Iwona Rutkowski et al. v. Frank Marrocco et al. (2013)

MEMORANDUM OF DECISION

This is an action pursuant to § 9–328 of the Connecticut General Statutes challenging the results of a City of New Britain municipal election for the two Ward 5 Alderman positions held on November 5, 2013 and seeking an order for a new election for those two positions.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following facts are drawn from evidence and testimony submitted at a hearing held on November 13, 2013, as well as a stipulation of facts that was entered on the record at that same hearing.

Plaintiffs Iwona Rutkowski and Louis Salvio are electors registered to vote in the City of New Britain and were the two duly nominated Republican candidates for the position of Ward 5 Alderman in the November 5, 2013 election.   Defendants Carlo Carlozzi, Jr. and Roy Centeno are electors registered to vote in the City of New Britain and were the two duly nominated Democratic candidates for the position of Ward 5 Alderman in November 5, 2013 election.

Defendants Frank Marrocco, Peter Gostin and Juan Verdu were all election officials for the November 5, 2013 election.   Marrocco was the head election moderator for the City of New Britain.   Gostin is the Republican Registrar of Voters for the City of New Britain.   Verdu is the Democratic Registrar of Voters for the City of New Britain.

The City of New Britain's legislative body is the Common Council.   The Common Council consists of fifteen Aldermen.   Five Aldermen, known as “Aldermen at Large,” are elected by a citywide vote.   The remaining ten Aldermen, known as “Ward Alderman,” represent the five City Wards, with two Ward Alderman elected from each ward.   Therefore, on Election Day, voters in New Britain elect their Common Council by casting their votes for up to five Aldermen at Large and up to two Ward Aldermen to represent their particular ward.

The Official Ballot for the November 2013 election contained two areas pertinent to recording votes for the City of New Britain Common Council elections.   One area, positions 5 through 9, listed candidates for the office of “Alderman at Large.”   The candidates listed in that area were elected on a citywide basis and therefore all New Britain ballots in all voting locations listed those candidates.   The second area, positions 10 and 11, listed candidates for Ward Alderman.   The candidates listed in positions 10 and 11 would vary according to the particular ward where the ballot was intended to be used.

In the November 5, 2013 election for the Ward 5 Aldermen seats, the official Ward 5 ballot listed the candidate names as follows:  Position 10A, Mr. Salvio;  Position 11A, Ms. Rutkowski;  Position 10B, Mr. Carlozzi, and Position 11B, Mr. Centeno.   Of those four candidates, the two highest vote-getters would be elected to the positions of Ward Aldermen for Ward 5.

Ward 5 is composed of three Voting Districts, # 4, # 12 and # 14.   This lawsuit arises from a claimed error at the polling location for Voting District # 14, located at the DiLoreto Magnet Elementary School on Slater Road. When the polls opened on the Election Day at DiLoreto School, ballot clerks distributed ballots to electors that were printed for and intended to be used in Ward 2 polling locations.   The Ward 2 Ballots did not contain the names of any of the candidates for Ward 5 Alderman.¹  At least seventeen Ward 5 electors received the incorrect Ward 2 ballots and placed those ballots into the optical scanner/vote tabulator.   The tabulator, recognizing that the ballots were from the wrong voting district, rejected them and they were put in a separate bin for hand counting.   After seventeen voters had used the Ward 2 ballots, the election officials on scene corrected the mistake, and the remainder of the Election Day at DiLoreto School proceeded uneventfully.

After the polls closed, vote totals were recorded and tallied.   The initial return of votes cast for the election of Ward 5 Aldermen was as follows:  Mr. Carlozzi:  1,036 votes;  Mr. Centeno:  958 votes;  Mr. Salvio:  954 votes, and Ms. Rutkowski:  940 votes.

On November 8, 2013, a recount was held pursuant to Conn. Gen.Stat. § 9–311a.   The results of the recount were as follows:  Mr. Carlozzi:  1,036 votes;  Mr. Centeno:  956 votes;  Mr. Salvio:  953 votes, and Ms. Rutkowski:  940 votes.   Thus, following the recount, Mr. Carlozzi and Centeno received the two highest vote totals.   Mr. Salvio finished 3 votes behind Mr. Centeno, and Ms. Rutkowski finished 16 votes behind Mr. Centeno.

This action was brought by verified complaint dated November 8, 2013.   The complaint alleges, in relevant part, that election officials, by providing an incorrect ballot to seventeen Ward 5 electors, had denied those electors the right to vote for the positions of Ward 5 Aldermen.   The complaint alleges that the acts or omissions that led to the providing of incorrect ballots constitute a “ruling of election officials” within the meaning of C.G.S. § 9–328, and that, as a result, the officials “very well may have changed the outcome of the election and, at the very least, have caused serious doubt as to the result of the election.”

The plaintiffs demanded that the result for the November 5, 2013 election for Ward 5 Aldermen be set aside and that a new election be ordered for the positions of Ward 5 Aldermen.   The plaintiffs also requested an ex-parte temporary injunction prohibiting Mr. Carlozzi and Mr. Centeno from being sworn into office and assuming the duties of Ward 5 Aldermen, pending a hearing and decision on the plaintiff's complaint.   The court granted the injunction.

