Foster Asks Judge Bellis To Intervene In Choosing Election Moderators–City Disputes Assertions

UPDATE, includes city’s response

: Attorneys for Democratic candidate for mayor Mary-Jane Foster have asked Superior Court Judge Barbara Bellis to order Democratic Registrar of Voters Santa Ayala to “hold a lottery for appointing Moderators at the 23 polling places during the September 27, 2011 Democratic Primary in Bridgeport. The lottery for moderators shall be between Plantiffs’ 12 choices, and Defendant’s 12 choices.”

Lawyers Alan Neigher and Michele Mount, who successfully argued Foster on the September 27 primary ballot, submitted a request to the court for Ayala to establish a lottery system for selecting moderators and assistant registrars overseeing the Democratic primary. Foster’s lawyers, in a brief to the court, assert Ayala has ignored the campaign’s request for input in moderator selection. See the Foster legal brief below followed by the city’s response by Deputy City Attorney Art Laske on behalf of Ayala disputing Foster’s assertions. Judge Bellis is expected to hear arguments Tuesday morning:

MOTION FOR WRIT OF MANDAMUS TO ORDER DEFENDANT REGISTRAR TO EMPLOY A LOTTERY FOR SELECTION OF MODERATORS AND ASSISTANT REGISTRARS

At the close of proceedings on Friday September 2, 2011, Plaintiffs requested that the Court retain jurisdiction through the primary election to be held on September 27, 2011. The Court agreed to retain jurisdiction. As expected, the need for this Court’s intervention has again become apparent.

For the reasons set forth below, Plaintiffs respectfully request a writ of mandamus ordering Defendant Registrar to hold a lottery for appointing Moderators at Bridgeport’s 23 polling places during the September 27, 2011 Democratic Primary. The lottery for moderators should be between Plaintiff’s 12 choices, and Defendant’s 12 choices. Further, Plaintiffs request that the Defendant Registrar station the Plaintiff’s choices of Assistant Registrars at polling places where Plaintiffs’ choices of moderators were situated, and at fifty (50%) percent of any other polling places that remain available.

On August 22, 2011 (several hours before the Defendant Registrar rejected the Plaintiffs’ primary petitions) the Plaintiff submitted a request for half of the positions available on Election Day to work at the polling places. C.G.S. § 9-436(e) states in relevant part:

The registrar shall designate one of the moderators so appointed by the registrar to be head moderator or shall appoint as head moderator an elector who is not also moderator of a polling place and who shall be deemed a primary official … Each registrar’s appointments of primary polling place officials, except moderators of polling places, and of designees to conduct supervised voting of absentee ballots pursuant to sections 9-159q and 9-159r shall be divided equally, as nearly as may be, between designees of the party-endorsed candidates and designees of one or more of the contestants … Names of designees and alternate designees for such positions shall be submitted in writing by party-endorsed candidates and contestants to the registrar not later than ten days before the primary, except that names of designees and alternate designees for the position of moderator shall be so submitted not later than twenty-one days before the primary and, if such lists are not so presented, all such appointments shall be made by the registrar but in the above-mentioned proportion …”

After this Court issued its Order of September 2, 2011, an attorney for the Plaintiffs (M. Mount) had a discussion with Defendant’s attorney, the Deputy City Attorney, Arthur Laske, who stated that Plaintiffs had until the close of business (Thursday, September 8, 2011) to request moderators. On or about 2:30 p.m. on September 8, 2011, Plaintiffs submitted a list of three (3) certified moderators, intending to add at least 7 more by 5:00 p.m. However, Defendant Registrar refused to place any of the moderators submitted by Plaintiffs. The Defendant Registrar stated that the positions were already filled and would not accept any of Plaintiffs’ suggested moderators.

Moreover as shown by the Court’s decision on September 2, 2011, the Plaintiffs have already been adversely affected by the Defendant Registrar’s partisan and improper decisions in this primary contest. The electors of the City of Bridgeport must be confident in the ability and willingness of the Bridgeport Registrar to administer fair and free elections.

Defendant Registrar has demonstrably failed to show that she has either the will or the ability to overcome partisanship in order to conduct a fair primary election here. As this Court noted in its September 2, 2011 opinion, in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 186-87 (1999) the United States Supreme Court held: “We have also recognized, however, that there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process” (citations omitted). The need for this Court’s intervention was made clear by the Defendant Registrar’s conduct regarding rejection of Plaintiffs’ primary petitions. It is made ever more apparent now, in her blatantly unreasonable refusal to provide the means for and even appearance of a fair primary.

CONCLUSION

Based on the foregoing and as a precaution to any potential Election Day violations and the need for post-primary litigation, Plaintiffs respectfully request a writ of mandamus to require Defendant Registrar to provide Plaintiffs’ choices for poll workers at fifty (50%) percent of the positions available.

