No. CV 05 4004385
December 5, 2005
MEMORANDUM OF DECISION, ORDER AND CERTIFICATION TO THE SECRETARY OF THE STATE
The plaintiff, David P. Bauer, brings this action under Connecticut General Statutes § 9-328 alleging that an error in the count of votes in Voting District 11 in the November 8, 2005 Middletown Municipal Election has created a serious doubt as to the reliability of the election results. The plaintiff filed this complaint with this court on November 21, 2005, served the defendants, George Souto, Head Election Moderator for the November 8, 2005 election, Anthony Marino, Election Moderator at District 11 for said election, Mary Augustine and Anton Petras, Election Registrars at Voting District 11 for said election, Luis Lapila, James Fortuna, Diane Petras and Diane Skarb, Election Checkers at Voting District 11 for said election on November 23, 2005 in accordance with the order of this court. The plaintiff also served Earle Roberts, Jr., Brett Hasbrouck, Francis T. Patnaude, Joan A. Inglis, Gerald E. Daley, Elizabeth K. Nocera, Phrances L. Szewczyk, Vincent J. Lofredo, V. James Russo, Joseph E. Bibisi, Frederick J. Terrasi, Robert P. Santangelo, John L. Robinson, Ronald P. Klattenberg and Thomas J. Serra, candidates for Common Council in the November 8, 2005 election, on November 23, 2005. The plaintiff also served Sandra L. Faraci, the Democratic Registrar, Janice A. Gionfriddo, the Republican Registrar, Sandra Hutton Russo, the Town Clerk, Susan Bysiewicz, the Secretary of State and Jeffrey B. Garfield, Exec. Director and General Counsel of the State of Connecticut Elections Enforcement Commission on November 23, 2005. The plaintiff also served various other officials of the City of Middletown.
At a hearing which occurred on November 28, 2005, the plaintiff presented the following evidence. David P. Bauer was a duly registered candidate for election to the Office of Common Council, City of Middletown, Connecticut on the election ballot for the Middletown Municipal Election conducted on November 8, 2005. The Middletown City Council is composed of twelve members, and no more than eight of those members can be from one party. The official Moderator return form sent by George Souto, election moderator, to the Office of the Secretary of the State indicated that David Bauer received 4235 votes and V. James Russo received 4337 votes. Bauer lost to Russo by 102 votes, and Russo, being a Republican and the person with the 12th highest number of votes, was elected to the Common Council, while Bauer, a Republican with the 13th highest number of votes, was not.
There are fourteen voting districts in the City of Middletown and there were thirty-one voting machines located in those districts which were used in the November 8, 2005 Municipal Election. Some districts like Districts 2, 12, 13, and 14, had only one machine and other districts, like District 3, had five machines. The official returns from each district showed that David Bauer received approximately 5.54% of the total votes cast for Common Council on each of thirty voting machines, but received only .4% of the total votes cast for Common Council on machine number 150051 located in District 11.
There were four voting machines used at the District 11 polling place on November 8, 2005. Voters were directed equally to each of the four machines. All of the other Common Council Candidates received vote totals on machine #150051 which were similar to the number of votes they received on the other voting machines in District 11. For example, Francis T. Patnaude received a total of 201 votes on machine #135749, a total of 210 votes on machine #169199, a total of 181 votes on machine #135760 and a total of 183 votes on machine #150051 and Phrances L. Szewczyk received a total of 193 votes on machine #135749, a total of 176 votes on machine #169199, a total of 169 votes on machine #135760 and a total of 177 votes on machine #150051. David Bauer, whose name appeared at position 4A on all voting machines, received a total of 188 votes on machine #135749, a total of 179 votes on machine #169199, a total of 169 votes on machine #135760 and a total of 12 votes on machines #150051.
