Reply Brief — Jim Feehan, Petitioner v. Rick Marcone, et al.

No. 18-1470

_______________________________________

IN THE

Supreme Court of the United States

JIM FEEHAN,

v.

Petitioner,

RICK MARCONE, et al.,

Respondents.

_________________________________________

On Petition for a Writ of Certiorari to the

Connecticut Supreme Court

__________________________________________

REPLY BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

________________________________________

Proloy K. Das, Esq.*

Matthew A. Ciarleglio, Esq.

Kevin W. Munn, Esq.

MURTHA CULLINA LLP

CityPlace I

185 Asylum Street

Hartford, CT 06103

Tel. (860) 240-6000

Fax (860) 240-6150

*Counsel of Record pdas@murthalaw.com

August 7, 2019

Counsel for Petitioner

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

REPLY BRIEF IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI .................................... 1

ARGUMENT ............................................................... 3

I. THE COURTS’ ABILITY AND OBLIGATION

TO REMEDY AN UNCONSTITUTIONAL

ELECTION IS NOT DEPENDENT ON THE

“INTENT” OF THE GOVERNMENT

OFFICIALS ........................................................... 3

II. THE CONNECTICUT SUPREME COURT

WRONGLY REFUSED TO REMEDY THE

UNCONSTITUTIONAL ELECTION ................. 10

CONCLUSION.......................................................... 12

ii

TABLE OF AUTHORITIES

Cases

Baker v. Carr, 369 U.S. 186 (1962) ............................ 6

Bartlett v. Strickland, 556 U.S. 1 (2009).................... 6

Brinkerhoff-Faris Tr. & Sav. Co. v. Hill,

281 U.S. 673 (1930) .............................................. 10

Burdick v. Takushi, 504 U.S. 428 (1992) ................... 1

Bush v. Gore, 531 U.S. 121 S.Ct. 525 (2000)..... passim

City of Canton v. Harris, 489 U.S. 378,

109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ................ 7

Coltharp v. Herrera, 584 Fed. Appx. 334

(9th Cir. 2014) ...................................................... 7

Cooper v. Harris, 137 S. Ct. 1455 (2017).................... 6

Crawford v. Marion County Election Bd.,

553 U.S. 181 (2008) ................................................ 6

Evenwel v. Abbott, 136 S. Ct. 1120 (2016) ........... 6, 11

Feehan v. Marcone, 331 Conn. 436 (2019) ............. 3, 5

Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016) .......... 7

General Building Contractors Association v.

Pennsylvania, 458 U.S. 375 (1982)............................. 7

Georgia State Conference of the NAACP v. Fayette

County Bd. of Com'rs, 118 F. Supp. 3d 1338

(N.D. Ga. 2015) ..................................................... 7

Gill v. Whitford, 138 S. Ct. 1916 (2018) ..................... 6

iii

Gold v. Feinberg, 101 F.3d 796 (2d Cir. 1996) ....... 3, 5

Harper v. Virginia, 383 U.S. 663, 86 S.Ct. 1079,

16 L.Ed.2d 169 (1966) ............................................ 4

Hathorn v. Lovorn, 457 U.S. 255 (1982) .................. 11

Hunter v. Hamilton County, 850 F. Supp. 2d 795

(S.D. Ohio 2012) ..................................................... 5

Hunter v. Hamilton County, 635 F.3d 219 (6th Cir.

2011) ........................................................................ 3, 5

In re Contest of General Election Held on

November 4, 2008, for Purpose of Electing a

U.S. Senator from State of Minnesota,

767 N.W.2d 453 (Minn. 2009)................................ 8

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ................................................ 6

Michigan State A. Philip Randolph Inst. v.

Johnson, 833 F.3d 656 (6th Cir. 2016) .................. 7

Powell v. Power, 436 F.2d 84 (2d Cir. 1970) .......... 3, 5

Reynolds v. Sims, 377 U.S. 533 (1964)....................... 6

Rucho v. Common Cause, 139 S. Ct. 2484

(2019) .................................................................. 2, 6

Shannon v. Jacobowitz, 394 F.3d 90

(2d Cir. 2005) ......................................................... 5

Snowden v. Hughes, 321 U.S. 1, 64 S.Ct.

