Fay v. Merrill

• Decision Date: 20 July 2020
• Docket Number: SC 20477
• Citation: 336 Conn. 432,246 A.3d 970
• Parties: Mary FAY et al. v. Denise W. MERRILL, Secretary of the State
• Court: Connecticut Supreme Court

336 Conn. 432

246 A.3d 970

Mary FAY et al.

v.Denise W. MERRILL, Secretary of the State

SC 20477

Supreme Court of Connecticut.

Heard July 20, 2020

Officially released August 3, 2020^*

Proloy K. Das, Hartford, with whom, on the brief, was Matthew A. Ciarleglio, New Haven, for the appellants (plaintiffs).

William Tong, attorney general, with whom, on the brief, were Clare Kindall, solicitor general, and Michael K. Skold, Maura Murphy Osborne, and Alma R. Nunley, assistant attorneys general, for the appellee (defendant).

William M. Bloss filed a brief for the Connecticut Democratic Party as amicus curiae.

Andrew S. Knott, Cheshire, filed a brief for the Public Interest Legal Foundation as amicus curiae.

ROBINSON, C. J.

The four plaintiffs, who are candidates in the August 11, 2020 primary election (August primary) for the Republican Party's nomination for the office of United States representative for Connecticut's First and Second Congressional Districts,¹ brought this original jurisdiction proceeding pursuant to General Statutes § 9-323² against the defendant, Denise W. Merrill, in her official capacity as the Secretary of the State. The plaintiffs sought declaratory and injunctive relief challenging the defendant's "ruling of an election official," which added a seventh category for absentee voting, "COVID-19," to the application for absentee ballots (application) for the August primary in contemplation of the ongoing coronavirus disease-19 (COVID-19) global pandemic. The plaintiffs claimed that the defendant's change to the application violates article sixth, § 7, of the Connecticut constitution³ because (1) she acted pursuant to Governor Ned Lamont's Executive Order No. 7QQ,⁴ which itself violates article sixth, § 7, of the Connecticut constitution, and (2) it expanded the application beyond the existing limitations set forth by General Statutes § 9-135.⁵ The plaintiffs also claimed that the application is inconsistent with the terms of Executive Order No. 7QQ. The defendant moved to dismiss the complaint, contending, inter alia, that the court lacked jurisdiction under § 9-323 because that election contest statute does not apply to primaries, and, in any event, the plaintiffs’ constitutional challenge is not one that is cognizable under the election contest statutes. After a hearing held on July 20, 2020, this court granted the motion to dismiss for lack of subject matter jurisdiction under § 9-323.⁶ This written opinion followed.

The pleadings and the record reveal the following undisputed facts and procedural history. On March 10, 2020, Governor Lamont declared a public health and civil preparedness emergency "throughout the [s]tate ... as a result of the [COVID-19] outbreak in the United States and Connecticut ...."⁷ Connecticut's congressional and presidential preference primary was rescheduled to August 11, 2020, from its originally scheduled date of April 28, 2020, because of the COVID-19 pandemic. Given the public health risk posed by in person voting during the ongoing pandemic, particularly with respect to the "significant portion of poll workers and volunteers [who] are [sixty years old] or older," Governor Lamont determined that "providing an alternative to [in person] voting could be particularly helpful in reducing the risk of transmission during voting among this population ...."⁸ Accordingly, on May 20, 2020, he issued Executive Order No. 7QQ pursuant to his powers under General Statutes § 28-9 (b) (1).⁹

To provide that alternative to in person voting, Executive Order No. 7QQ, inter alia, "modified [ § 9-135 ] to provide that, in addition to the enumerated eligibility criteria set forth in subsection (a) of that statute, an eligible elector may vote by absentee ballot for the [August primary] if he or she is unable to appear at his or her polling place during the hours of voting because of the sickness of COVID-19. For purposes of this modification, a person shall be permitted to lawfully state [that ] he or she is unable to appear at a polling place because of COVID-19 if, at the time he or she applies for or casts an absentee ballot for the [August primary ], there is no federally approved and widely available vaccine for prevention of COVID-19 . It shall not constitute a misrepresentation under subsection (b) of [§] 9-135 ... for any person to communicate the provisions of this modification to any elector or prospective absentee ballot applicant." (Emphasis added.)

