Opinion
FBTCV196090047S
11-01-2019
Beth Lazar et al. v. Joseph P. Ganim et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Stevens, Barry K., J.
MEMORANDUM OF DECISION [CORRECTED] STATEMENT OF THE CASE
STEVENS, J. PRESIDING JUDGE, CIVIL
The operative amended complaint in this action was filed on September 30, 2019, by the plaintiffs, Beth Lazar, Annette Goodridge, and Vanessa Liles, against the following defendants: Joseph P. Ganim (candidate for mayor), Charles D. Clemons, Jr. (Individually and as candidate for town clerk), Jorge Cruz (candidate for city council), Santa I. Ayala (democratic registrar of voters), Patricia A. Howard (deputy democratic registrar of voters), James Mullen (head moderator of democratic primary), Thomas Errichetti (head moderator of absentee ballots), and Lydia Martinez (individually and as city clerk). The amended complaint was filed under General Statutes § 9-329a to contest the city of Bridgeport’s municipal office democratic primary election held on September 10, 2019, pursuant to General Statutes § 9-423. The court held a hearing on the complaint that began on September 30, 2019, and the parties presented evidence from thirty-two witnesses.
On September 30, 2019, the plaintiffs filed a notice providing that they delivered notice to all candidates potentially affected by this action pursuant to General Statutes § 9-329a(b). See Docket Entry #113.
(b) Such judge shall forthwith order a hearing to be held upon such complaint upon a day not more than five nor less than three days after the making of such order, and shall cause notice of not less than three days to be given to any candidate or candidates in any way directly affected by the decision upon such hearing, to such election official, to the Secretary of the State, the State Elections Enforcement Commission and to any other person or persons, whom such judge deems proper parties thereto, of the time and place of the hearing upon such complaint. Such judge shall, on the day fixed for such hearing, and without delay, proceed to hear the parties and determine the result. If, after hearing, sufficient reason is shown, such judge may order any voting tabulators to be unlocked or any ballot boxes to be opened and a recount of the votes cast, including absentee ballots, to be made. Such judge shall thereupon, if he finds any error in the ruling of the election official, any mistake in the count of the votes or any violation of said sections, certify the result of his finding or decision to the Secretary of the State before the tenth day following the conclusion of the hearing. Such judge may (1) determine the result of such primary; (2) order a change in the existing primary schedule; or (3) order a new primary if he finds that but for the error in the ruling of the election official, any mistake in the count of the votes or any violation of said sections, the result of such primary might have been different and he is unable to determine the result of such primary. (c) The certification by the judge of his finding or decision shall be final and conclusive upon all questions relating to errors in the ruling of such election official, to the correctness of such count, and, for the purposes of this section only, such alleged violations, and shall operate to correct any returns or certificates filed by the election officials, unless the same is appealed from as provided in section 9-325. In the event a new primary is held pursuant to such Superior Court order, the result of such new primary shall be final and conclusive unless a complaint is brought pursuant to this section. The clerk of the court shall forthwith transmit a copy of such findings and order to the Secretary of the State." General Statutes § 9-329a provides: "(a) Any (1) elector or candidate aggrieved by a ruling of an election official in connection with any primary held pursuant to (A) section 9-423, 9425 or 9-464, or (B) a special act, (2) elector or candidate who alleges that there has been a mistake in the count of the votes cast at such primary, or (3) candidate in such a primary who alleges that he is aggrieved by a violation of any provision of sections 9-355, 9-357 to 9-361, inclusive, 9-364, 9-364a or 9-365 in the casting of absentee ballots at such primary, may bring his complaint to any judge of the Superior Court for appropriate action. In any action brought pursuant to the provisions of this section, the complainant shall file a certification attached to the complaint indicating that a copy of the complaint has been sent by first-class mail or delivered to the State Elections Enforcement Commission. If such complaint is made prior to such primary such judge shall proceed expeditiously to render judgment on the complaint and shall cause notice of the hearing to be given to the Secretary of the State and the State Elections Enforcement Commission. If such complaint is made subsequent to such primary it shall be brought, not later than fourteen days after such primary, or if such complaint is brought in response to the manual tabulation of paper ballots, described in section 9-320f, such complaint shall be brought, not later than seven days after the close of any such manual tabulation, to any judge of the Superior Court.
General Statutes § 9-423 provides: "(a) The primaries of all parties for nomination to an office to be voted upon at a state election shall be held on the second Tuesday in August in the year in which such state election is held. (b) The primaries of all parties for nomination to an office to be voted upon at a municipal election shall be held on the fifty-sixth day preceding the day of the election."
