Opinion
No. CV 07 402 23 08 S
October 24, 2007
MEMORANDUM OF DECISION
On September 11, 2007, a Democratic primary election for municipal office was held in Bridgeport, Connecticut. The petitioner, Toyka Simmons-Cook, was a candidate for city councilwoman in the 135th voting district of Bridgeport. A close vote between the petitioner and one of her opponents, Richard Bonney, qualified for an automatic recanvass pursuant to General Statutes § 9-445. The mandatory recanvass was held on September 17, 2007. Thereafter, the petitioner brought this action under General Statutes § 9-329a(a)(1) alleging, inter alia, that the election officials conducting the recanvass made rulings which prevented her from having a representative official appointed to participate in the recanvass on her behalf. The petitioner claims aggrievement as a result of these rulings.
General Statutes § 9-445 provides in relevant part: "Forthwith after a primary for nomination to a municipal office . . . when the plurality of an elected or nominated candidate over the vote for a defeated candidate receiving the next highest number of votes was . . . (2) less than twenty votes, there shall be a recanvass of the returns of the voting machine or voting machines used in such primary for said office or position unless within one day after the primary . . . the defeated candidate . . . file[s] a written statement waiving this right to such recanvass with the municipal clerk. . ."
General Statutes § 9-329a(a)(1) provides in relevant part: "Any (1) elector or candidate aggrieved by a ruling of an election official in connection with any primary held pursuant to (A) section 9-423, 9-425 or 9-464, or (B) a special act . . . may bring his complaint to any judge of the Superior Court for appropriate action."
It should be noted that during the course of the expedited hearing, the court heard arguments and testimony regarding both the present case and the companion case of Caruso v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 07 4022314. In this opinion, however, the court attempts to separate the specific claims of aggrievement relating to Ms. Simmons-Cook from those of Chris Caruso. To the extent that the petitioner's complaint contains allegations of aggrievement to the Caruso mayoral campaign, this court refers to its decision in Caruso v. Bridgeport.
The petitioner filed a complaint with this court on September 25, 2007. The complaint was subsequently amended on October 15, 2007, at the close of the petitioner's case. The respondents in this matter include the city of Bridgeport, Hector Diaz, town clerk, Thomas Kanasky, head moderator for said election, Santa Ayala, Democratic registrar of voters for the city of Bridgeport, Joseph Borges, Republican registrar of voters for the city of Bridgeport, Patricia Howard, deputy Democratic registrar of voters for the city of Bridgeport, and Jeffrey Garfield, executive director and general counsel of the State Elections Enforcement Commission. The petitioner also named as respondents the following Democratic candidates for city council in the 135th voting district: Warren Blunt, Richard Bonney, Susan Lesko-Kohut, Mary McBride-Lee and Clara Watson-Harper.
The petitioner makes no claim against Garfield.
Pursuant to § 9-329a, a expedited hearing was commenced on October 3, 2007, and continued through October 15, 2007, encompassing six and a half days of testimony. During this time, the court received sixty exhibits into evidence, and heard the testimony of twenty-three witnesses. Eight of these witnesses provided testimony directly relating to the petitioner's claim.
DISCUSSION
The predominant authority that provides the basic legal underpinnings of this court's analysis is the Supreme Court's decision in Bortner v. Woodbridge, 250 Conn. 241, 736 A.2d 104 (1999). In Bortner, the plaintiff challenged the results of an election for the elementary board of education in the town of Woodbridge. The trial court originally granted a new election, but this judgment was reversed on appeal. In reaching its decision, the Supreme Court engaged in a thorough analysis of General Statutes § 9-328, the statute providing the court with jurisdiction to hear a complaint regarding the general election of municipal officers. Although Bortner did not involve § 9-329a, the statute presently at issue, this court has compared the language of § 9-328 and § 9-329a and acknowledges significant similarities between the texts of both statutes. To the extent that Bortner provides an interpretation of the term "rulings of an election official," a term used in both statutes, this court adopts Bortner's interpretation for the purposes of the analysis presently before the court.
In Bortner, the Supreme Court determined the applicable standard that must be met in order for a court to order a new election pursuant to § 9-328. Looking to the actual text of the statute, the court emphasized the language of "if he finds any error in the rulings of the election official or any mistake in the count of the votes" and noted that this language "makes clear 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.'" Id. The statutory language relied upon in Bortner to reach this conclusion is identical to the text of § 9-329a(b). The court further concluded that the phrase, "ruling of an election official," is to be accorded its ordinary meaning. Looking to several definitions of "ruling," the court stated that "[a]t the least, a ruling of an election official must involve some act or conduct by the official that (1) decides a question presented to the official, or (2) interprets some statute, regulation or other authoritative legal requirement, applicable to the election process." Id., 268.
