Opinion
No. CV 04 4002077 S
September 13, 2004
MEMORANDUM OF DECISION
This is an action requesting the injunctive relief of ordering the defendant Secretary of State to include the plaintiff Peter Gasparino's name as the endorsed candidate of the Democratic Party for the 147th Assembly district in the November 2, 2004, election. There is no question but that procedural irregularities occurred in the rather complex nomination process. The issue to be resolved, stated very generally, is whether the state's, and the public's, interest in strict compliance is outweighed by the party's, and perhaps the public's, constitutionally implicated interests.
The facts are relatively simple. Ably and responsibly, the parties have agreed on the facts as stated in the complaint, with an addition which will be mentioned. The 147th Assembly district is a multi-town district comprising portions of Stamford and New Canaan. The Democratic Party held its nominating convention to choose its candidate on the last day allowed by statute for such conventions to be held, on May 25, 2004. The convention unanimously chose one John Lasko. Lasko did not file a certificate of endorsement with the Secretary of State, as required by statute, because he was not sure that he would be able to be a candidate because of the Hatch Act. He subsequently received advice that he would be in violation of the act, so he informed Democratic leaders that he would not be a candidate. He did not file a letter of withdrawal letter with the Secretary of State, which act would have been required had he filed a certificate of endorsement.
After conferring with state party officials, the local leadership convened a second convention to fill the "vacancy." On June 7, 2004, the convention unanimously endorsed the plaintiff Peter Gasparino. This was approximately two weeks after the expiration of time allowed by statute in which to hold a nominating convention. Gasparino then filed a certificate of endorsement with the Secretary of State on June 8, 2004. The Secretary of State rejected the certificate, however, on the grounds that the nominating convention was untimely pursuant to § 9-383. Additionally, the Secretary of State indicated that because no certificate of endorsement was filed following the timely convention, the party was deemed to have made no endorsement. See § 9-388 of the General Statutes. Finally, the reasoning concluded that because there was no official vacancy, but rather a non-endorsement, the replacement procedures were irrelevant.
Legally, there probably wasn't a true "vacancy" because the candidacy had never been perfected by the filing of the certificate of endorsement and the "withdrawal" was not accomplished by letter to the Secretary of State. See, e.g., §§ 9-388, 9-428 and 9-430 of the General Statutes.
See § 9-383 of the General Statutes.
June 8 was the last day that a certificate of endorsement would have been timely filed had the first convention effectively made an endorsement.
The positions of the parties are well articulated and responsibly advanced. Gasparino argues that political parties, and presumably their nominees, have constitutional rights of free speech and association which are not to be lightly contradicted by state regulatory statutes. See, e.g., California Democratic Party v. Jones, 530 U.S. 567 (2000) (state may not constitutionally require "open" primaries in light of parties' rights to choose their own candidates; how candidates are chosen is a matter to be decided by the parties); Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) (parties enjoy the constitutionally protected rights of freedom of association in areas of whom to endorse and process of endorsement); Nielsen v. Kezer, 232 Conn. 65 (1995) (parties' requirements for endorsement are appropriately left to the discretion of the parties, so long as the procedures are not clearly contrary to law). Gasparino argues that his party's rules can be read in such a way that according to those rules his candidacy was properly endorsed, and that the state ought not interfere with the party's internal processes, at least where no issue of fraud or other such impropriety appears. See Dombrowski v. Messier, 164 Conn. 204 (1972); Gargano v. Downey, 30 Conn.Sup. 254 (1973).
The Secretary of State adopts a more precise point of view. She emphasizes that there were several deviations from statutorily mandated procedures, as reviewed above, and stresses that no effective candidacy was created. She emphasizes that her interpretation of the Democratic Party rules leads to the conclusion that the rules were not followed, pointing to several relevant instances in which the rules themselves incorporate by reference state statutes. Section 9-387 of the General Statutes, which provides that the party can prescribe the manner of resolving disputes as to endorsements, it is argued, has nothing to do with filing requirements at issue in this case.
See Carney v. Pitch, 30 Conn.Sup. 34, 35 (1972).
The secretary further argues that there has been no constitutional infirmity alleged, and that even if there is a constitutional right implicated, the state nonetheless may exercise "substantial regulation" to ensure orderly, fair and honest elections. See, e.g., Storer v. Brown, 415 U.S. 724, 730 (1974). The secretary concludes by listing a number of dangers inherent in allowing endorsements in this posture to be effective: because a variety of deadlines are triggered by the endorsement, especially various abilities to compel primaries, the deadlines have to be strictly construed in order to ensure orderly electoral practices.