The amended complaint makes the following allegations. The plaintiffs claim that multiple individuals associated with the defendants or the democratic town committee engaged in improper primary election activity concerning absentee ballots and the counting of ballots that was broad and extensive in scope. The plaintiffs claim that numerous violations of Connecticut election laws took place, including: the misrepresentation of absentee voting eligibility under General Statutes § 9-135; issues pertaining to the possession and return of absentee ballots under General Statutes § 9-140b; attempts to influence the speech of any person in a primary under General Statutes § 9-364a; and multiple issues regarding the application for absentee ballots and the distribution of absentee ballot applications under General Statutes § 9-140.
The plaintiffs claim that they were aggrieved by a ruling of an election official, and that there has been a mistake in the count of the votes cast at such democratic primary election pursuant to § 9-329a(a)(1) and (2). The plaintiffs’ prayer for relief primarily seeks a court order that sets aside the results of the democratic primary election, requires a new democratic primary election for all candidates, and requires supervised voting at locations where there are a large percentage of voters utilizing absentee ballots.
Although the plaintiffs’ complaint seeks a new election for all the candidates who participated in the primary, the parties’ arguments focused on the mayoral candidates, Joseph Ganim and Marilyn Moore. Ganim won the primary by 270 votes, receiving 5,304 votes to Moore’s 5,034 votes. Ganim’s margin of victory was acquired though the absentee ballots that were cast. Ganim lost the walk-in ballots (4,337 votes to Moore’s 4,721 votes), but won the absentee ballots (967 votes to Moore’s 313 votes). The thrust of the plaintiffs’ complaint is directed to the absentee ballots.
DISCUSSION
I
JURISDICTIONAL ISSUES
A
On September 27, 2019, the defendants moved to dismiss the plaintiffs’ complaint on the ground that the court lacked subject matter jurisdiction because the plaintiffs did not have standing under § 9-329a. Section 9-329a(a)(1) provides that an elector may file a complaint to contest a primary when the elector has been "aggrieved by a ruling of an election official" in connection with the primary. General Statutes § 9-329a(a)(1). Section 9-329a(a)(2) provides that an elector may file a complaint to contest a primary when "there has been a mistake in the count of the votes cast at such primary." General Statutes § 9-329a(a)(2). The defendants’ specific argument was that the plaintiffs lacked standing because the allegations of the complaint failed to establish that they were personally aggrieved by any of the claimed election violations. The court issued a ruling granting the motion to dismiss as to § 9-329a(a)(1), and denying the motion as to § 9-329a(a)(2). The following provides a further articulation of this ruling.
"It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347, 780 A.2d 98 (2001). "[W]hen standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the [party] has a legally protected interest [which may be remedied]." (Internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208, 219, 764 A.2d 739 (2001).
The court agrees with the defendants that the language of § 9-329a(a)(1) requires the plaintiffs to establish aggrievement because the statute explicitly states that in order for an elector to contest a ruling of an election official that elector must be "aggrieved" by a ruling of an election official. See General Statutes § 9-329a(a)(1). The court concludes that nothing in the allegations of the plaintiffs’ complaint indicates that they suffered a personal or individual injury that was different from any other elector eligible to vote in the primary. See Mayer v. Historic District Commission, 325 Conn. 765, 781-82, 160 A.3d 333 (2017). ("Mindful that it is a fundamental concept of judicial administration that no person is entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or a representative capacity a plaintiff is required to plead and prove some injury in accordance with our rule on aggrievement." (Citation omitted; internal quotation marks omitted)).
See generally, Arciniega v. Feliciano, 329 Conn. 293, 302 n.5, 184 A.3d 1202 (2018) ("Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share ... Second, the party must also show that the agency’s decision has specially and injuriously affected that specific personal or legal interest" [citation omitted; internal quotation marks omitted] ).
On the other hand, § 9-329a(a)(2) does not require aggrievement. This section allows an elector to contest "a mistake in the count of the votes" without conditioning the right to make this claim on the existence of aggrievement. The court concludes that the use of the word aggrievement in § 9-329a(a)(1) and § 9-329a(a)(3), but not in § 9-329a(a)(2), provides such a significant difference in the language of the statute that statutory construction warrants the conclusion that an elector contesting a primary on the basis of a claim that there was a mistake in the count of the votes does not have to show aggrievement. Therefore, in summary, the defendants’ motion to dismiss under § 9-329a(a)(1) is granted, and the motion to dismiss under § 9-329a(a)(2) is denied.