Section 9-329a(b) provides in relevant part: "Such judge shall thereupon, if he finds any error in the rulings of the election official. . ."
In addition to proving that an election official made a "ruling" as defined by Bortner, and that the ruling was in error, the petitioner must also demonstrate causation, in that but for the alleged error the result of the election is seriously in doubt. The plain text and meaning of the primary election statute mandates this "but for" causation requirement; Section 9-329a(b); and marks a significant departure from the language of § 9-328, which governs challenges to general elections. This requirement was discussed by the Supreme Court in Penn v. Irizarry, 220 Conn. 682 (1991), a case directly addressing § 9-329a, and was found to be two fold. "Even if the plaintiff establishes that the result `might have been different,' the plaintiff can not prevail unless the court is also `unable to determine the result.'" Id., 687. The Penn court then upheld the decision of the trial court denying a new election, finding that it was "reasonably clear from the memorandum of decision that the [trial] judge concluded that he was able to determine the result of the contested primary, because he found that the various irregularities relied upon had not affected the outcome." Id., 688.
Pursuant to § 9-329a(b), a judge may order a new primary "if he finds that but for the error in the ruling of the election official . . . the result of such primary might have been different and he is unable to determine the result of such primary." (Emphasis added.)
Turning to the facts of the present case, the gravamen of the petitioner's complaint is the election officials' improper refusal to allow her an official counter during the recanvass. The petitioner claims that she was not notified of her right to appoint a representative official, pursuant to General Statutes § 9-445. This was disputed by the registrar, who testified that she advised petitioner of her right in a telephone conversation prior to the recanvass. Nonetheless, on the day of the recanvass, when petitioner attempted to have Jeffrey Tisdale appointed as her official checker, the officials conducting the recanvass, Santa Ayala and Thomas Kanasky, refused her request. Tisdale remained as her unofficial checker, however, and the petitioner offered evidence to establish that at the end of the recanvass, the total, as determined by Tisdale, conflicted with the total reached by the official counters. Tisdale testified that during the course of the recanvass, he discovered three errors made in the tallies and requested a recount on each occasion. The third occasion involved the final total of votes cast. The official final count had 528 votes for the petitioner, and 530 votes for her opponent. Despite Tisdale's claim to have reached a different result, he testified that his request for a recount was refused. It is the petitioner's claim that his status as an unofficial checker meant he was unable to officially contest the count, and she was aggrieved as a result.
Addressing the first prong of this court's analysis, regarding whether an election official has made a ruling as defined by Bortner, this court notes that not every statutory violation constitutes a "ruling." See Bortner v. Woodbridge, 255 Conn. 270. Thus, to satisfy this requirement, the petitioner must establish more than just a violation of § 9-445. Here, the facts in evidence establish that the petitioner asserted her right to have an official counter at the recanvass, and when faced with the question of whether to allow this appointment on the day of the recanvass, the registrar of voters, Ayala, deferred the decision to the head moderator, Kanasky. Kanasky ultimately decided to proceed with the official counters already appointed and in place, and therefore, Tisdale was not appointed as a recanvass official. This decision involved a question presented to an election official, and thus satisfies the definition of a ruling under Bortner.
For an in depth discussion of this principle, the court refers to its decision in the companion case, Caruso v. Bridgeport, supra, Docket No. CV 07 4022314.
Section 9-445, entitled Recanvass on close vote, provides in relevant part: "When a recanvass is to be held the municipal clerk shall promptly notify the moderator . . . who shall proceed forthwith to recanvass such returns of the office in question in the same manner as is provided for a recanvass in regular elections, except that the recanvass officials shall be divided equally, as nearly as may be, among the candidates for such office. 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 and place of such recanvass to each candidate for a municipal office which qualifies for an automatic recanvass under this section." General Statutes § 9-311 provides in pertinent part: "moderator shall . . . summon . . . the recanvass officials, consisting of . . . at least two checkers of different political parties and at least two absentee ballot counters of different political parties who served at such election. . ."
A determination of whether this ruling was in error can be made by looking to the appropriate statute. Section 9-445 provides that recanvass officials "shall be divided equally, as nearly as may be, among the candidates for such office." Furthermore, General Statutes § 9-311 allows for the appointment of " at least two checkers of different political parties and at least two absentee ballot counters of different political parties who served at such election." (Emphasis added.). The statute does not limit the appointment to only two, as was the case at the recanvass. The statute also does not set a deadline for when a party can appoint a counter.
