Beth LAZAR et al.
v.
Joseph P. GANIM et al.
Argued
November 4, 2019
Appeal
from Superior Court, Judicial District of Fairfield, Stevens,
J.
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Prerna
Rao, for the appellants (plaintiffs).
James
J. Healy, with whom were John P. Bohannon, Jr., deputy city
attorney, and John F. Droney, Jr., Hartford, for the
appellees (defendants).
Robinson,
C.J., and Palmer, McDonald, DAuria, Mullins, Kahn and
Vertefeuille, Js.
OPINION
ROBINSON,
C.J.
[334
Conn. 75] This appeal, which comes before this court pursuant
to the expedited review procedure provided by General
Statutes § 9-325, involves a claim [334 Conn. 76] that
certain improprieties in the handling of absentee ballots for
the 2019 Democratic primary election for municipal office
(primary election) in the city of Bridgeport (city) rendered
the result so unreliable that it must be set aside. The
plaintiffs, Beth Lazar, Annette Goodridge and Vanessa Liles,
who are registered Democrats residing in the city, brought
this action against the defendants[1] pursuant to subdivisions
(1) and (2) of General Statutes § 9-329a (a).[2] The
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plaintiffs alleged that extensive absentee ballot abuse and
other improprieties leading up to the primary election
rendered its result unreliable. Accordingly, they asked the
trial court to set aside the results and to order a new,
special primary election for all candidates pursuant to §
9-329a (b). The defendants moved to dismiss the action for
lack of aggrievement. The trial court granted the motion to
dismiss with respect to the plaintiffs claims brought
pursuant to subdivision (1) of § 9-329a (a) but denied the
motion with respect to the claims brought pursuant to
subdivision (2). After a trial to the court, the court
concluded that the plaintiff had failed to establish that the
result of the primary election might have been different [334
Conn. 77] but for the alleged improprieties and rendered
judgment for the defendants. The plaintiffs then requested
that the trial court certify the following two questions to
this court pursuant to § 9-325: (1) "Did the trial court
err in finding that no plaintiff ... has standing to
challenge the [primary] election results under § 9-329a (a)
(1) ... ?" And (2) "Did the trial court apply the
wrong legal standard when declining to order a new
primary?" Upon the trial courts grant of their request,
the plaintiffs filed this appeal. In their brief to this
court, the plaintiffs raised the additional issue of whether
this court is able to grant any relief to the plaintiffs or,
instead, the appeal is moot in light of its timing, which
implicates this courts subject matter jurisdiction. We
conclude that the appeal is not moot. We further conclude
that the trial court correctly determined that the plaintiffs
lacked standing to invoke § 9-329a (a) (1) because they were
not aggrieved and that the plaintiffs failed to establish
that they were entitled to an order directing a new primary
election under § 9-329a (a) (2). Accordingly, we affirm the
judgment of the trial court.
The
record reveals the following facts, which were found by the
trial court or are undisputed, and procedural history. The
primary election took place on September 10, 2019. The
mayoral candidates were Joseph P. Ganim and Marilyn Moore.
There were 4337 walk-in ballots cast for Ganim and 4721 for
Moore. In addition, 967 absentee ballots were cast for Ganim
and 313 for Moore. Thus, Ganim won the election with 5304
votes, as against 5034 votes for Moore, by a margin of 270
votes.
Thereafter,
the plaintiffs, who voted in the primary election, brought
this action pursuant to § 9-329a, alleging that certain
individuals associated with the defendants or the citys
Democratic Town Committee engaged in improper primary
election activity, including the misrepresentation of
absentee voting eligibility in [334 Conn. 78] violation of
General Statutes § 9-135, the improper handling of absentee
ballots in violation of General Statutes § 9-140b, attempts
to influence the speech of any person in a primary in
violation of General Statutes § 9-364a, and improprieties in
the application and distribution process for absentee ballots
in violation of General Statutes § 9-140. The plaintiffs
claimed that, as the result of these allegedly improper
activities, they were aggrieved by the ruling of an election
official within the meaning of § 9-329a (a) (1) and that
there had been a mistake in the count of the votes within the
meaning of § 9-329a (a) (2). They
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sought a court order setting aside the result of the primary
election, directing a new Democratic primary election for all
candidates and requiring supervised voting in locations where
a disproportionately large percentage of voters use absentee
ballots.