The plaintiff presented the testimony of Steven Krevisky, a mathematics professor at Middlesex Community College, who teaches in various areas of mathematics including the area of statistics and specializes in statistical analyses in baseball. He testified that he performed an analysis of the percentage of the votes received by David Bauer in relation to the total votes cast for Common Council on each of the thirty-one voting machines and concluded that Mr. Bauer received a mean of 5.54% of the total vote. He further testified that the standard deviation for all votes of Mr. Bauer on all the machines was .008 and that 73% of the vote totals were within one standard deviation of the mean and 29% were within two standard deviations of the mean. The vote total on the 30th machine was just outside the second standard deviation. However, the vote total reflected or Mr. Bauer on machine #150051 was more than six standard deviations from the mean. Based on the foregoing, Professor Krevisky concluded that either the data collected from machine #150051 vas incorrectly counted, or there was a mechanical defect in machine #150051.
There was testimony as to the methods used in obtaining the vote tallies from each machine ad no evidence that the collection of the data was improper. Therefore, the court concludes that here was a mechanical problem with machine 150051, specifically, position 4A. This conclusion was supported by evidence of the votes cast on machine #150051, position 4A, in three other elections.
In the 2001 Middletown Municipal Election, Common Council candidate Earle V. Roberts, Jr.'s name appeared at position 4A on all voting machines, including machine #150051. Three machines were used in the district in which machine #150051 was located. While receiving 96 votes on one machine and 87 on another machine in that district, Mr. Roberts received only 12 votes on machine #150051. In the 2002 Statewide Election, State Representative candidate Raymond C. Kalinowski's name appeared at position 4A on all voting machines, including machine #150051. There were four voting machines used in Voting District 11 for that election. Mr. Kalinowsky received 150 votes on machine #172258, 161 votes on machine #135750, 156 votes on machine #167387, but 0 votes on machine #150051. Similarly, in the 2004 Statewide and Presidential Election, State Senate candidate Tod O. Dixon's name appeared at position 4A on all voting machines. His total votes averaged about 125 for each of the three other machines located in District 11. However, he received 0 votes on machine #150051.
The experience of the other elections further supports the conclusion that voting machine #150051 had a mechanical defect which either prevented it from counting any votes cast for the candidate at position 4A, or caused it to stop the counting at 12.
The defendants presented evidence from the mechanic who inspected machine #150051 just prior to the November 8, 2005 election. He could not remember whether he did any specific testing to ascertain whether the machine registered a vote when lever 4A was pulled.
After the hearing the defendants filed a Motion for Order to Inspect voting machine #150051. The court granted that motion on December 1, 2005. The Motion included the following language:
Voting machine 150051 shall be inspected. Said inspection shall include the depression of lever 4A at least 50 times in combination with the depression of other levers on said machine so as to best duplicate the operation of the machine during an election. The count for lever 4A will then be taken to determine how many times the machine registered a vote when 4A was depressed.
On December 4, 2005 the defendants did file their report indicating that machine 150051 was inspected on December 1, 2005 in accordance with the order of this court. The lever at position 4A was pressed 51 times and registered no votes.
In their Proposed Findings of Fact and Orders dated December 2, 2005 the defendants state:
Voting Machine Number 150051 used at Farm Hill School in District 11. Lever 4A, assigned to Republican Candidate for the Common Council, David Bauer, malfunctioned, based upon the test of the machine ordered by the Court on December 1, 2005 and conducted on that date.
Based on the foregoing, it is clear that machine #150051 malfunctioned at position 4A on November 8, 2005.
Both the plaintiff and the defendants have relied on the decision of the Connecticut Supreme Court in Bortner v. Woodbridge, 250 Conn. 241, 726 A.2d 104 (1999) in which the Court reversed the trial court's ruling that a new election was required. The Court in Bortner stated "[s]ection 9-328 cannot be read in a vacuum. It must be read against its fundamental governmental background. That background counsels strongly that a court should be very cautious before exercising its power under the statute to vacate the results of an election and to order a new election." Bortner, 250 Conn. at 253-54. The Court further stated:
[Section] 9-328 requires a court, in determining whether to order a new election, to arrive at a sensitive balance among three powerful interests, all of which are integral to our notion of democracy, but which in a challenged election may pull in different directions. One such interest is that each elector who properly cast his or her vote in the election is entitled to have that vote counted. Correspondingly, the candidate for whom that vote properly was cast has a legitimate and powerful interest in having that vote properly recorded in his or her favor. When an election is challenged on the basis that particular electors' votes for a particular candidate were not properly credited to him, these two interests pull in the direction of ordering a new election. The third such interest, however, is that of the rest of the electorate who voted at a challenged election, and arises from the nature of an election in our democratic society, as we explain in the discussion that follows. That interest ordinarily will pull in the direction of letting the election results stand. An election is essentially — and necessarily — a snapshot . . . The snapshot captures, therefore, only the results of the election conducted on the officially designated election day . . . Moreover, that snapshot can never be duplicated . . . Thus, when a court orders a new election, it is really ordering a different election . . . 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.
