whether there has been fraud, but on whether there has been substantial compliance with the mandatory requirements." (Citation omitted; emphasis added.) Id., 149.
The issue of substantial compliance in the context of Wrinn has no real application to this case because, unlike Wrinn, there is no basis for a finding that the violations of § 9-436(e), as occurred in this case, rendered the result of this election seriously in doubt. The phrase "the validity of the ballot," that is, whether the validity of the ballot has been compromised, or is otherwise in question, is the court's essential concern in deciding whether there is doubt as to the reliability of the result of the election. In In re Election for Second Congressional District the court provided: "[T]he process of voting, whether by mechanical machine of the kind traditionally used in this state, by our traditional absentee ballot, or by paper ballot to be electronically read, is essentially the process by which a voter expresses his or her intent that a particular candidate represent the voter in the office in question, subject, of course, to the legal principles governing the voting process. That expression of intent is accomplished through the means supplied by the state for that purpose . . . Similarly, the process of counting votes, irrespective of the means supplied to the voter for the purpose of voting, is the process of tabulating the individual and collective expressions of the voters' intentions, as disclosed by the particular means supplied for that purpose, and subject, of course, to the legal principles governing the voting process. Thus, in our view, voting and counting votes means, respectively, expressing intent and tabulating those expressions of intent in accordance with the legal principles governing those processes. Whatever the process used to vote and to count votes, differences in technology should not furnish a basis for disregarding the bedrock principle that the purpose of the voting process is to ascertain the intent of the voters." (Emphasis added.) In re Election for Second Congressional District, supra, 231 Conn. 621. Accordingly, the court's principal concern in a proceeding such as this one is whether the intent of the voters has been correctly ascertained, which the court does by ensuring that the means by which that intent is expressed, namely, ballots, are valid.
In Wrinn, the court recognized that the legislature created a statute with certain minimum requirements specifically for the creation of certain types of ballots, absentee ballots, in order to minimize the risk of incorrectly ascertaining the intent of the voters, or fraud. As a result of that act by the legislature, the court was able to apply an objective, rather than subjective, test to determine whether there was any risk that those ballots did not transmit the true intent of the voters, substantial compliance with § 9-146(b).
The Supreme Court in Wrinn ultimately determined that the absentee ballots at issue were invalid because their failure to substantially comply with § 9-146(b) created some risk that when those ballots were created, the true intent of the voters who had been authorized to vote by absentee ballot was not expressed. Before ordering a new primary, however, the court implicitly undertook another analysis. The court only decided to order a new primary after it determined that the erroneous counting of the absentee ballots at issue in that case caused the election result to be wrong. Therefore, the court engaged in the type of causal analysis required by the second element of the Bortner reliability standard.
For the foregoing reasons, this court is not persuaded that any sort of per se rule exists applicable to § 9-329a, and instead, reiterates that the legal standards established by Caruso, Simmons-Cook and Bortner, as set forth above, are controlling of the resolution of the present case.
2 Marvin Mink at the Bloomfield District Three Polling Place
The plaintiff argues that the experience of Marvin Mink, the brother of a longtime friend of the plaintiff, at the district three polling place, is a consequence of Wall's violations, of § 9-436(e) which when combined with the other claimed irregularities cast doubt on the reliability of the election results and entitle him to a new election. In particular, Mink testified that (1) he observed that the tabulator's electronic counter did not advance in numerical sequence following the insertion of his ballot; and (2) when he allegedly expressed concern to a female poll worker that his ballot had not been counted, she essentially rebuked him for looking at the counter and ignored his expression of concern. The plaintiff argued in his post-trial memorandum and at closing argument that, to the extent that no polling place official investigated or in any way addressed Mink's complaint, it casts serious doubt as to whether his vote and others were counted.
The court is not persuaded that this incident casts any doubt on the reliability of the result of the primary election of August 10, 2010. As an initial matter, it is not clear whether the error in the ruling of an election official on which the plaintiff relies relative to Mink's experience is only as a consequence of Wall's violations of § 9-436(e), or whether the plaintiff also claims that the female poll worker's alleged decision not to investigate or report Mink's concern with the tabulator also constitutes an erroneous ruling. The court considers both, first the poll worker's conduct, and then the ruling under § 9-436(e). In considering the poll worker's conduct, the court first addresses whether the tabulator tender's decision not to investigate or report Mink's concern with the tabulator constituted a "ruling."