B
As previously stated, § 9-329a(a)(2) gives the court jurisdiction to determine whether "there has been a mistake in the count of the votes cast" in the primary. According to the defendants, this provision limits the court’s consideration to whether there was an error in the ministerial act of counting or tallying the votes. See Defendants’ Post-Trial Brief, pp. 6-11. The court rejects the defendants’ argument.
As the defendants indicate, a mistake in the count of the votes may involve an error in the tabulation of the ballots, but exclusively limiting § 9-329a(a)(2) to such a restrictive interpretation is neither reasonable nor rational. The construction advanced by the defendants is too narrow and artificial because a mistake in the count of the votes may also result from either the counting of votes which legally should not be counted or the failure to count ballots that legally should be counted. Such errors obviously may cause a mistake or an error in the tallying of the votes cast. Cf. Bortner v. Woodbridge, 250 Conn. 241, 272 n.27, 736 A.2d 104 (1999) ("[i]f otherwise validly cast ballots were not counted, the resulting total number of votes for each candidate may be regarded as a ‘mistake in the count of the votes’ "). For example, as addressed further below, the evidence indicates that certain absentee ballots were submitted by electors who did not meet the eligibility criteria for voting by absentee ballot. Such ballots should not have been counted because they were submitted by individuals who were not eligible to submit them and, therefore, the counting of these ballots constituted a "mistake" within the purview of § 9-329a(a)(2).
The criteria for voting by absentee ballot is set out in General Statutes § 9-135, which provides:
(a) Any elector eligible to vote at a primary or an election and any person eligible to vote at a referendum may vote by absentee ballot if he or she is unable to appear at his or her polling place during the hours of voting for any of the following reasons: (1) His or her active service with the armed forces of the United States; (2) his or her absence from the town of his or her voting residence during all of the hours of voting; (3) his or her illness; (4) his or her physical disability; (5) the tenets of his or her religion forbid secular activity on the day of the primary, election or referendum; or (6) the required performance of his or her duties as a primary, election or referendum official, including as a town clerk or registrar of voters or as staff of the clerk or registrar, at a polling place other than his or her own during all of the hours of voting at such primary, election or referendum.
(b) No person shall misrepresent the eligibility requirements for voting by absentee ballot prescribed in subsection (a) of this section, to any elector or prospective absentee ballot applicant.
Indeed, the Supreme Court in Bortner v. Woodbridge, supra, 250 Conn. 272 n.27, rejected an argument similar to the one being presented by the defendants here. Although the defendants are correct that the facts of Bortner, involving alleged problems with voting machines, are distinguishable from those here, the court finds the reasoning of Bortner controlling and dispositive. In Bortner, the court interpreted General Statutes § 9-328 pertaining to elections, as compared to primaries. See id., 244. Section 9-328 contains language identical to § 9-329a, authorizing an elector to contest an election based on "a mistake in the count of the votes." Id., 259. In Bortner, the Supreme Court stated that such language is broader than "a situation in which votes that were cast were improperly counted." Id., 272 n.27. The court explained that "[i]f otherwise validly cast ballots were not counted, the resulting total number of votes for each candidate may be regarded as a ‘mistake in the count of the votes.’ Id. This interpretation is proper because "one of the purposes of the statute, namely, to ensure accuracy in the election process, suggests the broader interpretation." Id. ; see generally, Keeley v. Ayala, 328 Conn. 393, 402, 179 A.3d 1249 (2018) (holding that ballots handled in violation of absentee ballot statutes were "invalid and should not have been counted").
The defendants’ arguments to the contrary are rejected. For example, the defendants contend that the phrase "a mistake in the count of the votes cast under (a)(2) must differ from both rulings of election officials under (a)(1) and alleged violations of the absentee ballot statutes listed in (a)(3)." Defendants’ Post-Trial Brief, p. 4. Because in order for "subsection (a)(2) to have full effect and meaning it must differ from the rulings and absentee ballot statutes addressed in the other provisions." Id. This reasoning is misplaced because these provisions may overlap in effective and meaningful ways. For example, a ruling of an election official (implicated under (a)(1)) may also involve a mistake in the count of the votes (implicated under (a)(2)). Cf., Keeley v. Ayala, supra, 328 Conn. 402. The fact that a particular error may be implicated and contested under one or both of these provisions does not offend any rule of statutory construction as the defendants contend. The court further notes that a violation of either or both of these provisions may also be a violation of § 9-329a(a)(3). See footnote 2.
