Supremes: Don’t Mess With Absentee Ballots

Stop … in the name of absentee ballots, especially if you’re a third party in the collection of ballots. That’s one of the messages from the Connecticut Supreme Court in its written ruling, issued on Monday, upholding Superior Court Judge Barbara Bellis’s order for another Democratic primary in the City Council’s 133rd District. For background see related article here. Bellis ruled that Democratic Town Chair Mario Testa prevailing upon Police Chief AJ Perez to assign a police officer to pick up absentee ballots on behalf of candidate Michael DeFilippo was an abuse of the election process. The Supremes agreed. See decision here.

From the decision:

The defendants argue that the trial court incorrectly concluded that § 9-140b precluded Testa and DeFilippo from dispatching Nicola to retrieve absentee ballots from voters. They claim that nothing in the statute bars a third party, including a party official or a candidate, from asking a police officer to contact an absentee voter and to act as that voter’s designee for purposes of returning the voter’s absentee ballot. In the defendants’ view, the plain language of § 9-140b authorizes anyone to request a ballot pickup on an absentee voter’s behalf because there is no explicit restriction in that regard.15 The plaintiff, for his part, claims that the trial court correctly interpreted § 9-140b as requiring an absentee voter, himself or herself, to request that a police officer act as a designee for purposes of returning that voter’s absentee ballot and as prohibiting partisan individuals from doing so on a voter’s behalf. We agree with the plaintiff.

The return of absentee ballots, by various authorized methods, is governed by § 9-140b,16 which provides in relevant part that “(a) [a]n absentee ballot shall be cast at a primary, election or referendum only if … (3) it is returned by a designee of an ill or physically disabled ballot applicant, in person, to [the town] clerk not later than the close of the polls on the day of the election, primary or referendum … .” The term “designee” is statutorily defined as “(1) a person who is caring for the applicant because of the applicant’s illness or physical disability, including but not limited to … a licensed physician or a registered or practical nurse, (2) a member of the applicant’s family, who is designated by an absentee ballot applicant and who consents to such designation, or (3) if no such person consents or is available, then a police officer, registrar of voters, deputy registrar of voters or assistant registrar of voters in the municipality in which the applicant resides.” General Statutes § 9-140b (b).

This court previously has held that the requirements of § 9-140b are mandatory. See Wrinn v. Dunleavy, supra, 186 Conn. 145–46 (interpreting predecessor statute). Accordingly, the return of ballots in a manner not substantially in compliance with § 9-140b will result in their invalidation, regardless of whether there is any proof of fraud. Id., 148–49.”Whether fraud has been committed in the handling of certain absentee ballots is irrelevant to the question of whether there has been substantial compliance with all of the mandatory provisions of the absentee voting law. … Had the legislature chosen to do so, it could have enacted a remedial scheme under which ballots would … be invalidated [only] upon a showing of fraud or other related irregularity. The legislature has instead enacted a regulatory scheme designed to prevent fraud as far as practicable by mandating the way in which absentee ballots are to be handled. The validity of the ballot, therefore, depends not on whether there has been fraud, but on whether there has been substantial compliance with the mandatory requirements.” Id., 149; see also Dombkowski v. Messier, 164 Conn. 204, 209, 319 A.2d 373 (1972) (failure of town clerk to follow mandatory statutory requirements with respect to submission of absentee ballots warranted voiding of those ballots without finding of fraud or wilful misconduct).

To determine whether § 9-140b permits third parties, in particular, partisan individuals, to direct police officers to act as designees for absentee voters, we begin with the text of that statute and related provisions. Section 9-140b, read as a whole, reflects a clear legislative intent to maintain distance between partisan individuals and the casting and submission of absentee ballots, undoubtedly in recognition of the potential for undue influence, intimidation or fraud in the use of those ballots.17 That statute expressly provides that, except in certain narrowly defined circumstances, “[n]o (1) candidate or (2) agent of a candidate, political party or committee … shall knowingly be present when an absentee ballot applicant executes an absentee ballot … .” General Statutes § 9-140b (e); see also Gonzalez v. State Elections Enforcement Commission, 145 Conn. App. 458, 471–74, 476, 77 A.3d 790 (candidate violated § 9-140b [e] by accompanying voters while they completed absentee ballots at town clerk’s office), cert. denied, 310 Conn. 954, 81 A.3d 1181 (2013). Subsection (d), delineating which persons are authorized to possess absentee ballots, does not include any partisan individuals, and subsection (b) does not include such persons among the list of persons who may act as absentee voters’ designees for the purpose of returning ballots. See General Statutes § 9-140b (b) and (d).

With respect to who may choose a “designee” for an absentee voter, the language used in § 9-140b manifests an intent on the part of the legislature that a “designee” be a person whom the absentee voter, himself or herself, selects to return his or her ballot. Specifically, that statutory provision indicates that “a designee of an ill or physically disabled ballot applicant” may return the ballot in person; (emphasis added) General Statutes § 9-140b (a) (3); and otherwise that “a designee of a person who applies for an absentee ballot because of illness or physical disability” may return the ballot by mail. (Emphasis added.) General Statutes § 9-140b (a) (1) (B). The verb “designate” is defined as “[t]o indicate, select, appoint, nominate, or set apart for a purpose or duty … .” Black’s Law Dictionary (6th Ed. 1990) p. 447. By combining the term “designee” with the phrase “of an ill or physically disabled ballot applicant,” or “of [an ill or physically disabled] person,” § 9-140b (a) strongly suggests that it is the ballot applicant, and not some third party, who is to select, appoint or nominate an individual, from within the defined universe of qualified persons, to deliver his or her ballot to the town clerk.

… To summarize, the trial court properly found that the fourteen absentee ballots returned by Nicola at the behest of Testa and DeFilippo did not comply with § 9-140b (a) (3) and that the twelve absentee ballots that arrived at city hall without postmarks on November 14, 2017, were not “mailed,” as contemplated by § 9-140b(c). Accordingly, the trial court correctly concluded that all of those ballots were invalid and that they should not have been included in the vote count for the November 14, 2017 special primary. The trial court’s separate conclusion that the supervised absentee balloting at Northbridge did not comply with the statutes governing that process is not supported by the evidence. Because the number of absentee ballots properly invalidated by the trial court is greater than Herron’s eighteen vote margin of victory over the plaintiff, however, the court correctly determined that the results of the November 14, 2017 special primary had been placed seriously in doubt, thereby necessitating that a new special primary be conducted.