Appendix — Tashjian v. Republican Party of Conn.

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8 5 - 7 66 >)! Supreme Court. U.S.

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In the Supreme Court of the Bmitea states

October Term, 1985

JULIA H. TASHJIAN,

Secretacy of tne State of Connecticut,

Appellant,

REPUBLICAN PARTY of the STATE of

CONNECTICUT, LOWELL P. WEICKER, 35R.,

STEWART 3. MCKINNEY, NANCY L. JOHNSON

and THOMAS J. D'AMORE, JR.,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

Appendix to Jurisdictional Statement

Volume II

JOSEPH I. LIEBERMAN

Attorney General of the

State of Connecticut

Elliot F. Gerson Barney Lapp

Deputy Attorney Daniel R. Schaefec

General Henry S. Conn

Counsel of Record Assistant Attorneys

30 Trinity Street General

Hartford, Connecticut

C6106

(203) 566-3747

Counsel for Appellant

FILED DECEMBER 5, 1984

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

REPUBLICAN PARTY OF THE STATE

OF CONNECTICUT, LOWELL P.

WEICKER, JR., STEWART B.

MCKINNEY, NANCY L. JOHNSON

AND THOMES J. D'AMORE, JR.

CIVIL NO.

Vv. : H 84-548

(JAC)

JULIA H. TASHJIAN, Secretary

of the State of the State of

Connecticut

APPEARANCES:

STANLEY A. TWARDY

DAVID S. GOLUB

(Silver, Golub & Sandak)

Stamford, Connecticut

-and-

RALPH G. ELLIOT

(Tyler, Cooper & Alcorn)

Hartford, Connecticut

Counsel for Plaintiffs

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———

JOSEPH I. LIEBERMAN

ELLIOT F. GERSON

DANIEL R. SCHAEFER

HENRY S. COHN

(Office of the Attorney General)

Hartford, Connecticut

Counsel for Defendant

MARTIN B. MARGULIES

(University of Bridgeport

School of Law)

Bridgeport, Connecticut

-and-

MARTHA STONE

(Connecticut Civil Liberties

Union Foundation)

Hartford, Connecticut

-and-

BURT NEUBORNE

(American Civil Liberties Union)

New York, New York

Counsel for Amici Curiae American

Civil Liberties Union and

Connecticut Civil Liberties Union

STEPHEN E. GOTTLIEB

(Albany Law School)

-143-

a — oe” an — a ee Sees ee en ee ee ee

Albany, New York

Counsel for Amici Curiae

F. Christopher Arterton,

James MacGregor Burns,

Barbara Burrell, William

Crotty, Roman B. Hedges

and John S. Jackson III?

RULING ON DEFENDANT'S MOTION

TO DISMISS AND PLAINTIFFS'

MOTION FOR SUMMARY JUDGEMENT

JOSE A. CABRANES, District Judge:

This case brings into dramatic con-

flict the power of states to regulate

primary elections and the right of polit-

ical parties to freedom of association

under the First Amendment to the _ United

States Constitution. The State of Con-

necticut has asserted a broad and

-144-

oS eg ae Gee , aes Oe Oe We ee ae ae ee ee

Se eee ee

SN te Pl, eb a

discretionary claim to authority over the

activities of political parties based on

their integral involvement in the selec-

tion of candidates for public office.

Plaintiffs acknowledge that political

parties are not typical voluntary organi-

zations immune from state regulation and

constitutional strictures,? but maintain

that freedom of association would prove

an empty guarantee if states were

unrestrained in their ability to dictate

eligibility requirements for participa-

tion in party's candidate selection pro-

cess.

The action challenges the validity

of Connecticut's "closed primary law,"

Section 9-431 of the Connecticut General

-365-

o~ we

le ieee ee

Statutes, which prohibits voters who are

not enrolled in a political party from

participating in primary elections.4

This is the first case to present the

Situation in which a political party

challenges a closed primary law on First

Amendment grounds. Plaintiffs are the

Republican Party of the State of Con-

necticut, the Chairman of the Republican

State Central Committee, Thomas J.

D'Amore, Jr., and the Connecticut Repub-

lican Party's principal federal elected

officials, United States Senator Lowell

P, Weicker, Jr. and United States Repre-

sentatives Stewart B. McKinney and Nancy

L. Johnson. The defendant is Julia H.

Tashjian, Secretary of the State of the

-146-

State of Connecticut. ("Connecticut”" or

"defendant"), who is responsible for ad-

ministering the challenged statute.

Plaintiffs allege that Section 9-431 in-

fringes their First Amendment right to

associate for the advancement of common

political objectives. They seek to have

this court declare the statute unconsti-

tutional and enjoin its enforcement. In

1976, the constitutionality of the very

statute at issue in this case was chal-

lenged by unaffiliated voters who desired

to participate in primary elections

against the express wishes of political

parties. See Nader v. Schaffer, 417 F.

Supp. 837 (D. Conn.) (three-judge court),

aff'd mem., 426 U.S. 989 (1976). The

-14/-

court in Nader held that Connecticut was

justified in preventing these unwanted

intruders from disrupting party pri-

maries. In this case, the Connecticut

Republican Party is no longer a willing

beneficiary of the protections afforded

by the state's closed primary law. The

party now seeks to open its candidate se-

lection process to unaffiliated voters.

Accordingly, the concern with barring

unwelcome "outsiders" that motivated the

result in Nader is not present here.

On January 14, 1984, the delegates

to the state convention of the Con-

necticut Republican Party approved an

amendment to the party rules permitting

unaffiliated voters to join with enrolled

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Republicans in voting for candidates for

the offices of the United States Senator,

United States Representative, Governor

and the gubernatorial "“underticket” in

) The amendment would

primary elections.

not affect voter qualifications in other

Republican Party primary elections,

including those for seats in the Con-

necticut Senate and House of Representa-

tives; enrollment in the party would con-

tinue to be a requirement for voting in

those primaries. The amended party rule

is in direct conflict with Section 9-431.

