Both sides cite history in election ballot order battle

Connecticut’s Supreme Court got a history lesson Wednesday as it tried to sift through the sticky legal question of which party’s candidates should get the top spot on the November ballot.

The state Republican Party, whose 2010 gubernatorial nominee Tom Foley collected the most votes on any single ballot line, insisted again that it deserves the top line.

Secretary of the State Denise W. Merrill, who was represented by the state attorney general’s office, continued to argue that the Democratic Party won that line by virtue of Democrat Dannel P. Malloy’s victory in the 2010 gubernatorial contest.

Malloy collected most of his votes on the Democratic Party ballot line, but he needed additional votes from the Working Families Party line to outpoll Foley — who only appeared on the GOP line.

So given that state law awards the top ballot position to “the party whose candidate for governor polled the highest number of votes in the last-preceding election,” which party should appear first this fall?

A similar question was raised in 1938 when Republican Raymond Baldwin outpolled Democrat Wilbur Cross.  The Democrat received more votes from his party than Baldwin got from the GOP, but Baldwin won thanks to additional votes he received from also appearing on a minor conservative party line.

Still, the attorney general’s office issued an opinion in 1939 indicating that the top spot on the state ballot for the next four years belonged to the Democrats, said Hartford attorney Proloy K. Das, who represents the state Republican Party.

The argument used 73 years ago, he said, was that the determining factor is whichever party line produced the most votes.

Otherwise, “you’re double-counting the votes,” Das said.

For example, if a gubernatorial election winner receives votes on two or more party lines, what, based on Merrill’s interpretation, is to stop all of those parties from claiming the top spot, Das asked. Chief Justice Chase T. Rogers posed a similar question.

“The issue’s always going to come up” under that interpretation, Das added. “That’s why we should avoid bizarre results.”

And when the legislature made technical changes to the statute in 1953, the secretary of the state’s office submitted a written declaration indicating that the meaning had not substantially changed.

But Associate Attorney General Gregory D’Auria said “the legislative history is, at best, ambiguous.”

He noted that when the legislature re-enacted several portions of its elections law in 1976, it specifically adopted language referring to votes received by the candidate, and not cast on a particular party line, when deciding the top ballot spot.

In addition, legislators spoke to this intent 36 years ago when they debated the measure in session, he said.

D’Auria also argued that Merrill acted within her authority to implement state election law, and that the state’s sovereign immunity should block the GOP from suing in this matter.

“There’s not a lot at stake here,” D’Auria said. “We’re not talking about voting rights. … We’re talking about one versus two” in terms of ballot placement.

One of the legislature’s highest-ranking Republicans, House Minority Leader Lawrence F. Cafero of Norwalk, challenged the assertion that correct interpretation of ballot placement is not crucial.

“There are different opinions about that, but frankly it’s irrelevant,” he told reporters after the hearing. “What is relevant is, it’s the law.”

But regardless of the stakes, the secretary’s office indicated that timing is tight.

The court only heard oral arguments Wednesday, but Merrill’s spokesman, Av Harris, said the secretary’s office has made the justices aware of several impending deadlines.

By state law, Merrill’s office must notify cities and towns how the official November ballot will look — including the order in which the candidates will be listed — by Saturday, he said.

And federal law requires the state to mail out official ballots to military personnel stationed overseas by Sept. 21.

“This is a court case with real implications for Connecticut voters,” Harris said.