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Feehan v. Marcone

Supreme Court of Connecticut

January 30, 2019

JIM FEEHAN
v.
RICK MARCONE ET AL.

          Argued December 21, 2018

         Procedural History

         Action for a declaratory judgment ordering that a new election be held for the office of state representative for the 120th assembly district, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where Philip L. Young III intervened as a defendant; thereafter, the court, Bellis, J., granted the plaintiff's motion for an emergency temporary restraining order and granted in part the intervening defendant's motion to dismiss, and the plaintiff, the defendant Denise Merrill et al., and the intervening defendant, upon certification by the Chief Justice pursuant to General Statutes § 52-265a that a matter of substantial public interest was at issue, filed separate appeals to this court. Affirmed in part; reversed in part; judgment directed.

          Proloy K. Das, with whom were Matthew A. Ciarleg-lio and Kevin W. Munn, for the appellant in Docket No. SC 20216 and the appellee in Docket Nos. SC 20217 and S.C. 20218 (plaintiff).

          Michael K. Skold, assistant attorney general, with whom, on the brief, was George Jepsen, former attorney general, for the appellants in Docket No. SC 20217 and the appellees in Docket Nos. SC 20216 and S.C. 20218 (defendant Denise W. Merrill et al.).

          William M. Bloss, with whom were Alinor C. Sterling and Emily B. Rock, for the appellant in Docket No. SC 20218 and the appellee in Docket Nos. SC 20216 and S.C. 20217 (intervening defendant Philip L. Young III).

          Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

          OPINION

          ROBINSON, C. J.

         These expedited public interest appeals arise from an apparent mix-up at the Bunnell High School polling place in the town of Stratford (town), where it is alleged that approximately seventy-six voters who should have received ballots for the 120th assembly district election were instead given ballots for the 122nd assembly district, rendering those voters unable to vote for their assembly district's state representative. The plaintiff, Jim Feehan, who is the Republican Party's candidate for state representative in the 120th assembly district, brought this action seeking declaratory relief, a new election, and an injunction prohibiting the defendants, Secretary of the State Denise W. Merrill, Treasurer Denise L. Nappier, and Comptroller Kevin Lembo (state defendants), from declaring the intervening defendant, Phillip L. Young III, the Democratic Party's candidate, as the winner of that election.[1] After the Chief Justice granted the parties' separate applications for permission to appeal pursuant to General Statutes § 52-265a, the plaintiff appealed from the judgment of the trial court dismissing the complaint in part as barred by the elections clause set forth in article third, § 7, of the Connecticut constitution, [2] and the defendants appealed from the grant of the plaintiff's application for a temporary injunction.[3]We conclude that the elections clause gives our state House of Representatives exclusive jurisdiction over this election contest, and we disagree with the plaintiff's claims that (1) General Statutes § 9-328, [4] which governs contested elections for ‘‘municipal office, '' confers jurisdiction on the courts over this case, and (2) under the supremacy clause of the United States constitution; see U.S. Const., art. VI, cl. 2;[5] state courts have jurisdiction over his federal constitutional claims, notwithstanding the elections clause in the Connecticut constitution. Accordingly, we also agree with the defendants' claim that the trial court lacked jurisdiction to enjoin the state defendants from canvassing the votes and declaring a winner. We, therefore, affirm the judgment of the trial court insofar as it dismissed the complaint and reverse the judgment of the trial court with respect to its issuance of a temporary injunction.

         The record reveals the following facts, as alleged in the operative complaint, and procedural history. On November 6, 2018, the election for the state representative for the 120th assembly district took place. There were three candidates for that position: the plaintiff, who was endorsed by the Republican Party and the Independent Party, Young, who was endorsed by the Democratic Party, and a petitioning candidate, Prez Palmer. One of the polling places for the 120th assembly district was Bunnell High School, which also served as a polling place for the 122nd assembly district. At some point midday, a packet of ballots for the 122nd assembly district was distributed to voters in the voting line for the 120th assembly district. As a result, approximately seventy-six voters who received those ballots were unable to cast a vote for the office of state representative from the 120th assembly district.[6] A voter detected the mistake and reported it to the moderator, who replaced the 122nd assembly district ballots with the correct ones and noted the incident in his log, allowing for investigation by the town registrar of voters after the election.

