GOP, Dems Argue At State Supreme Court Over Ballot Line Lawsuit; Time Running Out

Time is running out on exactly how the election ballot will look this November in all 169 towns in Connecticut.

With towns needing to be notified of the ballot order by Saturday and overseas ballots needing to be mailed to members of the military by September 21, the state Supreme Court is moving to act quickly.

The state’s highest court analyzed the issue Wednesday, debating over the precise wording in the law to determine which party should be placed at the top of the ballot. Both Republicans and Democrats are fighting to be at the top, ostensibly because it would provide an expected advantage as the first party to be seen by voters.

During one hour of oral arguments, the justices debated over the ambiguity of the language, which comes down to the difference between the political party and the person. It is only 17 words in the state law.

The law states that the parties will be listed on the ballot based on “the party whose candidate for governor polled the highest number of votes in the last-preceding election.”

The problem, though, is what those words mean.

The Republicans say they mean that the GOP should be listed first, based on the complicated results of the 2010 election for governor. Democrat Dannel P. Malloy won the gubernatorial race, but it was done with a combination of votes from the Democratic Party and the union-backed Working Families Party. But the Republicans note that their candidate, Tom Foley, won more votes on the Republican line than Malloy won on the Democratic line. As such, they say the Republicans should be listed first.

Av Harris, a spokesman for Secretary of the State Denise Merrill, says the case is highly important.

“This isn’t just an academic exercise,” Harris said outside the Supreme Court in Hartford. “This is something that is going to impact every voter in the state of Connecticut – especially the military and overseas voters because it takes so long to get their ballots back. … This is serious stuff.”

Candidates certainly believe that the more ballot lines the better. Both Republican Linda McMahon and Democrat Chris Murphy will have two ballot lines this November. McMahon will also appear on the Independent Party line, while Murphy will appear under the Working Families Party banner. By having his name on two lines in 2010, Malloy was able to capture the governor’s office by adding the two totals together.

During the back and forth over the language in court on Wednesday, longtime Supreme Court justice Flemming Norcott said, “All this is evidence of the complete ambiguity of it.”

At one point, Associate Attorney General Gregory T. D’Auria, who argued the case on behalf of the state, said that checking the transcripts of the debate of legislators who wrote the law would not help much.

“The legislative history, at best, is ambiguous,’’ said D’Auria, who was appointed as state solicitor general last year by Attorney General George Jepsen.

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

The two sides have interpreted the law in sharply different ways.

To back up their case, Republicans cited the 1994 election that vaulted Republican George Pataki into becoming the governor in New York. Pataki defeated incumbent Gov. 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, and the Democrats kept the top line on the ballot for the next four years.

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

The important distinction, according to Merrill and the attorney general’s office, is the difference between the overall votes for the candidate versus the votes for a particular party.

“Significantly, the word ‘polled’ in [the statute] immediately follows, and refers to, the phrase ‘candidate for governor,’ not the word ‘party,’” the attorney general’s brief states. “Given this word order, the determining factor in deciding ballot order is which candidate for governor polled the highest number of votes in the last-preceding election, not which party polled the highest number of votes for governor. … The Secretary correctly determined that the Democratic Party’s candidates should be placed on the top line of the ballot.”

In a telephone conference call with reporters on Wednesday morning from China, Malloy criticized the Republicans for filing the lawsuit and said that the Supreme Court would make its ruling.

“Whatever happens, happens,” Malloy said.

State Rep. Stephen Dargan, a veteran West Haven Democrat, said it is unclear about the precise advantage of the ballot position.

“I was reading that the top line could give you an extra two percent,” Dargan said Wednesday. “I don’t know if that is true. I really don’t think it makes a big difference. I just want to know where I am on the ballot.