A hearing was held on November 13, 2013.   At the beginning of the hearing, the defendants Marrocco and Centeno moved to dismiss on the basis of venue;  the court denied the motion to dismiss.   The defendants Marrocco and Centeno also moved to dissolve the temporary injunction, claiming that the court lacked authority, either by statute or in equity, to enter the temporary injunction prohibiting Mr. Marrocco and Mr. Centeno from taking office.   The court denied the motion to dissolve.

At the hearing, the plaintiffs called three witnesses—Defendant Frank Marrocco, the City's head election moderator;  Defendant Peter Gostin, the Republican Registrar of Voters;  and Defendant Roy Centeno, one of the candidates for the contested seats.   The defendants called no witnesses.   Six exhibits were admitted into evidence.

II. ANALYSIS

General Statutes § 9–328 provides in relevant part:  “Any elector or candidate claiming to have been aggrieved by any ruling of any election official in connection with an election for any municipal office or a primary for justice of the peace, or any elector or candidate claiming that there has been a mistake in the count of votes cast for any such office at such election or primary, or any candidate in such an election or primary claiming that he is aggrieved by a violation of any provision of sections 9–355, 9–357 to 9–361, inclusive, 9–364, 9–364a or 9–365 in the casting of absentee ballots at such election or primary, may bring a complaint to any judge of the Superior Court for relief therefrom.”

In Bortner v. Town of Woodbridge, 250 Conn. 241, 259, 736 A.2d 104 241 (1999), our Supreme Court stated that “as a predicate for the ordering of a new election under § 9–328, there must be either (1) an error or errors in the rulings of an election official,' or (2) a ‘mistake in the count of the votes.’  “ The court will analyze each of these criteria as they apply to the proven facts in this case.

A. Errors in the Ruling of An Election Official

The Supreme Court previously has construed the phrase “ruling of [an] election official,” as used in General Statutes § 9–328 to mean “some act or conduct by the official that ․ interprets some statute, regulation or other authoritative legal requirement applicable to the election process.”   Bortner v. Woodbridge, supra, 250 Conn. 268;  see also Caruso v. Bridgeport, 285 Conn. 618, 647, 941 A.2d 266 (2008) (“When an election statute mandates certain procedures, and the election official has failed to apply or to follow those procedures, such conduct implicitly constitutes an incorrect interpretation of the requirements of the statute and, therefore, is a ruling”).

It is not clear from the testimony exactly how Ward 2 ballots came to be distributed to voters in Ward 5. However, it is clear that certain mandatory procedures designed to prevent such errors were not followed.   Regulations of State Agencies § 9–242–8 requires the registrars (or their designees), prior to the opening of the polls, to deliver to the election officials for each polling place “a number of ballots sufficient for three hours operation for their polling place.”   Upon receipt of those ballots, the election officials for each polling place “shall ensure that the ballots are the correct ones for their polling place.”   The court finds that the election officials failed to follow or apply the mandatory procedures in § 9–242–8.

B. Mistakes in the Count of the Votes

The Plaintiff alleges that the failure to record any votes for the position of Ward 5 Alderman for the seventeen electors using Ward 2 ballots constitutes a “mistake in the counting of votes” within the meaning of General Statutes § 9–328.

In Bortner, the Connecticut Supreme Court interpreted § 9–328 to mean that a “mistake in the count of votes” includes situations “in which votes were not cast, for whatever reason.”  Bortner, 250 Conn. at 272, n.27. In that case, the Supreme Court reasoned that “a mechanical failure of a machine properly to record write-in votes may constitute a ‘mistake in the count of votes' within the meaning of Section 9–328.”  Id. at 272.   Similarly, in Bauer v. Souto, 277 Conn. 829, 896 A.2d 90 (2006), a malfunctioning voting machine failed to record the votes for a particular candidate for the Common Council.  Id. at 834–36.   The Supreme Court held that the “mechanical failure of the machine in question resulted in a substantial mistake in the count of votes for the plaintiff.”  Id. at 841, n.13.

An examination of the seventeen suspect ballots (copies of which were admitted as Exhibits 4 and 5) shows that twelve of the seventeen electors marked their ballot in the area designated for “Ward Alderman.”   It is reasonable to infer that those Ward 5 electors intended to vote for Aldermen to represent Ward 5 on the common council.   The evidence establishes that the optical scanner/vote tabulator did not “count” those votes.   The evidence also establishes that they were not “counted” in the process of “hand counting” ballots rejected by the machines.   Peter Gostin, the Republican Registrar, testified that “proper markings” on the ballots were attributed to the appropriate candidates, but that no votes marked in the “Ward Aldermen” section of those seventeen ballots (i.e., Positions 10A, 10B, 11A and 11B) were attributed to any candidate.

On that basis, the court finds that votes were cast, but not counted, and there has been a substantial mistake in the count of the votes.