There is a further consideration not specifically urged by parties: that of the voters. In Flanagan v. Hynes, 75 Conn. 584 (1903), an analogous though by no means directly controlling situation arose. There were two candidates for the position of Democratic registrar of voters. Because of competing applications of apparently amended election laws, both candidates claimed to be the endorsed candidate, and in an election, both were designated "Democratic." The petitioner's ballots were rejected because, in the opinion of several of the moderators, they were improperly endorsed as "Democratic." Had the ballots been counted, the petitioner would have won. The court held that he should be declared the victor, because there was no claim of fraud or other such impropriety, and otherwise the people who voted for him would be disenfranchised:
Such [electoral] laws have for their ultimate purpose the registration of the popular will upon the questions submitted for decision. Until quite recently their provisions were comparatively few and simple, and for the most part were concerned with the machinery and methods for the convenient and orderly expression of the will of the voters as they should choose to express it, and safeguarding the result as expressed. Of late, legislation has sought not only to register and safeguard the will of the voters as expressed, but, as far as possible, to secure an expression which should represent the true will of the voters unaffected by corruption, intimidation, undue influence, or deception. Such an attempt necessarily involves many commandments whose "thou shalts" and "thou shalt nots" multiply into a more or less complicated system. These commandments to be effective involve penalties which oftentimes can only be enforced by a rejection of ballots. The rejection of ballots ordinarily signifies the disfranchisement of the voters whose ballots they are. Circumstances may justify this disfranchisement as a necessary incident of an attempt to obtain an honest and true expression of the popular will. The danger of such a system, however, is that the disfranchisement will extend to the honest voter honestly attempting to exert his influence upon the election result. When such a result is accomplished, a grievous wrong is done to the citizen whose right is taken away; when it is done to any great extent, the system is put in serious jeopardy of being so used as to defeat its real ends. Statutes are to be interpreted and applied with a regard for the purposes which they are intended to accomplish and the evils they are intended to avert. There is no kind of legislation under a popular government to which this principle should be more consistently applied than that which seeks to regulate the exercise of the right of suffrage. If there is to be disfranchisement, it should be because the legislature has seen fit to require it in the interest of an honest suffrage, and has expressed that requirement in unmistakable language. It should not result from doubtful judicial construction, from a too strict regard for the mere letter of the statutes, or from a resort to nice or technical refinements in either interpretation or application. State v. Bossa, 69 Conn. 335.
Flanagan v. Hynes, 75 Conn. 584, 587-88 (1903).
Flanagan's vintage is venerable but its veracity vibrant. In this case, the Secretary is correct in that the process was not correctly applied by the Democratic Party in the 147th District. Lasko in hindsight should have researched the problem in advance if he knew he was likely to be nominated; as it was, he should have timely submitted a certificate of endorsement and then withdrawn his certificate. Had that been accomplished, none of the present difficulties would be presented.
As it is, however, the actual certificate of endorsement was filed within the time allowed for the filing after the first convention; the problem at a minimum was that there was an intervening convention, and potential problems were created. The secretary is correct in her assertion that the rules which were violated were rules which neutrally regulate the timing of all conventions, endorsements and primaries in order to ensure orderly elections, and do not regulate the content or association rights of the party itself or have any impact on who the choice of the party might be. Cf. Jones, supra; Tashjian, supra; Eu v. San Francisco Democratic Committee, 489 U.S. 214 (1989). The statutory scheme itself surely survives any constitutional challenge.
On the other hand, the factual presentation is one of inadvertence rather than fraud or even deliberate manipulation. There has been no suggestion of anything other than honest mistake. If the petitioner remains off the ballot then there will be no Democratic candidate presented. The facts suggest that the Democratic party made its choice, albeit somewhat belatedly, and at least on the record presented there is no indication that any Democrat is suggesting that the wrong candidate was endorsed. The certificate of endorsement was filed timely, and any putative challenger would likely have been put on notice. Although the timing is thrown off track by the late endorsement by the second convention, there is nothing in the record to suggest that another candidate was interested in running or in invoking the right to primary. In sum, although the concerns advanced by the secretary are legitimate and compelling, they are speculative on the record here. It is also undoubtedly true as a general background consideration that the Democratic party has constitutional rights implicated by the facts of this case; and the statutes as applied would have the effect of removing from the ballot the choice of the party.
At oral argument, in response to one of my questions, it was stated that Gasparino perhaps could run as a write-in candidate. This is far different from running on the ballot as an endorsed candidate. Not only are the practical hurdles significant, but the party would be prevented from presenting its candidate, and its principles, to the electorate.
On balance, I find in the narrow circumstances of this case that the constitutional implications and the good faith efforts to comply outweigh the interest of the state in strict compliance with the electoral scheme. Accordingly, I hold that the temporary injunction ought to be granted. There is no adequate legal remedy, irreparable harm would occur in the absence of immediate injunctive relief, the plaintiff will likely prevail in my opinion, and, although there are other equitable considerations, they do not outweigh the enfranchisement issue. See, e.g., Waterbury Teachers Ass'n. v. Freedom of Information Commission, 230 Conn. 441, 446 (1994).
I am concerned about laches, in that this action could have been brought approximately two months before it was brought. In those circumstances, compliance would have been easier and perhaps more time to deliberate could have been afforded the court. There is some hardship in the respondent's need hastily to prepare for the election.
I find, then, that in the hopefully unusual and entirely innocent and good faith circumstances of this case, equitable principles enunciated in Flanagan compel the result that Gasparino's name be added to the ballot in the 147th District as the endorsed Democratic candidate. Otherwise, the exercise of the franchise would be limited by what in fact, though perhaps not in theory, are insubstantial deviations from the statutory scheme. So ordered.
It would surely appear that the secretary's efforts to compel compliance, both in its June 15 letter and in defense of this action, are entirely appropriate and reasonable. Vigilance is to be commended.
Beach, J.