In Caruso, while construing the "ruling of an election official" language of § 9-329a(a)(1), the court turned to Bortner and discussed that, in Bortner, the plaintiff alleged that certain voting machines malfunctioned during the election, and the trial court determined that "the election officials' failure throughout the day to continue to inspect the voting machines in use for the purpose of ensuring that there were not mechanical problems with those machines, constituted an erroneous ruling." (Internal quotation marks omitted.) Caruso v. Bridgeport, supra, 285 Conn. 643.
In reversing the trial court, the Supreme Court in Bortner "concluded that the alleged failure of the election officials to inspect the voting machines during the election did not constitute an erroneous ruling. It did not decide, either explicitly or implicitly, a question presented to the election officials regarding the election process, and it did not interpret any statute, regulation or other authoritative legal statement or requirement applicable to that process. It cannot be regarded as anything more than the exercise of election day discretion regarding the proper mechanical functioning of the voting machines, a subject that is committed in the first instance to the authority of the election officials. Given the broad and plenary powers of those officials under our statutes generally, and given the narrow and circumscribed bases for judicial intervention under § 9-328, the exercise of that discretion must be given a wide berth. Although judicial hindsight regarding whether that discretion was properly exercised might in an extreme case provide the basis for a conclusion that votes were miscounted, it cannot convert its exercise into a ruling by the officials." (Internal quotation marks omitted.) Id., 644-45.
Similar to the election officials' alleged failure to inspect the voting machines in Bortner, the female poll worker's alleged conduct in response to Mink's concerns as to whether the tabulator had properly counted his vote, even assuming the court credits all his testimony, which it does not for the reasons further articulated herein, "did not decide a question regarding the election process, nor interpret any statute, regulation or other authoritative legal statement or requirement application to the process," and, at most, was nothing more "than the exercise of election day discretion regarding the proper mechanical functioning of the voting machines." See id. Therefore, under Bortner, the alleged conduct by the female poll worker in the instant case did not constitute a ruling of an election official.
To the extent that the plaintiff claims that Mink's vote may not have properly been counted as a consequence of Wall's failure to give notice under § 9-436(e), as previously stated, there is no evidence that the plaintiff's lack of official poll workers at the Bloomfield district three polling place had any effect on either Mink's vote or on the result of the election. There was no evidence that Mink sought further assistance from anyone else at the polling place, not even Dexler, the moderator, whom he knew and conversed with when he first arrived.
First, as in Wrinn, the primary concern of the court in determining whether an error in the ruling of an election official warrants the ordering of a new primary is the validity of the ballots. This concern is overlooked by the plaintiff as there is no allegation in the complaint, nor was there evidence produced at trial, that Mink's ability to vote was impaired. Further, there was no evidence that Mink's vote was lost, destroyed or did not otherwise end up with the rest of the ballots cast.
On the other hand, in Wrinn, the ballots of twenty-six absentee voters were invalidated because there was risk that they did not express the true intent of the voters. Section 9-436(e) is one of several election statutes that govern the election process, the procedures created by the legislature to ensure that a voter is properly able to express his or her voting intent. The statute does not specifically address the way in which voting intent is recorded. Mink reached the polls and marked his ballot. Any alleged irregularities only occurred after he had marked his ballot. Therefore, there is no basis in the evidence to conclude that the impairment of the plaintiff's ability to designate official polling place workers had any effect on the validity of Mink's ballot itself.
Second, to the extent that the plaintiff argues that there is doubt whether Mink's vote was counted, this court reiterates Bortner's statement that while concern as to the proper functioning of a voting machine "might in an extreme case provide the basis for a conclusion that votes were miscounted, [that concern] cannot convert its exercise into a ruling by the officials." Bortner v. Woodbridge, supra, 250 Conn. 269-70. Whether Mink's ballot was properly counted is not relevant to this court's determination of whether, under § 9-329a(a)(1), the plaintiff is entitled to a new primary. Whether a vote was properly or improperly counted as a valid ballot is a different question than whether valid ballots were miscounted. See Caruso v. Bridgeport, supra, 285 Conn. 652 ("[i]ndeed, the trial court did not find, and our independent review of the record does not reveal, a single instance in which the plaintiff established by a preponderance of the evidence that an alleged irregularity at the polling places had resulted in an improper vote, the improper counting of a vote or the improper failure to count a vote").