Because Section 9-431 substantially

interferes with plaintiffs’ associational

rights, it is subject to strict judicial

scrutiny. The statute can thus be upheld

-149-

{

only if it is necessary to advance com-

pelling state interests and if it advanc-

es those interests in the manner least

restrictive of the ability of the Repub-

lican Party to structure its candidate

selection process in the way it deems ap-

propriate. ®

In the circumstances of tr s case,

the purposes purportedly s* ved by Sec-

tion 9-431 -- the prevent’ : of raie ng,

the avoidance of voter onfusioc and the

preservation of the O-par System --

are not conmpellin stat aterests justi-

fying t S. . burden that the

Statute imposes on the exercise of plain-

tiffs' right of political association.

Accordingly, Section 9-431 constitutes an

-150-

impermissible infringement on First

Amendment rights and it cannot be applied

to prevent the Republican Party from

including unaffiliated voters in certain

of its primaries.

The court today holds not that par-

ticipation by unaffiliated voters in

party primaries necessarily is constitu-

tionally required, but that a party's de-

cision to permit unaffiliated voters to

participate in its primaries is constitu-

tionally protected.

Discussion

Although the memoranda filed by the

parties are lengthy, this is not a

-i3i-

particularly complex case. The principal

issues are relatively straightforward.

They are, first whether the dictates of

Article I, section 2 of the Constitution

and the Seventeenth Amendment (defining

voter eligibility in elections for the

federal House of Representatives and Sen-

ate, respectively) are applicable to pri-

mary elections; second, whether Article

I, section 2 and the Seventeenth Amend-

ment require that eligibility to vote in

congressional elections be "absolutely

symmetrical” to eligibility to vote in

state legislative elections; third,

whether Article I, section 4 (vesting in

states the power to regulate the time,

place, and manner of holding

-152-

congressional elections) grants states

virtually unreviewable power to regulate

the conduct of primaries; fourth, whether

the challenged statute constitutes. so

insubstantial an imposition on the right

of association that courts reed not

strictly scrutinize the statute under the

First and Fourteenth Amendments; and

fifth, whether the interests proffered by

Connecticut in support of its closed pri-

mary law are legitimate and sufficient to

outweigh the burden that the statute im-

poses on plaintiffs' right of political

association. The court will address each

of these questions in turn.

-1353-

I. Political Parties and State Action

Article I, section 2, clause 1 of

the United States Constitution provides:

The House of Representatives

shall be composed of Members

chosen every second Year by the

People of the several States,

and the Electors’ in each State

shall have the Qualifications

requisite for electors of the

most numerous Branch of the

State Legislature.

The Seventeenth Amendment employs virtu-

ally identical language to delineate the

Class of persons eligible to vote in

elections for the United States Senator.’

Connecticut maintains that the Re-

publican Party rule at issue in this lit-

igation violates’ these constitutional

provisions by permitting unaffiliated

-154-

voters to participate in primaries for

congressional offices while denying them

a Similar oppurtunity to vote in pri-

maries for seats in the Connecticut Gen-

eral Assembly. Puttina aside for the mo-

ment Connecticut's dubious interpretation

of the relevant constitutional provi-

sions, it is not apparent that Article I,

section 2 and the Seventeenth Amendment

have any application to primary elections

whatsoever. Connecticut uncritically as-

serts that "the activities of a political

party constitute state action” and thus

that “there can be no question" that Ar-

ticle I, section 2 applies to primaries.

Defendant's Reply to Plaintiffs' Memoran-

dum Dated June 27, 1984 in Opposition to

-13535-

Motion to Dismiss (filed July 9, 1984)

("Defendant's Reply Memorandum") at 4.

This conclusion rests on the selective

use of passages from Supreme Court deci-

sions taken out of context, a

mischaract?rization of dicta in United

States v. Classic, 313 U.S. 299 (1941),

and an unwarranted extension of the

so-called White Primary Cases.®

The White Primary Cases, in which

the Supreme Court overturned a series of

increasingly subtle tactics employed to

exclude blacks from participating in the

Texas Democratic Party's candidate selec-

tion process, do not stand for the propo-

Sition that all actions of political par-

ties constitute state action without

-156-

regard to the surrounding circumstances.

See O'Brien v. Brown, 409 U.S. l, 4.1

(1972); Kester, Constitutional

Restrictions on Political Parties, 60 V2.

L. Rev. 735, 756-760 (1974); see also

Ripon Society v. National Republican

Party, 525 F.2d 567, 598-600 (D.C. Cir.

1975) (Tamm, J., concurring), cert.

denied, 424 U.S. 933 (1976). The White

Primary Cases concerned discrimination

against “embers of a suspect class. They

thus reflect the principle that, in cases

of invidious discrimination, a lesser de-

gree of state involvement in private con-

duct is sufficient to trigger constitu-

tional scrutiny. See, e.g., Janusaitis

v. Middlebury Volunteer Fire Department,

-157-

607 F.2d 17, 23, 27 n.16 (2d Cir. 1979).2

No discrimination against a "discrete and

insular minority," United States v.

Carolene Products Co., 304 U.S. 144, 152

n.4 (1938), present on the facts of this

case.