The
defendants moved to dismiss the complaint on the ground that
the plaintiffs were not personally aggrieved by the ruling of
any election official for purposes of § 9-329a (a) (1). In
their opposition to the motion to dismiss, the plaintiffs
contended that they did not have to establish that they were
classically aggrieved, that is, that they had (1)
"demonstrate[d] a specific personal and legal interest
in the subject matter of the decision, as distinguished from
a general interest, such as is the concern of all the members
of the community as a whole," and (2)
"establish[ed] that the specific personal and legal
interest has been specially and injuriously affected by the
decision." (Internal quotation marks omitted.)
Bongiorno Supermarket, Inc. v. Zoning Board of
Appeals, 266 Conn. 531, 539, 833 A.2d 883 (2003).
Rather, they claimed that they were required to establish
only that they had statutory standing, which "concerns
the question [of] whether the interest sought to be protected
by the complainant[s] is arguably within the zone of
interests to be protected or regulated by [334 Conn. 79] the
statute ...." (Internal quotation marks omitted.)
Cambodian Buddhist Society of Connecticut, Inc. v.
Planning & Zoning Commission, 285 Conn. 381, 393, 941
A.2d 868 (2008). The plaintiffs also argued that § 9-329a (a)
(2) required them to allege only that there had been a
mistake in the count of the vote.
The
trial court concluded that the plaintiffs were not aggrieved
for purposes of § 9-329a (a) (1) because they had not
"suffered a personal or individual injury that was
different from any other elector eligible to vote in the
primary." Accordingly, the court granted the motion to
dismiss the plaintiffs claims pursuant to subdivision (1) of
§ 9-329a (a). The trial court also concluded, however, that
the plaintiffs were not required to establish that they were
personally aggrieved under § 9-329a (a) (2) but only that
there had been a mistake in the count of the vote. In
addition, the court concluded that subdivision (2) was broad
enough to encompass not only a mechanical miscount but a
mistake arising from the counting of votes that legally
should not be counted, such as absentee ballots cast by
voters who were not eligible to cast them. Accordingly, the
court denied the motion to dismiss the claims pursuant to
subdivision (2).
The
trial court conducted a trial over the course of two weeks,
during which the plaintiff presented the following evidence:
testimony by five witnesses that they had been solicited to
submit absentee ballots, even though they did not satisfy the
criteria for doing so under § 9-135; testimony by six
witnesses that their completed absentee ballots were taken
from them by canvassers associated with political campaigns,
rather than mailed, in violation of § 9-140b (a); evidence
that electors had filed multiple absentee ballot
applications, some of which were missing signatures or were
otherwise questionable; evidence that the absentee ballot
moderator had violated procedures intended to protect [334
Conn. 80] ballot secrecy; evidence that the town clerk had
modified the addresses on multiple absentee ballot
applications in violation of § 9-140 (g); evidence that
certain campaign workers had been paid exclusively to
distribute absentee ballot applications in violation of §
9-140 (j); and evidence that numerous individuals had
received applications for absentee ballots for distribution
and failed to return a list to the town clerks office
identifying the electors to whom they gave the applications
in violation
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of § 9-140 (k) (2). The trial court acknowledged that the
conduct of the individuals who were paid exclusively to
distribute absentee ballots and those who failed to return a
list to the town clerks office identifying the electors to
whom they had distributed applications was "illegal and
disturbing," an observation that, in our view, was
warranted in light of the history of improper handling of
absentee ballots in the city. See, e.g., Keeley v.
Ayala,328 Conn. 393, 427-28, 179 A.3d 1249 (2018)
(trial court correctly determined that new special primary
was required as result of improper handling of absentee
ballots). The court was unable to determine, however,
"the extent to which such conduct may have affected the
primary as a whole." Accordingly, the trial court found
that the plaintiffs had failed to establish that, "but
for the ... mistake in the ...