State GOP Wins Ballot Line Lawsuit and Gets Top Line In November Election

The Connecticut Supreme Court has ruled unanimously that the state Republican Party will be placed on the top line on November’s election ballot in all races.

Attorney Proloy K. Das, who represented the state GOP in recent oral arguments in front of the court, confirmed the result Wednesday afternoon as word spread quickly around the state Capitol about the 7-0 vote.

As a result, Republicans Mitt Romney, Linda McMcMahon, Andrew Roraback, and all state legislative candidates will be on the top line of the ballot for their respective races on November 6.

“We needed a quick decision,” Das told Capitol Watch in a telephone interview. “That’s what’s great about our Supreme Court. They alter their schedules to be fair to all parties.”

Das added, “We thought we belonged on top as a matter of law.”

While it is unclear exactly what the top line will mean regarding the results, Republicans and Democrats have been jockeying for any possible advantage in the close elections that are expected. One veteran legislator said the top line might be worth two percentage points to a candidate, but he conceded that was an unscientific total.

Former chief state’s attorney Austin McGuigan, representing the state Republican Party, volunteered a response to the dismissive complaints by Democrats that the Republicans had been wasting the court’s time by filing a lawsuit.

“I will say,” McGuigan said, “for a frivolous argument, we did OK.”

Gov. Dannel P. Malloy had ripped the lawsuit during a conference call from China two weeks ago with reporters that included The Courant’s Dan Haar.

“For a party that complains about the use of courts, the Republicans in our state have decided to utilize it as much as possible,” Malloy, an attorney, said during the conference call. “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.”

After the ruling Wednesday, Malloy’s senior adviser and chief spokesman, Roy Occhiogrosso, said, ”Democrats have done just fine over the past 20 years, no matter where we are on the ballot. The Republicans might be able to change their ballot position, but they seem unable or unwilling to change their positions on issues of importance to the people of Connecticut. That’s why they keep losing elections. Changing rows won’t change the outcome.” 

State Sen. Edith Prague had also blasted the Republicans for the lawsuit.

“It’s ridiculous that Democrats and Republicans don’t have anything else to do but to sue each other,” Prague, a liberal Democrat, had told Capitol Watch. “I just think it’s stupid.”

She added, “I just think we have more important things to think about and worry about than who is on the top line or the second line or the bottom line. I think it’s rather stupid myself. It’s the candidate and what the candidate stands for. If people trust you and believe in you, you can be on the bottom line and win.’’

Secretary of the State Denise W. Merrill, the state’s chief elections official, said, ”While I am surprised at the outcome today, I am confident that my office interpreted the statute in good faith and with due diligence. My staff interpreted the law back in 2011, for the municipal election ballot that year, relying on recent precedent, thorough research and a careful analysis of the statute. The Supreme Court disagrees with our view, and I respect the court’s final decision in this matter. The Republican Party will be on the top line of the ballot in accordance with the Court’s order.”

She added, “I am pleased that the decision comes in time for absentee ballots and Election Day ballots to be accurately formatted, printed and mailed to absentee voters and the towns across the state. With the timing of this decision, we now feel confident that absentee ballots should be available for distribution by town clerks by the October 5th statutory deadline. We can now get on with the important business of administering an election that is vitally important to our nation and state.”

The court’s order, which was reported first by The Hartford Courant, is as follows:

“The court responds to the reserved questions and the jurisdictional questions on which it ordered supplemental briefs [1] as follows:

(1)  Did the plaintiff, the Republican Party of Connecticut, have an available
      administrative remedy in the present case? Yes.

(2)  If so, did the plaintiff exhaust the administrative remedy? Yes.

(3)  Is the complaint barred by sovereign immunity? No.

(4)  Does General Statutes § 9-249a require that the Republican Party’s
      candidates for office be placed on the first line of the ballots for the
      November 6, 2012 election? Yes.

A full written opinion on these issues will follow. This is the unanimous decision of the Court.”

“I am pleased that the Supreme Courthas ruled in favor of the Republican Party on the ballot top line issue,” state GOP chairman Jerry Labriola said. “In the party’s view, the language of the statute clearly states that Republicans should receive the top line based on the results of the 2010 gubernatorial election. I regret that it was necessary to file a legal action in response to the Secretary of State’s incorrect interpretation of election law, but I am pleased that our Republican candidates will have their rightful place on the top ballot line for the November 6, 2012 election.”

