The Supreme Court Justices wasted no time Wednesday questioning the Republican Party’s attorney Proloy Das about whether he had exhausted his administrative remedies before bringing the issue of ballot order to court.
“This case is not about politics. It’s about the law,” Das said before Justice Lubbie Harper interrupted him to ask why sovereign immunity shouldn‘t apply to this case.
Sovereign immunity protects state government from frivolous lawsuits.
Das said that Secretary of the State Denise Merrill exceeded her authority when she decided to place the Democratic Party at the top of the ballot. He said they are not seeking a ruling from Merrill, but are seeking compliance with the law.
“This is the cleanest way to bring the action,” Das told the court.
Connecticut’s ballot order is decided by the winner of the last gubernatorial election. In 2010, Republican Tom Foley received 560,874 votes on the Republican ballot line, but Democratic Gov. Dannel P. Malloy won the election with 540,970 votes on the Democratic line and 26,308 votes on the Working Families Party line. The question is whether the ballot order is based on the candidate or the party.
But whether the court will even get to answer that question is debatable.
Associate Attorney General Greg D’Auria argued that he didn’t believe the court had jurisdiction over this issue. He said excess statutory authority does not apply here because as the state’s chief elections official Merrill has the power to interpret ballot placement.
“It’s part of her job description to interpret the law,” D’Auria said.
As to the underlying argument, D’Auria said that the Working Families Party wasn’t a full party as defined by state statute, which is what allowed Merrill to aggregate the votes Malloy received on that line with those he received on the Democratic Party line and give them to the candidate.
“We’re not aggregating the Working Families Party votes and giving them to the Democrats, we’re talking about Governor Malloy,” D’Auria said.
He said the statute used to say the “party who polled,” but it currently says the “party whose candidate for governor.”
“It’s confusing, isn’t it?” Chief Justice Chase Rogers said at one point during the arguments.
D’Auria said the legislative history is “at best ambiguous.”
But Das argued that the legislative history made the statute clearer.
House Minority Leader Lawrence Cafero, who watched the oral arguments in court, said he thought the justices appropriately questioned both sides.
The question about how important ballot order is in an election is irrelevant, Cafero said.
“What is relevant is it’s the law,” he said.
Standing on the steps of the Supreme Court, Sen. Leonard Fasano said he didn’t think the plain language reading of the law was ambiguous.
“I think it’s really clear. It says the party whose governor polled the most votes . . . Republican, Democrat that’s what you look at,” Fasano said.
The language is “abundantly clear it means party, not the candidate,” he added.
Av Harris, a spokesman for Merrill, said they are supposed to inform the municipalities of what the ballot will look like by Sept. 15 and under federal law, military ballots must be mailed by Sept. 21.
“Timing is tight on this case, so we’re hoping for a ruling as soon as possible,” Harris said outside of court Wednesday.
“This is a court case with real implications for Connecticut voters,” Harris said. “This isn’t just an academic exercise this is going to impact every voter in Connecticut.”
It was not lost on the Justices that ballot order was decided back in 2011, but the Republicans only discovered the issue this summer when they brought it to Merrill’s attention.
“For a party that complains about the use of courts, the Republicans in our state have decided to utilize it as much as possible,” Gov. Dannel P. Malloy said during a Wednesday morning conference call from China. “From a ridiculous redistricting lawsuit that they brought to this one. You know, the Supreme Court is going to do whatever it does and why this became particularly important at this moment, I don’t know. But whatever happens happens.”
Republican Party Chairman Jerry Labriola Jr. has said he wished they didn’t have to bring the issue to court, but felt they had no choice.