II
"Although § 9-329a allows for the invalidation of election results, [courts] have emphasized that such a measure should not be taken lightly." Keeley v. Ayala, supra, 328 Conn. 405-06. Indeed, well-established precedent dictates that this court should be very cautious before exercising its statutory authority to vacate the results of a primary and to order a new one as requested by the plaintiffs here.
"[U]nder our democratic form of government, an election is the paradigm of the democratic process designed to ascertain and implement the will of the people ... The purpose of the election statutes is to ensure the true and most accurate count possible of the votes for the candidates in the election ... Those statutes rest on the bedrock principle that the purpose of the voting process is to ascertain the intent of the voters ... In implementing that process, moreover, when an individual ballot is questioned, no voter is to be disfranchised on a doubtful construction, and statutes tending to limit the exercise of the ballot should be liberally construed in his or her favor ...
"An election is essentially— and necessarily— a snapshot ... Moreover, that snapshot can never be duplicated. The campaign, the resources available for it, the totality of the electors who voted in it, and their motivations, inevitably will be different a second time around. Thus, when a court orders a new election, it is really ordering a different election. It is substituting a different snapshot of the electoral process from that taken by the voting electorate on the officially designated election day ...
"Consequently, all of the electors who voted at the first [election] have a powerful interest in the stability of that election because the ordering of a new and different election would result in their election day disfranchisement. The ordering of a new and different election in effect disfranchises all of those who voted at the first election because their validly cast votes no longer count, and the second election can never duplicate the complex combination of conditions under which they cast their ballots." (Citations omitted; emphasis in original; internal quotation marks omitted.) Bortner v. Woodbridge, supra, 250 Conn. 254-56.
The present case concerns questions arising from absentee balloting, which is "a special type of voting procedure established by the legislature for those otherwise qualified voters who for one or more of the [statutorily] authorized reasons are unable to cast their ballots at the regular polling place." Wrinn v. Dunleavy, 186 Conn. 125, 142, 440 A.2d 261 (1982); see also 26 Am.Jur.2d 129, Elections § 333 (2014) ("[t]he procedures required by the absentee voting laws serve the purposes of enfranchising qualified voters, preserving ballot secrecy, preventing fraud, and achieving a reasonably prompt determination of election results"). The Supreme Court has previously recognized "that there is considerable room for fraud in absentee [ballot] voting and that a failure to comply with the regulatory provisions governing absentee [ballot] voting increases the opportunity for fraud ... At the same time, [i]f there is to be [disen]franchisement, it should be because the legislature has seen fit to require it in the interest of an honest suffrage, and has expressed that requirement in unmistakable language." (Citations omitted; internal quotation marks omitted.) Keeley v. Ayala, supra, 328 Conn. 407.
Section 9-329a authorizes a court to set aside the results of a primary on the basis of, inter alia, "any mistake in the count of the votes" and order a new primary be held, if the court finds that "the result of such primary might have been different and [the court] is unable to determine the result of such primary." In § 9-329a(b)(3), "[t]he use of the conjunctive, ‘and,’ indicates that both conditions must be fulfilled before a new primary may be ordered. Even if the trial judge had found that the result ‘might have been different,’ the plaintiff could not prevail unless the judge were also ‘unable to determine the result.’ " Penn v. Irizarry, 220 Conn. 682, 687-88, 600 A.2d 1024 (1991).
When examining whether an error or mistake adversely affected an election, the Supreme Court has held that a court may consider the number of votes called into question. See Keeley v. Ayala, supra, 328 Conn. 428. For example, in Keeley, "[b]ecause the number of absentee ballots properly invalidated by the trial court is greater than [the winning candidate’s] eighteen vote margin of victory over the plaintiff ... the court correctly determined that the results of the ... special primary had been placed seriously in doubt, thereby necessitating that a new special primary be conducted." Id. On the other hand, a plaintiff may prevail under § 9-329a without providing evidence directly or explicitly showing a specific number of invalid ballots because the law is well established that a plaintiff may meet his burden of proof by direct or circumstantial evidence. Although factual findings cannot be based on speculation or conjecture, the trier of fact may draw reasonable and logical inferences justified by the evidence. Thus, without proving a precise or specific number of invalid ballots, a plaintiff may prevail under § 9-329a(a)(2) by proving that the totality of the evidence, both direct and circumstantial, establishes mistakes in the count of the votes so extensive or severe that a finding may be made that, but for the mistakes, the result of the primary might have been different.
