Bauer v. Souto

• Decision Date: 25 April 2006
• Docket Number: No. 17583.,17583.
• Citation: 277 Conn. 829,896 A.2d 90
• Court: Connecticut Supreme Court
• Parties: David P. BAUER v. George SOUTO et al.<SMALL><SUP>*</SUP></SMALL>

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896 A.2d 90 277 Conn. 829 David P. BAUER
v.
George SOUTO et al.^* No. 17583. Supreme Court of Connecticut. Argued December 21, 2005. Decided April 25, 2006.

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Trina A. Solecki, city attorney, with whom was Adrienne DeLucca, deputy city attorney, for the appellants (defendants).

Michael F. Romano, Rocky Hill, for the appellee (plaintiff).

SULLIVAN, C.J., and BORDEN, NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

BORDEN, J.

This appeal concerns a contested municipal election for the common council of the city of Middletown (council) that was held on November 8, 2005. The council consists of the twelve candidates who are elected at large and receive the twelve highest number of votes. The plaintiff, David P. Bauer, received the thirteenth highest number of recorded votes. The trial court rendered a judgment ordering a new election in only one of the fourteen voting districts in city of Middletown (city), to be held on January 24, 2006. Subsequently, we expedited the appeal of the defendants.¹ Following the filing of simultaneous

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briefs and oral argument before this court, we announced the decision of this court from the bench on December 21, 2005, affirming the trial court's judgment ordering a new election to be held on January 24, 2006,² but reversing the judgment as to the scope of that election. Specifically, we ordered the new election to be citywide, and not limited to district eleven, the district in which the contest arose, as ordered by the trial court.³ We also noted that a full written opinion would follow in due course. Hence, we now issue this full opinion.

The plaintiff brought this action pursuant to General Statutes § 9-328,⁴ challenging

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the results of the November 8, 2005 election for the council. After a trial to the court on November 28, 2005, the trial court, in its memorandum of decision and judgment dated December 5, 2005, ordered a new election to be carried out only in district eleven, and to be held on January 24, 2006. This expedited appeal followed.

The defendants claim that: (1) the trial court lacked subject matter jurisdiction because the city had not been named as a party or given notice of the action; and (2) based on the evidence, the trial court improperly ordered a new election.⁵ Therefore, the defendants claim, there should not have been a new election ordered at all.⁶ The plaintiff claims that the trial court had subject matter jurisdiction, and does not take issue with the scope of the new election ordered by the court. We conclude that: (1) the court had subject matter jurisdiction to order a new election; but (2) the new election may not be limited to district eleven, rather, it must be citywide.

The trial court found the following facts. The plaintiff was a duly registered candidate for election to the council in the November 8, 2005 election. All of the candidates run at large. The council is composed of twelve members, no more than eight of whom may be from the same party. The official citywide results of the election indicated that the plaintiff, a Republican, had received 4235 votes and V. James Russo, also a Republican, had received 4337 votes. In short, Russo received the twelfth highest number of votes, and the plaintiff received the thirteenth highest number of votes. Therefore, Russo was elected to the council and the plaintiff was not.

The trial court also found that there are fourteen voting districts in the city, and that thirty-one voting machines were used in those districts in the election. Some districts, such as districts two, twelve, thirteen and fourteen, had only one machine, and other districts, such as district three, had five machines. The official returns from each district showed that the plaintiff

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had received approximately 5.54 percent of the total votes cast on each of thirty voting machines, but only 0.4 percent of the total votes cast on machine number 150051, which was located in district eleven.

There were four voting machines used in district eleven, and voters were directed equally to each of the four machines. All of the other council candidates had received vote totals on machine number 150051 that were similar to the number of votes that they had received on the other machines used in district eleven. For example, candidate Francis T. Patnaude had received a total of 201 votes on machine number 135749, 210 votes on machine number 169199, 181 votes on machine number 135760, and 183 votes on machine number 150051; similarly, candidate Phrances L. Szewczyk had received a total of 193 votes on machine number 135749, 176 votes on machine number 169199, 169 votes on machine number 135760, and 177 votes on machine number 150051. The plaintiff, however, whose name appeared at position 4A on all voting machines, had received 188 votes on machine number 135749, 179 votes on machine number 169199, 169 votes on machine number 135760, and only 12 votes on machine number 150051.