Absent a malfunctioning of the ma-

chinery of the Connecticut Republican

Party that results in a perversion of its

electoral processes, such as the arbi-

trary exclusion of members of particular

ethnic or religious groups, there is no

basis for the state to interfere in the

party's decisionmaking. The party's in-

ternal processes will supply any neces-

sary corrective. "Where...all persons

who share the party's basic philosophy

-156-

can participate more or less equally in

fashioning party rules, there is no rea-

son to set those rules aside merely be-

cause a legislative majority thinks it

can do a better job." Brief of Amici

Curiae American Civil Liberties Union and

Connecticut Civil Liberties Union Founda-

tion in Support of Plaintiffs' Motion for

Summary Judgment (filed June 27, 1984) at

5; see generally J. Ely, Democracy and

Distrust 135-179 (1980).19

Furthermore, the White Primary Cases

were decided at atime when Texas was a

one-party state and the Democratic Party

nomination was tantamount to election to

public office. See Ripon Society v.

National Republican Party, supra, 525

-159-

F.2d at 598 (Tamm, J., concurring). De-

fendant could not seriously contend that

anything resembling that situation is

true of Connecticut at this time. Read

as they must be in light of their factual

underpinnings, the White Primary Cases do

not support defendant's far-reaching view

that the activities of political parties

always constitute state action.

Connecticut's reiiance on United

States _v. Classic, supra, is similarly

misplaced. In Classic, the Supreme Court

reversed the dismissal of an indictment

against a Louisiana election official for

fraudulently tabulating ballots in a pri-

mary election. The Court reasoned that

primaries were such an "integral part" of

-160-

Ane ues 4

the electoral process that the right to

vote implicit in Article I of the consti-

tution, see Ex Parte Yarbrough, 110 U.S.

651, 662-664 (1884), extended to them.

Kester, supra, 60 Va. L. Rev. at 745-746.

In dicta, the Court suggested that a

party official also could be prosecuted

for miscounting ballots in a primary

election because the right to vote in

congressional elections guaranteed by Ar-

ticle I is protected against state and

private interference al ke. United

States v. Classic, supra, 313 U.S. at

315.

Any argument, based on this dictum

in Classic, that the activities of polit-

ical parties are, by definition, state

-161-

———— a

action, is unfounded. See Developments

in the Law -- Elections, 88 Harv. L. Rev.

1123, 1158-1159 (1975); L. Tribe,

American Constitutional Law § 13-23, at

789 n.16 (1978). As Judge Tamm observed

in his concurrence in Ripon Society vv.

National Republican Party, supra,

the Classic holding was firmly

grounded in the Article l pro-

tection of the rignt to vote in

congressional elections, which

also extends to private inter-

ferences, and thus cannot stand

for the proposition that all

nominating procedures closely

related to general elections

constitute state action.

525 F.2d at 599.

Defendant also argues that Article

I, section 2 is applicable to political

parties in primary elections even absent

-162-

a finding of state action. ee Defen-

dant's Memorandum in Support of Motion to

Dismiss (filed June 21, 1984) ("Defen-

dant's memorandum") at 17-18. This argu-

ment is premised on the isolated state-

ment in Classic that "the constitutional

command...is secured against the action

of individuals as well as of states."

313 U.S. at 315. Reading "the constitu-

tional command" to mean its postuléted

"absolute symmetry” requirement, Con-

necticut concludes that Article I, sec-

tion 2 directly prohibits political par-

ties from establishing voting

qualifications in primaries for congres-

sional offices different from those for

State legislative offices.

-163-

—————————e—— ee ere a

This analysis is not borne out by a

close reading of the opinion in Classic.

It is apparent that in referring to “the

constitutional command,” the Court was

speaking of the right to vote implicit

generally in Article 1 of the Constitu-

tion and not any alleged constitutional

prescription of “absolute symmetry" in

the definitions of voter eligibility in

congressional and state legislative elec-

tions. See Ex Parte Yarbrough, supra,

110 U.S. at 662-664; United States v.

Mosley, 238 U.S. 383, 386 (1915). It is

the right to vote that is "without re-

Striction or limitation" and thus. pro-

tected from private as well as

state-imposed interference.

-164-

ae, ee ee eee

Connecticut's suggestion that the phrase

"the constitutional command" in Classic

refers to the explicit terms of Article

1, section 2, adopting state voter quali-

fications for use in congressional elec-

tions, 1s groundless. Those provisions,

by their terms, have no logical applica-

tion to the conduct of private persons or

entities.?+

II. The Meaning of Article I, Section 2

Even assuming arquendo the existence

of some principled basis for applying Ar-

ticle I, section 2 and the Seventeenth

Amendment to primary elections, Con-

necticut has failed to demonstrate that

-165-

these constitutional provisions mandate

"absolute symmetry” or “unqualified sym-

metry and equality" in voter qualifica-

tions for congressional and state legis-

lative primaries. Defendant's

painstaking review of the history of Ar-

ticle I, section 2 demonstrates only that

nationally uniform voter qualifications

for congressional elections were rejected

by the Constitutional Convention in 1787

in favor of the diverse standards uti-

lized by the states themselves in

electing the corresponding branches of

their legislatures. This expedient elim-

inated the difficulty of identifying a

Single standard mutually acceptable to

all states?4 and insured that the House

-166-

Wt A +

Stee a a Oa aha td atin,

ee cree Weare tat ee

Ne et ee

Ee ees eb ets Se le mee

of Representatives would be elected by

"the great body of the people of the

United States." The Federalist No. 57,

at 385 (J. Madison) (J. Cooke ed. 1961).

The Founding Fathers were concerned that

discrimination against federal interests

might lead states to restrict the fran-

chise in congressional elections, "ren-

der{ing] too dependent on the State Gov-

ernments, that branch of the Federal

Government, which ought to be dependent

on the people alone.” The Federalist No.

52 at 354 (J. Madison) (J. Cooke ed.