         After the initial vote tabulation for the 120th assembly district, the vote count was 5217 votes for Young, 5199 votes for the plaintiff, and 55 votes for Palmer. Because there was a difference of only 18 votes between Young and the plaintiff, a statutory recanvass was required pursuant to General Statutes § 9-311a. That recanvass was held on November 13 and 14, 2018, and resulted in 5222 votes for Young and 5209 votes for the plaintiff, a difference of 13 votes. Palmer again received 55 votes.

         On November 15, 2018, the plaintiff filed a complaint in the trial court, seeking the following relief: (1) ‘‘a declaration that, as a result of the errors committed at the Bunnell [High School] polling place and resulting disenfranchisement of voters in the 120th assembly district, a new election must be held for the office of state representative for the 120th [assembly] district''; (2) ‘‘a mandatory injunction requiring the defendants to hold a special election for the office of state representative in the 120th assembly district''; and (3) ‘‘a prohibitory injunction precluding [the state defendants] from declaring a candidate elected state representative in the 120th assembly district before a new election is held.'' The plaintiff subsequently amended that complaint to include claims pursuant to 42 U.S.C. § 1983, alleging that the voters who received incorrect ballots had been deprived of their fundamental rights to vote and to equal protection of the laws under the United States constitution. In addition, the plaintiff filed an application for a temporary injunction[7] barring the state defendants from canvassing the votes for state representative from the 120th assembly district or declaring the results of any such canvass.

         After the trial court granted Young's motion for permission to intervene in the action as a defendant, he- supported by the state defendants-moved to dismiss the amended complaint[8] for lack of jurisdiction, arguing that, under the elections clause of the Connecticut constitution, our state House of Representatives has exclusive jurisdiction to resolve election disputes involving the election of its members. Young also objected to the plaintiff's application for a temporary injunction. The plaintiff objected to the motion to dismiss, contending that the trial court had jurisdiction to grant relief pursuant to § 9-328, and that he did not seek to challenge the final decision as to who won the election but, rather, whether the election was conducted under ‘‘procedures that comply with the General Statutes and the state and federal constitutions.''

         After conducting a hearing on the motion to dismiss the amended complaint, the trial court granted the motion in part with respect to the plaintiff's requests for a declaration and mandatory injunction requiring a new election for the office of state representative for the 120th assembly district.[9] The court concluded that our state House of Representatives had exclusive jurisdiction over those matters pursuant to our state elections clause, even though the plaintiff had also asserted federal claims pursuant to 42 U.S.C. § 1983. The court granted, however, the plaintiff's request for a temporary injunction enjoining the state defendants from canvassing the votes or declaring the winner of the election pursuant to General Statutes § 9-319, [10] reasoning that the ‘‘limited exercise of its jurisdiction over the application'' for the injunction was necessary to maintain the status quo and to ‘‘ensur[e] that the House [of Representatives] has an opportunity to exercise its authority.'' The trial court rendered judgment accordingly. These expedited public interest appeals pursuant to § 52-265a followed.

         We held oral argument in these appeals on December 21, 2018.[11] Immediately after oral argument, we issued the following order: ‘‘After a hearing and based on the record and claims before the court, it is hereby ordered that the judgment of the trial court is affirmed insofar as it lacks jurisdiction at this time. In accordance with this determination, it is further ordered that the trial court's injunction is vacated. A written decision will follow.'' This is that written decision.

         ‘‘A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.'' (Internal quotation marks omitted.) Giannoni v. Commissioner of Transportation, 322 Conn. 344, 349, 141 A.3d 784 (2016). Thus, ‘‘[w]e begin with the standard of review and the general principles governing a trial court's disposition of a motion to dismiss that challenges jurisdiction.'' Rocky Hill v. SecureCare Realty, LLC, 315 Conn. 265, 276, 105 A.3d 857 (2015). ‘‘A determination regarding a trial court's subject matter jurisdiction is a question of law, '' particularly when it presents questions of constitutional and statutory interpretation. (Internal quotation marks omitted.) Id. Accordingly, ‘‘[o]ur review of the court's ultimate legal conclusion[s] and resulting [determination] of the motion to dismiss will be de novo. . . .

