Connecticut’s Supreme Court will likely resolve a partisan dispute over the order of candidates’ names on the state’s ballot by the end of the week.
The Connecticut Republican Party is challenging Secretary of the State Denise Merrill’s decision to list Democratic candidates first in the coming November election, arguing that Merrill is violating state law. After hearing oral arguments last Wednesday, the Connecticut State Supreme Court requested briefs, turned in by both sides Monday at 5 p.m., to determine whether the Republican Party exhausted all other administrative remedies prior to bringing the case to the court’s attention.
Democratic State Sen. Ed Meyer ’57 LAW ’61, who is the vice-chair of the General Assembly’s government administration and elections committee, said the court may have made that move in an effort to avoid ruling on the issue.
“The court may not be happy making this decision, and they feel it is very political,” Meyer said. “They may be able to escape a decision by saying the Republicans did not exhaust all administrative remedies.”
The dispute began in July, when Republican State Sen. Len Fasano ’81 brought the issue to the attention of Senate Republicans. He argued that General Statute §9-249a, which 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, means that the Republican party’s candidates should be listed first. In the 2010 gubernatorial election, Gov. Dannel Malloy was listed as both the Democratic and Working Families Party candidate on the ballot, and his 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, his Republican challenger, received 560,874 votes.
In a brief filed last week, Republican Party attorney Proloy Das argued 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.
Three state Republicans sent a letter to Merrill on July 26, asking her to reverse the order of names listed on the ballot, a request she declined in a letter the following day. On Aug. 14, the Republican Party filed its appeal with the Connecticut Supreme Court.
Although the court entertained oral arguments about two questions last Wednesday — whether the state was, as the solicitor general argued, entitled to sovereign immunity, and which name should be listed first on the ballot — the court said it needed more information to make a decision, Deputy Secretary of the State James Spallone said.
“We don’t believe there is any administrative remedy that needed to be exhausted,” Fasano said. “And if there was, we complied.”
But Merrill’s representative in court, Solicitor General Gregory D’Auria, argues that the Republican Party did not exhaust all administrative remedies. It could have requested that the Secretary of the State issue a declaratory ruling as to the order of the ballot for the 2012 elections as early as last year, he said in a brief submitted to the court. Because of this, the brief argues, the court should dismiss the Republican Party’s suit for lack of jurisdiction.
Although both sides consider the case to be very clear, neither was sure how the court would rule. Fasano and Spallone said they expected to hear a decision in the next several days, potentially as early as Tuesday.
In the meantime, the town clerks must send ballots to overseas and military voters by the federally enforced deadline of Sept. 21. To comply with that deadline, the Secretary of the State’s office directed the town clerks to send out blank ballots with a list of candidates attached so neither side would get top billing on the ballot. If the court decides very soon, Spallone said, the town clerks may have enough time to print out ballots in the right format, but if not, he said he did not know whether a second copy would be sent once the ballot dispute is sorted out.
It is unclear how much candidates would benefit from landing the top slot. Spallone said that recent history suggests that being listed first on the ballot does not have much of an effect, while Fasano said some estimates credit the slot with a 3 or 4 percent increase in vote share, though that effect is more pronounced in local or municipal elections.
Still, Fasano said the court should not weigh this when deciding the dispute.
“The court shouldn’t be concerned about whether it gives any party an edge,” Fasano said. “It should be concerned that the law is being followed.”
Election Day is Nov. 6, 2012.