III
Under § 9-329a, the court’s review of the election violations as claimed by the plaintiffs requires the court to consider two factors. The court must first determine whether any errors caused "a mistake in the count of the votes cast," and if so, the court must next determine whether a finding can be made that "but for ... any mistake in the count of the votes ... the result of [the] primary might have been different." General Statutes § 9-329a(a)(2) and (b). These considerations, in turn, operate to delineate the plaintiffs’ burden of proof. The plaintiffs must prove by a fair preponderance of the evidence that: "(1) there were ... substantial mistakes in the count of the votes; and (2) as a result of those errors or mistakes, the reliability of the result of the election, as determined by the election officials, is seriously in doubt." Bortner v. Woodbridge, supra, 250 Conn. 263. To meet this burden of proof, the plaintiffs must prove mistakes in the count of the vote that are substantial or significant. Id. The electoral process should not be disturbed by the drastic remedy of a court ordered re-election based on mistakes that are minor or ministerial.
The court rejects the plaintiffs’ contention that they can meet their burden of proof by showing evidence of any violations of statutory requirements that may raise serious doubt in the reliability of the election. See Plaintiffs’ Reply Brief, p. 2. The court’s jurisdiction under § 9-329a(a)(2) is not that broad and is limited to errors or mistakes relating to the count of the votes. Consequently, statutory violations and election irregularities that are unrelated to mistakes in the count of the votes are beyond the purview of § 9-329a(a)(2) and are beyond this court’s authority "to dismantle the basic building block of the democratic process, an election." Bortner v. Woodbridge, supra, 250 Conn. 254. In short, § 9-329a(a)(2) makes remedies available to the plaintiffs "under narrowly defined circumstances" and for "limited types of claims." Id.
IV
REVIEW OF THE EVIDENCE AND THE PLAINTIFFS’ CLAIMS
Although the plaintiffs refer to the mayoral vote in which the successful candidate won by 270 votes, the plaintiffs’ complaint seeks an order for a new primary as to all candidates. The plaintiffs seek this relief without making any specific arguments or relying on any specific evidence about the margins of victories for any of the other successful candidates. Thus, the plaintiffs seek the invalidation of the entire primary irrespective of the margins of victory of any candidate by arguing that there are mistakes in the count of the vote that are so severe and extensive that the votes for all of the candidates must be viewed as being seriously in doubt. Stated differently, the plaintiffs do not seek to overturn the vote for any specific or particular candidate, but insist that the votes for all the candidates are sufficiently suspect so that the entire primary must be invalidated.
More specifically, the court notes that the official results of the primary are provided as an exhibit to the amended complaint and are undisputed parts of the public record, but the plaintiffs make no reference to or mention of these results in their post-trial memoranda (except in regard to the mayoral vote).
The plaintiffs attempt this wholesale attack on the primary, and seek the extraordinarily broad remedy invalidating the entire primary, on the relatively narrow criteria under § 9-329a(a)(2). Although the court disagrees with the defendants’ stringent construction of § 9-329a(a)(2), they are correct that § 9-329a(a)(1) and § 9-329a(a)(3) authorize complaints to a primary that are much broader than § 9-329a(a)(2). The plaintiffs’ standing under § 9-329a(a)(2), as previously discussed, is limited to showing "mistakes in the count of the votes cast," whereas the other provisions of the statute address broader concerns. For example, § 9-329a(a)(1), authorizes complaints from electors or candidates aggrieved by a "ruling of an election official." The court has held that the plaintiffs cannot assert claims under § 9-329a(a)(1) because they have not alleged any personal or particularized aggrievement. Additionally, § 9-329a(a)(3), provides even broader relief to candidates who have been aggrieved by a violation of delineated, statutory provisions, including, for example, General Statutes § 9-359 and General Statutes § 9-359a. See footnote 2. Section 9-359 authorizes an aggrieved candidate to file a complaint for any wilful violation of the absentee voting laws set out in Chapter 145 of the General Statutes. Section 9-359a also authorizes an aggrieved candidate to file a complaint when someone makes a false or misleading statement in an application for an absentee ballot or signs the name of another person to an absentee ballot application. The plaintiffs cannot assert any claims as authorized under § 9-329a(a)(3) because none of them were candidates in the primary election. As will be discussed further below, the fallacy of many of the plaintiffs’ positions is that their arguments are directed to issues regarding the absentee ballot process without sufficiently relating these problems to any mistakes involving the actual counting of ballots.