         ‘‘Depending on the record before it, a trial court ruling on a motion to dismiss for lack of subject matter jurisdiction pursuant to Practice Book § 10-31 (a) (1) may decide that motion on the basis of: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. . . . Different rules and procedures will apply, depending on the state of the record at the time the motion is filed. . . .

         ‘‘If [as here] the court decides the motion on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light. . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.'' (Citations omitted; internal quotation marks omitted.) Id., 276-77.

         I

         THE PLAINTIFF'S APPEAL

         In attacking the trial court's jurisdictional conclusion, the plaintiff contends that (1) the elections clause of the Connecticut constitution does not ‘‘divest the judiciary of jurisdiction over this dispute, '' (2) § 9-328 provides a statutory basis for jurisdiction, and (3) the supremacy clause of the United States constitution renders inapplicable any restriction imposed by the state elections clause with respect to his federal constitutional claims brought pursuant to 42 U.S.C. § 1983. We address each of these claims in turn.

         A

         Whether the Elections Clause Divests State Courts of Jurisdiction over This Case

         We begin with the plaintiff's claim that the elections clause does not divest state courts of jurisdiction over this case. The plaintiff contends that the plain language of the elections clause, which makes ‘‘each house . . . the final judge of the election returns and qualifications of its own members''; Conn. Const., art. III, § 7; renders final the legislature's judgment about which candidate received the most votes during the election, but does not give the General Assembly ‘‘any authority to resolve disputes concerning the procedures employed during an election, much less [the] sole authority to do so.'' In support of this argument, the plaintiff relies on Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972), and decisions of several sister state courts; see, e.g., State ex rel. Wahl v. Richards, 44 Del. 566, 64 A.2d 400 (1949); State ex rel. Wheeler v. Shelby Circuit Court, 267 Ind. 265, 369 N.E.2d 933 (1977); State ex rel. Olson v. Bakken, 329 N.W.2d 575 (N.D. 1983); McGann v. Board of Elections, 85 R.I. 223, 129 A.2d 341 (1967); McIntyre v. Wick, 558 N.W.2d 347 (S.D. 1996); in support of the ‘‘distinction between the authority to determine which candidate is entitled to be seated in the legislature (which is the purview of each house of the legislature), and the authority to decide disputes over the election process itself.'' The plaintiff further argues that only the courts, and not the state House of Representatives, have the institutional authority to issue the requested equitable relief, namely, a new election. The plaintiff emphasizes that ‘‘he is not asking the court to declare him the winner of the election'' but, instead, ‘‘is asking the court to remedy constitutional and statutory violations in the administration of the election . . . which is a core function of the judiciary.''

         In response, the defendants contend that the plaintiff's interpretation of the elections clause would ‘‘inject our courts into a General Assembly election . . . for the first time in our history'' and that the state House of Representatives ‘‘is the sole entity that is constitutionally authorized to determine how such disputes shall be resolved.'' Relying on State ex rel. Morris v. Bulkeley, 61 Conn. 287, 23 A. 186 (1892), Selleck v. Common Council, 40 Conn. 359 (1873), and In re Application of Mylchreest, 6 Conn. Supp. 435 (1938), together with a decision of the United States Court of Appeals for the District of Columbia Circuit interpreting the elections clause of the United States constitution, Morgan v. United States, 801 F.2d 445 (D.C. Cir. 1986), cert. denied, 480 U.S. 911, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987), the defendants argue that the House of Representatives-acting via its contested elections committee pursuant to House Rule No. 19-has ‘‘exclusive jurisdiction over house elections contests.'' See House Res. No. 2, 2019 Sess. (adopted January 9, 2019). The defendants further argue that Roudebush v. Hartke, supra, 405 U.S. 15, and the sister state cases on which the plaintiff relies are distinguishable because the courts in those cases had specific statutory authorization to act, and also had functioned ministerially to order recounts, rather than to render a ‘‘judicial finding that the election process was so unreliable that a new election should be ordered . . . .'' Young then contends that Connecticut's elections clause provides the legislature with the authority to declare a vacancy and order a special election to fill it, upon a determination that the elections process was fatally flawed in this case. We agree with the defendants and conclude that the elections clause divested the courts of authority over the election contest at issue in this case.

