State Capitol
State Capitol

The contested re-election of Rep. Philip Young, D-Stratford, who won a close election in a district where some voters were given the wrong the ballot on Nov. 6, must be resolved by a bipartisan committee of the General Assembly and not by a judge, Young’s lawyer said in a legal brief filed Friday.

In a lawsuit filed last week, Republican Jim Feehan asked a Superior Court judge to order a special election in the 120th House District, where Republicans say it appears 76 voters were mistakenly given a ballot for the 122nd House District. A recount showed Feehan losing to Young by 13 votes.

“It is impossible to determine the identity or intent of the approximately 76 voters whose votes were improperly cast for the wrong district,” wrote Feehan’s lawyer, Proloy K. Das. The only recourse, he wrote, is a new election.

Jim Feehan.

But William M. Bloss, who represents Young, countered that the Connecticut Constitution, two centuries of case law,  a relevant historical summary by the late Antonin Scalia, and statements by Republicans prominent in politics all point to one conclusion: The courts have no power to order a new election.

“The Connecticut Constitution is crystal clear: each House of the General Assembly has the exclusive authority to review election returns and to decide whether a candidate was validly elected,” Bloss wrote. “Plaintiff seeks relief in the wrong place from the wrong branch of government. By seeking relief here, plaintiff seeks an order plainly barred by the Constitution. This Court lacks jurisdiction.”

He is not saying Feehan has no cause to complain — only that his recourse is with the General Assembly, not the courts.

Feehan v Marcone (Text)

Under a policy adopted in 1987, contested elections are to be resolved by a committee of four House members, two from each party. Prior to 1987, such disputes were resolved by a three-member committee, with two members from the majority party.

Bloss said every state has a similar constitutional provision, and the historical basis for such provisions were summarized by Scalia in 1986, when he was an appellate judge about to join the U.S. Supreme Court.

Rep. Phillip Young.

“If [the power to judge elections is] lodged in any other than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed or put into imminent danger. No other body but itself can have the same motives to preserve and perpetuate these attributes; no other body can be so perpetually watchful to guard its own rights and privileges from infringement, to purify and vindicate its own character, and to preserve the rights and sustain the free choice of its constituents.”

A response brief by Feehan’s lawyer is due Saturday, but he said in a brief interview Friday evening that the courts have jurisdiction in matters involving the integrity of elections or disenfranchisement of voters.

Superior Court Judge Barbara Bellis could decide as soon as Monday as to whether to dismiss Feehan’s suit or grant an injunction blocking Secretary of the State Denise Merrill and other state officials from certifying the results of the election. Bellis has asked both parties

If Bloss prevails on Monday, Feehan still can appeal to the state House of Representatives, where Democrats currently hold an 80-71 majority. On Nov. 6, Democrats won at least 91 seats, not counting the 120th House race. Under House rules, any appeal by Feehan would be resolved in January by the new General Assembly, Bloss wrote.

Bloss noted that Republicans agreed with that approach in 1984, when Democrat Joan Hartley of Waterbury won a House seat by just two votes. Boosted by Ronald Reagan’s landslide victory, Republicans won an 85-66 majority. It was the last time the GOP controlled the House.

The new Republican speaker, R.E. Van Norstrand, appointed a committee of two Republicans and one Democrat to review claims of voting irregularities. They voted to seat Hartley, now in her 34th year as a state legislator, most recently as a state senator.

In Stratford, where voters from two House districts vote at the same school, the wrong packet of ballots was used until the mistake was discovered at midday in Stratford. There was a similar case in 1994, when Connecticut still voted by machine: The wrong voting machine was delivered to one precinct in the 20th House District, and it appeared that at least 15 people cast votes before the mistake was discovered. Republican Allen Hoffman defeated Democrat Richard Mulready by just 13 votes.

Mulready considered asking the House for a review, though he apparently never made a formal request.  Bloss says there was little or no question that the House was the appropriate place for appeal.

Bloss quoted a Hartford Courant news story: “ ‘It’s the new legislature that decides its own membership,’ said Peter Zarella, West Hartford Republican Town Committee chairman. “ ‘It’s not the old legislature deciding the makeup of the new legislature.’ ”

Zarella later became a justice of the Connecticut Supreme Court.

Mark is the Capitol Bureau Chief and a co-founder of CT Mirror. He is a frequent contributor to WNPR, a former state politics writer for The Hartford Courant and Journal Inquirer, and contributor for The New York Times.

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