To support their claim that there were mistakes in the count of the votes cast, the plaintiffs point to evidence indicating that some campaigns retained canvassers to distribute absentee ballot applications, and that many of these canvassers were untrained, often did not ask potential electors about their eligibility to vote by absentee ballot, and made errors on the absentee ballots when they assisted the applicants. The plaintiffs presented witnesses who testified that they voted by absentee ballot, but did not satisfy the statutory criteria to do so. See supra, footnote 6. As stated previously, the court concluded that to the extent such votes were cast, they should not have been counted because the people submitting them were not eligible to do so. The plaintiffs also indicate that six witnesses testified that their completed absentee ballots were taken from them by canvassers, rather than mailed, apparently in violation of General Statutes § 9-146(b). The hand delivery of absentee ballots contrary to the provisions of § 9-146(b) warranted the invalidation of such ballots in Keeley v. Ayala, supra, 328 Conn. 393. The plaintiffs also argue that they identified electors who filed multiple absentee ballot applications and whose signatures on the applications are either missing or otherwise questionable. See Plaintiffs’ Post-Hearing Brief, p. 16. According to the plaintiffs, the town clerk’s office should not have sent absentee ballots to these individuals because the statute requires that "[t]he application shall be signed by the applicant under the penalties of false statement in absentee balloting ..." General Statutes § 9-140(a).
The plaintiffs claim that they provided evidence from eleven people who they claim failed to meet the criteria for submitting absentee ballots. See Plaintiffs’ Post-Trial Brief, pp. 14-15. Five of these people did not vote in the primary (McNamara, Ruiz, Machado, Deleon and Colon). The testimony of one witness, Dennis Ellis, was unclear, but the court finds that he did meet the eligibility criterion on the ground of disability.
The court makes the following findings regarding the contested signatures of the following electors. Although questioned by the plaintiffs, the signatures of the following individuals do not appear questionable at all: Spain (Ex. SS), Martinez (Ex. TT), Orozco (Ex. UU), and Goodridge (Ex. 8). Goodridge testified that she voted at the polls and not through absentee ballot, and Martinez did not vote in the primary at all. The signatures of the following four individuals do appear questionable or irregular: Bond (Ex. QQ), Martonak (Ex. RR), Merlo (Ex.70A), and Walters (Ex. 52); and one of these people (Bond) did not vote in the primary, and the other three did. The applications for absentee ballots for Ariana Gomes and Gabriella Gomes appear to be signed by the same person, but they both voted through absentee ballot. (Ex. 70A.) Carmen Santiago (Ex. 70A) appears either not to have signed the application or used ‘X’ for her signature. Santiago was not called as a witness to explain her signature, but the evidence indicates that she voted by absentee ballot.
Thus, the court agrees with the defendants that they provided evidence showing that certain absentee ballots should not have been issued, received and counted. However, the plaintiffs have not provided direct evidence to prove that the number of such ineligible absentee ballots cast and counted was so large that a finding can be made that, but for any associated mistake in the counting of these votes, the result of the primary as a whole or as to every candidate might have been different. Indeed, the plaintiffs do not make this precise argument. The plaintiffs contend that the totality of this evidence, coupled with evidence about statutory violations of the town clerk’s office, support an inference that the "reliability of the election results is seriously in doubt." Plaintiffs’ Reply Brief, p. 2. The court disagrees. The court concludes that a close examination of the plaintiffs’ claims and the evidence establishes that the plaintiffs have failed to prove by a fair preponderance of the evidence that the statutory violations as claimed by them caused mistakes in the count of the primary vote sufficient for the court to find that, but for any proven errors, the result of the primary would have been different in order to warrant relief as provided under § 9-329a(a)(2).
As to alleged improprieties of election officials regarding the primary, the plaintiffs first argue that all the absentee ballots for the primary should be invalidated because when the absentee ballots were counted, the counting moderator did not strictly comply with the procedure manual for counting them. Specifically, step seven of the procedure manual was not followed in that it "requires that when removing the absentee ballots from the inner envelopes, the counter must leave them folded so that the markings cannot be seen. This [step] is required to preserve the secrecy of the vote." Plaintiffs’ Post-Trial Brief, p. 13. Additionally, step nine "requires the counter to shuffle the folded ballots and then unfold them," which was not done by the moderator. Id. The plaintiffs emphasize that General Statutes § 9-150a requires the Secretary of the State to produce the procedure manual for the counting of absentee ballots, and that the manual provides that it shall be strictly adhered to.