397, 88 L.Ed. 497 (1944) ................................ 3, 4, 6

Tapalian v. Tusino, 377 F.3d 1 (1st Cir. 2004) .......... 7

Taylor v. Illinois, 484 U.S. 400 (1988) ..................... 10

iv

Tenney v. Brandhove, 341 U.S. 367 (1951) .............. 11

Williams v. Rhodes, 393 U.S. 23, 89 S.Ct.5,

21 L.Ed.2d 24 (1968) .......................................... 1, 4

Other Authorities

R. Hasen, “Bush v. Gore and the Future of Equal

Protection Law in Elections,” 29 Fla. St.

U.L. Rev. 377 (2001) ............................................... 8, 9

R. Hasen, “The 2012 Voting Wars, Judicial

Backstops, and the Resurrection of Bush v. Gore,”81

Geo. Wash. L. Rev. 1865 (2013) .................................. 8

D. Tokaji & O. Wolfe, “Baker, Bush, and Ballot

Boards: The Federalization of Election

Administration,” 62 Case W. Res. L. Rev. 969

(2012) ........................................................................... 8

L. Watts, “Reexamining Crawford: Poll Worker Error

As A Burden on Voters,” 89 Wash. L. Rev. 175

(2014) ........................................................................... 8

1

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

The Connecticut Supreme Court’s refusal to

remedy an unconstitutional election violated a

fundamental precept of our democracy. “[T]he right

of qualified voters… to cast their votes effectively…

rank[s] among our most precious freedoms.”

Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 21

L.Ed.2d 24 (1968). The voters and the candidates had

a constitutional right to a fair election. See Burdick

v. Takushi, 504 U.S. 428, 438 & n.8 (1992). That did

not happen here. The Connecticut Supreme Court

wrongly held that, absent intentional misconduct, it

could not remedy the unconstitutional election for

State Representative in the 120th Assembly District.

However, as the Sixth Circuit has correctly

recognized, “intentional discrimination” is not a

prerequisite to the judiciary’s ability to remedy a

Bush v. Gore violation. In addition, the Connecticut

Supreme Court’s timidity in failing to interject when

the House of Representatives’ majority caucus

unabashedly protected the illegitimate seat of one of

its own members has made a mockery of the

constitutional right to a fair election.

Justice demanded judicial intervention to

remedy this unconstitutional election and to give the

people of the 120th Assembly District the opportunity

to choose their state representative. But, the

Connecticut Supreme Court refused:

…to remedy a constitutional violation

because it [thought] the task beyond

judicial capabilities.

2

And not just any constitutional

violation. The [distribution of incorrect

ballots and refusal to hold a new

election] in th[is] case[ ] deprived

citizens of the most fundamental of

their constitutional rights: the rights to

participate equally in the political

process, to join with others to advance

political beliefs, and to choose their

political representatives. In so doing,

the [refusal to hold a new election] here

debased and dishonored our democracy,

turning upside-down the core American

idea that all governmental power

derives

from

the

people.

[The

Connecticut Supreme Court’s refusal to

act] enabled politicians to entrench

themselves in office as against voters’

preferences. [It] promoted partisanship

above respect for the popular will. [It]

encouraged a politics of polarization and

dysfunction.

If

left

unchecked,

[Respondents] like the ones here may

irreparably damage our system of

government.

And checking them is not beyond the

courts….

Rucho v. Common Cause, 139 S. Ct. 2484, 2509

(2019) (Kagan, J., dissenting).

The Petition for a writ of certiorari should be

granted.

3

ARGUMENT

I.

THE

COURTS’

ABILITY

AND

OBLIGATION

TO

REMEDY

AN

UNCONSTITUTIONAL ELECTION IS

NOT DEPENDENT ON THE “INTENT”

OF THE GOVERNMENT OFFICIALS

The issue here is whether a Bush v. Gore equal

protection violation requires proof of intentional

discrimination. Citing Powell v. Power, 436 F.2d 84

(2d Cir. 1970) and Gold v. Feinberg, 101 F.3d 796 (2d

Cir. 1996), the Connecticut Supreme Court and the

Respondents argue that Second Circuit law is that

any voting rights violation requires “intentional or

purposeful discrimination.” Feehan v. Marcone, 331

Conn. 436, 481 (2019); Respondent (Young) Br. at 68; Respondents (Merrill) Br. at 15-19. However, the

doctrinal underpinning of those Second Circuit

decisions is derived from a seventy-five year-old

decision in Snowden v. Hughes, 321 U.S. 1, 64 S.Ct.

397, 88 L.Ed. 497 (1944). So it is important to

consider whether that decision has any current

import.

