With Election Day approaching, Connecticut finds itself in the midst of a lawsuit that will determine what its ballot looks like in November.
Representatives for the two parties in the case, the Connecticut Republican Party and Secretary of the State Denise Merrill, presented oral arguments to the Connecticut Supreme Court on Wednesday, a month after the GOP filed the appeal with the court on Aug. 14. The GOP claims that Merrill’s decision to list Democratic candidates first on the state’s ballots violates state law because it ignores the fact that the Republican Party received more votes than any other party in the last gubernatorial election. But Solicitor General Gregory D’Auria, representing Merrill, argued the GOP has interpreted the law incorrectly.
The law in question, General Statute §9-249a, states that “the party whose candidate for Governor polled the highest number of votes in the last-preceding election” shall be listed first in all ballots until the following gubernatorial election. The controversy stems from the 2010 gubernatorial election, in which Gov. Dannel Malloy was listed as both the Democratic and Working Families Party candidate on the ballot since both parties endorsed him. Malloy’s extremely narrow victory was the result of both party’s votes: he received 540,970 votes as the Democratic candidate and 26,308 votes as the Working Families candidate, while Tom Foley, the Republican candidate, received 560,874 votes.
In a brief filed by attorney Proloy Das, who represents the Connecticut Republican Party, he argued that Merrill has ignored the statute’s clear instruction to put Republicans at the top of the ballot. Das’ argument centers around the claim that the statute’s wording is intended to refer to parties rather than individuals, and therefore the name on top should correspond to the party that received the most votes in the previous election.
D’Auria countered with the argument that the court should not even consider the lawsuit due to sovereign immunity, a legal precept dictating that state governments cannot be sued without their consent. D’Auria also claimed in his brief, Merrill’s decision to assign the first line to the Democratic Party should be final.
“We are not interpreting the law in any way,” said Av Harris, a spokesman for Merrill. “The statutes state very clearly who should be put first.”
But sovereign immunity does not apply in this instance, Das argued, because the GOP is seeking a declaratory injunction — a judgment that would clarify the law, rather than require a specific action.
Connecticut law requires the state to inform all towns and cities of the ballot’s design by Sept. 15. However, Harris said, the court is scheduled to accept additional briefs on Monday, Sept. 17, indicating that the case may not conclude before this deadline.
This is not the first time in Connecticut’s history that ballot order has generated controversy. In the 1938 gubernatorial election, Raymond Baldwin was declared the winner thanks to votes he received as the candidate endorsed by both the Republican and Union parties. Nevertheless, Democrats were given the top spot on the ballot in following elections because they received the most votes of any single party.
Though Das cited this decision as historical precedent in favor of the GOP’s claim, the state argues that the statute’s language in 1938 was significantly different from its current text both in wording and meaning, rendering it irrelevant.
Ballot order could have a significant effect on the election results come November. According to Kelly Rader, a Yale political science professor, research has shown that candidates who are listed first on ballots tend to win “a few more percentage points” than they otherwise would have. She added that this effect is more pronounced in local elections, nonpartisan elections and for third party or lesser-known candidates.
“You can imagine why this is true — absent the usual partisan cues or knowledge of the candidates, voters just pick the first name,” Rader said. “So while ballot effects might not be at play in the upcoming Connecticut gubernatorial election, the safest bet is still to get on the top of the ballot.”
If the court rules in favor of the Republican Party, Malloy will have to decide if he will remain cross-registered with the Working Families Party in the 2014 gubernatorial election. If he does remain cross-registered, he could risk the Democratic Party’s position at the top of the ballot again.
Federal law requires states to send finalized ballots to overseas voters by Sept. 21, including those in the military.