Lawyers Parse “A Mistake In The Count Of The Votes Cast”

Legal briefs have been filed with Superior Court Judge Barry Stevens who is weighing a challenge to the September 10 Democratic primary to determine if a mistake in the count of the votes cast had occurred.

Lawyers Prerna Rao and Jonathan Shapiro on behalf of the plaintiffs assert that’s the case while Deputy City Attorney John Bohannan and John Droney declare on behalf of the defendants that “This is about the complete lack of evidence to prove the sole issue before this Court–a “mistake in the count of the votes cast” under Section 9-329a(a)(2).”

Some of this depends on how broadly the judge interprets a mistake in the count of the votes cast. Does he need 270 reasons? That’s the certified victory for Mayor Joe Ganim over State Senator Marilyn Moore whose supporters brought the lawsuit.

Plaintiffs are asking for a new Democratic primary for all candidates on the September 10 ballot as well as a delay in the Nov. 5 general election.

Plaintiffs’ brief here.

Defendants’ brief here.

Excerpt of plaintiffs’ brief:

PRELIMINARY STATEMENT

“As long as I count the Votes, what are you going to do about it?” This is a poignant quote from a cartoon depiction of Boss Tweed from 1871, which also depicted a ballot box on which the words “In Counting There is Strength” were inscribed. 2 Former Nicaraguan dictator Anastasio Somoza expressed a similar sentiment when addressing an opponent who accused him of rigging an election, stating: “Indeed, you won the elections, but I won the count.” 3 Here and now in Connecticut, it appears that Mayor Ganim and other Line A candidates lost the election at the polls but won the count with absentee ballots.

IV. CONCLUSION

For all these reasons, Plaintiffs respectfully request that the Court set aside the results of the Democratic Primary; order a new Special Primary Election for all candidates, including but not limited to the mayoral primary; order supervision of locations with a large percentage of voters voting by absentee ballot; order that the Democratic Primary absentee voting tabulators be unlocked, any ballot boxes, if any, be opened for inspection, and any application materials and/or affidavits relevant to absentee voting be made available for inspection; order that applicable statutory deadlines be stayed, including deadlines affecting the general election, be stayed in order to hold a new Special Primary Election; and order all additional relief in law or equity as the court may find just and equitable.

Excerpt from defendants:

Preliminary Statement

This is an applications case masquerading as a vote-counting case. Lost in the bluster and grandstanding within the plaintiffs’ post-trial brief is that there is no evidence to prove a “mistake in the count of the votes cast” in the primary. See Conn. Gen. Stat. § 9-329a(a)(2). That is the only issue that is before this Court. And the inquiry under subsection (a)(2) is limited solely to whether there was any error in the tabulation of the votes. See Argument, section I. That subsection does not deal with applications, or compliance with any other statutes, but solely with the count of actual votes. The plaintiffs’ overly expansive view of subsection (a)(2) would transform a “mistake in the count of the votes” into any conceivable misapplication or misapprehension of any of the numerous election statutes on the books. Such a bizarre construction would conflict with the plain language of the statute, violate cardinal rules of statutory construction, and contradict every single judicial decision that has ever analyzed the operative  language. See section I.

Although the plaintiffs’ trial presentation and briefing has quixotically tried to challenge applications, not votes, and speculated about alleged irregularities pertaining to the casting or collection of any absentee ballots, Section 9-329a(a)(2) does not allow the non-aggrieved plaintiffs to do so. See section II. Although the Court let the plaintiffs to put on their case, that does not mean the evidence proved any mistake in the count of the votes. To the contrary, the plaintiffs’ repeated references to applications, absent any further foundation or evidence about the counting of the votes, amounts to nothing more than untethered speculation and conjecture. Challenges to the acceptance of a ballot or compliance with the absentee ballot laws–the real crux of the plaintiffs’ case–can only be litigated by an aggrieved elector or candidate challenging a ruling of an election official under subsection (a)(1), or by an aggrieved candidate alleging violations of one of the absentee ballot laws pursuant to subsection (a)(3). As this Court has ruled, the plaintiffs are not “aggrieved” within the meaning of Section 9-329a, and thus lack standing to litigate any such allegations. Because the plaintiffs’ claims are expressly limited by the statute, and there is no evidence that there was any error in tabulating the votes, the plaintiffs’ case fails.

Moreover, even if there had been any mistake in the count of the votes, the evidence in this case does not come anywhere close to establishing any substantial mistake, much less one that puts the result of the primary seriously in doubt, which our law requires before any new election could be ordered. See Conn. Gen. Stat. § 9-329a(c); Argument, section III. The voters in Bridgeport decided this primary by a margin of 270 votes.1 Since the plaintiffs’ evidence pertaining to individual votes cannot approach the significant margin that decided this election, the result of the primary cannot be disturbed.
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1 This is the exact same margin as in Caruso v. City of Bridgeport, 285 Conn. 618, 622 (2008), where a request for a new election was denied.

Conclusion

Contrary to the plaintiffs’ ad hominem and irrelevant rhetoric, this case is not about Boss Tweed or a brutal Nicaraguan dictator. See Pl. Br. at 1. This is about the complete lack of evidence to prove the sole issue before this Court–a “mistake in the count of the votes cast” under Section 9-329a(a)(2). Principles of statutory interpretation and controlling case law instruct that this inquiry is limited to whether there was any error in tallying the votes. The plaintiffs’ attempt to litigate whether election officials properly accepted applications or ballots entails an entirely different inquiry, which requires aggrievement under subsections (a)(1) or (a)(3). If any nonaggrieved voter can use (a)(2) as a back-door trick to litigate rulings of election officials, then the statutory limits are entirely meaningless, and seriatim election contests will dominate our courthouses every fall. Even beyond the defects in the plaintiffs’ claims and evidence, because nothing in this case approaches any actual mistake in the count of any actual votes, much less the sheer number of votes that would be necessary to call into question the result of a 270-vote primary, judgment should enter for the defendants.