1961). In tying eligibility to vote in

congressional elections to the qualifica-

tions for electors of the most numerous

branches of state legislatures, the

-167-

‘

drafters of the Constitution sought to

prevent states from restricting popular

participation in congressional elections;

this goal was accomplished by the _ re-

quirement that any such restriction of

the franchise in congressional elections

be accompanied by an identical narrowing

of the electorate in state legislative

contests.

None of this suggests the slightest

concern with symmetry in the abstract, as

a value meriting protection in its own

ight. Neither the language nor the his-

tory of Article I, section 2 precludes a

more expansive classification of eligible

voters in congressional as opposed to

state legislative elections, and

~168-

Lc tans,

OS Re BPR) CBOE Peg tO elt ae) > .

defendant's repeated insistence that’ the

Constitution requires “absolute symmetry"

does not make it otherwise. To guarantee

that the House of Representatives would

be elected by the general populace, the

framers devised a method of dissuading

States from capriciously restricting the

franchise in congressional elections.

Those qualified to vote for members« of

the most numerous branches of state leg-

islatures are entitled to vote for mem-

bers of the House of Representatives; a

more restrictive standard is constitu-

tionally impermissible. It does not log-

ically follow from this, however, that a

less restrictive standard is similarly

proscribed. in fact, it is arguable that

-169-

MR, ks rm me we te

a standard that opens the political pro-

cess by including greater numbers of vot-

ers in congressional primaries furthers,

rather than undermines, the democratic

values underlying Article I, section 2.

Defendant's unexplained assertion

that "the power to discriminate in favor

of ‘openness’ implies the power to dis-

Criminate for narrow purposes," Defen-

dant's Memorandum at 9, is without merit.

The ability to expand but not contract

the pool of eligible voters in congres-

Sional primaries is the functional

analogue of Justice Brennan's famous

"ratchet" theory concerning the power of

Congress to enforce the Fourteenth Amend-

ment. Under that theory, Congress may

-170-

OE Dn HA ve ew

enact laws that strengthen guarantees

under the Due Process and Equal Pro-

tection Clauses of the Fourteenth Amend-

ment, as interpreted by the Supreme

Court, but may not dilute those guaran-

tees. See Katzenbach v. Morgan, 384 U.S.

641, 651 & n.10 (1966).23 In a similar

vein, although states under no circunm-

stances may limit rights beyond constitu-

tionally required minima, they may in

certain instances extend the reach of

rights guaranteed by the Constitution. ?4

III. Article I, Section 4

Connecticut maintains that Article

I, section 4 of the Constitution -- which

vests in state legislatures the power to

-171-

regulate the time, place and manner of

holding congressional elections?> -- au-

thorizes states to trump the choices of a

political party regarding the structure

of its candidates selection process. See

Defendant's Memorandum at 36-39. The

weakness of this argument is revealed by

the paucity of authority marshaled in

Support of it. Connecticut places prin-

Cipal reliance on dicta in Storer vv.

Brown, 415 U.S. 724, 730 (1974), to the

effect that "{iJt is very unlikely that

all or even a large portion of the state

election laws would fail to pass muster”

under existing Supreme Court precedents.

This is hardly a ringing affirmation of

the expansive view of state regulatory

power urged by Connecticut.

-172-

Connecticut then embarks on an ex-

tended review of election law cases in

search of pronouncements arguably sup-

portive of the position that state power

to regulate primary elections knows’ few

bounds. This exercise accomplishes lit-

tle but reiteration of the basic princi-

ple that states are empowered to enact

laws regulating primary elections if, and

only if, such legislation does not trans-

gress some specific constitutional limi-

tation. See Rodriquez Vv. Popular

Democratic Party of Puerto Rico, 457 U.S.

l, 13 (1982) ("{a]bsent some clear con-

stitutional limitation"); Oregon Vv.

Mitchell, 400 U.S. 112, 125 (1970)

("within the limits of the

-173-

oe ee

tak

Ah Te: A ORIG tt TS aye nie ie nay lt dyin dials

constitution").1© The right to associate

with others for the advancement of common

political beliefs or objectives is just

such a constitutional limitation on the

authority of government. See Kusper v.

Pontikes, 414 U.S. 51, 56-57 (1973);

Democratic Party of the United States v.

Wisconsin ex rel. LaFollette, 450 U.S.

107, 121-122 (1981).

IV. The Standard of Review

Connecticut concedes that "substan-

tial burdens on the right to ... associ-

ate for political purposes can only be

justified if they serve a compelling

state interest.” Defendant's Memorandum

at 67, citing Nader v. Schaffer, supra,

-174-

cattle? Dy 5 ‘cna ty aaa tlt nd Meare

| ote

a ee eee eee ee ee ee nee

BO ee et

417 F. Supp. at 849. The state main-

tains, however, that Section 9-431 im-

poses only incidental burdens on plain-

tiffs' freedom of political association

and thus that the statute need only be

rationally related to the achievement of

a legitimate state purpose in order to

pass constitutional muster. See Defen-

dant's Reply Memorandum at 9-12.

In contending that Section 9-431 is

subject to this deferential standard of

review, defendant relies solely on cases

involving challenges by individual voters

to state-imposed party affiliation re-

quirements that were not opposed by the

parties themselves. See Defendant's Mem-

Orandum at 69 n.9. Put very simply, this

is a different case.+?