         In State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), we enumerated the following six factors to be considered in construing the state constitution: ‘‘(1) persuasive relevant federal precedents; (2) the text of the operative constitutional provisions; (3) historical insights into the intent of our constitutional forebears; (4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise described, relevant public policies. . . .

         ‘‘The Geisler factors serve a dual purpose: they encourage the raising of state constitutional issues in a manner to which the opposing party . . . can respond; and they encourage a principled development of our state constitutional jurisprudence. Although in Geisler we compartmentalized the factors that should be considered in order to stress that a systematic analysis is required, we recognize that they may be inextricably interwoven. . . . [N]ot every Geisler factor is relevant in all cases. . . . Moreover, a proper Geisler analysis does not require us simply to tally and follow the decisions favoring one party's state constitutional claim; a deeper review of those decisions' underpinnings is required because we follow only persuasive decisions.'' (Citation omitted; internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 407-408, 119 A.3d 462 (2015); see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 271 n.26, 990 A.2d 206 (2010) (plurality opinion) (‘‘the Geisler framework is equally useful in analyzing the scope of a right guaranteed by the state constitution that has no federal analog'' [internal quotation marks omitted]); Honulik v. Greenwich, 293 Conn. 641, 648 n.9, 980 A.2d 845 (2009) (‘‘Although we typically employ a Geisler analysis to determine whether a provision of our constitution affords broader individual rights than an analogous provision of the United States constitution . . . we have at times considered the Geisler factors in interpreting language in our constitution that does not have a similar federal counterpart. . . . We consider a structured and comprehensive approach to be helpful in either context.'' [Citations omitted.]).

         We begin with the relevant constitutional text, which provides in relevant part: ‘‘The treasurer, secretary of the state, and comptroller shall canvass publicly the votes for senators and representatives. The person . . . in each assembly district having the greatest number of votes for representative shall be declared to be duly elected for such district. . . . The return of votes, and the result of the canvass, shall be submitted to the house of representatives and to the senate on the first day of the session of the general assembly. Each house shall be the final judge of the election returns and qualifications of its own members.'' (Emphasis added.) Conn. Const., art. III, § 7. We note at the outset that the plaintiff does not appear to dispute that this language suggests that each house of the legislature has exclusive jurisdiction over disputes that come within the scope of the elections clause. Instead, he claims that disputes, such as that presentedin this case, concerning irregularities in the conduct of the legislative election itself, rather than the correctness of the tally of the votes cast, simply do not come within the scope of that constitutional provision. Although the use of the specific phrase ‘‘election returns'' may reasonably be read-as argued by the plaintiff-to suggest that the legislature's exclusive jurisdiction is limited to vetting the state defendants' arithmetic, [12] this narrow interpretation is inconsistent with case law from Connecticut construing our state elections clause and with federal and sister state authority construing analogous constitutional provisions.

         Turning to Connecticut case law, the seminal case on the elections clause is In re Application of Mylchreest, supra, 6 Conn. Supp. 436, in which our Superior Court concluded that, under the elections clause-then set forth within article third, § 6, of the 1818 Connecticut constitution-it is ‘‘not proper for any court to be given power to pass upon the question as to who has been elected state senator or representative.'' The court rejected an application for an order seeking a recount of votes in a state senate election because ‘‘a judge of the Superior Court has no jurisdiction to declare [the applicant] elected as senator [or] to issue a certificate to that effect, nor has a judge of the Superior Court jurisdiction to grant any other ultimate relief . . . . No statute authorizes a judge of the Superior Court to order a recount of votes for [s]tate [s]enator and failing that and likewise lacking jurisdiction to grant any relief which would be predicated on a finding as to what the actual vote was, such a judge has no jurisdiction either to order a recount or make such a finding.'' Id., 437. In so concluding, the Superior Court relied on this court's decision in Selleck v. Common Council, supra, 40 Conn. 359, which held that, by using the word ‘‘final'' in legislation providing that ‘‘ ‘the board of councilmen . . . shall be the final judges of the election returns and of the validity of elections and qualifications of its own members' ''; id., 360 (preliminary statement of facts and procedural history); the legislature ‘‘intended to divest the Superior Court of jurisdiction . . . and make the common council the sole tribunal to determine the legality of the election of its members.'' (Emphasis added.) Id., 362; see also In re Application of Mylchreest, supra, 436. Moreover, in State ex rel. Morris v. Bulkeley, supra, 61 Conn. 362, this court stated that, ‘‘[w]hen the people, speaking in their sovereign capacity by the constitution, appoint a single tribunal to ascertain and declare a certain result, and that tribunal does so ascertain and declare, there is no other authority that can interfere with or revise such declaration and change the result.''