The court is not inclined to invalidate all the absentee ballots cast in the primary election because these ballots were not folded and shuffled according to the procedures manual. First, the plaintiffs erroneously assume that the use of the word "shall" regarding compliance with the procedures manual indicates that compliance with the procedures is mandatory, rather than directory. Although our Supreme Court has held that the substantive provisions of the election statutes are mandatory; see Wrinn v. Dunleavy, 186 Conn. 146; this precedent does not support the view that all the provisions of the elections statutes, particularly those that are procedural or ministerial, are mandatory and not merely directory. Furthermore, assuming arguendo, that these provisions of the manual are mandatory, substantial compliance with the procedures in order to count the ballots was accomplished (and the plaintiffs do not explicitly argue to the contrary). There is no evidence whatsoever indicating that the accuracy of the count of the vote was actually affected by this noncompliance in any way. See Bortner v. Woodbridge, supra, 250 Conn. 276-77 (relief not available when mistakes in vote count are not substantial, and even if so, they must also establish actual unreliability of election result). Contrary to the plaintiffs’ position, the results of a primary election should not be invalidated for such minor or ministerial reasons.
The plaintiffs next claim that the town clerk’s office erred in the handling of multiple applications for absentee ballots received from the same applicants. During the trial proceedings, the evidence indicated instances where multiple absentee ballot applications were submitted by the same individuals. Although the town clerk’s office utilized tracking procedures to ensure that only one ballot from a person was accepted for counting, the plaintiffs opine that the mere existence of these multiple applications from the same applicants raises an inference of impropriety. At the trial, the court concluded that despite such suspicions, in the absence of evidence indicating that all of the eligibility reasons reflected in an elector’s multiple applications were false or erroneous, and that none of the reasons were correct, the court could not, without conjecture or speculation, find that the acceptance and counting of such ballots were mistaken or improper.
When two absentee ballots were received from any one elector, the town clerk’s practice was to process only the first one received for counting. The plaintiffs contend that this practice is wrong because General Statutes § 9-153b requires the clerk’s office to receive and accept the second ballot for counting. The court rejects the plaintiffs’ argument because § 9-153b, by its plain and unambiguous language, only applies to situations where an elector has formally applied for an additional, second ballot to replace an earlier ballot that had been requested and received by the elector.
The plaintiffs also contest the town clerk office’s practice to check the addresses shown on the absentee ballot applications and change them if they vary from the addresses shown on the voter registration records in an effort to mail the absentee ballots to correct addresses. The plaintiffs explain that this practice contravenes General Statutes § 9-140(g), especially when the town clerk’s office does not contact the applicant directly about the discrepancy. General Statutes § 9-140(g) provides that absentee ballots "shall be mailed to the bona fide personal mailing address shown on the application." The plaintiffs insist that compliance with this mandatory requirement of § 9-140(g) is important in order to avoid the possibility of absentee ballots being sent to wrong people or even to imposters. The court agrees with the importance of this requirement, but again, the fallacy of the plaintiffs’ argument is that the controlling concern is not just about procedural problems, but is about procedural problems relating to a miscount of the votes. On the basis of this evidence alone, the court cannot find, without engaging in speculation and conjecture, that the town clerk’s changes were all incorrect and that all of the absentee ballots at issue under these circumstances were inappropriately submitted, received and counted. Stated differently, assuming that the town clerk’s practice constituted a substantial deviation from a statutory mandate, the plaintiffs have failed to show on the present record the extent of the adverse effect that this noncompliance actually had on the vote count. As previously discussed, the plaintiffs’ claims cannot be premised solely on an error of an election official under § 9-329a(a)(1).
The plaintiffs have also provided evidence indicating that one or more individuals working either as campaign workers or canvassers were paid to distribute absentee ballots in violation of General Statutes § 9-140(j), or received applications for absentee ballots and failed to return a list to the clerk’s office showing the electors to whom they gave absentee ballot applications in violation of General Statutes § 9-140(k)(2).
General Statutes § 9-140(j) provides: "No person shall pay or give any compensation to another and no person shall accept any compensation solely for (1) distributing absentee ballot applications obtained from a municipal clerk or the Secretary of State or (2) assisting any person in the execution of an absentee ballot."
General Statutes § 9-140(k)(2) provides in relevant part: "Any person who distributes absentee ballot applications shall maintain a list of the names and addresses of prospective absentee ballot the applicants who receive such applications, and shall file such list with the town clerk prior to the date of the primary ... for which the applications were so distributed. Any person who distributes absentee ballot applications and receives an executed application shall forthwith file the application with the town clerk."