-175-

The argument that a party affilia-

tion requirement constitutes only a de

minimis burden on associational rights

rests on the notion that any “commu-

nality"” of interests "between the _ ex-

Cluded individual and the group from

which he is excluded," Development in the

Law -- Elections, supra, 88 Harv. L. Rev.

at 1166, is belied by the independent

voter's refusal "to express a commitment

to the perty and to the party's’ basic

ideas," Defendant's Memorandum at 64. As

stated by one commentator:

There can be little objection

to a requirement that’ those

wishing to vote in a party's

Primary profess that, as of

that time, they are affiliated

with that party. Absent a

willingness to profess such af-

filiation, it would be tenuous

-176-

di.

nt ae toni

A ava eee pe ete det EDS

SA, NEED Oto seth te alle Mab 0 beatae. is ele ngs “canbe teAe a

ee ee

te te i Lay

i ete St,

to assert that substantial as-

sociational rights were being

abridged; without a communality

of interests, there is little

association to abridge.

L. Tribe, supra § 13-23, at 793, quoted

in Defendant's Memorandum at 68; see also

Nader v. Schaffer, supra, 417 F. Supp. at

g43,18

The analysis 1S persuasive in the

case of challenges by independent voters

to state laws excluding them from partic-

ipation in primary elections. The abili-

ty to comply with the essentially pro

forma requirement of affiliation is ex-

Clusively in the hands of the complaining

independent voter. Moreover, the coun-

tervailing right of a political party to

-177-

be free from unwelcome intrusions must be

weighed in the balance. Finally, the in-

dependent voter's claim to a "commnu-

nality" of interests with the party in

whose primary he seeks to vote is indeed

tenuous in light of his refusal to take

the simple and largely formalistic step

of affiliating with the party.

The analysis is substantially less

persuasive when a party is challenging a

State law excluding independent voters

from its primaries. As noted above, in-

dependent voters possess the ready means

to overcome the burden on associational

rights imposed by a closed primary law.

The same cannot be said of the party

itself. In cases relied upon by

-178-

Connecticut, the plaintiffs were

unaffiliated voters who sought to partic-

ipate in primary elections having inten-

tionally failed to comply with statutory

prerequisites for voting in such elec-

tions.+9

Accordingly, some doubt was

cast upon their asserted "communality” of

interests with the party in whose primary

they sought to vote. In this case, on

the other hand, there is nothing the Con-

necticut Republican Party can do within

the terms of Section 9-431 to permit

unaffiliated voters to participate in its

primaries. The statute's affiliation re-

quirement is thus a real and formidable

obstacle to a party which seeks to broad-

en its appeal by including unaffiliated

-179-

voters in its candidate selection pro-

cess.

The analysis relied on by defendant

also presupposes that parties are the

willing beneficiaries of laws that pre-

serve their institutional integrity by

barring "gatecrashers" with adverse po-

litical views from sabotaging their deci-

Sionmaking. See Ray v. Blair, 343 U.S.

214, 221-222 (1952) (states may protect

parties "from intrusion by those with ad-

verse political principles") .?9 This is

not the situation when a political party

is contesting a state-imposed affiliation

requirement, in which case the party ob-

viously does not welcome "protection"

against efforts by outsiders to

-180-

participate in the party's candidate se-

lection process. If the Connecticut Re-

publican Party opts to invite "outsiders"

to vote in its primaries, these "“outsid-

ers,” by definition, are not intruders.

Defendant's reliance on Democratic

Party of the United States v. Wisconsin

ex rel. LaFollette, supra, stands the

case on its head. When the Supreme Court

observed that "freedom to associate for

the ‘common advancement of political be-

liefs' necessarily presupposes the free-

dom to identify the people who constitute

the association,” 450 U.S. at 122 (cita-

tions omitted), it was speaking of the

power not of states but of political par-

ties. As one commentator has noted, it

-13i-

is unclear "(w]hat meaning...freedom of

association [can] have if the association

has no control over who can participate

in its decisionmaking." Note, Democratic

Party v. Wisconsin: May States Impose

Open Primary Results Upon a National

Party Convention?, 59 Denver L.J. 611,

620 (1982) (emphasis added).

Moreover, while there may be justi-

fication for rejecting claimed viola-

tions of associational rights asserted by

voters who refuse to take the mechanical

step of affiliating with the party, it

does not follow that only those persons

who have enroiled in a political party

are capable of "shar[fing] the interests

and persuasio., that underlie the

-182-

association's being," Democratic Party

of the United States v. Wisconsin ex rel.

LaFollette, supra, 450 U.S. at 122 n.23,

quoting L. Tribe, supra,. § 13-23, at

791. Political beliefs are not suscepti-

ble to such rigid compartmentalization.

See Rosario v. Rockefeller, 410 U.S. 752,

769 (1973) (Powell, J., dissenting) ("the

political parties in this country tradi-

tionally have been characterized by a

fluidity and overlap of philosophy and

membership”); Note, The Constitutionality

Jf Non-Member Voting in Political Party

Primary Elections, 14 Willamette L.J.

259, 290 (1978). It is not for the Con-

necticut legislature to determine whether

Or not the goals and aspirations of the

-133-

OE CE NE Tl EE ll, BPN ie ER tie, ry eli ine Mii tad! Pmt, ee Ee ee ae

Connecticut Republican Party can be

shared by independent voters’ who, for

whatever reason, have chosen not to _ be-

come members of that party.

The ultimate goal of any political

party is to take control of the levers

of government in order to achieve its ob-

jectives. See Storer _v. Brown, supra,

415 U.S. at 745. In order to accomplish

this goai, a minority party such as the

Connecticut Republican Party“ may wish

to nominate candidates who will attract

Support in the general election from per-

sons’ wrt are not members of that party.

See Bode v. National Democratic Party,

452 F.2d 1302, 1309 (D.C. Cir. 1971),

cert. denied, 404 U.S. 1019 (1972). The

-184-

party rule at issue in this litigation is

designed to increase the likelihood that

candidates with such broad appeal will

emerge from the party's primaries. Any

effort by the state to substitute its

judgment for that of the party on this

question -- the question of who is and is

not sufficiently allied in interest with

the party to warrant inclusion in its

cancidate selection process -- substan-

tially impinges on First Amendment

rights. *?

