WITH REQUEST FOR EN BANC HEARING
by Sharon Rondeau
(Jul. 23, 2020) — The plaintiffs in a lawsuit challenging the constitutionality of newly-enacted Connecticut absentee voting outside of the state constitution’s permissible reasons for not appearing in-person have requested an en banc hearing with the state’s highest court.
As The Post & Email reported Monday morning, Connecticut Supreme Court Chief Justice Richard A. Robinson conducted a 2:00 PM EDT virtual hearing that afternoon with plaintiffs’ counsel, Proloy K. Das of Murtha Cullina, representing four Connecticut Republican primary congressional candidates, and Attorney General William Tong, counsel for the defendant, Secretary of the State Denise Merrill (D).
Merrill, who is serving her third term as Secretary of the State, has long advocated expanding access to voting in Connecticut, including “early voting,” which was defeated in a constitutional-amendment vote by the citizens in 2014.
The case, Mary Fay, et al, v. Secretary of the State Denise Merrill, claims that Merrill’s interpretation of Connecticut Gov. Ned Lamont‘s (D) Executive Order 7QQ to open absentee voting to all registered voters for the state’s August 11 primaries defies the state constitution’s six permissible reasons for not casting a vote in person.
Prior to Monday’s hearing, Merrill’s office began mailing applications for absentee ballots to registered voters. The application forms state that the first reason a voter can invoke the need for an absentee ballot is “COVID-19.” To the right of that appears in bold print, “All voters are able to check this box, pursuant to Executive Order 7QQ.”
The executive order, issued May 20, stated that if an approved COVID-19 vaccine were not “widely available” by the time Connecticut’s primaries took place, voters could cast their ballots in absentia.
Article Sixth, Section 5 of the Connecticut constitution reads, as amended in 1986:
In all elections of officers of the state, or members of the general assembly, the votes of the electors shall be by ballot, either written or printed, except that voting machines or other mechanical devices for voting may be used in all elections in the state, under such regulations as may be prescribed by law. No voting machine or device used at any state or local election shall be equipped with a straight ticket device. The right of secret voting shall be preserved.
“Robinson’s decision means the ballots will be mailed as scheduled and there will be no more hearings or filings in the case,” the Connecticut Mirror reported Monday.
The full opinion Robinson said would be forthcoming does not appear on the case docket. However, Das enumerated Robinson’s findings in his Motion for Reconsideration En Banc made to the Connecticut Supreme Court (pp. 2-3).
A Memorandum of Decision issued Wednesday by Superior Court Judge Thomas Moukawsher opined, contrary to Merrill’s argument, that his court had jurisdiction to consider the case and that the plaintiffs had “standing” to bring it. He additionally wrote that “COVID-19 is the scourge of the earth”; that utilizing an absentee “excuse” such as “cold or flu” would not constitute an “illness” as required under the state constitution to vote absentee; and that Lamont did not act outside of his authority granted by General Statutes §28-9(b)(1).”
Moukawsher was formerly counsel to the state Democratic Party and Congressman John Larson (D-CT1). In an expedited hearing, he ultimately ruled in Merrill’s favor.
In his Motion for Reconsideration, Das argued, in part, that “…it was error for the defendant to follow Executive Order No. 7QQ rather than General Statutes § 9-135. When a governor acts beyond his constitutional authority, that act becomes a nullity. The Connecticut Supreme Court has twice addressed this issue. In Caldwell v. Meskill, 164 Conn. 299, 315 (1973), the Supreme Court held that where the Governor had attempted to veto a portion of a bill in a manner that was beyond his constitutional authority,his actions were void (not just voidable) and the Secretary of the State had the duty to disregard them and certify the entire bill as law…”
On Wednesday evening, The Post & Email spoke with Linda Szynkowicz, founder of the Connecticut-based, non-partisan FightVoterFraud.org, which is funding Fay and a second lawsuit against Merrill. In regard to Das’s request for an en banc rehearing, Szynkowicz told us, “We’re hopeful that the Connecticut Supreme Court will uphold our Connecticut constitution.”
A previous interview with Szynkowicz is here. Contrary to the impression which local media reports might have provided the public, Szynkowicz said, the Connecticut Republican Party plays no role in either case.
Dominic Rapini, Vice President of Marketing and Development for FightVoterFraud, said, “We launched this suit because the State of Connecticut is unprepared for mail in voting. We see the evidence in the 100K undeliverable ballot requests forms and the 200K inactive voters SOTS Denise Merrill acknowledged. A properly maintained list of voters is the fundamental job of the SOTS. This is just one example where Denise Merrill has refused to do her job. CT voters need to understand this fact and perhaps they will best understand why the entire administration is fighting so hard to defy the Constitution. The next question we ask ourselves is what other agenda is driving the administration’s behavior?”
Rapini’s claim as to “undeliverable” applications is supported by local media reports. “The primary will serve as an important test as officials are expected to again expand absentee ballot access for the presidential election in November,” The Hartford Courant reported on July 13.
On July 14, Connecticut Senate Minority Leader Len Fasano, who is not seeking re-election in November, stated in a press release, referring to a July 13 press conference between Merrill and U.S. Senator from Connecticut Richard Blumenthal:
I have no problem with expanding absentee voting excuses to include the COVID-19 pandemic, and I know many Republicans agree with me that this is a prudent step that we hope to accomplish in a way that respects the state constitution. But we also need to do everything we can as a state to eliminate the potential for fraud, not deny its existence. Mailing ballot applications to every address on an outdated voter list, instead of allowing voters to seek an absentee ballot through already established methods, leaves us vulnerable to fraud and should be addressed head on, not dismissed as a non-issue.
Sen. Blumenthal, who never misses an opportunity for self-promotion even at the risk of being wrong, is denying legitimate concerns as ‘myths and hobgoblins’ to play politics. Have Senator Blumenthal and Secretary Merrill conveniently forgotten about cases like the allegations against Stamford Democrat Party Chief John Mallozzi, Former State Representative Ayala, and what a Hearst CT Media investigation found in Bridgeport less than a year ago? It was just last year that a mayoral primary occurred in Bridgeport in which residents said they felt pressured into voting for a certain candidate on their absentee ballots, dozens of errors in city records were found, ballots were received from people not eligible to vote, and at least one person may have voted twice – by absentee and in person according the Hearst investigation. We need to make sure these problems are not repeated. Secretary Merrill and Senator Blumenthal’s statements that there is no fraud in absentee balloting refuses to accept reality in order to score political points. Sadly, their sworn obligation to serve the people of this state is taking a back seat.
The Connecticut legislature has convened a special session to debate absentee voting, insulin pricing and police reform. Its normal session, which was to run from February 5 to May 6, was canceled in March due to COVID-19 concerns. “The [Connecticut] House of Representatives is expected to vote Friday, and the Senate on Tuesday, on a bill that aims to make COVID-19 an eligible excuse for requesting an absentee ballot,” the AP reported Tuesday.
As if press time, the docket shows no scheduled hearing.
Update, 6:17 p.m. EDT: Atty. Michael K. Skold of the Connecticut Attorney General’s office filed a ten-page brief with the state Supreme Court arguing that Das’s Motion for a new hearing should be denied “because hasty review of the issues in this case is decidedly not in the public interest at this late stage of the election cycle, and because permitting such review will create substantial injustice rather than avoid it.”
However, Robinson granted Das’s Application for Certification of Immediate Expedited Appeal, established a schedule of briefing deadlines and set a hearing for Thursday, August 6, 2020 at 9:30 a.m.