The plaintiffs appear to contend that the votes of electors who received and submitted absentee ballots pursuant to such conduct should be invalidated. This argument, however, is insufficiently supported primarily because the conduct at issue involves applications for absentee ballots and not the ballots themselves. More specifically, on the present record, the plaintiffs have not shown, and the court cannot determine, either the extent of this improper conduct or how many absentee ballots may have been cast that were associated with this conduct and, in turn, the court cannot determine, even through reasonable or logical inference, the extent to which such conduct may have affected the primary as a whole.
Furthermore, despite any such violations, no statute prohibits an elector from receiving an absentee ballot and submitting it under such circumstances if he or she is otherwise eligible to do so. The statutes at issue are directed to the conduct of third parties, and are neither directed to the conduct of electors, nor directed to any requirements regarding the delivery, processing or handling of absentee ballots, thus distinguishing these circumstances from those presented in Keeley v. Ayala, supra, 328 Conn. 393, Wrinn v. Dunleavy, supra, 186 Conn. 125, and Dombkowski v. Messier, 164 Conn. 204, 210, 319 A.2d 373 (1972). Consequently, if an elector under these circumstances received an application, acquired an absentee ballot and properly voted by absentee ballot, the plaintiffs do not explain why the elector should be disenfranchised solely because of the improper conduct of such canvassers. Stated differently, this conduct by these individuals is illegal and disturbing, but appears to be unrelated to any mistake in the count of the vote within the purview of § 9-329a(a)(2). "Unless a ballot comes clearly within the prohibition of some statute it should be counted, if from it the wish or will of the voter can be ascertained." State v. Bossa, 69 Conn. 335, 341, 37 A. 977 (1897). To reiterate, the controlling consideration is not whether there was a violation of an election law (potentially cognizable under § 9-329a[a][1] or § 9-329a[a][3] ), but whether such a violation may be associated with a mistake in the count of the votes under § 9-329a(a)(2). The court’s ruling against the plaintiffs does not mean that the court countenances such violations of the election laws, but only that "under our system of government, [the plaintiffs bear] the heavy burden of proving by a preponderance of the evidence that any irregularities in the election process actually, and seriously, undermined the reliability of the election results before the court will overturn an election." (Emphasis omitted.) Caruso v. Bridgeport, 285 Conn. 618, 653, 914 A.2d 266 (2008).
The plaintiffs’ remaining arguments require little discussion. The plaintiffs claim that the city mistakenly counted ballots that were received by the town clerk after the date of the primary. However, the assistant town clerk, Christina Resto, testified that the date on which the plaintiffs rely for this argument is a typographical error. The court credits Resto’s testimony. The plaintiffs have also raised numerous other specific issues about the town clerk’s office’s record-keeping to support their claim that the records of the town clerk’s office are so unreliable that the entire primary election must be declared suspect and questionable. See Plaintiffs’ Reply Brief, pp. 7-13. The court is unpersuaded. After carefully reviewing all of the plaintiffs’ arguments in this regard, the court concludes that much of the plaintiffs’ concerns are directed to applications for absentee ballots, rather than to the ballots themselves and, more significantly, the totality of these issues advanced by the plaintiffs are not as broad and extensive as the plaintiffs claim, and they fail to establish actual and serious, as compared to theoretical and conjectural, mistakes in the count of the vote. Although the court is "mindful of the difficulties that plaintiffs face in meeting [their burden of proof] in light of the statutory time constraints on election contests and the magnitude and complexity of the election process, [the court’s] limited statutory role in that process and [the] need to exercise great caution when carrying out that role compels the conclusion that proof of irregularities in the process is not sufficient to overturn an election in the absence of proof that any of the irregularities actually affected the result." Caruso v. Bridgeport, supra, 285 Conn. 653.
CONCLUSION
Therefore, judgment hereby enters in favor of the defendants and against the plaintiffs, and the court certifies and affirms the results of the September 10, 2019 Bridgeport Democratic primary.
Although, the evidence in this case was insufficient for a new primary election to be ordered, the evidence nevertheless presented serious issues warranting legislative consideration. Most importantly, consideration is warranted as to whether the handling of applications for absentee ballots (as well as the absentee ballots themselves) should be limited solely to election officials, electors, and statutorily designated individuals (identified to assist electors), and in turn whether individuals working for candidates should be strictly prohibited from any handling of applications for absentee ballots. Legislative consideration may also be warranted to allow electors to acquire applications for absentee ballots through the mail, allow any elector to vote by absentee ballot (without limitations or conditions), and to allow earlier voting by absentee ballot.