Secretary of the State Denise W. Merrill notified Connecticut’s top Republicans Friday that Democrats will remain at the top of the ballot this fall, and that she disagrees with their legal argument that the GOP earned the top spot based on the 2010 gubernatorial results.

In a letter to Republican leaders in the state House and Senate and to the state GOP chairman, Merrill wrote that Democrats earned the top spot given that Democrat Dannel P. Malloy garnered the most votes for governor — regardless of the fact that he received them from two different lines on the 2010 ballot.

Malloy, the former mayor of Stamford, outpolled Republican Tom Foley of Greenwich 567,278 votes to 560,874. But while Foley appeared in just one place on the 2010 ballot — the line for the Republican nominee — Malloy received 540,970 votes on the Democratic line, and 26,308 votes by virtue of also being the nominee of the Working Families Party.

The state House and Senate minority leaders, Lawrence F. Cafero of Norwalk and John P. McKinney of Fairfield, and GOP State Chairman Jerry Labriola wrote Thursday to Merrill, arguing the Republicans deserve the top ballot spot.

The GOP leaders cited Section 9-249a of the Connecticut General Statutes. It states that “the party whose candidate for governor polled the highest number of votes in the last-preceding election” appears first on the ballot.

And it also states that “other parties who had candidates for governor in the last-preceding election” would have their candidates on future ballots “in descending order, according to the number of votes polled for each such candidate.”

But Merrill said Friday that the Working Families Party technically didn’t even have “minor party status” for the gubernatorial race under the law during the 2010 campaign.

The party, a pro-labor organization, has had organizational papers filed with the state since the mid-2000s, and was entitled to a spot on the gubernatorial ballot because it filed petition papers in 2010.

But it didn’t gain “minor party status” for that office until after the 2010 election. Under state law, such status is conferred when more than 1 percent of the voters casting ballots for an office do so for the minor party candidate.

The GOP legislative leaders also wrote to Merrill that New York faced “the identical issue” in 1995 and determined that while Republican George Pataki had defeated Democrat Mario Cuomo in the 1994 gubernatorial contest, Cuomo received more votes on the Democratic line than Pataki had on the GOP line. Pataki also had been endorsed by New York’s Conservative Party and received enough votes on that line to gain the victory.

“We believe we have a solid case to make that Republican candidates for office this fall should be placed first based on the results of the 2010 gubernatorial election,” Cafero said. “We have case law to support our position.”

But Merrill said the two states’ statutes are not identical. While New York law specifically determines top ballot status based on each party line’s result in the gubernatorial election, Connecticut law makes no reference to line-by-line results.

Pat O’Neill, a spokesman for the House Republican Caucus, said Friday that “our lawyers are evaluating the secretary of the state’s response to our letter,” and no decisions have been reached about potential future action.

Democratic State Chairwoman Nancy DiNardo and Jonathan Harris, the state party’s executive director, said Thursday that they think Democrats are entitled to the top spot on the ballot.

“In my mind, the plain meaning of the statute … talks of the highest number of votes collectively” received by a party’s gubernatorial candidate, and not necessarily votes tied just to one line, Jonathan Harris said. “If you look at the plain language of this statute, it indicates the Democrats should be on line A.”

Cafero said Republicans didn’t raise the issue before last fall’s balloting because they didn’t realize that the law was interpreted improperly. “Maybe shame on us, but it never occurred to us,” he said.

State Sen. Len Fasano, R-North Haven, said he began to research state election law in May after someone mentioned Malloy’s Working Families Party support at a dinner party. Fasano added that this led him to review the New York case over the summer.

Keith has spent most of his 31 years as a reporter specializing in state government finances, analyzing such topics as income tax equity, waste in government and the complex funding systems behind Connecticut’s transportation and social services networks. He has been the state finances reporter at CT Mirror since it launched in 2010. Prior to joining CT Mirror Keith was State Capitol bureau chief for The Journal Inquirer of Manchester, a reporter for the Day of New London, and a former contributing writer to The New York Times. Keith is a graduate of and a former journalism instructor at the University of Connecticut.

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