Jason Morris v. William Geising et al. (2016)

MEMORANDUM OF DECISION ON THE PLAINTIFF'S REQUEST FOR INJUNCTIVE RELIEF

At the hearing on February 8, 2016, for a request for a preliminary injunction in this case, the following facts were established.  The plaintiff, James Morris, transferred his party affiliation with the Registrar of Voters of the city of New London from the Green Party to the Democratic Party on December 9, 2015.  On January 12, 2016, the New London Democratic Party, in caucus, endorsed a slate of candidates for election to the Democratic Town Committee.  Shortly thereafter, Morris commenced circulating a petition seeking a primary election for the Democratic Town Committee delegates from District 2 and the nomination of nonendorsed candidate Timothy Sparen to challenge the endorsed slate for a position on the Committee.

On January 27, 2016, Morris delivered to the Registrar of Voters a sufficient number of signatures of registered Democrats from District 2 to require a primary.  Initially, William Geising, the Democratic Registrar, accepted Morris' petition, but when the Republican Registrar pointed out to him that Morris had not been an enrolled Democrat for ninety days, Geising rejected the petitions as not being in compliance with state statute.

General Statutes § 9–59 provides that a person who transfers from one political party to another is not “entitled to the privileges accompanying enrollment in any party for a period of three months from the date of the filing of his application for transfer ․” Further, General Statutes § 9–410(c) requires that “[e]ach circulator of a primary petition page shall be an enrolled party member” and that the registrar certify that “the circulator is an enrolled party member in such municipality.”  As Morris transferred his party affiliation on December 9, 2015, he had not been registered as a Democrat for the required three months when he circulated and submitted the petition, and on that basis, Geising testified that he could not certify the validity of the petitions.

Morris testified at hearing that he was unaware of the three-month enrollment requirement when he circulated the petitions, and the court has no reason to doubt his sincerity in that regard.  While Morris acknowledges that under the statutes cited above he was not eligible to act as a circulator under Connecticut law, he contends that the imposition of the three-month requirement on the circulation of petitions for a primary deprives him of his right to free speech and freedom of association under the first amendment to the United States constitution.  He, therefore, seeks a preliminary injunction, requiring the Registrar to accept the petitions and allow the primary election to go forward.  The defendant disagrees, contending that the statutory requirements regarding the qualification of circulators constitute reasonable protections for the integrity of the electoral process and are not in violation of the first amendment.

The court must first determine the proper degree of judicial scrutiny to apply to the alleged first amendment violation.  In a recent case relied on by the plaintiff, the United States District Court for the District of Connecticut applied strict scrutiny and granted a preliminary injunction and temporary restraining order on the enforcement of General Statutes §§ 9–453e, 9–453j, 9–453k, and 9–453o, which establish a residency requirement for individuals who act as circulators of nominating petitions for parties that qualify neither as major nor minor parties in elections held in Connecticut.  Libertarian Party of Connecticut v. Merrill, United States District Court, Docket No. 3:15CV01851 (JCH) (D.Conn. January 26, 2016).

In making its determination, the court in that case reasoned as follows:  “The act of gathering signatures from potential voters on a ballot access petition, such as the nomination petitions at issue in this case, constitutes ‘interactive communication concerning political change.’  Meyer [v. Grant,] 486 U.S. [414, 420, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988) ] (discussing a ballot access petition for a constitutional referendum).  Such activity ‘will in almost every case involve an explanation of the nature of the proposal and why its advocates support it.’  Id., 412.  The Supreme Court [of the United States] has conclusively held that such activity is ‘core political speech,’ the restriction of which constitutes a ‘severe burden’ warranting strict scrutiny.  Id., 422;  see also Lerman [v. Board of Elections ], 232 F.3d [135, 146 (2d Cir.1986) ] (holding that the speech engaged in by those gathering signatures for ballot access petitions is ‘identical’ to the petitions circulated in Meyer ).  ‘[I]n those cases in which the regulation clearly and directly restricts core political speech,’ as opposed to the ‘mechanics of the electoral process' ․ application of strict scrutiny clearly will be necessary.’  Id., 146.”  Libertarian Party of Connecticut v. Merrill, supra, United States District Court, Docket No. 3:15CV01851 (JCH).