Accordingly, Section 9-431

must be subjected to strict judicial

scrutiny under the First Amendment.

V. The Purported Interests of the State

Under the strict scrutiny

-185-

Under the strict scrutiny anal-

ysis the court is thus required to under-

take, Section 9-431 can be upheld only if

it is narrowly tailored to serve compel-

ling state interests. Connecticut main-

tains that its closed primary law fur-

thers a number of "important state

interests, all of which may be classified

under the general rubric of ‘'preserving

the integrity of the electoral process.'"

Defendant's Memorandum at 75, quoting

Democratic Party of the United States v.

Wisconsin ex rel. LaFollette, supra, 450

U.S. at 121. These interests are princi-

pally three: (1) preventing raiding; (2)

avoiding voter confusion; and (3)

promoting a stable two-party system. Id.

-186-

at 76, quoting Developments in the Law --

Elections, supra, 88 Harv. L. Rev. at

1168-1169; see Nader v. Schaffer, supra,

417 F. Supp. at 845. None of these in-

terests is sufficient to outweigh the

burden on plaintiffs' associational

rights imposed by Section 9-43l.

Raiding is a practice “whereby vot-

ers in sympathy with one party designate

themselves as voters of another party so

as to influence or determine the results

of the other party's primary." Rosario

v. Rockefeller, supra, 410 U.S. at 760.

Connecticut's avowed interest in pre-

venting raiding is of questionable rele-

vance in this case, inasmuch as the party

rule at issue permits only unaffiliated

-187-

voters to participate in Republican Party

primaries; no such invitation has been

extended to Democrats or members of other

political parties. In any event, the

spectre of Democratic voters severing

ties with their party en masse in order

to mount a raid on a Republican primary

is effectively eliminated by Section 9-59

of the Connecticut General Statutes (a

law not directly at issue here), which

provides that a person affiliated with

one party may not vote in the primary of

another party within six months after

leaving his original party.¢-

Ary professed concern with raiding

by unaffiliated voters -- an anomalous

concept to begin with -- is contradicted

-188-

by Public Act 84-118, effective January

1, 1985, which permits unaffiliated vot-

ers to affiliate with a political party

up to one day prior to a primary elec-

tion. 24

This statute already has elimi-

nated any real obstacle to "raiding" by

independent voters bent on disrupting the

candidate selection process of a politi-

cal party.

The second interest articulated by

defendant in support of Section 9-431,

that of avoiding voter confusion "by

ensuring that the candidate who wins a

party primary is that candidate who best

represents the views of party members,"

Defendant's Memorandum at 90, is _ wholly

illegitimate. Connecticut may well

-189-

have an interest in "fostering an in-

formed electorate.” Defendant's Memoran-

dum at 90'; see Anderson v. Celebrezze,

460 U.S. 780, 796 (1983). However, that

interest does not authorize the state to

gauge, much less determine, whether can-

didates for public office adequately re-

flect the views of their parties. Con-

necticut presents no reasoned argument in

support of its bald assertion that is has

a legitimate interest in protecting "vot-

ers who rely on party labels as represen-

tatives of certain ideologies." Defen-

dant's Memorandum at 91. It is not

obvious that unthinking reliance on party

labels is a practice that ought to be en-

couraged in any event, but protecting

-190-

voters who, in a general election, re-

flexively pull a party's lever in the

voting booth, and may thereby be

"misled," simply does not rise to _ the

level of a compelling state interést.

Whether to pursue an electoral and polit-

ical strategy that assures voters that

party nomination implies a recognizable

ideology (or other types of political

values) is a matter for each political

party, not the state, to decide. Con-

necticut has no compelling interest in so

rigidly constraining the contours of

party politics. ?®

The third interest advanced by Con-

necticut to justify its closed primary

law, apparently closely related to the

second, is maintenance of the stability

of the state's two-party system. Viewing

the pivotal question as "which primary

system [i.e., “open” or "“closed"] is

better," Connecticut maintains that the

legislature's choice of a closed primary

represents the best judgment of political

scientists as to "the means of

emphasizing the differences between the

parties...and thereby encouraging vot-

ing.” Defendant's Reply Memorandum at 13

s n.7.°’ Defendant has misconstrued the

issue before this court.*8 The contro-

versy does not center on which form of

primary election is more desirable, but

rather, on whether there are compelling

State interests to justify imposition of

-192-

a closed primary structure on an ob-

jecting party. It is not apparent that

maintaining the two-party system within

its present contours rises to the level

of a compelling state interest sufficient

to validate the limitation on First

Amendment rights present in this case.

Much less is it clear that the state's

imposition of a closed primary structure

on an unwilling party furthers’ the

state's purported interest.

Connecticut has failed to explain

how permitting unaffiliated voters to

participate in Republican primaries will

lead to the splintered parties and

unrestrained factionalism*? that it pro-

fesses to fear, or how any such result

-193-

would justify a substantial infringement

on plaintiffs’ right of association. The

Connecticut Republican Party's attempt to

broaden its appeal by including

unaffiliated voters in its’ primaries,

whatever its practical effects, cannot be

foreclosed on defendant's flimsy and

unsupported assertion that this action

somehow will "discourage a politics of

coalition and accommodation," Defendant's

Memorandum at 81, quoting A. Bickel,

Reform and Continuity 21-22 (1971).

To the extent that Section 9-431 is

defended on the grounds that it preserves

the Connecticut Republican Party in its

present form, the defendant's position is

patently untenable. Absent an _ invidious

-194-

design effectively to limit participation

in the electoral process, the efforts of

a political party to alter its character

-- indeed, to reshape itself altogether

-- by redefining who may participate in

its affairs is no concern to a state.

