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 ...