House Republican Leader Larry Cafero said in a statement: “The law is the law. The Supreme Court, we believe, arrived at the right decision based on what the statute says, not a public official’s interpretation. Our legal team did a great job.’’

“We are pleased with the Supreme Court’s unanimous ruling and excited to have Republican candidates at the top of the ballot for the coming election as they deserve to be,” Senate GOP leader John McKinney said in a statement. “I’m disappointed that the Secretary of State’s Office and the Office of the Attorney General chose to defend partisan political interests rather than meet out the public responsibilities of their office. Our attorneys did an excellent job of arguing our case, and I want to say a special thank you to State Senator Len Fasano, my right hand in the Senate Republican office for the past five years and the first person to identify the mistake that was made with the ordering of the ballots in 2011 and the mistake the Secretary of the State’s Office was about to repeat in 2012.”

Attorney Susan Kinsman, a spokeswoman for Attorney General George Jepsen’s office, responded, ”Senator McKinney appears not to realize that it is the legal responsibility of the Office of the Attorney General to represent and defend state agencies in court. We respect the court’s decision and are pleased the ballot issue has been settled in time for the Secretary of the State and municipalities to prepare for the general election.”

State Senator Len Fasano of North Haven said, “The Supreme Court unanimously agreed with our reading of Connecticut statutes and has restored the Republican Party to the top position on this year’s ballot.  While I wish the Secretary of State’s Office had conceded their error prior to the court proceedings, I’m pleased that we ultimately got to the correct result.”

The Republican Party sued Secretary of the State Denise Merrill, who ruled against the Republicans by saying that the Democrats would keep the top line on the 2012 election ballot. Republicans had questioned an original decision by Merrill, a longtime Democrat, to place the Democrats on the top line in the 2011 municipal elections after charging that Merrill made a mistake last year because of the complicated results of the 2010 race for governor.

Although Democrat Dannel P. Malloy won the race in 2010, he did it with a combination of votes from both the Democratic Party and the union-backed Working Families Party. As a result, Republican Tom Foley captured more votes on the Republican line than Malloy captured on the Democratic line.

The top party on the line is normally the party of the winning candidate for governor, but the Republicans now want that reversed because of Foley’s vote count.

The lawsuit, filed for the Republicans by attorneys Proloy K. Das and Richard P. Healey of the Hartford law firm of Rome McGuigan, stated that Foley won 560,874 votes on the Republican line and Malloy won 540,970 votes on the Democratic line. Malloy’s 26,308 votes on the Working Families Party line helped prove to be the difference in the closest gubernatorial election in more than 50 years.

The two sides interpreted the law in sharply different ways.

Merrill wrote to Republicans that “you do not differentiate between the appearance of a candidate on the ballot by party nomination and by nominating petition with a party designation. Taking this crucial difference into account results in the conclusion reached by my office in 2011: the Democratic Party is listed on the first row on the ballot followed by the Republican Party listed on the second row.”

The key point, according to Merrill, is that “votes cast for candidates appearing on two separate lines on the ballot are to be treated as votes for the candidate and included in such candidate’s vote totals for such election.’’

To back up their case, Republicans cited the 1994 election of Republican Governor George Pataki in New York State. Pataki defeated incumbent Governor Mario Cuomo, but only after the votes of the Republican and Conservative Party lines were added together. As a Democrat, Cuomo captured more votes on his line than Pataki did on the Republican line.

For the next four years, the Democrats held the top spot on the ballot in New York State.

“For purposes of balloting, we should be on the top line,’’ House GOP leader Larry Cafero told Capitol Watch recently. “Mario Cuomo had the most on the Democratic line. … We are stating that the Secretary of the State got it wrong in 2011.’’

But Merrill maintained that there are differences in the precise language of the laws between New York and Connecticut – leading to a different result. Merrill is a Democrat who was elected in the statewide election at the same time as Malloy in November 2010.

State Rep. Chris Coutu, an outspoken Republican, will now have the top line in his race against Democrat Cathy Osten in the battle for Prague’s Senate seat.

“Today was a victory for the rule of law,” Coutu said. “State law clearly states that Republican Party should receive the top line based on the results of the 2010 gubernatorial election. The legal action was only necessary once the Secretary of State dug in her heels and refused to correctly interpreted the law because it hurt her political party.”

 Coutu added, “I call upon Secretary Merrill to stop the political divisiveness and work for all the voters in Connecticut, not just those of a particular political persuasion she is affiliated with. It’s not surprising to see action like this from Connecticut’s one-party government.”