Campbell v. Bysiewicz

• Decision Date: 29 January 2003
• Docket Number: No. CIV.3:02-CV-00488 PC.,CIV.3:02-CV-00488 PC.
• Citation: 242 F.Supp.2d 164
• Court: U.S. District Court — District of Connecticut
• Parties: Jim CAMPBELL, Pamela Byrnes, Ed Gomes, Common Cause of Connecticut, Connecticut Citizens Action Group, Mark Nielsen, Gordon Haave, Thomas J. Cullen, John Fixary and Jonathan Waters Wilcox Plaintiffs v. Susan BYSIEWICZ, Secretary of State of the State of Connecticut, Democratic Party of Connecticut, and the Republican Party of Connecticut Defendants

242 F.Supp.2d 164

Jim CAMPBELL, Pamela Byrnes, Ed Gomes, Common Cause of Connecticut, Connecticut Citizens Action Group, Mark Nielsen, Gordon Haave, Thomas J. Cullen, John Fixary and Jonathan Waters Wilcox Plaintiffs v. Susan BYSIEWICZ, Secretary of State of the State of Connecticut, Democratic Party of Connecticut, and the Republican Party of Connecticut Defendants

No. CIV.3:02-CV-00488 PC.

United States District Court, D. Connecticut.

January 29, 2003.

COPYRIGHT MATERIAL OMITTED

William M. Bloss, Jacobs, Grudberg, Belt & Dow, P.C., New Haven, CT, Jeremy M. Creelan, Elizabeth Daniel, Brennan Center for Justice, NYU School Of Law, New York, NY, for Plaintiff.

Gregory T. D'Auria, Attorney General's Office, Hartford, CT, Jane R. Rosenberg, Eliot D. Prescott, Attorney General's Office, Hartford, CT, Jeremy M. Creelan, Brennan Center for Justice, NYU School Of Law, New York, NY, for Susan Bysiewicz.

Kevin N. Reynolds, Updike, Kelly & Spellacy, P.C., Hartford, CT, for Democratic Party Of Conn Richard P. Healey, Rome McGuigan Sabanosh, Hartford, CT, for Republican Party of Conn.

RULING ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

DORSEY, District Judge.

The first three named plaintiffs were actively seeking nominations of the Democratic or Republican political Parties (hereinafter "Parties"), which are also named defendants herein, in the November 2002 state elections. These three plaintiffs were seeking nominations for elective offices that embraced more than one town. The entire body of plaintiffs seeks adjudication of unconstitutional statutes, or parts thereof, that pertain to the process by which the Parties' nominees are placed on the ballot for the general election. The Secretary of State was named as the administrator of the election process including designation of Party nominees. In anticipation of the 2002 election, plaintiffs sought a preliminary injunction to be free of the primary requirement of fifteen percent (15%) of the delegates to the convention at which the Party named as its candidate for the office in question. See Conn. Gen.Stat. § 9^16. A preliminary injunction was warranted and the Secretary was enjoined from enforcing §§ 9-100(a) and 9^16, the 15% requirement, for the primary prior to the 2002 election. On appeal, the Second Circuit held that relief was not to be applied in 2002.

Since that appeal, the two political Parties, each of which has in their by-laws the 15% provision, were added as defendants. All parties herein agreed that further evidentiary hearings were not required and the issues would be decided on the record, i.e. the pleadings and the evidence offered in the prior hearing. The plaintiffs' Motion for Summary Judgment and the defendants' opposition memoranda frame the issues herein decided.

I. BACKGROUND: THE 15% PROVISION

The record reflects that the Democratic and Republican Parties' by-laws include the statutory provision for a 15% delegate vote for a multi-town district office as a qualification to be on the primary ballot for a Party endorsement for election to such office. Preliminarily, serious questions have been found as to the provision constituting an unreasonable burden on free speech and association as they relate to the electoral process. Campbell v. Bysiewicz, 213 F.Supp.2d 152 (D.Conn.2002). The factual basis cited therein is incorporated here and is not repeated. Plaintiffs cite the following aspects of the primary law:

1) The parties endorse candidates for state-wide and multi-town offices in conventions, in keeping with state statutes and party rules, Conn. Gen. Stat. § 9-382, delegates to which are selected in accordance with party rules. Conn. Gen.Stat. § 9-390. Delegates may be challenged in a primary by a petition if such is signed by 5%, or less if so set by party rules, of the party members. Conn. Gen. Stat. § 9-407.

2) After the conventions, persons seeking party nominations can do so by means of a primary if they can show support of their candidacy by 15% of the convention delegates, Conn. Gen. Stat. § 9-100, a requirement also found in each party's rules.

3) Candidates for offices in single-town districts are similarly selected by the parties but participation in a post convention party primary requires only a petition in support of a challenger signed by 5% of the party voters in that district. Conn. Gen. Stat. §§ 9^05, 406.