In late June, 2020, the defendant, acting in her capacity as Commissioner of Elections with general supervisory authority over elections in Connecticut, issued the application for the August primary. The application added "COVID-19" as a new, seventh reason for requesting an absentee ballot; it is listed first among the reasons for "expect[ing] to be unable to appear at the polling place during the hours of voting,"¹⁰ with an adjacent bold notation that "[a]ll voters are able to check this box, pursuant to Executive Order [No.] 7QQ." (Emphasis omitted.) The "special instructions" at the bottom of the application provide in relevant part: "The [s]tate ... via Executive Order [No.] 7QQ, as interpreted by the [defendant] pursuant to [ General Statutes § 9-3 ], has determined [that] (1) ... having a [preexisting] illness allows you to vote by absentee ballot because your [preexisting] illness would prevent you from appearing at your [designated] polling place or (2) ... absent a widely available vaccine, the existence of the COVID-19 virus allows you to vote by absentee ballot if you so choose for your own safety. To receive your absentee ballot please complete and sign this application (be sure to check ‘Illness’ for reason (1) or ‘COVID-19’ for reason (2) above) and return it to your [t]own [c]lerk using the enclosed postage prepaid envelope. ..." (Emphasis in original.)

The defendant anticipates a significant increase in the use of absentee ballots this year and, working with a third-party mailing vendor (vendor), has mailed 1,274,414 applications to active registered voters between June 26 and July 1, 2020.¹¹ As of July 15, 2020, more than 100,000 voters have completed and returned their applications to local election officials for processing; 107,743 applications have been processed as of that date. The information contained in each application is then downloaded by the defendant's office onto a computer file, which was provided to the vendor approximately every other day beginning on July 17, 2020. The vendor was scheduled to mail the appropriate absentee ballots to the approved voters once those ballots were finalized on July 21, 2020.

On July 1, 2020, the plaintiffs brought this petition and complaint pursuant to General Statutes §§ 9-323, 52-29, and 52-471, claiming that the defendant's preparation and issuance of the application pursuant to Executive Order No. 7QQ constituted a "ruling of an election official" for purposes of § 9-323. The plaintiffs first claimed that Executive Order No. 7QQ violates article sixth, § 7, of the Connecticut constitution because (1) that constitutional provision "expressly commits the prescription of absentee voting procedure to the General Assembly—not to the [g]overnor," and (2) the executive order "broadens the use of absentee ballots, in contravention of the strict reasons for which absentee ballots may be used in Connecticut elections as set forth in article sixth, § 7."¹² See footnote 3 of this opinion. Second, the plaintiffs claimed that the defendant's "decision to expand absentee voting based on Executive Order No. 7QQ, rather than limit absentee voting in accordance with the restrictions set forth by the legislature in ... § 9-135, was a ruling of an election official" that violated the Connecticut constitution because (1) the defendant "lacks the constitutional authority to alter the parameters of who is entitled to vote by absentee ballot," (2) "[t]he reasons that electors may vote by absentee ballot are strictly limited by the Connecticut constitution and can ... be expanded [only] by the electorate," and (3) the application "expands the use of absentee ballots for reasons beyond those specifically prescribed in article sixth, § 7, of the state constitution." See footnote 3 of this opinion. Finally, the plaintiffs claimed that the defendant's "decision to add a new category called ‘COVID-19’ and her failure to include the restrictions contained in Executive Order No. 7QQ concerning that reason—i.e., the voter being unable to appear and the unavailability of a vaccine—[constitute] a ruling of an election official" that "ignored the important qualification" to that effect in Executive Order No. 7QQ. Claiming to be aggrieved as candidates and electors by these various violations, the plaintiffs sought a judgment declaring that the application is both unconstitutional and based on an erroneous interpretation of Executive Order No. 7QQ and § 9-135. The plaintiffs also sought a prohibitory injunction precluding the defendant from mailing or distributing copies of the application to any Connecticut voters and a mandatory injunction directing her to recall any copies already mailed or distributed to any Connecticut voters.

On July 7, 2020, this court issued a case management order directing the parties to file briefs by July 17, 2020, with oral argument initially scheduled for July 22, 2020.¹³ That same day, the defendant moved to dismiss this case. Subsequently, on July 16, 2020, the plaintiffs moved for an order "(1) enjoining the defendant ... from issuing absentee ballots for COVID-19 reasons on July 21, 2020, until this court has had the opportunity to issue a decision in this matter, or (2) alternatively, rescheduling the hearing currently scheduled for July 22, 2020, for July 20, 2020." This court then sua sponte scheduled a hearing for July 20, 2020, limited to the issues raised in the defendant's motion to dismiss and the plaintiffs’ motion for an order.

After the July 20, 2020...