Stakeholders Await A Barry Stressful Decision: Judge Stevens To Hear Oral Arguments In Primary Challenge

If you’re biting nails waiting for Superior Court Judge Barry Stevens to issue a decision to the court complaint challenging the results of the September 10 Democratic primary, start gnawing on cuticles.

The judge has ordered oral arguments for Wednesday afternoon which means a decision will come less than two weeks from the Nov. 5 general election. At the very least, plaintiffs can’t argue they were not given their day in court.

Attorneys representing the city assert in their final court briefing that “As this Court made clear, the sole issue in this case is “whether or not there was a mistake in the count” of the votes. See Tr. 10/11 at 54. Faced with a heavy burden and a significant vote margin, the plaintiffs simply did not offer proof, beyond the realm of speculation, of any such mistake.”

See full brief here.

Judge Stevens Monday morning alerted both sides in the court challenge that he wants to hear oral arguments Wednesday afternoon.

Deputy City Attorney and outside counsel John Droney write that the evidence presented to Judge Stevens is “nowhere close to establishing that the result of a 270-vote election is seriously in doubt.”

Plaintiffs maintain systematic absentee ballot abuses altered the outcome of the primary. In the vote for mayor challenger Marilyn Moore won at the polls but lost to incumbent Joe Ganim as a result of absentee ballot voters. Plaintiffs want the judge to order a new primary for all Democratic candidates who appeared on the ballot none of whom are party to the lawsuit. Stakeholders are awaiting the judge’s decision with the general election just two weeks away and candidates spending thousands of campaign dollars to the cause of turning out a vote.

What happens if the judge sides with the plaintiffs in a case that has dragged out for weeks? There’s only one word for it: chaos. The city would seek an expedited appeal with the Connecticut Supreme Court while precariously close to the November 5 general election vote. Hundreds of electors have already cast votes by absentee ballot, mail pieces are hitting boxes, the infrastructure to organize a citywide election is in place, Republican and Working Families Party candidates bemuse why are we being roped into something we have no quarrel in?

If the Supremes hold for the trial court favorable to the plaintiffs the general election could theoretically be put off until January 2020 while a new primary is scheduled in advance.

Conclusion from the city’s brief:

Although the plaintiffs remain blind to the limits of Section 9-329a(a)(2), this case is about whether there is a “mistake in the count of the votes cast” in the primary. Without aggrievement, the plaintiffs cannot challenge an election official’s ruling to accept an absentee ballot that was perhaps carried by an improper designee or completed by a voter who should have come to the polls instead. That constrained review under subsection (a)(2) is compelled by both principles of statutory construction, which require the subsection to mean something different than (a)(1) and (a)(3), as well as the unanimous line of decisions that similarly apply “mistake in the count of the  votes” to the tabulation of votes, not statutory compliance by individual voters. Moreover, even beyond the plaintiffs’ lack of standing, their “evidence” was largely focused on facial applications and not on actual votes. Although this Court gave the plaintiffs ample opportunity to put on their case, the reality is that alleged omissions or typos or duplicates in applications cannot prove any mistake in the count of the votes. Paper evidence in and of itself will not disprove that “an individual who received a ballot was entitled to receive a ballot [and was] eligible [to cast it in] this particular primary.” See Tr. 10/11 at 54. Given the exceedingly small number of actual votes that plaintiffs even placed at issue–much less proved to be improper–this case is nowhere close to establishing that the result of a 270-vote election is seriously in doubt. Caruso squarely rejects the plaintiffs’ attempt to fill the evidentiary chasm between their speculative “systematic” hypotheses and 270 actual votes. See 285 Conn. at 652-53. Judgment should enter for the defendants.