Snowden is no longer good law. The District

Court on remand in Hunter v. Hamilton County

explained that the Sixth Circuit had relied on Bush

v. Gore in rejecting an argument about the continued

viability of Snowden (the same argument advanced

by the Respondents here):

Next, Defendants argue that Plaintiffs

failed to state an equal protection claim

against the Board because they did not

allege and cannot prove that the Board

acted with “intentional or purposeful

discrimination,” citing Snowden v.

4

Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88

L.Ed. 497 (1944). The Sixth Circuit

expressly rejected this argument,

saying:

The Supreme Court has held in cases

since

Snowden

that

the

Equal

Protection Clause protects the right to

vote from invidious and arbitrary

discrimination.

E.g.,

Williams

v.

Rhodes, 393 U.S. 23, 30, 34, 89 S.Ct. 5,

21 L.Ed.2d 24 (1968).... In particular,

the Court has spoken regarding the

requirements of the Equal Protection

Clause with respect to claims that a

state is counting ballots inconsistently.

See Bush v. Gore, 531 U.S. at 104–05,

121 S.Ct. 525 (“Equal protection applies

... to the manner of [the] exercise [of the

right to vote]. Having once granted the

right to vote on equal terms, the State

may not, by later arbitrary and

disparate treatment, value one person's

vote over that of another.”) (citing

Harper v. Virginia State Bd. of

Elections], 383 U.S. 663 at 665, 86 S.Ct.

1079, 16 L.Ed.2d 169 (1966)); id. at 105,

121 S.Ct. 525 (“The question before us,

however, is whether the recount

procedures the Florida Supreme Court

has adopted are consistent with its

obligation to avoid arbitrary and

disparate treatment of the members of

its electorate.”). Of great importance, a

showing of intentional discrimination

has not been required in these cases.

5

Consequently,

we

reject

the

defendant's argument that there

can be no violation of the Equal

Protection Clause here without

evidence

of

intentional

discrimination.

Hunter, 635 F.3d at 234 n. 13. It is

therefore clearly established that to

succeed on their equal protection claim,

Plaintiffs must show only that the

Board's actions resulted in the arbitrary

and disparate treatment of the members

of the electorate.

Hunter v. Hamilton County, 850 F. Supp. 2d 795,

834–35 (S.D. Ohio 2012) (internal brackets omitted;

emphasis added). At best, the Respondents’

argument demonstrates uncertainty about which

holding – the Sixth Circuit’s or the Connecticut

Supreme Court’s – is correct on the issue of whether

proof of intentional discrimination is required for

Bush v. Gore claims.1 In the Petitioner’s view, the

1 The Connecticut Supreme Court and Respondents also rely on

Shannon v. Jacobowitz, 394 F.3d 90 (2d Cir. 2005) to say that

only “an intentional act by a government official directed at

impairing a citizen's right to vote” would be unconstitutional.

Feehan, 331 Conn. at 476; Respondent (Young) Br. at 4-6, 9;

Respondents (Merrill) Br. at 15-19. In Shannon, the Second

Circuit had before it a due process claim, not an equal

protection claim, so it could not have addressed the need for

intentional discrimination for Bush v. Gore claims. This

confusion may explain why, despite Bush v. Gore, the

Connecticut Supreme Court opined that “the United States

Supreme Court has not spoken” on the issue of whether

“intentional” discrimination is required. Feehan, 331 Conn. at

478. In any event, Shannon’s analysis relies on Powell and Gold

which, as discussed above, are both based on the obsolete

analysis in Snowden.

6

Sixth Circuit is correct and the Connecticut Supreme

Court is wrong. The absence of intentional

misconduct cannot purify an unconstitutional

election.

Snowden supports

Court in Snowden held:

the

Respondents.

The

Where discrimination is sufficiently

shown, the right to relief under the

equal

protection

clause

is

not

diminished by the fact that the

discrimination relates to political rights.

… But the necessity of a showing of

purposeful discrimination is no less in a

case involving political rights than in

any other….

Snowden v. Hughes, 321 U.S. at 11. But Snowden

was decided in 1944. This Court was still almost

twenty years away from recognizing that the

judiciary has an obligation to protect the

constitutional principle of “one-man, one-vote.” See

Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims,

377 U.S. 533 (1964). Tellingly, since Bush v. Gore

was decided, which itself did not cite Snowden, this

Court has not once cited Snowden, even in cases

involving equal protection and the right to vote. See

Rucho v. Common Cause, 139 S.Ct. 2484 (2019); Gill

v. Whitford, 138 S. Ct. 1916 (2018); Cooper v. Harris,

137 S. Ct. 1455 (2017); Evenwel v. Abbott, 136 S. Ct.

1120 (2016); Bartlett v. Strickland, 556 U.S. 1 (2009);

Crawford v. Marion County Election Bd., 553 U.S.

