JOHN W. BUTTS v. SUSAN BYSIEWICZ, SECRETARY OF STATE, SC 18663

Judicial District of Hartford

 

      Elections; Whether Endorsed Candidate is Entitled to Order Requiring Secretary of the State to Include his Name on the Ballot Where Court Found that Candidate's Certificate of Endorsement was not Timely Filed in Compliance with General Statutes § 9-388.  At a convention held on May 11, 2010, the plaintiff was unanimously endorsed as the Democratic Party's candidate for judge of probate for the 32nd probate district in the November 2, 2010 general election.  General Statutes § 9-388 provides that an endorsed candidate must file a signed certificate of endorsement with the secretary of the state (the defendant), and that, if the certificate is mailed, it shall be by certified mail, return receipt requested.  The statute also provides that the certificate "shall be received by [the defendant] not later than four o'clock p.m. on the fourteenth day after the close of [the] convention" and that, if not received in time, "such certificate shall be invalid and [the political party] shall be deemed to have made no endorsement of any candidate for such office."  Here, the deadline for the receipt of the plaintiff's certificate was May 25, 2010, and the certificate was mailed to the defendant by regular first class mail on May 15, 2010.  In July, the plaintiff learned that his name would not appear on the ballot for the November election because the defendant had not received his certificate of endorsement.  While the plaintiff's mailing included a return address, the certificate was never returned as undeliverable, and the certificate could not be found in the defendant's offices.  The plaintiff hand-delivered another copy of his certificate to the defendant on August 11, 2010 - well past the statutory deadline - and brought this action seeking an order requiring that the defendant put his name on the ballot.  The trial court denied the plaintiff any relief, ruling that his certificate of endorsement was invalid because there was no evidence that the defendant received it within fourteen days of the convention as required by § 9-388.  The court found it significant that § 9-388 was amended in 2006 to provide that (1) a certificate not received within the fourteen day period "shall be invalid," and (2) certificates must be mailed to the defendant by certified mail, return receipt requested.  The court found that these amendments reflected the legislature's intent to eliminate disputes concerning the date and time of the filing of a certificate and place the burden of timely filing squarely on the candidate.  The court acknowledged that, whenever possible, election statutes should be construed to avoid voter disenfranchisement and that the effect of its decision was that a political party will not be represented by its endorsed candidate in the upcoming election, but that it was nonetheless constrained to follow the statute and conclude that the plaintiff's certificate of endorsement was invalid.  The plaintiff appeals, claiming that the court should have afforded relief to protect his rights, those of the Democratic Party, and those of the voters of the 32nd probate district.  The plaintiff also contends that neither the plain language of § 9-388 nor the statute's legislative history evince any legislative intent to deprive the court of the power to compel the defendant to place his name on the ballot under these circumstances.