Allegations that valid ballots were miscounted are remedied by a recount, a remedy the plaintiff has abandoned. Moreover, even if this court were to consider whether Mink's ballot was properly counted, and the effect that might have on the election, there is no evidence beyond speculation that Mink's vote was not tabulated. He testified that he believed his vote was not counted. There was no objective evidence that this was the case. Rather, there is compelling evidence that it was counted. Dexler testified that the number of votes counted during the original canvass matched the number of voters that were checked off the voter list that day. Further, the parties stipulated that the total vote counts following Bloomfield's original canvass and the recanvass were the same.
Lastly, the plaintiff argued, both in his post-trial memorandum and during closing argument, that Mink's testimony was important because it suggests that other votes may not have been counted, which calls into question the results of the primary. Not only does this argument continue to demonstrate that Mink's experience is only applicable to a claim of miscount, but this claim essentially invites the court to engage in conjecture as to how the ultimate vote might have been affected by the questionable experience of one voter, an exercise which our Supreme Court has cautioned against. See Caruso v. Bridgeport, supra, 285 Conn. 652-53 ("the plaintiff is asking the court to engage in conjecture as to how the vote might have been affected. We decline to do so"). For all these reasons, this court concludes that the plaintiff has failed to show that Mink's experience at the Bloomfield district three polling place entities him to relief under § 9-329a(a)(1).
3 Carlos Carbrero at the Bloomfield District Three Polling Place
The plaintiff argues that the fact that Carlos Carbrero, a Bloomfield district four resident, voted at Bloomfield's district three polling place, in violation of General Statutes § 9-172, both in and of itself, and as a consequence of Wall's ruling under § 9-436(e), casts serious doubt on the reliability of the result of the primary and entitles the plaintiff to a new primary election. Additionally, the plaintiff argues that Carbrero was not properly restored to the active voters list pursuant to General Statutes § 9-42.
Section 9-172 provides, in relevant part: "At any regular or special state election any person may vote who was registered on the last-completed revised registry list of the town in which he offers to vote, and he shall vote in the district in which he was so registered; provided those persons may vote whose names are restored to the list under the provisions of section 9-42 . . . Any person offering so to vote and being challenged as to his identity or residence shall, before he votes, prove his identity with the person on whose name he offers to vote or his bona fide residence in the town and political subdivision holding the election, as the case may be, by the testimony, under oath, of at least one other elector or by such other evidence as is acceptable to the moderator."
Section 9-42 provides, in relevant part: "(b) If it appears at any time that the name of an elector who was formerly admitted or registered as an elector in a town and who is a bona fide resident of such town has been omitted from the active registry list, the registrars shall, upon a written request signed by the elector under penalties of false statement to the registrar stating that such elector is still a bona fide resident of such town and is not an elector of any other town, add such name to such list, provided no name shall be added to the active registry list on election day, pursuant to this section, without the consent of both registrars."
Prior to the primary, Carbrero lived in Bloomfield's district three, where he was registered to vote. He subsequently moved to Bloomfield's district four. At some time, Carbrero's name was moved from the active voters list to the inactive voters list. On the day of the primary, Carbrero appeared at the district three polling place where, after filling out an application for restoration to the active voters list, which stated an address in district four, he was permitted to vote in district three.
The court first considers the plaintiff's claim that Carbrero was not eligible to vote in the primary in any district because he was not properly restored to the active list pursuant to § 9-42. The plaintiff argues that no evidence was presented at trial that the plaintiff was properly restored under § 9-42 because there was no evidence that "consent of both registrars" was obtained. While the plaintiff is correct that no evidence was presented that both the Bloomfield Democratic and Republican registrars consented to Carbrero's restoration, more significantly, there was no evidence presented that both registrars did not consent. In claiming a violation of § 9-42, the burden of proof is on the plaintiff to prove, by a preponderance of the evidence, that such a violation occurred. The plaintiff has failed to carry that burden. Therefore, the court presumes that Carbrero was properly restored to the active voters list and was eligible to vote.