There is nothing legitimate or rea-

sonable, much less compelling, about an

asserted state interest in freezing the

parties in status quo. 39 Whether or not

permitting unaffiliated voters to partic-

ipate in primary elections somehow will

"destabilize" the Republican Party is a

matter for Republicans to consider; it is

not an appropriate subject for state leg-

islation. Whether the course chosen by a

party leads to success and power or to

-195-

ter ©

failure and decline, the First Amendment

ensures that that course will be the

choice of the party, not the state.

Conclusion

Section 9-431 of the Connecticut

General Statutes imposes substantial bur-

dens on plaintiffs' right of association

under the First and Fourteenth Amendments

of the United States Constitution and is

not supported by compelling state inter-

ests. Accordingly, as applied to the Re-

publican Party rule permitting

unaffiliated voters to participate in

certain Republican primaries, the statute

abridges the right of association

-196-

guaranteed by the First Amendment and

that abridgement must be enjoined.

Plaintiffs' motion for summary judgment

is therefore granted and defendant's mo-

tion to dismiss is denied.

It is so ordered.

Dated at Hartford, Connecticut, this

5th day of December, 1984.

Jose A. Cabranes

United States District Judge

-197-

)

NOTES

Due tc the possible implications of

this case for primary elections and

the two-party system generally, the

court extended an invitation to in-

terested persons and organizations

to participate as amici curiae.

See Order (filed May 23, 1984). “As

the court has noted on previous oc-

casions, the decision to _ invite

these parties to participate as

friends of the court was in no way

motivated by questions concerning

the capacity of existing counsel

adequately to represent the inter-

ests of their clients. Rather,

these arrangements -- made without

objection from either party -- re-

flected the shared conviction that

this lawsuit may possess

broad-ranging significance and that

the court would benefit from the

presentation of widely divergent

ideological, political and profes-

sional viewpoints on the constitu-

tional issues in the litigation.

Those who elected to participate as

amici curiae argued generally in

favor of the position asserted here

by plaintiffs. See Certified Offi-

cial Transcript of Oral Argument of

July 5, 1984 (filed Dec. 4, 1984)

("Tr.") at 4-6.

-198-

ove his

23 aise -2926

. “g

2: [tii 223 yri% - ,

fo vViebrs ;

Baitesnne oy pt 4

eisiaxe> 332

mph .4i0 =o 3

ee of .oo>.

=f Me ’ « eo? a

Me Les rT oot

no 20° 4 io

=» 5 i a

o2é Sf 3

The amici curiae represented by

Professor Gottlieb are professors

of political science at Yale Uni-

versity, Williams College, the

State University of New York at

Albany, Northwestern University,

the Graduate School of Public Af-

fairs at the State University of

New York at Albany, and Southern

Illinois University at Carbondale,

respectively.

The statement submitted by these

political scientists contained in-

teresting arguments grounded in

history and public policy. In the

final anaylsis, however, the deter-

mination of issues in this case

must be made exclusively in the

basis of constitutional principles.

Compare Seergqy v. Kings County

Republican County Committee, 459

F.2d 308, 313-314 (2d Cir. 1972)

("political parties are not immune

from constitutional limitations

merely because they are private

groups") with Moose Lodge No. 107

v. Irvis, 407 U.S. 163, 167 (1972)

(racially discriminatory guest

policies of private club are not

within purview of Equal Protection

Clause of Fourteenth Amendment).

-199-

Section 9-431 provides, in perti-

nent part:

No person shall be per-

mitted to vote at a pri-

mary of a party unless’ he

is on the last-completed

enrolment list of such

party in the municipality

or voting district, as the

case may be...

The rule provides:

Any elector enrolled as a

member of a Republican

Party and any elector not

enrolled as a member of a

party shall be eligible to

vote in primaries for nom-

ination of candidates for

the offices of United

States Senator, United

States Representative,

Governor, Lieutenant Gov-

ernor, Secretary of the

State, Attorney General,

Comptroller and Treasurer.

See Cousins v. Wigoda, 419 U.S.

477, 489 (1975); Kusper Vv.

Pontikes, 414 U.S. 51, 58-59

(1973); Williams v. Rhodes, 393

U.S. 23, 30-31 (1968).

-200-

The Seventeenth Amendment provides,

in pertinent part:

The Senate of the United

States shall be composed

of two Senators from eacn

State, elected by the peo-

ple thereof, for six

years; and each Senator

shall have one vote. The

electors in each State

shall have the qualifica-

tions requisite for elec-

tors of the most numerous

branch of the State legis-

latures.

Terry v. Adams, 345 U.S. 461

(1953); Smith v. Allwright, 321

U.S. 649 (1944); United States v.

classic, 313 U.S. 299 (1941); Nixon

v. Condon, 286 U.S. 73 (1932);

Nixon v. Herndon, 273 U.S. 536

(1927).

See also Gottlieb, Rebuilding the

Right of Association: The Right to

Hold a Convention as a Test Case, 11

Hofstra L. Rev. 191, 198 (1982).

As of October 1983, there were

659,268 registered Democrats,

425,695 registered Republicans, and

532,723 registered but unaffiliated

voters in the State of Connecticut.

Joint Statement of 41 (filed June

6, 1984). As counsel for plain-

tiffs asserted at oral argument,

"the Republican Party recognizes

that in general elections, because

of the ...breakdown of Republican,

Democrat and unaffiliated voters,

that for the Republican Party to

win in general elections it needs

the support of unaffiliated vot-

ers." Tr. 56; see also Tr. 66;

note 28, infra, and accompanying

text.

