HARTFORD, CT — The State of Connecticut succeeded Monday in getting Supreme Court Chief Justice Richard Robinson to dismiss a lawsuit that challenged Secretary of the State Denise Merrill’s ability to send out absentee ballots.
Four Republican candidates in the First and Second Congressional Districts in Connecticut argued that it’s unconstitutional for Merrill to send out the absentee ballots, but Attorney General William Tong told Robinson that he should dismiss the case.
Robinson, who was the only judge on the panel, agreed to dismiss the case after he heard Monday’s remote arguments.
Republicans, represented by Proloy Das of Murtha Cullina, argued that Merrill “illegally” expanded the definition of an absentee ballot when she followed through with Gov. Ned Lamont’s executive order allowing no-excuse absentee ballots for the Aug. 11 primary. They are challenging her ability to send absentee ballots to voters registered with one of the two political parties.
Merrill already mailed absentee ballot applications to all registered voters and the actual absentee ballots will be mailed tomorrow to those who submitted completed applications.
The Republican plaintiffs asked the state’s highest court to delay the mailing of the ballots until it can hear oral arguments on the merits of the case, but Robinson’s one-page decision makes it moot.
During normal times, absentee ballots in Connecticut are limited to individuals who have an illness or will be out of state on Election Day. Lamont’s executive order expands the definition of who qualifies for an absentee ballot for the primary due to the COVID-19 pandemic.
Attorney General William Tong said Republicans have “sued the wrong defendant, under the wrong statue, in the wrong court.”
He said the plaintiffs should have sued the governor, but they didn’t because they knew they would not succeed. The governor is currently governing the state under a series of executive orders, including one that allowed for people to vote by absentee if they were scared to go to the polls due to COVID-19.
Robinson seemed to agree. He ruled that the statute cited by the plaintiffs was “not a proper vehicle to challenge a ruling of an election official with respect to a primary.”
“Instead, the plaintiffs’ challenge should have been brought in Superior Court,” Robinson added.
Tong said Merrill was the wrong defendant and the Supreme Court was the wrong venue.
“When all of humanity is confronting a fast-moving, and raging respiratory virus that the governor has the authority under 28-9b1 to modify any, any statute to keep us safe,” Tong said.
He said the plaintiffs didn’t plead that argument because it’s “not only frivolous. It’s dangerous.”
The attorney general’s office argued that Republicans are trying to use the court to “disrupt a state and national election already in process, to cause mass voter confusion, to disenfranchise hundreds of thousands of Connecticut voters, and to force voters into a mass gathering on the same day in August and subject them to the high risk of infection and death from a fast-spreading respiratory virus.”
“No one can seriously dispute that the Governor has the authority and the state has a compelling interest to minimize the extreme risk of human transmission through mass gatherings of people,” Assistant Attorney General Maura Murphy Osborne wrote in her brief. “It is hard to imagine a greater risk than forcing all Connecticut voters into thousands of small, close-quarter polling locations all across Connecticut on primary day, August 11, 2020.”
Republicans maintain that “the Connecticut Constitution does not permit no-excuse absentee voting and entrusts the electorate to define the scope of absentee voting through constitutional amendment.”
They said Merrill “unconstitutionally and erroneously determined that all eligible voters may use ‘COVID-19 … as a valid reason for requesting [an absentee] ballot.’”
Das said they wanted to protect voters’ opportunity to vote at the polls, which is what the constitution envisions.