While this analysis by the United States District Court appears to hold that the federal constitution requires that strict scrutiny be applied to state regulations which restrict the circulation of ballot petitions, the Connecticut Supreme Court, while analyzing the same cases relied upon in Libertarian Party of Connecticut v. Merrill, has required further analysis before determining that strict scrutiny applies.  In its opinion in Gonzalez v. Surgeon, 284 Conn. 573, 587–89, 937 A.2d 24 (2007), the Connecticut Supreme Court, quoting from Lopez Torres v. Board of Elections, 462 F.3d 161, 183–84 (2d Cir.2006), rev'd on other grounds, 552 U.S. 196, 128 S.Ct. 791, 169 L.Ed.2d 665 (2008), stated:

“ ‘[N]ot every regulation that limits the field of candidates is constitutionally suspect, let alone unconstitutional.  As noted above, a state possesses significant power to structure its own elections.  Moreover, as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.  Id., [788] ․ Accordingly, in resolving a challenge that pits a[s]tate's power to regulate its elections against the rights secured by the [f]irst [a]mendment, we cannot resort to any litmus-paper test that will separate valid from invalid restrictions.  Id., [789] ․

‘ “Instead, we must first ascertain the character and magnitude of the asserted injury to the rights protected by the [f]irst and [f]ourteenth [a]mendments that the plaintiff seeks to vindicate.  Id. We must make that assessment not in isolation, but within the context of the state's overall scheme of election regulations.  Lerman v. [Board of Elections], supra, 232 F.3d 145.  The [United States] Supreme Court has underscored that in assessing the extent to which a given set of candidate restrictions burdens [f]irst [a]mendment rights, our review is neither formalistic nor abstract.  Instead, we must turn a keen eye on how the electoral scheme functions infact;  indeed, it is essential to examine in a realistic light the extent and nature of [the scheme's] impact on voters.  Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972).

“ ‘If our realistic assessment yields the conclusion that the electoral scheme lightly or even moderately burdens [f]irst [a]mendment rights, we apply a relaxed standard of review, according to which the restrictions generally are valid so long as they further an important state interest.  Lerman [v. Board of Elections, supra, 232 F.3d at 145].  On the other hand, if we conclude that a law imposes severe burdens, we apply strict scrutiny, which requires that the law be necessary to serve a compelling state interest.  Id.;  see also Bullock [v. Carter, supra, 405 U.S. 147] ( [b]ut under the standard of review we consider applicable to this case, there must be a showing of necessity ․ ).’  (Emphasis in original;  internal quotation marks omitted.)  Lopez Torres v. Board of Elections, [supra,] 462 F.3d [183–84].”  Gonzalez v. Surgeon, supra, 284 Conn. 587–89.

Our Supreme Court in Gonzalez held that the circulation of petitions, as dictated by General Statutes § 9–410(c), implicates core political speech.  Gonzalez v. Surgeon, supra, 284 Conn. 590.  In this regard, our Supreme Court is in accord with the district court in Libertarian Party.  The court then considered the “character and magnitude” of the burden imposed by § 9–410(c), analogizing to Citizens for John W. Moore Party v. Board of Election Commissioners, 794 F.2d 1254, 1257 (7th Cir.1986).  “In the present case, the challenged portion of § 9–410(c) prohibiting any person from circulating petitions for more than ‘the maximum number of candidates to be nominated by a party for the same office or position’ affects only persons who have circulated petitions for the maximum number of candidates for one office and want to switch their support to another candidate or candidates for the same office and those who support one candidate or slate of candidates but want to circulate petitions for additional candidates for tactical reasons.  As in Citizens for John W. Moore Party, the provision does not prevent such persons from supporting whatever candidate they choose in any manner they choose except by circulating petitions, it does not significantly diminish the pool of people available to circulate petitions for a particular candidate and it does not increase the number of signatures that must be collected on behalf of a particular candidate.  We conclude, therefore, that the burden imposed by § 9–410(c) is slight.”  Gonzalez v. Surgeon, supra, 592.

In making this determination, the Connecticut Supreme Court distinguished a series of other first amendment cases, including Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999), Lerman v. Board of Elections, supra, 232 F.3d 135, and Campbell v. Bysiewicz, 242 F.Sup.2d 164 (D.Conn.2003):  cases in which courts determined that restrictions on the circulation of ballot access petitions imposed a severe burden.  Gonzalez v. Surgeon, supra, 284 Conn. 592–94.  “In all of these cases, the controlling consideration was that the law under review significantly reduced the pool of potential circulators.  The provision of § 9–410(c) at issue in the present case does not eliminate any persons from the pool of eligible circulators.  The statute merely requires any person who wants to participate in the petition process to choose one candidate or slate of candidates for whom he or she will circulate petitions.  Thus, § 9–410(c) restricts the pool of available circulators only in the sense that it requires candidates to compete for them.  Accordingly, we conclude that these cases are not controlling.”  Gonzalez v. Surgeon, supra, 594.  Because the court found that the burden imposed on core political speech was only slight, the court concluded that the provision was not subject to strict scrutiny.  Id. Accordingly, the court “appl[ied] a relaxed standard of review, according to which the restrictions generally are valid so long as they further an important state interest.”  (Internal quotation marks omitted.)  Id.