         With respect to the constitutional history, there was ‘‘no significant debate in either 1818 or 1965'' at the constitutional conventions with respect to the elections clause, which originally dates to 1818. W. Horton, The Connecticut State Constitution (2d Ed. 2012), pp. 115- 16. Particularly given the importance in 1818 of the concept of the separation of powers;[13] see id., pp. 11-13; this silence directs our attention to the federal authority discussing the history of the elections clause of the United States constitution, [14] because ‘‘[w]hen the states of the union adopted their own constitutions most followed both the substance and the procedures adopted by the founding fathers in the federal constitution.'' Kinsella v. Jaekle, 192 Conn. 704, 721, 475 A.2d 243 (1984). Thus, the elections clause of the Connecticut constitution, which differs only slightly from its federal counterpart, ‘‘may be understood in light of . . . federal provisions and the intent of the founding fathers . . . .'' (Footnote omitted.) Id.; see also id., 717-18 (relying on history of United States constitution for historical analysis of impeachment power under 1818 constitution given that ‘‘records of the constitutional convention of 1818 do not explain the framers' reasons'' for ‘‘specifically reserv[ing] the power of impeachment and removal of executive and judicial officers to the General Assembly'').

         Our discussion of federal authority begins with the United States Supreme Court's decision in Roudebush v. Hartke, supra, 405 U.S. 15, upon which the plaintiff relies heavily. In that case, the Supreme Court considered whether Indiana's state statutory recount procedure was a valid exercise of the state's power to prescribe the time, place, and manner of holding an election pursuant to article one, § 4, of the United States constitution[15] or, instead, was an unconstitutional infringement on the United States Senate's power under the elections clause of the United States constitution; see footnote 14 of this opinion; to judge the election returns for its own members. See Roudebush v. Hartke, supra, 23-24. The court acknowledged that ‘‘a [s]tate's verification of the accuracy of election results pursuant to its [article one, § 4 powers] is not totally separable from the Senate's power to judge elections and returns.'' Id., 25. The court concluded, however, that ‘‘a recount can be said to ‘usurp' the Senate's function only if it frustrates the Senate's ability to make an independent final judgment. A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.'' (Emphasis added; footnotes omitted.) Id., 25-26. Accordingly, the court concluded that Indiana's statutory recount procedure was constitutional. Id., 26; see also McIntyre v. Fallahay, 766 F.2d 1078, 1086 (7th Cir. 1985) (noting that ‘‘states may give advice'' to Congress regarding apparent winner of election ‘‘in accordance with their own rules, '' although Congress may ignore that advice); Durkin v. Snow, 403 F.Supp. 18, 20 (D.N.H. 1974) (under Roudebush, New Hampshire statute authorizing recount procedure for election for office of United States senator was constitutional); Franken v. Pawlenty, 762 N.W.2d 558, 562-63 (Minn. 2009) (state statute authorizing court to make findings and conclusions as to which party received highest number of votes in election for United States senator did not violate federal elections clause).