The Supreme Court has said that the manifest purpose of the requirement in § 9-42 that both registrars of voters consent to a voter's restoration is, because those registrars are each selected from the two major parties, "to protect against one party taking improper advantage of the other, and to ensure that the members of each party are confident that their interests are protected against such an event." In re Election for Second Congressional District, supra, 231 Conn. 639. The court notes that the legislature's concern in requiring that both registrars consent does not seem to be implicated when restoring a voter for the purpose of voting in one party's primary, although it would be if the restoration remained effective for the general election.
As to § 9-172, Wall testified, and all parties agreed, that upon restoration, because Carbrero lived in district four, he should have been directed by the district three polling place officials to vote in district four. There is no question that the decision of the district three polling place officials to permit Carbrero to vote in that district was an erroneous ruling. While the plaintiff argues that the violation of an election statute, here, § 9-172, per se requires that a new primary be ordered, the court finds, as previously discussed, that the violation of the statute, in and of itself, or in combination with other irregularities in rulings of election officials that day, must have some causal effect on the result of the election that renders the reliability of the result in serious doubt.
Section 9-172 provides, in relevant part, that a voter "shall vote in the district in which he was so registered; provided those persons may vote whose names are restored to the list under the provisions of section 9-42 . . ." Technically, Carbrero was registered to vote in district three, which seems to explain why he appeared at that polling place, but Wall testified that the proper procedure upon the restoration of a voter that now lives in a new district is to direct that voter to the new district.
There is no evidence that the decision of district three polling place officials to permit Carbrero to vote in district three, rather than district four, had any effect on the election that would raise doubt as to the reliability of its result. Because districts three and four are each in the first assembly district, the ballots were identical. There is no difference in the voting procedures of these districts. The results of the election are not tabulated on the basis of districts won, but on the basis of total votes. More importantly, there was no evidence that the validity of Carbrero's ballot that is his voting intent, was affected by allowing him to vote in district three. Nor is there reason to believe that he would not have voted at all, if the voting officials directed him to district four.
Further, the Supreme Court has provided at least two policy reasons that suggest that this court should not invalidate the result of the primary based on the decision to allow Carbrero to vote in district three. In In re Election for Second Congressional District, the Supreme Court recognized an "overarching policy that, in construing voting statutes, no voter is to be disfranchised on a doubtful construction, and statutes tending to limit the exercise of the ballot should be liberally construed in his [or her] favor." (Internal quotation marks omitted.) In re Election for Second Congressional District, supra, 231 Conn. 653. Given that policy, the court took "into consideration whether the failure of strict compliance was due to the conduct of the voter or of someone not within his or her control." Id. Bortner also recognized this principle, providing: "when a court orders a new election, it is really ordering a different election. It is substituting a different snapshot of the electoral process from that taken by the voting electorate on the officially designated election day. Consequently, all of the electors who voted at the first, officially designated election . . . have a powerful interest in the stability of that election because the ordering of a new and different election would result in their election day disfranchisement. The ordering of a new and different election in effect disfranchises all of those who voted at the first election because their validly cast votes no longer count, and the second election can never duplicate the complex combination of conditions under which they cast their ballots. All of these reasons strongly suggest that, although a court undoubtedly has the power to order a new election pursuant to § 9-328 and should do so if the statutory requirements have been met, the court should exercise caution and restraint in deciding whether to do so. A proper judicial respect for the electoral process mandates no less." (Emphasis in original.) Bortner v. Woodbridge, supra, 250 Conn. 256-57.
The Supreme Court in Wrinn also indicated that this policy had some effect on its decision to invalidate the absentee votes at issue, stating: "While this may seem a harsh result . . . it must be remembered that these voters have disfranchised themselves by not complying with § 9-146(b), about which they had been warned in the materials accompanying the ballot. This case, therefore, differs from Dombkowski v. Messier, [ 164 Conn. 204, 319 A.2d 373 (1972)], in this respect because the voters in Dombkowski were disfranchised, not by their own actions, but by the noncompliance of the municipal clerk with the requirements of [General Statutes] § 9-148." Wrinn v. Dunleavy, supra, 186 Conn 149-50. Similarly, in this case, to invalidate Carbrero's vote would be to disfranchise him not by his own action, but by noncompliance of the district three polling place officials with § 9-172.