181 (2008); League of United Latin Am. Citizens v.

Perry, 548 U.S. 399 (2006); Bush v. Gore, 531 U.S. 98

(2000).

7

Outside of relying on the erroneous claim that

Snowden’s “intentional discrimination” requirement

is still good law, neither the Respondents nor the

Connecticut Supreme Court explain how requiring

intentional conduct makes any sense in the context

of a Bush v. Gore claim. In a traditional equal

protection claim, the constitutional infringement can

be remedied with money damages. See, e.g., Tapalian

v. Tusino, 377 F.3d 1, 8 (1st Cir. 2004). Because

these damages are being levied against the

defendant(s), there is generally a scienter

requirement. See City of Canton v. Harris, 489 U.S.

378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989);

General Building Contractors Association v.

Pennsylvania, 458 U.S. 375, 391 (1982).

However, the “denial of the right to vote

constitutes a strong showing of irreparable harm,

and one which cannot be compensated by money

damages.” Fish v. Kobach, 840 F.3d 710, 753 (10th

Cir. 2016); see also Michigan State A. Philip

Randolph Inst. v. Johnson, 833 F.3d 656, 669 (6th

Cir. 2016); Coltharp v. Herrera, 584 Fed. Appx. 334,

340 (9th Cir. 2014); Georgia State Conference of the

NAACP v. Fayette County Bd. of Com'rs, 118 F.

Supp. 3d 1338, 1347 (N.D. Ga. 2015). Therefore, the

scienter requirement that exists for a money

damages award is divorced from the Court’s

obligation to remedy constitutional deprivations of

the right to vote and the right to a fair election. By

failing to appreciate and fulfill this obligation, the

Connecticut Supreme Court erred.

In Bush v. Gore, this Court understood that

governmental intent has no relevance when

evaluating the constitutional right to vote and the

candidates’ right to a fair election. For this reason,

8

“intentional discrimination” is not discussed. The

failure of the Connecticut Supreme Court and some

other lower courts to correctly follow Bush v. Gore;

see, e.g., In re Contest of General Election Held on

November 4, 2008, for Purpose of Electing a U.S.

Senator from State of Minnesota, 767 N.W.2d 453,

466 (Minn. 2009); has now created some confusion

about whether intentional conduct is required for

equal protection claims involving the right to vote.2

Professor Richard L. Hasen, one of the nation’s

leading election law scholars, provides an analysis of

how Bush v. Gore claim should be evaluated. See

Richard L. Hasen, “Bush v. Gore and the Future of

Equal Protection Law in Elections,” 29 Fla. St. U.L.

Rev. 377 (2001). He presents five hypothetical

scenarios about potential Bush v. Gore violations,

two of which are relevant here. Id. at 393-398. In one

hypothetical, voters at some polls use punch cards

while others use optical scanning. Voters are

assigned to their polls based on where they live. The

rejection rate of punch card votes is significantly

higher than for optical scanning votes. This is a Bush

v. Gore violation because the different voting systems

and error rates treat voters differently based on

where they live and makes it less likely that one

group of voters will have their votes counted. “[I]t

2 Commentators have noted that based on Bush v. Gore and the

absence of an “intentional discrimination” requirement, a poll

worker’s error can rise to the level of a constitutional violation.

See, e.g., Lauren Watts, “Reexamining Crawford: Poll Worker

Error As A Burden on Voters,” 89 Wash. L. Rev. 175, 202

(2014); Richard L. Hasen, “The 2012 Voting Wars, Judicial

Backstops, and the Resurrection of Bush v. Gore,” 81 Geo.

Wash. L. Rev. 1865, 1868 (2013); Daniel Tokaji & Owen Wolfe,

“Baker, Bush, and Ballot Boards: The Federalization of Election

Administration,” 62 Case W. Res. L. Rev. 969, 993 (2012).

9

appears irrelevant that the choice of voting machine

technology was not the product of intentional

discrimination or animus against any voters or

groups of voters…. In Bush v. Gore, the Court did not

base its holding on intentional discrimination by

Florida officials (or the Florida Supreme Court).” Id.

at 395.

In another hypothetical, voters in one county

are given “butterfly ballots,” the design of which

leads to voter confusion. This is a Bush v. Gore

violation. “[V]oters are being treated differently

depending upon the county in which they live.