         We read Roudebush to hold only that state legislatures have constitutional authority pursuant to article one, § 4, of the United States constitution to enact their own laws for the purpose of verifying the accuracy of the results in Congressional elections, subject to the right of each house of Congress to make a final determination on that issue. Roudebush does not stand for the proposition that the elections clause affords the courts an inherent role in resolving a dispute over a legislative election, particularly in the absence of statutory authority to do so. Instead, post-Roudebush federal case law interpreting the elections clause of the United States constitution even more clearly supports the exclusivity of the legislative branch's jurisdiction to determine the lawfulness of an election to that body. The leading case on this point is the decision of the District of Columbia Circuit in Morgan v. United States, supra, 801 F.2d 445. In an opinion written by then Judge Antonin Scalia, the court concluded that the elections clause deprived it of ‘‘jurisdiction to review the substance or procedure of a determination by the [United States] House of Representatives that one of two contestants was lawfully elected to that body.'' Id. The court concluded that it lacked subject matter jurisdiction over numerous constitutional and federal claims brought to challenge the party line decision of the House of Representatives- following a task force investigation and recount-to reject a state recount declaring the Republican candidate the winner and to seat, instead, the Democratic candidate. Id., 446. Following Roudebush, the court concluded that it lacked jurisdiction over these claims because the elections clause of the United States constitution ‘‘unambiguously proscribes judicial review of the proceedings in the House of Representatives that led to the seating of'' the Democratic candidate and that it would be ‘‘difficult to imagine a clearer case of ‘textually demonstrable constitutional commitment' of an issue to another branch of government to the exclusion of the courts[16] . . . than the language of [the federal elections clause], that ‘[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members.' The provision states not merely that each House ‘may judge' these matters, but that each House ‘shall be the Judge' . . . . The exclusion of others-and in particular of others who are judges-could not bemore evident. Hence, without need to rely upon the amorphous and partly prudential doctrine of ‘political questions,' . . . we simply lack jurisdiction to proceed.''[17](Citations omitted; emphasis altered; footnote added.) Id., 446-47.

         Significant to our historical analysis under Geisler is the court's observation in Morgan that the ‘‘history of the [federal elections clause] is entirely consistent with its plain exclusion of judicial jurisdiction. In the formative years of the American republic, it was the uniform practice of England and America for legislatures to be the final judges of the elections and qualifications of their members. . . . There was no opposition to the [e]lections [c]lause in the [f]ederal [c]onstitutional [c]onvention . . . and the minor opposition in the ratification debates focused upon the clause's removal of final authority not from the courts, but from the state legislatures, where the Articles of Confederation had vested an analogous power. . . . It is noteworthy that none of the responses to the opposition mentions the safeguard of judicial review. Such a safeguard was evidently unthinkable, since the determination of the legislative House was itself deemed to be a judicial one.'' (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 447. The court cited James Kent for the proposition that the legislature, in judging election returns and the qualification of its members, acts in a ‘‘ ‘a judicial character' '' and that such decisions, ‘‘ ‘like the decisions of any other court of justice, ought to be regulated by known principles of law, and strictly adhered to, for the sake of uniformity and certainty.' '' (Emphasis altered.) Id., citing 1 J. Kent, Commentaries on American Law (8th Ed. 1854), p. 248. Thus, the court further emphasized that the federal elections clause's ‘‘command to ‘be the Judge of . . . Elections' excludes other judges.'' Morgan v. United States, supra, 801 F.2d 450; see also McIntyre v. Fallahay, supra, 766 F.2d 1082 (‘‘[I]t is inappropriate for a federal court even to intimate how Congress ought to have decided'' an election dispute because ‘‘[t]he House is not only ‘Judge' but also final arbiter. Its decision about which ballots count, and who won, [is] not reviewable in any court.'').

