Legal Briefs Filed In Keeley Supreme Court Case, Arguments Thursday

UPDATE: with full legal briefs. 

Thursday morning lawyers for plaintiffs and defendants will appear before the Connecticut Supreme Court to address Superior Court Judge Barbara Bellis’ order for a third Democratic primary in the City Council’s 133rd District based on what she termed absentee ballot abuses. The complaint was brought by former State Rep. Bob Keeley running with zoning commissioner Anne Pappas-Phillips after party-endorsed Michael DeFilippo and incumbent Jeanette Herron ran first and second respectively. The two top vote producers go on to the general election. The city has appealed the decision joined by other defendants. The Supremes have accepted this case on an expedited basis. The legal parties on Monday filed dozens of pages of legal briefs in advance of Thursday’s session.

Defendants have raised four questions of law that will be considered by Connecticut’s highest court:

Does Connecticut General Statutes prohibit any person other than the elector from arranging for a designee to return an elector’s absentee ballot to the Town Clerk?

Did the trial court err in rejecting twelve absentee ballots that were stamped but not postmarked on the ground that they were not “mailed” pursuant to Connecticut General Statutes?

Did the trial court err in deciding that the administration of the supervised absentee balloting at Northbridge Health Care Center did not meet the minimum standards required by law?

Did the trial court err in applying the burden of proof, and in rejecting votes validly cast by electors, thereby undermining the trial court’s conclusion that there were substantial statutory violations that left the reliability of the election seriously in doubt?

Deputy City Attorney John Bohannon and attorney James Healy, representing various defendants, will address the court Thursday morning. Attorney Peter Finch will also address the court on Keeley’s behalf.

See excerpts below from briefs filed with the court on Monday, starting with Bohannon and Healy jointly. See the full city legal brief here and Keeley’s full brief here.

If allowed to stand, the trial court’s decision will discard the results of the second primary election conducted in Bridgeport’s 133rd city council district, and force the City and the voters to go to the polls for a third time. But this Court’s precedent emphasizes that courts should not disturb election results, absent extraordinary circumstances not present here. An election is “the paradigm of the democratic process designed to ascertain and implement the will of the people.” Caruso v. City of Bridgeport, 285 Conn. 618, 637 (2008) (quoting Bortner v. Town of Woodbridge, 250 Conn. 241, 254 (1999)) (internal citations, quotations, and alterations omitted). Each one is “essentially–and necessarily–a snapshot,” following campaigns by candidates and political parties, culminating in a result that “reflects the will of the people as recorded on that particular day, after that particular campaign, and as expressed by the electors who voted on that day[.]” Bortner, 250 Conn. at 255. Because this “snapshot” is something that “can never be duplicated,” a court ordering a new election “is really ordering a different election[,]” id., which necessarily “result[s] in the[] election day disfranchisement” of those who cast ballots. Caruso, 285 Conn. at 637 (quoting Bortner, 250 Conn. at 256) (internal citations, quotations, and alterations omitted). For those reasons, this Court “counsels strongly that a court should be very cautious before … vacat[ing] the results of an election and … order[ing] a new election.” Id. at 637-38. See also Bortner, 250 Conn. at 254. Judicial review is to be similarly deferential to the will of the people, as expressed in their votes on election day. Absentee ballots carry a presumption of validity, see, e.g., Colten v. City of Haverhill, 564 N.E.2d 987, 990 (Mass. 1991), such that “no voter is to be disfranchised on a doubtful construction, and statutes tending to limit the exercise of the ballot should be liberally construed in [the voter’s] favor.” In re Election of  U.S. Representative for Second Cong. Dist., 231 Conn. 602, 653 (1994) (internal citation and quotation omitted; emphasis added).

In ordering yet another new election, the trial court (Bellis, J.) went too far and erred in four principal ways. First, the trial court read into Section 9-140b a prohibition against any candidate or party worker requesting a police designee to return an absentee ballot, and nullified 13 absentee ballots on that basis. See Argument, section I. Second, the trial court also erroneously nullified 12 stamped absentee ballots–the envelopes for which the plaintiff never even entered into evidence–that had been received from the post office by City mailroom personnel but allegedly did not bear postmarks or cancelation marks. Without any evidence suggesting that the lack of a postmark or cancelation mark meant the envelopes had not been delivered by the post office, the trial court nonetheless determined that the ballots had not been “mailed” within the meaning of Section 9-140b. See Argument, section II. Third, the trial court misconstrued applicable law in suggesting that the City was required to provide notice of the primary and deliver absentee ballot applications to the residents of a nursing home. See Argument, section III. Fourth, the trial court flipped the burden of proof, essentially requiring the defendants to disprove each allegation instead of holding the plaintiff to his obligation to prove violations of law so substantial that they placed the outcome of the election seriously in doubt.