Id., at 255-57. (Emphasis in original.)
The Court in Bortner held that § 9-328 does not require a challenger to prove that but for the irregularities that he has established as a factual matter, he would have prevailed in the election. Instead, in order for a court to overturn the results of an election and order a new election pursuant to § 9-328, 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.
The Court in Bortner explained that the language of § 9-328 required that in order to find a violation in the requirement of that statute, the court must find that there were errors in the rulings of an election official or officials or that there were mistakes made in the counting of the votes. Id. at 259. The plaintiff does not claim any errors in rulings by any election official. Rather, he claims that due to a defect in voting machine #150051 at position 4A there was a mistake in counting the votes. The court agrees. The plaintiff is not required to prove that but for the mistake, he would have prevailed in the election. However, the court finds that it is reasonably probable that if voting machine #150051 had been operating correctly, David Bauer would have received at least 103 votes more than he received, which number would have been sufficient to give him more votes than V. James Russo, who received the twelfth highest number of votes and was, therefore, elected to the Common Council.
At the hearing the attorney for the defendants presented no evidence to contest the overwhelming evidence which suggested a defect in the voting machine at issue. Rather, she objected to the court ordering a new election on the grounds that the result would be disruptive to he operation of the Common Council. In enacting § 9-328 the legislature contemplated some disruption in the operation of whichever public office was at issue in the challenged election. The very short time frames set forth in the statute seek to minimize such disruption. The statute requires the plaintiff to file a complaint which challenges the election within fourteen days of the date of the election, requires the court to hold a hearing within five days thereafter and requires the court to rule within ten days after the hearing. All of the statutory requirements have been satisfied in this case. The period of time in which the composition of the Common Council has been indefinite, therefore, has been minimal.
This court is mindful of the Supreme Court's admonition that a trial court should be extremely cautious before ordering a new election and should refrain from doing so unless the evidence of a substantial mistake in the election process is clear. It is clear to the court that there was an error in the count of vote in the November 8, 2005 Municipal Election in District 11 caused by the malfunctioning of voting machine #150051. As a result of that error all those who voted for David Bauer in District 11 did not have their vote counted and David Bauer did not have the benefit of all votes for him properly recorded in his favor.
As set forth above the court finds that the results of the November 8, 2005 Middletown Municipal Election for Common Council contained substantial mistakes in the count of votes on machine #150051, likely due to mechanical error. The defendants' test of the machine has confirmed that it was not functioning at position 4A. As a result of these mistakes the reliability of the election for Common Council in Voting District 11 is seriously in doubt. The court sees no option other than the vacating of the results of the Common Council Election in District 11 and the ordering of a new election for Common Council in that district. The plaintiff submitted a proposed order to the court at the hearing. The court has afforded the defendants the opportunity to submit a proposed order concerning any new election. However, rather than suggest the best time and place for the new election, the defendants have taken the position that a new election is not warranted and have, therefore, not submitted any suggestions as to the mechanics of a new election.
It is hereby ORDERED:
1. That the results of the 2005 City of Middletown Municipal Election for Common Council in Voting District 11 are declared void and that a new election for Common Council in Voting District 11 is ordered to occur on January 24, 2006 at the same place and during the same times as on November 8, 2005.
2. Voting machine #150051 shall not be used in the new election and shall be removed from service until it is thoroughly inspected, reconditioned and maintained.