         Turning to a review of the sister state decisions, we note that the ‘‘almost universal constitutional doctrine in the United States and the several states which have constitutions containing this or similar provisions is that . . . [e]ach legislative body is the sole judge of the elections, returns, and qualifications of its own members, and its action in admitting or expelling a member is not reviewable in the courts. Furthermore, a statute which requires a court to inquire into the commission of corrupt practices in the election of a member of the legislature is not constitutional.''[18] (Internal quotation marks omitted.) Foster v. Harden, 536 So.2d 905, 906 (Miss. 1988), overruled on other grounds by Dillon v. Myers, 227 So.3d 923 (Miss. 2017). Thus, consistent with the District of Columbia Circuit's decision in Morgan, the vast majority of our sister states hold that courts lack jurisdiction to entertain a contest pertaining to a legislative election, particularly in the absence of statutory authorization to do so. See Beatty v. Myrick, 218 Ga. 629, 629, 129 S.E.2d 764 (1963) (trial court lacked jurisdiction over ‘‘equitable action in which the plaintiffs seek to have adjudicated which of two named candidates was legally elected to represent'' state senate district because state constitution's elections clause ‘‘vested [state senate] with exclusive power to adjudge the qualifications of its own members''); Stephenson v. Woodward, 182 S.W.3d 162, 168-69 (Ky. 2005) (rejecting argument under state constitution's elections clause that court lacked subject matter jurisdiction to entertain challenge to candidate's qualifications to appear on ballot, filed before election, because it ‘‘does not involve an election contest, '' namely, a ‘‘[postelection] procedure involving an election that has been held, '' as authorizing statute did not require adjudication of dispute before election);[19] Wheatley v. Secretary of Commonwealth, 439 Mass. 849, 853 and n.8, 792 N.E.2d 645 (2003) (concluding that court lacked authority under state constitution's elections clause to order new election in light of decision by state house of representatives to seat candidate, but ‘‘express[ing] no opinion whether any differences in those facts, sequence of events, or procedural history might have affected the outcome of [the] proceedings''); Scheibel v. Pavlak, 282 N.W.2d 843, 847-48 (Minn. 1979) (observing that, under state constitution's elections clause, courts' statutory jurisdiction over legislative election contests left state supreme court without ‘‘jurisdiction to issue a final and binding decision in [the] matter, and our opinion by statute will be and by the [state constitution] must only be advisory to the [state] House of Representatives, '' but leaving for another day constitutionality of that question under separation of powers and preclusion on advisory opinions); Dillon v. Meyers, 227 So.3d 923, 927-28 (Miss. 2017) (concluding that state constitution's elections clause ‘‘places judging the election of members of the [l]egislature in the [l]egislature's bailiwick, '' for purposes of ‘‘general [or special] elections, '' with separate constitutional clause governing party primaries and ‘‘requir[ing] the [l]egislature to enact laws to secure fairness in primary elections, '' operating to afford state courts jurisdiction over legislative primary election dispute); Gammage v. Compton, 548 S.W.2d 1, 5 (Tex. 1977) (rejecting reliance on Roudebush, and construing statute giving state court ‘‘original and exclusive jurisdiction of all contests of elections, general or special, for all school, municipal, precinct, county, district, state offices, or federal offices'' as inapplicable to federal congressional elections because of federal elections clause).

         A separate line of sister state cases holds, consistent with Roudebush, that state legislatures may enact statutes setting forth procedures by which the vote may be tabulated and, in the case of close elections, retabulated, in elections for state legislative office-provided that those statutes do not impinge on the ultimate constitutional right and obligation of the legislative body to judge the election returns for its own members.[20]See Meyer v. Lamm, 846 P.2d 862, 870 (Colo. 1993) (‘‘proceedings involving recounts of election results which are inherently tentative and are not final or conclusive, and in which recounts are conducted pursuant to the election laws prior to the certification by the secretary of state that a person has been duly elected, are not ‘election contests' '' for purpose of state constitution's elections clause); State ex rel. Wheeler v. Shelby Circuit Court, supra, 267 Ind. 268 (statute requiring court to order and superintend recount involving state legislative office did not impinge on legislature's authority under elections clause because recount is not binding and ‘‘is merely an extension of this voting process and has been provided for by the legislature in an effort to [ensure] the correctness of the vote count''); Rice v. Power, 19 N.Y.2d 106, 108, 224 N.E.2d 865, 278 N.Y.S.2d 361 (1967) (statute conferring jurisdiction on court to order recanvass of ballots in order to ensure ‘‘that the certificate reflect[s] an accurate tally of the votes cast'' did not impinge on constitutional authority of constitutional convention to judge election returns of its members when convention remained free to disregard certificate of election); Williamson v. State Election Board, 431 P.2d 352, 355-56 (Okla. 1967) (court has constitutional authority to enforce statutory recount procedure by order of mandamus); McIntyre v. Wick, supra, 558 N.W.2d 356-57 (concluding that statute conferring power on state supreme court to review procedures of judicially appointed recount boards that was ‘‘necessary to guard against irregularities and errors in the tabulation of votes and [to verify] the accuracy of elections results'' did not violate elections clause because court ‘‘lack[ed] . . . any jurisdiction to dictate the final determination of a legislative election, '' and noting that its ‘‘review of a recount and judgment in such a proceeding merely constitutes evidence'' [footnote omitted]).