The Supreme Court has also recognized, as already provided, that election officials have the primary responsibility of ascertaining the intent and will of the voters, managing the election process, and are entitled to exercise a broad power of discretion. Caruso v. Bridgeport, supra, 285 Conn. 637, 645. For all the foregoing reasons, without any substantial reason to conclude that Carbrero's ballot was invalid, or his voting intent prejudiced, the plaintiff has failed to carry his burden of proving that the alleged deprivation of the plaintiff's ability to designate official polling place workers had any effect on Carbrero's vote or the reliability of the result of the election.
4 The Absentee Ballot of Leonard Bloom
The plaintiff also claimed that the absentee ballot of Leonard Bloom was improperly counted in Bloomfield, pursuant to General Statutes § 9-135, because Bloom was an ineligible voter on election day, and therefore, the counting of his vote casts doubt on the reliability of the result of the election, either alone, or in combination with the other claimed irregularities in rulings of election officials, entitles the plaintiff to the ordering of a new election. There is no dispute that Bloom, a registered voter in Bloomfield's district four, properly obtained an absentee ballot and returned it on July 27, 2010. The envelopes containing his ballot were properly opened and discarded. His vote was counted, along with all the other absentee ballots, on the day of the primary during the original canvass. It was after Bloom's ballot was counted on August 10, 2010, after which it became impossible to identify which vote was his, that the parties learned Bloom had died on August 9, 2010, the day before the primary.
Section 9-135 provides, in relevant part, "(a) Any elector eligible to vote at a primary . . . may vote by absentee ballot . . ." The plaintiff argues that Bloom was not "eligible to vote at a primary" because he was deceased on the day of the primary. All of the parties, however, agree that no relevant statutory authority exists that governs whether a properly submitted absentee ballot, returned by a living and eligible voter prior to election day, but who died prior to election day, should be counted. The parties zealously and extensively argued this issue. This court begins its analysis by determining whether, under the first element of the Bortner reliability standard, as applicable to § 9-329a(a)(1), there has been error in the ruling of an election official.
There is no doubt that counting an absentee ballot constitutes a ruling of an election official. Wrinn v. Dunleavy, supra, 186 Conn. 139 ("because the plaintiff would have won the primary had these ballots not been counted, he clearly is aggrieved by the ruling of an election official, such `ruling' being the counting of the absentee ballots"). Therefore, in the present matter, the decision of election officials to count Bloom's ballot, even though not a decision based on his being deceased, was a ruling. To meet the first element of the Bortner reliability standard, however, the ruling must have been incorrect or in error. Because no statutory authority, or any authority of any kind, exists that governs whether an election official should count, or not count, the otherwise valid absentee ballot of a voter who dies prior to election day, the ruling of the election officials could not have been in error. Therefore, this court concludes that the plaintiff has failed to show that he is entitled to the ordering of a new primary on this basis.
While this conclusion ends the analysis, in the interests of fully resolving the controversy regarding this ballot, the court addresses the parties' other arguments. First, the court agrees with Ritter's argument, adopted by Wall, that Bloomfield election officials were statutorily restricted, pursuant to General Statutes § 9-35(b), from invalidating Bloom's vote on primary election day, and therefore, Bloom's vote was valid for this reason as well.
Section 9-35 provides, in relevant part: "(a) The registrars, on the Tuesday of the fifth week before each regular election, shall be in session for the purpose of completing a correct list of all electors who will be entitled to vote at such election . . . (b) At such session and on any day except on the day of an election or primary, the registrars shall remove from the list the name of each elector who has died . . ." While § 9-35(b) requires the registrar to remove from the "correct list of all electors who will be entitled to vote" the name of each elector who has died, it also expressly restricts the registrar's ability to do so "on the day of an election or primary." Bloom died on August 9, 2010. Since August 10, 2010 was the primary election day, Wall was statutorily restricted by § 9-35(b) from removing Bloom's name from the "correct list of all electors who will be entitled to vote."