Kanasky testified that the decision not to appoint Tisdale was based on his interpretation of correspondence received from the Secretary of State's office via the registrar after the September 11 primary. While this document sets forth guidelines for recanvass procedures for the new optical scan voting machines, it makes no specific mention of § 9-445's requirement for equal division of recanvass officials among the individual candidates for such office. Instead, it describes recanvass officials as including "at least two official checkers of opposing political parties (or opposing sides, in a primary)." The document goes on to state, under "Substitutes," that "if additional officials are needed . . . Such additional officials shall be divided as nearly as practicable between opposing parties or sides." Pursuant to General Statutes § 9-3, written instructions from the Secretary of State's office are presumed as correctly interpreting and effectuating the administration of elections and primaries. Because the primary election at issue here might have been said to consist of two slates or opposing "sides" of candidates for municipal public office, one headed by Christopher Caruso and including petitioner Simmons-Cook, and the other side headed by respondent William Finch, it is perhaps understandable how the decision not to appoint Tisdale was reached. Regardless of how this decision was reached, this ruling was in error, satisfying the second prong of this court's analysis.
The court's analysis does not end here, however, for the petitioner must also establish causation for her aggrievement claim. Based on the evidence presented, the petitioner has not satisfied the third prong. Although the petitioner should have been allowed to appoint an official counter, she has failed to establish that but for her lack of an official counter, the election results might have been different and the court is unable to determine the result.
In reaching this conclusion, the court heard extensive testimony regarding the recanvass procedure. In addition to Tisdale, the court heard testimony from the following individuals involved in the recanvass: Carmen Vargas, one of the four official counters, Thomas Kanasky, head moderator, Santa Ayala, registrar of voters, and Susan Lesko-Kohut, a councilwoman candidate from the same district who was present for the recanvass. From the testimony of these individuals, it is apparent to the court that Tisdale, as an unofficial counter, was not in the best position to provide an accurate count. Four officials were assigned to tally the ballots. The officials split into two groups, one group responsible for counting the absentee ballots, and the other responsible for counting the ballots cast at the polls. As an unofficial counter, Tisdale attempted to simultaneously keep track of both tallies. While ambitious, this situation does not lend itself to accuracy. Furthermore, the court also found it significant that Tisdale's testimony was inconsistent with his own affidavit, as well as the testimony offered by Susan Lesko-Kohut, a candidate also present at the recanvass as an unofficial checker.
Tisdale submitted an affidavit with the petitioner's original complaint. The affidavit stated that his final count had 529 votes for the petitioner and 528 votes for her opponent. When called as a witness by the petitioner, Tisdale testified that the count was in favor of the petitioner by two votes, thereby raising her final count to 530. This error was pointed out by the respondents on cross-examination and Tisdale later clarified that his testimony in the affidavit was the accurate count. Both figures contradict the testimony of Susan Lesko-Kohut, who testified that she counted a tie vote between the petitioner and her opponent, and had confirmed these findings with Tisdale after the recanvass.
The testimony of other witnesses present at the recount also indicate the difficulties faced by an unofficial checker. Vargas, an official counter not affiliated with either campaign, testified that Tisdale was admittedly distracted by the absentee ballot vote count, and had lost track of the count of the poll ballots. Vargas also contradicted Tisdale's testimony that he had requested a recount of the final tallies, and this request was refused. According to Vargas, no such request was made. Kanasky, head moderator, testified that due to Tisdale's position as an unofficial counter, it is likely that he did not understand how the recanvass was conducted. For instance, Kanasky testified that some voters decide not to cast a vote for each available office; a voter could submit a ballot containing only a vote for a mayoral candidate, and opt not to cast a vote for the other offices on the ballot. In that instance, the ballot would still be counted as a ballot, but it would not count as a vote for any particular city council candidate involved in the recanvass. Thus, according to Kanasky, Tisdale's perceived errors on the part of the official counters could easily have resulted from a misunderstanding of the process.
CONCLUSION
Based on the evidence submitted, this court finds that the petitioner has not sustained the high burden under § 9-329a to establish the need for a new election. It is not enough for petitioner to show that an official counter was improperly denied the opportunity to participate in the recanvass. The petitioner must also show that but for this decision, the result might have been different and the court is unable to determine the result. The only evidence submitted in support of this element is the contradictory testimony of Tisdale, and his recollections do not comport with the testimony of several other witnesses present at the recount or even with his own affidavit. The ballots were recounted multiple times, and the unofficial checkers did not testify to any impropriety during the actual count of the vote beyond the fact that both unofficial counters arrived at different totals, both from each other and from the official count. The court is not willing to speculate in the absence of actual evidence to support the causation element. Furthermore, although this court may order a recount of the votes cast in petitioner's election district, pursuant to § 9-329a(b), it is significant to note that the petitioner is not seeking this remedy in her prayer for relief, and the court, therefore, on this record, declines to order such a recount, sua sponte.
It is therefore ORDERED BY THE COURT that Petitioner's requested relief is hereby denied, and the court further certifies the results of the Bridgeport Democratic primary held on September 11, 2007 to the Office of the Secretary of State.