         In our view, these recount cases are distinguishable because a recount is a process that requires the ministerial action of tallying the votes cast-thus ensuring the accuracy of the vote tally that the legislature is ultimately to consider-rather than finding facts in a judicial manner with respect to the fairness or legality of the underlying elections process. See Young v. Mikva, 66 Ill.2d 579, 584-85, 363 N.E.2d 851 (1977) (distinguishing Roudebush as upholding constitutionality of administrative recount of ballots under state procedures, rather than sanctioning election contest for congressional seat); Lamb v. Hammond, 308 Md. 286, 303-304, 518 A.2d 1057 (1987) (concluding that state constitution did not preclude jurisdiction over action based ‘‘upon a timely complaint that canvassing officials have improperly refused to canvass votes that were lawfully cast, '' and that ‘‘the appropriate court . . . may inquire into the matter, determine whether the administrative officials have carried out their ministerial duties in accordance with the law, and, if they have not, command them to do so, '' because this exercise of jurisdiction was ‘‘complementary'' of legislature's jurisdiction over election contests under state elections clause); McIntyre v. Wick, supra, 558 N.W.2d 356 n.7 (distinguishing ‘‘election contest, '' which ‘‘relates to a determination of the election, '' from ‘‘[a] recount [that] is addressed only to the correct determination of the true and actual count of the ballots cast, '' and noting that ‘‘[d]uties in connection with a recount . . . are more in the nature of a ministerial or administrative function than a judicial or determinative function'').

         The plaintiff raises several prudential arguments to bolster his interpretation of the elections clause that would allow the exercise of jurisdiction by the courts over legislative election disputes. He contends that the courts must have jurisdiction over disputes involving the election process because only they have the authority to grant the relief that he is requesting, namely, a new election. In support of this claim, he relies on the statement of the North Dakota Supreme Court in State ex rel. Olson v. Bakken, supra, 329 N.W.2d 579, that ‘‘the [l]egislature is not in a position to provide any affirmative equitable remedy. The [l]egislature could reject the ‘election' of a legislator which may put into operation certain provisions of the [state] [c]onstitution and statutes resulting in the [g]overnor calling a special election. But other affirmative equitable remedies would not be available.'' See also McIntyre v. Wick, supra, 558 N.W.2d 356 n.7 (describing ‘‘dearth of affirmative equitable remedies available from the legislature for irregularities in the election process''). Second, the plaintiff relies on the South Dakota Supreme Court's observation in McIntyre, supporting the complementary exercise of jurisdiction over election challenges by the courts and the legislature, that the ‘‘legislature is not normally in session when the general election is held. Consequently, considerable confusion and delay would result if the above superintending responsibilities were borne exclusively by the legislature.'' Id., 356; see State ex rel. Olson v. Bakken, supra, 578 (same). These arguments bring us, then, to the Geisler factor requiring us to consider the public policy aspects of the constitutional question.

         First, we disagree with the plaintiff's reliance on the North Dakota decision in State ex rel. Olson v. Bakken, supra, 329 N.W.2d 579. That decision is an outlier in that it is one of the very few in which a state court has held that a state constitutional provision analogous to our elections clause does not confer exclusive jurisdiction on each legislative house to judge the elections returns for its own members.[21] Moreover, the court in Bakken cited no authority in support of its statement that the only relief that a legislative house can provide when exercising its power to judge election returns is the rejection of a member and the scheduling of a special election. Finally, Bakken is squarely distinguishable because, unlike in the present case, that court had the benefit of a broadly worded election contest statute to support its exercise of jurisdiction.[22] Accordingly, we conclude that Bakken is of minimal persuasive value.

         Instead, we find telling, as a public policy matter, the absence of a statute authorizing elections contests in state legislative elections, when the legislature has provided such a statute for virtually every other state, federal, and municipal election. See General Statutes § 9-323 (election of presidential electors, United States Senator, and United States Representative); General Statutes § 9-324 (election of probate judges and governor, lieutenant governor, secretary of the state, treasurer, attorney general, and comptroller); General Statutes § 9-328 (municipal officers and justice of peace); General Statutes § 9-329a (primary elections). The General Assembly has simply passed no statute sharing its authority over general legislative elections with the courts. Insofar as the legislature has ‘‘primary responsibility in pronouncing the public policy of our state''; (internal quotation ...


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