State Supreme Court Will Rule On Ballot Line Between Republicans And Democrats

The State Supreme Court will rule whether the Republicans can recapture the top ballot line in November’s election in an appeal of a state decision.

The state Republican Party filed a lawsuit last week that sought to place their party on the top line in all elections in November, including those for the U.S. Senate, 151 state House of Representative seats and 36 seats in the state Senate.

The party sued Secretary of the State Denise Merrill, who ruled against the Republicans three weeks ago 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.

Av Harris, a spokesman for Merrill, told Capitol Watch on Tuesday night that the two sides have agreed to skip the trial court and go directly to the Supreme Court.

“The facts really aren’t in dispute,” Harris said. “We have to get to a stipulated agreement.”

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, states 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 last month 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 maintains 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.

“Unfortunately, the secretary’s unfounded and apparently partisan-driven position leaves us no choice but to seek redress in the courts,” state GOP chairman Jerry Labriola said in a statement. “We believe the Secretary of the State’s interpretation is wrong and it would be unfair to Connecticut voters to allow these elections to proceed unlawfully.”