In the present case, the plaintiff argues in his brief that the court should find that the challenged provisions impose a severe burden on core political speech and apply strict scrutiny.  The defendant counters in its brief that enforcement of §§ 9–59 and 9–410 does not result in a severe burden on core political speech of the petition signatories because doing so does not reduce the voices available to convey political messages.  Taking into account the reasoning of the Connecticut Supreme Court outlined above, there is no meaningful distinction between the burden imposed upon the plaintiffs in Gonzalez and the plaintiff here.  The challenged provisions of §§ 9–410 and 9–59, requiring an individual to be a registered member of the party for which she intends to circulate petitions and that a switch or erasure of registration is not effective for three months, respectively, affect only persons who have switched political parties or removed their name from a party list within the last three months.  While this may reduce the pool of eligible circulators, no evidence has been submitted that the provisions “significantly reduce the pool of potential circulators.”  Additionally, “the provision does not prevent such persons from supporting whatever candidate they choose in any manner they choose except by circulating petitions ․ and it does not increase the number of signatures that must be collected on behalf of a particular candidate.”  Gonzalez v. Surgeon, supra, 284 Conn. 592.  Accordingly, the proper scrutiny to be imposed on the relevant provisions is a slight to moderate burden subject to “a relaxed standard of review.”

“The United States Supreme Court has held with respect to restrictions on ballot access for candidates in a general election that ‘a [s]tate has a legitimate interest in regulating the number of candidates on the ballot ․ In so doing, the [s]tate understandably and properly seeks to prevent the clogging of its election machinery [and to] avoid voter confusion ․ Moreover, a[s]tate has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies.’  (Citations omitted;  internal quotation marks omitted.)  Storer v. Brown, ․ 415 U.S. [724, 732–33, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) ];  see also Citizens of John W. Moore Party v. Board of Election Commissioners, supra, 794 F.2d at 1260 (‘there is ․ a potential for confusion if a circulator identified as the agent of one party suddenly solicits signatures for another party or an independent candidate’);  Citizens of John W. Moore Party v. Board of Election Commissioners, supra, at 1261 (state has interest in preventing ‘maneuvers that could affect the quality of the candidates who will be on the ballot’).  The United States Supreme Court also has held that the state has an interest in restricting ‘independent candidacies prompted by short-range political goals, pique, or personal quarrel’ and in imposing a ‘barrier to a [political] party fielding an “independent” candidate to capture and bleed off votes ․ that might well go to another party.’  Storer v. Brown, supra, 735.”  Gonzalez v. Surgeon, supra, 284 Conn. 595–96.  The United State Supreme Court recognizes important state interests in preserving political parties as viable and identifiable interest groups, enhancing parties' electioneering and party-building efforts, and guarding against party raiding and “sore loser” candidacies by spurned primary contenders.  Clingman v. Beaver, 544 U.S. 581, 594, 125 S.Ct. 2029, 2039, 161 L.Ed.2d 920 (2005).

In the present case, the defendant argues that the state has in interest in preventing “party jumping” designed to cause issues in party business and in the orderly administration of elections as the legislative history of § 9–59 indicates.  The statements of Representative Martin Looney in the debate of this provision indicate that “the intention of this section of the bill was to avoid the kind of manipulation that can sometimes result with sudden shifts in a short period of time before a primary in this case.  People who would suddenly come in to vote in a primary without perhaps any real commitment or involvement to that party's principles, perhaps, in some way to skewer the results of the primary, all of the ways that we know of possibly [raiding] or possibly engaging in voting in a primary for purposes other than to elect that candidate that would be the strongest candidate for that primary for that party in the general election.

“The ․ provision is one that, in a sense, seeks to maintain some semblance of order and predictability and discipline and perhaps true affiliation in the voting process.”  30 H.R. Proc., Pt. 30, 1987 Sess., pp. 551–52, remarks of Representative Martin Looney.

The interests identified by the defendant fall within the categories of important state interests identified in Clingman, and reiterated by our Supreme Court in Gonzalez.  Additionally, “there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.”  Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983).  Undoubtedly, states have an important interest in attaining this goal as well.

The legislature could have reasonably believed that the three-month waiting period and enrollment requirements make it more difficult to interfere with political parties and maintain order, honesty, and fairness in the election process.  Accordingly, this court is unable to conclude that the plaintiff is likely to succeed on the merits of this claim, and hereby denies the plaintiff's request for injunctive relief.

T. Bates, Judge, Superior Court

Bates, Timothy D., J.