The plaintiff also argues that, based on tenets of statutory construction, in enacting General Statutes § 9-140d, the legislature expressed intent that, under the circumstances, Bloom's ballot should be invalidated. Section 9-140d provides: "No absentee ballot executed by a member of the armed forces shall be invalidated by his death prior to an election, primary or referendum if his name appears on the official checklist used at such election, primary or referendum." The tenet of statutory construction on which the plaintiff relies is "expressio unius est exclusio alterius," which may be translated as the expression of one thing is the exclusion of another . . . [W]here express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute." (Internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 851, 937 A.2d 39 (2008).
The plaintiff is correct that our Supreme Court has recognized the tenet of statutory construction of "expressio unius est exclusio alterius," that is, when a statute exists that requires some action, and express exceptions are made to that statute by the legislature; those express exceptions are the only exceptions that the legislature intended to recognize. See id. That tenet, however, is not applicable to § 9-140d or the present matter. Section 9-140d was not intended as an exception to the absentee ballot eligibility statute, § 9-135, or any other statute. It is an independent statute that requires, in a similar, but factually different scenario, that the absentee ballot of a member of the armed forces not be invalidated by his or her death. Therefore, the plaintiff's argument fails.
B The Conduct Related to the Hartford Ballot Transfer Case at the Recanvass
Finally, the plaintiff argues that Bradley Jones, the city of Hartford absentee ballot moderator, by mistakenly opening the ballot transfer case containing the absentee ballots pertaining to the first assembly district's Democratic primary, rather than the ballot transfer case containing the absentee ballots pertaining to the fourth assembly district's Democratic primary, during that latter district's recanvass, violated General Statutes § 9-311(b), which constitutes a per se statutory violation casting the reliability of the result of the election seriously in doubt and requiring a new primary.
Section 9-311(b) details the procedures to be followed for any recanvass, both in the case of a discrepancy under subsection (a) of that statute, as well as in the case of a close vote, as directed by § 9-311a. Section 9-311(b) provides that after beginning a recanvass of the poll cast votes, recanvass officials "shall then open the package of absentee ballots and recanvass the vote cast thereon." General Statutes § 9-311(b).
While the relevant facts have previously been laid out in this opinion, the court briefly summarizes that on August 16, 2010, both the recanvass of the first assembly district Democratic primary and the fourth assembly district Democratic primary were scheduled to take place, with the fourth assembly district recanvass scheduled first, in the morning, and the first assembly district recanvass to immediately follow in the afternoon. Both the poll cast ballots and the absentee ballots relevant to each primary were recanvassed at the same time and place, the Hartford city council chamber. When it was time to start the first recanvass, Jones intended to break the seal on the ballot transfer case containing the absentee ballots for districts 13-23, which encompassed the fourth assembly district, but accidentally opened the only other absentee ballot transfer case, which contained the absentee ballots from districts 1-12, encompassing the first assembly district. The plaintiff argues that this act of unsealing the ballot transfer case prior to the beginning of the recanvass of the poll cast votes violated § 9-311(b) because the statute states that only after beginning the recanvass of the poll cast votes that the package of absentee ballots "shall then" be opened.
This court disagrees with the plaintiff's interpretation of § 9-311(b), and instead, finds Ritter's and Vazquez' construction more persuasive. In determining whether there was error in the rulings of election officials with respect to the unsealing of the absentee ballot transfer container, the election officials must have incorrectly interpreted § 9-311(b). Both parties agree that the phrase in the statute providing that the election officials "shall then open the package of absentee ballots and recanvass the vote cast thereon," is the only part of the statute that arguably applies to this case. The specific reference to the term "package" is unclear at best.
Testimony at trial as to the procedure for conducting the absentee ballot count indicated that in Hartford, on the day of the primary, all of the Hartford absentee ballots were counted at the same time and place. The ballots were organized and counted by district. After counting, the absentee ballot materials were put into three manila-style depository envelopes per district which were each sealed with tape. Jones testified that he even signed his name over the tape as an extra security measure. All of the envelopes were then split up into two ballot transfer containers, which are essentially large duffel bags with zipper closures. The bags were zipped shut and then sealed. Given this procedure, it is unclear whether the statute's directive to "open the package of absentee ballots" refers to the ballot transfer case, or the envelopes contained within the case that hold the ballots themselves.