4) Since the 15% provision was enacted in 1955, only one incumbent statewide official seeking re-election has been challenged in a primary.

5) Since 1955, no incumbent congressman has been challenged in a primary.

6) Connecticut General Assembly districts which include only one town, and are therefore subject to the 5% of the party registered voters for petitioners to be eligible to be on the primary ballot, have seen twice as many primaries as multi-town districts where primary eligibility requires the support of 15% of the delegates to the party convention which determines, at first blush, the party's endorsement for that office. There are 77 single town State Representative districts and 74 multi-town districts. All 36 State Senate seats are in multi-town districts. Massachusetts is apparently the only state, other than Connecticut, to use the 15% delegate standard for Democratic Party endorsement. Though characterizing the qualification as not unduly burdensome, neither case cited thoroughly analyzes the actual impact of the rule on persons actually seeking placement on a primary ballot. See Langone v. Secretary of the Commonwealth, 388 Mass. 185, 446 N.E.2d 43 (Mass.1983), appeal dismissed sub. nom. Bellotti v. Connolly, 460 U.S. 1057, 103 S.Ct. 1510, 75 L.Ed.2d 938 (1983); Hopfmann v. Connolly, 769 F.2d 24 (1st Cir.), cert, den. 479 U.S. 1023, 107 S.Ct. 863, 93 L.Ed.2d 819 (1987). The lack of discrimination and any preclusion of candidates cited in both cases, as relied on by the Secretary of State, does not account for the degree of difficulty posed by the 15% rule. Plaintiffs' claim is neither that they are discriminated against nor that they are totally excluded. Rather they claim that the 15% threshold is unduly burdensome, and they offer evidence showing the difficulty in meeting that threshold.

7) The 5% signature requirement adequately screens out minimally supported candidates.

8) Convention delegates are chosen by slates, i.e. blocs in number equal to the number of delegates allocated to each town, by a party's town committee or by party caucus. Conn. Gen. Stat. § 9-390. One wishing to be the candidate endorsed by the convention can seek the support of the convention delegates. If rebuffed by the town committee or caucus, the would-be nominee may, within two weeks, by petition signed by 5% of the party, seek election, in a delegate primary, of delegates supportive of his/her candidacy.

9) If unsuccessful at the convention, but supported by 15% of the delegates, the would-be candidate can be placed on the ballot for a candidacy primary. The 15% can be obtained from delegates selected by town committees, most frequently the case as a result of local choice by party rules, or caucuses. Both are usually controlled by local party leaders, more readily in town committees, who frequently commit delegates to incumbents or candidates in furtherance of local interests. Incumbents frequently select town delegates. Town committees have occasionally declined challengers' requests for a hearing. Getting to town committee meetings is difficult due to meetings being scheduled in conflict.

10) No matter what portion of a town committee, caucus, or delegate primary supports the person, up to 49%, he/she would get no delegate commitment since slate elections are all or nothing propositions. See Conn. Gen.Stat. §§ 9-424, 443, 444. Plaintiff Gomes received 40% of delegate primary votes but garnered no supportive delegates. An opponent who got 44% of the votes got all of the delegates. Plaintiff Campbell's slate in three town delegate primaries received 41.4%, 39.1% and 29.3% of the votes yet he garnered no delegates. A would-be candidate would thus have to solicit delegate support at three stages in every town in the district, 169 for state-wide offices: first in the election of the town committee member, second within the town committee when convention delegates are being selected or in a caucus, and third in conducting a delegate primary. If unsuccessful, solicitation of delegate support after the convention faces intractable commitments made by delegates when elected as such. Voter apathy results from repetition of several stages of delegate selection. Campaigns for delegates replicate the cost of actual office election campaigns, for each stage engaged in, often substantial in amount. A four-term Congressman and a Speaker of the State Assembly were unable to qualify for a primary for endorsement against an incumbent Governor in 1982 and 1986, in the latter case despite spending $900,000. Plaintiff Campbell's unsuccessful effort cost him $40,000, and a 1998 unsuccessful primary effort for a Congressional nomination cost $60,000.

11) For state-wide or national offices from 1956 to 2000, of eleven elections, three primaries were held. No incumbent, in six elections, was primaried. In six elections, only one incumbent governor faced a primary. Of sixteen United States Senate elections, there was only one party primary. Of 280 possible Congressional primaries, there were 28 primaries but no incumbent was primaried. Nationwide, in 1998, 19% of incumbent Congressmen were primaried and in 2000 the figure was 17%, and 34% for incumbent Senators. In 1970, the incumbent Democrat U.S. Senator did not enter a primary but ran as an independent.

12) From 1980 to 2000, for the state legislature there were 65 primaries in 802 multi-town district elections (7.6%). For the same period, in 859 single district elections there were 160 primaries (18.6%). In multitown district elections, there were 669 incumbent...