Peter Finch, representing Keeley:

On September 26, 2017, the Plaintiff, Robert Keeley Jr., commenced an action against Defendants Santa Ayala, the Bridgeport Democratic Registrar of Voters; James Mullen, Head Moderator; Thomas Errichetti, Head Moderator of Absentee Ballots; Charles D. Clemons, Bridgeport Town Clerk; and candidate for the 133rd Bridgeport City Council Jeanette Herron, and sought relief arising out of the September 12, 2017 City of Bridgeport democratic primary. (Record page 2) In the Plaintiff’s complaint he alleged, among other things, various issues with respect to the absentee ballot voting. (p. 2) A vote recount was held on September 19, 2017. (R. Page 2) The hearing on the original complaint commenced on October 11, 2017 and continued to October 16, 2017. (pp. 2-3) Based on facts, testimony and argument provided at said hearing, the Defendants agreed with Plaintiff that the results of the September 12, 2017 Democratic Primary for the 133rd City Council District would be vacated, and a special election would be conducted on November 14, 2017. (p. 3) Attorney Maximino Medina was appointed as the court election monitor. (p. 3) On October 20, 2017, the Court approved the parties written joint order and additional clarifying orders were subsequently entered. (pp. 3-4) The trial court, pursuant to the agreement of the parties as approved by court order, retained jurisdiction in the matter throughout the special election. (p. 4) Any disputes regarding the special election were to be brought to the immediate attention of the trial court. (p. 4) The mutual agreement of the parties set forth the procedure for any challenge to the special election. (p. 4) Based on the serious issues that did arise out of the special election, and the trial court’s fact gathering and interpretation of the law with respect to those issues, a third primary election for the 133rd District (p. 19) was ordered on November 30, 2017.

Facts
What amounted to a bag of absentee ballots, went missing after the Bridgeport Democratic Primary election held on September 12, 2017. (pp. 2,3) Furthermore, a single absentee ballot was added to the tally and cast for City Council candidate and Defendant Herron after the recount of said primary election in the 133rd City Council District. (p. 3) This single vote gave Herron the victory over candidate Keeley, 171 votes to 170 votes, respectively. (pp. 2,3) Additionally, after giving some testimony, Bridgeport Town Clerk Clemons invoked his Fifth Amendment rights regarding further questioning about the signing of official absentee ballot affidavits that he signed and swore to the document in front of notary Aida Marquez. Initially Clemons testified that in fact he had never signed those affidavits in front of a Notary Public. (p. 3) Because of the aforementioned absentee ballot debacle, a special election was ordered for November 14, 2017 for Bridgeport’s 133rd City Democratic Council Primary. (p.3) Attorney Maximino Medina, the appointed special election monitor, brought to the attention of the trial court issues that arose during the special election. (pp. 3,4) The first issue brought to the attention of the trial court on November 13, 2017 was the delivery of nine (9) absentee ballots by Officer Nicola at the direction of Bridgeport Democratic Party Chairman Mario Testa and 133rd City Council District Candidate Michael DeFilippo. Prior to meeting Testa and Defilippo, Police Chief AJ Perez (pp. 4, 13) and Officer Nicola met face to face and was ordered by Chief Perez to contact Mario Testa because “Testa and the party needed an officer to pick up absentee ballots.” (p. 13)

Subsequently, approximately one half hour later Officer Nicola was provided a list of absentee ballot pickups from DeFilippo. (p. 13) DeFilippo then went on to text additional names and addresses of absentee ballots to be picked up by Nicola. (p. 13) Nicola did not ask for any identification from any of the individuals that he picked up absentee ballots from on November 13 and 14. (p. 13-14) Nicola delivered nine (9) absentee ballots to the Town Clerk on November 13 and either four (4) or five (5) absentee ballots on November 14th. (p. 14) These 14 or 15 ballots were found to have “no legitimacy” and were disqualified by the trial court in violation of absentee ballot laws in that “illegal partisan party interference came into play.” (p.19) The trial court found that Nicola did not pick up absentee ballots from the actual absentee ballot voters but from unidentified individuals and even picked up an absentee ballot out of a mailbox. (p. 13-14) Another issue brought to the trial court’s attention by Medina was the delivery of fifteen (15) absentee ballots to the mail room at Bridgeport’s City Hall on November 14, 2017. (p. 6) Twelve absentee ballots bore no postmarks or marks of cancellation. (pp. 6) The trial court determined that these twelve ballots were not mailed as per the statutory requirement. (p. 7) In addition, there was evidenced lack of security regarding those twelve absentee ballots. (p. 7).

Furthermore, it was determined by the trial court that the twelve absentee ballots were added to the mail either by mistake or by foul play and all twelve should have been rejected and not have been counted. (p. 7) Another issue brought to the trial court’s attention by Medina was that the registrar of voters, Santa Ayala did not follow the proper procedure with regard to the supervised absentee balloting at Northbridge Health Care Center. (pp. 9-13) During the special election there was no outreach by the registrar’s office giving notice to the residents of Northbridge of the supervised absentee balloting, as there had been on the November 7, 2017 general election. (p. 11) For the November 7 general election, designees from the registrar’s office went door to door in the Northbridge Health Care Center a few days prior to the supervised absentee balloting, but did not do the same for the November 14th special election. (p. 11) No effort was made in the special election to distribute the absentee ballot applications to the Northbridge residents. (p. 12) This stealth supervised balloting was found to be fundamentally unfair and not up to the standards set by law for supervised balloting. (p. 12) The trial court found that the registrar failed to take reasonable steps to deliver the applications and ballots and failed to post reasonable notice of the supervised absentee balloting so as to give proper notice to the Northbridge residents and the potential voters there that the supervised absentee balloting was taking place. (p. 12) In addition, the trial court rejected an absentee ballot that shouldn’t have counted because it was not signed on the Voter Registration Card. (p. 9) Overall, the trial court found that even beyond a reasonable doubt, established by the Plaintiff having met his burden, that there were substantial violations of law and that these violations amounted to serious doubt in the reliability of the result of the special election. (p. 20) There were absentee ballots that should not have been counted highlighted supra, and a third primary election was ordered for the 133rd City Council District of the City of Bridgeport, Connecticut. (p. 19) Here, the voters were due integrity in the electoral process and a fundamentally fair and honest election, but did not get that in the November 12th special election.