The defendants argue that the word "package" refers to the envelopes, rather than the transfer case, and, in support of that argument, direct the court's attention to General Statutes § 9-150a, which sets forth the absentee ballot counting procedures. Section 9-150a(m) provides that after the absentee ballots have been counted, they shall be placed in depository envelopes, and then "sealed, endorsed and delivered to the moderator" as provided in § 9-150a(f). General Statutes § 9-150a(m). Section 9-150a(f) provides only that such envelopes be delivered to the moderator. Nothing in § 9-150a directs that the depository envelopes, or the absentee ballots generally, be sealed in a ballot transfer case. Construing § 9-150a with § 9-311(b), it is just as likely, if not more so, that § 9-311(b)'s direction to open "the package" refers to the absentee ballot depository envelopes, rather than the ballot transfer cases in which they were stored. Because the depository envelopes were not opened until the afternoon when the first assembly district's recanvass was conducted, if "package" refers to those envelopes, there was no error in the rulings of an election official with respect to the unintended unsealing of the absentee ballot transfer case on the morning of August 16, 2010.
Even assuming that the unsealing of the ballot transfer case violated § 9-311(b), based on a preponderance of the evidence presented, the unsealing did not render the result of the election unreliable. Testimony at trial demonstrated that the ballot transfer case was opened in the room where both district recanvasses took place. It also reflected that when Jones realized he had unsealed the wrong case, he announced to everyone in the room that he had done so, closed the zipper on the case, and put it on a table at the front of the room. The testimony further indicated that the case remained on that table until the first assembly district recanvass began and that no one opened or touched the case. Further, Jones testified that he was in the room, in the presence of the case, throughout the day, aside from a ten-minute lunch break. Although he did not specifically ask anyone to watch the case when he left, Attorney Richard Orr, a Ritter campaign observer, testified that he was in the room while Jones was absent, and that no one touched or otherwise tampered with the case. Furthermore, as stated above, all of the envelopes contained within the case remained sealed. Therefore, the court concludes that the plaintiff has failed to demonstrate that any error in the ruling of an election official occurred pertaining to the unsealing of the absentee ballot transfer case that would undermine the reliability of the result of the election and cause it to be seriously in doubt.
C Defendants' Special Defense: Waiver
The defendants argue, by way of special defense, that the plaintiff's knowledge of certain errors by election officials prior to the election and his failure to seek a pre-election remedy for those errors under § 9-329a, namely, that there be a "change in the existing primary schedule;" General Statutes § 9-329a(b); in order to correct those errors, constituted a waiver of his right to now seek post-election relief in the form of a new election. Given the court's finding that the plaintiff has failed to prove, by a preponderance of the evidence, there was error in any ruling of an election official that casts the reliability of the result of the election in any doubt, the court does not reach the issue of waiver.
The court notes, however, that a similar claim was raised by the defendants in Caruso, in the context of the defendants' motion to dismiss. The defendants argued that the plaintiff's claims pertaining to conduct by election officials prior to the primary were moot at the time the complaint was brought because the plaintiff "should have been required to seek [a change in the existing primary schedule] instead of seeking the extreme remedy of a new election." Caruso v. Bridgeport, supra, 285 Conn. 630. While the Supreme Court was not persuaded by the defendants' mootness argument, it did state that "such equitable considerations could provide grounds for the trial court to deny a request for a new election . . ." Id. Therefore, in addition to the weaknesses of the plaintiff's case in chief, equitable considerations underlying the special defense of waiver may have posed a further obstacle to his claim for the remedy of a new primary election.
IV CONCLUSION
For all the foregoing reasons, the plaintiff has failed to establish, "by a preponderance of the evidence that any irregularities in the election process actually, and seriously, undermined the reliability of the election results" which would justify overturning the result by ordering a new election. Therefore, judgment is rendered in favor of the defendants.
Caruso v. Bridgeport, supra, 285 Conn. 653.
A shorter decision ordering judgment in favor of the defendants was read in to the record by the court on September 8, 2010.