C. The reliability of the result of the election is seriously in doubt

In Bortner, the Supreme Court concluded that a new election cannot be ordered pursuant to General Statutes § 9–328 unless, as a result of errors in the rulings of an election official or mistakes in the count of the votes, “the reliability of the result of the election, as determined by the election officials, is seriously in doubt.”  Id., 263

In the present case, the difference in vote count between Mr. Centeno and Mr. Salvio is only three votes.   It is reasonably probable that, had the seventeen voters at Voting District # 14 voted properly on Ward 5 ballots and had their votes been counted, the final tally of votes would have had Mr. Salvio receiving more votes that Mr. Centeno and the outcome of the election would have been different.

Having copies of the seventeen actual ballots at hand, one could engage in the theoretical exercise of guessing the intent of those seventeen voters based on how they actually did mark their ballots.   The court declines to undertake such conjecture.   The fact that the names of the actual Ward 5 candidates are not shown anywhere on the ballot leaves open the possibility that voters searched for the name of a candidate they intended to vote for, could not find it, and left the ballot blank for the position of “Ward 5 Alderman.”   Given the slim margin of votes between Mr. Centeno and Mr. Salvio, one or two blank ballots could have enormous significance.

The court is also mindful that General Statutes § 9–328 “does not require a challenger, in order to secure a judicial order for a new election, to establish that, but for the irregularities that he has established as a factual matter, he would have prevailed in the election.”  Bauer v. Souto, 277 Conn. 829, 840 (2006) (quoting Bortner, 250 Conn. at 258).   The court is satisfied that the facts proven by a preponderance of the evidence would lead a reasonable person to believe that, but for the errors and mistakes previously identified, the outcome of the election would be different.

Therefore, the court finds that, as a result of the error of election officials and a mistake in the counting of votes, the reliability of the result of the election for Ward 5 Aldermen in the City of New Britain is seriously in doubt.

D. Appropriate Remedy

While voters have “a powerful interest in the stability of [an] election, the voters have an even more powerful interest in the integrity and accuracy of that election.” (internal quotation marks omitted) Bortner v. Town of Woodbridge, 250 Conn. 241, 278 (1999) (Berdon, J., concurring).   However, our Supreme Court has also made it abundantly clear that “a court should be very cautious before exercising its powers ․ to vacate the result of an election and order a new election.”  Id., 253–54.   In fashioning a remedy, the court should attempt to arrive at a resolution that “is consistent with the nature of elections in general and of this election in particular, as well as the democratic process.”  Bauer v. Souto, supra, 277 Conn. at 841.

The defendants Carlozzi and Centeno suggest that even if the suspect ballots in Voting District # 14 had all been cast for Mr. Salvio, it would not have changed the outcome of the election with respect to Mr. Carlozzi, given the 82–vote margin between them.   Therefore, the defendants suggest, the court should let the results of the election stand as to Mr. Carlozzi and any new election should be between Mr. Salvio, Mr. Centeno and Ms. Rutkowski for the second Ward 5 Alderman seat.

The court rejects this option, based on the Supreme Court's guidance in Bauer:

Although, as we said in Bortner, the new election is really a different election, the court should nonetheless attempt to minimize, rather than to maximize, the differences between the first and new election.   Put another way, the new election should be the result of an effort to approximate, as closely as is reasonably possible, the first election.

Bauer v. Souto, 277 Conn. 829, 843, 896 A.2d 90 (2006).

The court is of the opinion that a three-way election for one seat would be a wholly different type of election from a four-way election for two seats.   The best way to approximate the first election would be an election limited to Ward 5, where all of the candidates for Ward 5 Alderman in the November 5, 2013 election are on the ballot.

III. CONCLUSION

Based on the evidence submitted, this court finds that the plaintiffs have sustained their burden under General Statutes § 9–328 and have established the need for a new election.

IV. ORDER

Plaintiffs' requested relief is hereby GRANTED.   It is therefore ORDERED BY THE COURT that the results of the November 5, 2013 City of New Britain municipal election for the positions of Ward 5 Alderman are set aside.   A new election is ordered to take place on Tuesday, January 2014, limited to Ward 5 (Voting Districts, # 4, # 12 and # 14), for the positions of Ward 5 Alderman, with the candidates being Iwona Rutkowski, Louis Salvio, Carlo Carlozzi, Jr. and Roy Centeno.   Said election will be administered and conducted in accordance with all applicable election laws and regulations.

BY THE COURT,

Sheridan, J.

FOOTNOTES

FN1. The incorrect ballots that were distributed to the seventeen voters list the following candidates for “Ward Alderman”:  Position 10A, Christopher Duffy;  Position 11A, Diane Domejczyk;  Position 10B, Tonilynn Collins, and Position 11B, Adam Platosz..  FN1. The incorrect ballots that were distributed to the seventeen voters list the following candidates for “Ward Alderman”:  Position 10A, Christopher Duffy;  Position 11A, Diane Domejczyk;  Position 10B, Tonilynn Collins, and Position 11B, Adam Platosz.

Sheridan, David M., J.