Deputy City Attorney Art Laske’s response:

DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION FOR WRIT OF MANDAMUS

The undersigned counsel, on behalf of Defendant, Santa Ayala, hereby submits the following response to the plaintiff’s September 12, 2011 Motion for Writ of Mandamus. In doing so, the undersigned represents to the Court the following facts that were not included in the Plaintiff’s filing:

1. A conversation did take place on September 2, 2011 between the undersigned and Attorney Michelle Mount. In that conversation, a discussion took place regarding amending the schedule regarding the submission of names from the Foster campaign for election day poling positions including the position of moderator and all other poll workers. Pursuant to C.G.S. Sec. 9-436(d), the names of proposed certified moderators were to have been submitted by the Foster campaign 21 days prior to the September 13, 2011 primary (which would have been August 22, 2011)1. As a result of the Court moving the election date to September 27, 2011, the statutorily required date to file moderator’s names would have been Tuesday, September 6, 2011. In order to accommodate Foster campaign, Attorney Mount requested from the City additional time to names its proposed moderators, to which the City had no objection. Attorney Mount requested until the end of the day Thursday, September 8, 2011 to provide qualified moderators to be considered by the registrar, and this extension for submission of potential moderator’s names was agreed upon;

1 It should be noted that the deadline for the Foster Campaign to have submitted proposed moderator’s names for the originally scheduled September 13th primary would have been on August 22, 2011. Although the Registrar’s decision to reject the Foster campaign’s petitions was issued at the end of the day on August 22nd, no proposed names of potential moderators had ever been submitted to the Registrar by the Foster Campaign for the September 13, 2011 primary pursuant to the deadline imposed by C.G.S Sec. 9-436, though this deadline passed before the Registrar had formally notified the campaign of the rejection of its petitions.

2. During the afternoon of Thursday, September 8, 2011, the Plaintiff submitted six names of individuals to be proposed as moderators to the registrar prior to 5:00 p.m. The registrar received the email with the names listed and sought to determine the qualifications of the proposed moderators. At no time on the 8th of September did the Registrar “refuse” to place any of the names submitted by the campaign;

3. Upon review of the six names submitted by the Plaintiff2 it became apparent that one of the names submitted was not on the Secretary of State’s list of certified moderators, and none of the proposed moderators were “… among the enrolled party members in the municipality or political subdivision holding the primary” (See, C.G.S. Sec. 9-436(c)), but rather it appeared that the only certified moderators proposed by the Foster campaign were electors of Monroe (3) and Newtown (2).

4. The undersigned spoke with Attorney Mount on Friday afternoon regarding the apparent applicability of state statutes governing the Registrar’s authority to fill moderator’s positions from among enrolled party members from the municipality in which the primary is taking place. While the Registrar, in anticipation of a September 13, 2011 primary date, had received from other petitioning candidates proposed names of poll workers, and had prepared a list of proposed moderators (which she forwarded to the Foster campaign on Wednesday, September 7, 2011), the Registrar had also stated to the Foster campaign that ‘although the certified moderator list has been submitted to the Town Clerk … you will note that they have been tentatively assigned; we are willing to discuss possible changes with your campaign staff”;

2 Despite a written request to include the “name, address, telephone and social security number” of each of the proposed moderators, as well as to indicate that they had been previously certified by the Secretary of State, of the six names submitted on September 8th, one is not listed as being certified by the Secretary of State, none had addresses listed, only two had phone numbers listed, and no social security numbers were included in the Foster Campaign’s submission of names to the Registrar.

5. At no time has the Foster campaign submitted to the Registrar of Voters any names of any Bridgeport residents who are certified to act as moderators, either by the prior deadline of August 22, 2011, or within the agreed upon deadline for submission of Thursday, September 8, 2011 or since. The Campaign still has until 4:00 pm on September 16, 2011 to submit proposed names of any other poll workers (non-moderator positions) pursuant to C.G.S. Sec. 9-436;

6. Despite the statutory requirements regarding the appointment of moderators as being residents of Bridgeport, Plaintiff now seeks to have this Court issue a Writ of Mandamus requiring a lottery for moderator’s positions in violation of statutory deadlines, including unknown and unnamed individuals asserted by the Foster campaign to be qualified and certified moderators under the law, and based on an argument that the registrar is improperly following prescribed statutory requirements. These assertions, based on unfounded assertions that the Registrar is refusing the Foster campaign fair consideration of its proposed moderators, attempts to excuse the fact that the Foster campaign never submitted proposed moderators in anticipation of the September 13, 2011 primary prior to August 22, 2011, and that when the campaign was afforded additional time to submit names to the Registrar for the September 27, 2011 primary it only submitted five certified names before the deadline, and apparently the campaign did not have any Bridgeport residents to propose who were certified moderators. A balancing of the equities in this situation is required by the Court, and therefore a Writ of Mandamus should not issue, and the Defendant respectfully requests the opportunity to be heard on this matter.