The trial court credited the testimony of Steven Krevisky, a mathematics professor at Middlesex Community College, whose mathematical specialties include statistics. Krevisky testified that, based on an analysis of all of the votes received by the plaintiff on each of the thirty-one machines used in the election, the plaintiff had received a mean⁷ of 5.54 percent of the total vote, that the standard deviation for all votes for the plaintiff on all of the machines was .008, that 73 percent of the vote totals were within one standard deviation of the mean, and that 29 percent of the vote totals were within two standard deviations of the mean. Krevisky also testified that the vote total for the plaintiff on machine number 150051 was more than six standard deviations from the mean.⁸ He therefore concluded that either the data collected from machine number 150051 had been counted incorrectly or that there was a mechanical defect in the machine.

The trial court found that, based on the testimony of the methods used in obtaining the vote tallies from each machine, there was no evidence that the collection of the data was improper. Therefore, the court concluded that there was a mechanical defect in machine number 150051, specifically, at position 4A.⁹ The trial court further noted that this conclusion was also supported by evidence that in the 2001 municipal election, the 2002 statewide election, and the 2004 statewide and presidential elections, there was a mechanical defect in position 4A of machine number 150051, which apparently had not been

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detected at the time of use.¹⁰

Moreover, the trial court granted the defendants' motion to inspect and test machine number 150051. The court ordered that lever 4A be depressed at least fifty times in combination with the depression of the other levers on the machine so as best to duplicate the operation of the machine during an election. The court further ordered that the count for lever 4A be taken to determine how many times the machine registered a vote when lever 4A was depressed. The result of this test was that, although lever 4A was depressed fifty-one times, it failed to register any votes.

On the basis of all of the foregoing evidence, the trial court found that position 4A on machine number 150051 malfunctioned on the date of the election.¹¹ Furthermore, the court specifically found that, as a result of the malfunctioning of the machine, "all those who voted for [the plaintiff] in district eleven did not have their vote counted and [the plaintiff] did not have the benefit of all votes for him properly recorded in his favor." Thus, the court found that it is reasonably probable that if machine number 150051 had been operating properly, the plaintiff would have received at least 103 more votes than he had received and, therefore, his vote tally would have been more than that of Russo, who had received the twelfth highest number of votes in the election. Therefore, had machine number 150051 been operating properly, it is likely that the plaintiff, rather than Russo, would have been elected to the council. Accordingly, the trial court concluded that, "[a]s a result of [the malfunctioning of the machine] the reliability of the election for common council in voting district eleven [was] seriously in doubt."

Turning to the remedy, the trial court noted that, although it had afforded the defendants the opportunity to submit a proposed order to the court, they had taken the position that a new election was not warranted and had, therefore, declined to make any suggestions as to a new election. The court, therefore, determined that it had "no option other than the vacating of the results of the [council] election in district eleven and the ordering of a new election [for the council] in that district," in accordance with the order proposed by the plaintiff.¹² Subsequently, the trial court rendered judgment declaring void the results of the election for the council in voting district eleven, and ordering a new election for the council, limited to that district, to be held on January 24, 2006. The trial court further ordered that machine number 150051 was not to be used in the new election.

In addition to the facts specifically found by the trial court, the following facts are undisputed based on the official documents submitted to the trial court. Voters in the election could vote for no more than eight out of the sixteen candidates for council. A total of 10,907 voters voted out of a total registration of 23,771 voters. Assuming that the total registration of 23,771 voters is spread approximately equally among the fourteen voting districts, it is evident that there are approximately 1700 registered voters in district eleven. The

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official return indicates that the first four highest vote getters were Democrats, whose vote totals ranged from 5927 to 5272; the fifth highest vote getter was a Republican, with a vote total of 5197; the next four highest...