Fay v. Merrill

338 Conn. 1

256 A.3d 622

Mary FAY et al.

v.Denise W. MERRILL, Secretary of the State

SC 20486

Supreme Court of Connecticut.

Argued August 6, 2020

Officially released February 11, 2021^*

Proloy K. Das, Hartford, with whom were Matthew A. Ciarleglio and, on the brief, Rachel Snow Kindseth, New Haven, for the appellants (plaintiffs).

Michael K. Skold, assistant attorney general, with whom were Clare Kindall, solicitor general, and, on the brief, William Tong, attorney general, and Maura Murphy Osborne and Alayna M. Stone, assistant attorneys general, for the appellee (defendant).

William M. Bloss filed a brief for the Connecticut Democratic Party et al. as amici curiae.

Robinson, C.J., and Mullins, Kahn, Ecker and Moll, Js.

ROBINSON, C.J.

The principal issue in this public interest appeal is whether Governor Ned Lamont's Executive Order No. 7QQ,¹ which was later ratified by the legislature; see Public Acts, Spec. Sess., July, 2020, No. 20-3, § 16 (Spec. Sess. P.A. 20-3); and which modified General Statutes (Rev. to 2019) § 9-135² by adding "COVID-19" as a permissible reason for absentee voting, violates article sixth, § 7, of the Connecticut constitution.³ The four plaintiffs, who were candidates for the Republican Party's nomination for United States Congress for Connecticut's First and Second Congressional Districts,⁴ appealed directly pursuant to General Statutes § 52-265a⁵ from the judgment of the trial court in favor of the defendant, Denise W. Merrill, Secretary of the State, in this action seeking declaratory and injunctive relief with respect to the defendant's change of the absentee ballot application for the August 11, 2020 primary election (August primary) to add coronavirus disease 2019 (COVID-19) as a new reason for requesting an absentee ballot pursuant to Executive Order No. 7QQ. Following deliberations after an expedited oral argument held on August 6, 2020, we ruled from the bench that (1) the plaintiffs were aggrieved and had standing to bring the declaratory judgment action, (2) we could not consider, for the first time on appeal, the defendant's special defense of laches as an alternative ground for affirming the judgment of the trial court, and (3) Executive Order No. 7QQ does not violate article sixth, § 7, because the phrase "unable to appear at the polling place on the day of election because of ... sickness," as used in that constitutional provision, is not limited to an illness suffered by the individual voter that renders that person physically unable to travel to the polling place. Accordingly, we affirmed the judgment of the trial court and indicated that a written opinion would follow. This is that opinion.

The pleadings and the record reveal the following undisputed facts and procedural history. On March 10, 2020, Governor Lamont declared a public health and civil preparedness emergency "throughout the [s]tate ... as a result of the [COVID-19] outbreak in the United States and Connecticut ...." COVID-19 is a "respiratory disease that spreads easily from person to person and may result in serious illness or death," and "public health experts have indicated that persons infected with COVID-19 may not show symptoms, and transmission or ‘shedding’ of the coronavirus that causes COVID-19 may be most virulent before a person shows any symptoms ...." The United States Centers for Disease Control and Prevention have "recommended that people with mild symptoms consistent with COVID-19 be assumed to be infected with the disease," and "public health experts have recommended that, to prevent transmission of COVID-19, and in light of the risk of asymptomatic transmission and a significant rate of false negative tests, everyone should assume they can be carrying COVID-19 even when [they] have received a negative test result or do not have symptoms ...."

Given the greater danger of COVID-19 to "elderly registered voters [who] consistently demonstrate the highest rate of voter turnout" and the "significant portion of poll workers and volunteers [who] are [sixty years old] or older," Governor Lamont determined that "providing an alternative to [in person] voting could be particularly helpful in reducing the risk of transmission during voting among this population ...." Accordingly, on May 20, 2020, he issued Executive Order No. 7QQ pursuant to his powers under General Statutes § 28-9 (b) (1)⁶ to provide that alternative to in person voting for the August primary.