Imagine if voters in one county could walk right up

to the polls, but voters in another county had to walk

up a steep hill to get to the polls. The confusing

ballot is like the steep hill, and it should not matter

that election officials picked the hill because they

thought it would be a good place to vote without

distractions.” Id. at 397.

Professor Hasen’s hypotheticals explain why

the instant election was unconstitutional. Voters in

the 120th Assembly District who voted at seven of

eight poll locations were able to vote for their state

representative. Voters were assigned to these poll

locations based on where they live. Voters assigned

to the eighth poll location (Bunnell High School)

were arbitrarily denied the right to vote for their

state representative. This is a clear Bush v. Gore

violation. The intent of the election officials is

irrelevant.

“The right to vote is protected in more than

the initial allocation of the franchise. Equal

protection applies as well to the manner of its

exercise. Having once granted the right to vote on

10

equal terms, the State may not, by later arbitrary

and disparate treatment, value one person's vote

over that of another.” Bush v. Gore, 531 U.S. at 104–

05. The Connecticut Supreme Court wrongly

engrafted into our Constitution an “intentional

discrimination” requirement for Bush v. Gore claims.

The plaintiff and the voters of the 120th Assembly

District were wrongly denied their constitutional

right to a fair election.

II.

THE CONNECTICUT SUPREME COURT

WRONGLY REFUSED TO REMEDY THE

UNCONSTITUTIONAL ELECTION

The Democratic Caucus in the Connecticut

House of Representatives brazenly used one-party

rule to protect an illegitimate seat for one of its

members. See Petition 11-14 & n.6&7. The Petitioner

sought redress from the Connecticut Supreme Court

through a motion for re-argument and/or

reconsideration, but the motion was denied. The

Respondents make no effort to defend their

misconduct. Indeed, the misconduct is indefensible.

Instead, the Respondents attempt to hide behind the

mistaken argument that this Court has no authority

to review the Petitioner’s claims because they were

raised in a timely filed post-decision motion.

This Court has repeatedly held that federal

questions presented to the state courts for the first

time in a petition for re-hearing or re-argument are

“sufficiently well presented to the state courts to

support [this Court's] jurisdiction.” Taylor v. Illinois,

484 U.S. 400, 406 n.9 (1988); see also Hathorn v.

Lovorn, 457 U.S. 255, 264-65 (1982); BrinkerhoffFaris Tr. & Sav. Co. v. Hill, 281 U.S. 673, 677–78

(1930). That the Connecticut Supreme Court refused

11

to resolve a federal constitutional claim that was

presented to it in a timely filed post-decision motion

does not bar this Court from remedying the violation.

This Court should grant the Petition to

address and cure a blatantly unconstitutional

election and process that has been infected by

Connecticut’s one-party rule. Absent this Court’s

intervention, the tyranny of Connecticut’s majority

party will drown the basic constitutional right to a

fair election. This is repugnant to our Constitution:

The Framers also understood that

unchecked majorities could lead to

tyranny of the majority.… The Framers

believed that a proper government

promoted the common good. They

conceived this good as objective and not

inherently

coextensive

with

majoritarian

preferences.…

For

government to promote the common

good, it had to do more than simply obey

the will of the majority.… Government

must also protect fundamental

rights. …

Evenwel v. Abbott, 136 S. Ct. 1120, 1138 (2016)

(Thomas, J., concurring) (emphasis added; internal

citations omitted). The Connecticut Supreme Court

was wrong to defer to a kangaroo court of the

Connecticut House of Representatives and to cede its

obligation to protect a right as important and

fundamental as the constitutional right to a fair

election. See Tenney v. Brandhove, 341 U.S. 367, 382

(1951) (Black, J., dissenting) (“May they depart with

impunity from their legislative functions, sit as

kangaroo courts, and try men for their loyalty and

12

their political beliefs? May they substitute trial

before committees for trial before juries? May they

sit as a board of censors over industry, prepare their

blacklists of citizens, and issue pronouncements as

devastating as any bill of attainder?”)

The Petition for a Writ of Certiorari should be

granted.

CONCLUSION

This Court should grant the Petition for a Writ

of Certiorari.

Respectfully submitted,

Proloy K. Das*

Matthew A. Ciarleglio

Kevin W. Munn

MURTHA CULLINA LLP

City Place I

185 Asylum Street

Hartford, CT 06103

Tel. (860) 240-6000

Fax (860) 240-6150

pdas@murthalaw.com

Counsel for the Petitioner

August 7, 2019

*Counsel of Record