HARTFORD, Conn. (CN) — Four Republicans running for Congress chose the wrong venue to challenge Connecticut’s mailing of absentee ballots to all eligible voters, the chief of the state Supreme Court ruled Monday.
While the candidates styled their complaint as an original jurisdiction proceeding in the state Supreme Court, counsel for the state emphasized in a motion to dismiss that the law permitting such challenges “applies only to elections, not primaries.”
Chief Justice Richard Robinson tossed the case Monday afternoon shortly after holding remote arguments on the motion. With the Connecticut primary scheduled for Aug. 11, Secretary of State Denise Merrill is set to mail the absentee ballots on Tuesday, having already mailed applications to all 1.25 million of Connecticut’s registered voters.
In a 1-page order, the chief wrote that an original proceeding under state law 9-323 “is not a proper vehicle to challenge a ruling of an election official with respect to a primary.”
“Instead, the plaintiffs’ challenge should have been brought in Superior Court,” Robinson added.
Attorney General William Tong said during the hour-long hearing Monday that Republicans have “sued the wrong defendant, under the wrong statue, in the wrong court.”
He said the candidates should have sued the governor, but they didn’t because they knew they would not succeed.
“When all of humanity is confronting a fast-moving and raging respiratory virus … the governor has the authority under 28-9b1 to modify any, any statute to keep us safe,” Tong said.
Mary Fay, Thomas Gilmer, Justin Anderson and James Griffin brought the challenge on July 1, wasting little time after Merrill implemented the order by Governor Ned Lamont to expand absentee-voting procedures.
Prior to the spread of the novel coronavirus, Connecticut law had required would-be absentee voters to show that either religious reasons or some sickness or physical disability would prevent them from casting a ballot in person.
“There is no pandemic exception to the Connecticut Constitution,” the complaint alleged, signed by the candidates’ attorney, Proloy Das of the firm Murtha Cullina.
Each of the challengers is a Republican seeking election to either the First or Second Congressional Districts of Connecticut in the U.S. House of Representatives.
Lawyers for the state deputies scoffed at the candidates’ assertion, noting that the novel coronavirus to date has afflicted nearly 47,000 Connecticut residents, with 4,335 deaths since mid-March.
“No one can seriously dispute that the governor has the authority and the state has a compelling interest to minimize the extreme risk of human transmission through mass gatherings of people,” Assistant Attorney General Michael Skold wrote last week. “It is hard to imagine a greater risk than forcing all Connecticut voters into thousands of small, close-quarter polling locations all across Connecticut on primary day, August 11, 2020.”
During the remote hearing Monday, the candidates made an unsuccessful push to have the mailing of the ballots delayed pending oral arguments on the merits.
The argument hinges on the Connecticut Constitution, which they said “does not permit no-excuse absentee voting and entrusts the electorate to define the scope of absentee voting through constitutional amendment.”
Das said Monday during the hearing that they wanted to protect voters’ opportunity to vote at the polls, as the law envisions.
Skold’s motion to dismiss argued that Republicans are trying to use the court to “disrupt a state and national election already in process, to cause mass voter confusion, to disenfranchise hundreds of thousands of Connecticut voters, and to force voters into a mass gathering on the same day in August and subject them to the high risk of infection and death from a fast-spreading respiratory virus.”
As for why the challengers did not challenge Governor Lamont’s executive order, Tong said Monday that doing so would be “not only frivolous — it’s dangerous.”
Robinson’s dismissal concludes with the promise that “a more detailed opinion is forthcoming.”