Specifically, Executive Order No. 7QQ, inter alia, "modified [ § 9-135 ] to provide that, in addition to the enumerated eligibility criteria set forth in subsection (a) of that statute, an eligible elector may vote by absentee ballot for the [August primary] if he or she is unable to appear at his or her polling place during the hours of voting because of the sickness of COVID-19. For purposes of this modification, a person shall be permitted to lawfully state he or she is unable to appear at a polling place because of COVID-19 if, at the time he or she applies for or casts an absentee ballot for the [August primary ], there is no federally approved and widely available vaccine for prevention of COVID-19 . It shall not constitute a misrepresentation under subsection (b) of [§] 9-135 ... for any person to communicate the provisions of this modification to any elector or prospective absentee ballot applicant." (Emphasis added.)

In late June, 2020, the defendant, acting pursuant to her general supervisory authority over elections in Connecticut, issued the application for absentee ballots for the August primary (application). The application added "COVID-19" as a new, seventh reason for requesting an absentee ballot; it is listed first among the reasons for "expect[ing] to be unable to appear at the polling place during the hours of voting,"⁷ with an adjacent notation in bold print that "[a]ll voters are able to check this box, pursuant to Executive Order [No.] 7QQ."⁸ (Emphasis omitted.)

As previously stipulated by the parties, "[t]he defendant anticipate[d] a significant increase in the use of absentee ballots this year and, working with a third-party mailing vendor (vendor), ha[d] mailed 1,274,414 applications to active registered voters between June 26 and July 1, 2020.⁹ As of July 15, 2020, more than 100,000 voters ha[d] completed and returned their applications to local election officials for processing; 107,743 applications ha[d] been processed as of that date. The information contained in each application [was] then downloaded by the defendant's office onto a computer file, which was provided to the vendor approximately every other day beginning on July 17, 2020. The vendor was scheduled to mail the appropriate absentee ballots to the approved voters once those ballots were finalized after July 21, 2020." (Footnote in original.) Fay v. Merrill , 336 Conn. 432, 439, 246 A.3d 970, 2020 WL 4462677 (2020).

On July 1, 2020, the plaintiffs filed a petition and complaint with a single Supreme Court justice pursuant to General Statutes §§ 9-323, 52-29 and 52-471, claiming that the application was a "ruling of an election official" that violated article sixth, § 7, as well as a violation of Executive Order No. 7QQ and § 9-135. After a hearing held on July 20, 2020, Chief Justice Robinson granted the defendant's motion to dismiss that proceeding for lack of subject matter jurisdiction, concluding that § 9-323 does not apply to primaries, including those for federal congressional office. See Fay v. Merrill , supra, 336 Conn. 432, 246 A.3d 970.

That same day, the plaintiffs brought the present action in the trial court pursuant to General Statutes §§ 9-329a, 52-29 and 52-471. The plaintiffs first claimed that Executive Order No. 7QQ violates article sixth, § 7, of the Connecticut constitution because (1) the constitutional provision "expressly commits the prescription of absentee voting procedure to the General Assembly—not to the governor," and (2) the executive order "broadens the use of absentee ballots, in contravention of the strict reasons for which absentee ballots may be used in Connecticut elections as set forth in article sixth, § 7."¹⁰ Second, the plaintiffs claimed that the defendant's "decision to expand absentee voting based on Executive Order No. 7QQ, rather than [to] limit absentee voting in accordance with the restrictions set forth by the legislature in ... § 9-135, was a ruling of an election official" that violated the Connecticut constitution because (1) the defendant "lacks the constitutional authority to alter the parameters of who is entitled to vote by absentee ballot," (2) "[t]he reasons that electors may vote by absentee ballot are strictly limited by the Connecticut constitution and can ... be expanded [only] by the electorate," and (3) the application "expands the use of absentee ballots for reasons beyond [the six] specifically prescribed in article sixth, § 7, of the state constitution."¹¹ Claiming to be aggrieved as candidates and electors by these various violations, the plaintiffs sought a judgment declaring that the application is unconstitutional and based on an erroneous interpretation of Executive Order No. 7QQ and § 9-135. They also sought an ex parte prohibitory injunction precluding the defendant from mailing or distributing copies of the application to any Connecticut voters and an ex parte mandatory injunction directing her to recall any copies already mailed or distributed to any Connecticut voters.

On July 22, 2020, after a hearing, the trial court issued a memorandum of decision concluding that the defendant properly issued the application pursuant to Executive Order No. 7QQ, insofar as the executive order did not violate article sixth, § 7, because the phrase "because of sickness," as used therein, encompassed "a sickness of a nearly unique character," namely, the public health emergency presented by the COVID-19 pandemic. The court described Executive Order No. 7QQ as "far from saying [that] the law...