-207-

As the Supreme Court noted in

Democratic Party of the United

States Vv. Wisconsin ex rel.

LaFollette, supra,

{i]t is for the National

Party -- and not the

Wisconsin Legislature or

any court -- to determine

the appropriate standards

for participation in the

Party's candidate selec-

tion process.

450 U.S. at 124 n.27; see also

Opinion of the Justices to the

Governor, 385 Mass. 1201,

1207-1208, 434 N.E. 2d 960, 963-964

(1982), appeal dismissed sub nom.

Bellotti v. Connolly, 460 U.S. 1057

(1983). But see id. at 1063 & n.3

(Stevens, Des dissenting)

(observing that the Democratic

Party case involved a state's at-

tempt "to control delegates in a

nationwide party contest"); Rotun-

da, Constitutional and Statutory

Restrictions on Political Parties

in the Wake of Cousins v. Wigoda,

53 Tex. L. Rev. 935, 950-951 (1975)

(arguing that statutes regulating

national political parties consti-

tute extraterritorial extensions of

state jurisdiction and must

-208-

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23.

24.

therefore be justified by “special

Interests").

Section 9-59 of the Connecticut

General Statutes provides, in per-

tinent part:

- « « Any elector whose

name has been transferred

from one enrollment list

to another or who has ap-

plied for erasure .. .

shall not be entitled to

vote ina... primary of

any party... for a pe-

riod of six months’ from

the date of the filing of

his application for trans-

fer or for erasure.

Public Act 84-118 provides, in per-

tinent part:

oo « The application

shall be effective as of

the date of its execution

and any person making ap-

plication for enrollment

in such manner shall imme-

diately be entitled to

privileges of party en-

rollment unless he _ exe-

cutes the application for

enrollment after {the

-209-

fourteenth] TWELVE O'CLOCK

NOON ON THE LAST 3USINESS

dey before a primary, in

which case he shall be en-

titled to the privileges

of party enrollment ' §imme-

diately after the primary

1984 Conn. Legis. Service No. 4, at

10 (West) (bracketed language de-

leted from and capitalized language

added to prior statutory provi-

sion).

, Comments in Nader vy, Schaffer,

supra, 417 F. Supp. at 845, to the ef-

fect that a state has a "legitimate

-+. interest in protecting the overall

integrity of the historic electoral

process" cannot be employed to support

defendant's arguments in this. litiga-

tion. The Nader case involved a chal-

lenge by independent voters to the af-

filiation requirement of Section 9-431

and thus the central concein was the

prevention of raiding. A conviction

that political parties are

ill-equipped to protect themselves

from the disruptive effects of raiding

led the court to conclude that "in the

regulated situation, the state has a

legitimate interest in protecting

party members’ associational rights,

-210-

by legislating to protect the party

‘from intrusion by those with adverse

principles.'" Id., quoting Ray v.

Blair, supra, 343 U.S. at 221-222

(1952).

26. A logical but unarticulated exten-

sion of defendant's argument would

permit a state to displace a party's

choice of candidates whenever the

state determines that the candidate's

views are so antithetical to those of

the party that permitting him to run

on the ticket in the general election

would engender "voter confusion.”

While such a result would comport with

the notion that political parties are

mere functionaries carrying out tasks

delegated to them by the state, it is

utterly inconsistent with the freedom

of political parties to associate for

the advancement of common beliefs

guaranteed to them by the First Amend-

ment.

Se Connecticut's counsel has asserted

that it would be "a very legitimate

interest of the State" to enact legis-

lation designed to foster party dif-

ferentiation along ideological and

other political lines. See Tr. 80-81.

28. The amici curiae political scien-

tists correctly note that the real

-211-

issue is the "right of political

parties to choose the basis on

which to seek the support of the

American public.” Statement of F.

Christoper Arterton, et al. and

Supporting Memorandum of Law (filed

June 26, 1984) at l.

In any event, it is possible that

the challenged rule actually would

decrease the likelihood of politi-

cal fragmentation by encouraging

independent voters to participate

in the affairs of an existing po-

litical party. As one commentator

has noted:

Inasmuch as parties in

competitive systems seek

to win the electoral sup-

port of groups that may

not be particularly pre-

disposed toward political

participation, the parties

serve to pull these groups

into more active in-

volvement in the polity

and thus to integrate them

into the political system

and its processes.

Dawson, Social Development, Party

Competition, and Policy, in The

American Party Systems 208-209 (W.

Chambers & W.D. Burnham eds. 1967).

-41é-

"The principle is plain that there

can be no interference with free-

dom of expression on the general

ground that it will lead to social

change, or change at the wrong

rate, or in the wrong direction."

T. Emerson,The System of Freedom of

Expression 47 (1970).

-é13-

United States Court of Appeals

for the

Second Circuit

At a stated Term of the United States

Court of Appeals for the Second Circuit,

held at the United States Courthouse in

the City of New York, on the eighth day

of August one thousand nine hundred and

eighty-five

Present:

HON. IRVING R. KAUFMAN,

HON. JAMES L. OAKES,

HON. RICHARD J. CARDAMONE,

Circuit Judges,

-214-

REPUBLICAN PARTY OF THE

STATE OF CONNECTICUT,

LOWELL P. WEICKER, JR.,

STEWART B. MCKINNEY,

NANCY L. JOHNSON and

THOMAS J. D'AMORE, JR.,

Plaintiffs-Appellees,

~against- 85-7011

JULIA H. TASHJIAN,

Secretary of the State of

the State of Connecticut,

Defendant-Appellant,

Appeal from the United States District

Court for the District of Connecticut.

This cause came on to be heard on the

transcript of record from the United

States District Court for the District of

Connecticut, and was argued by counsel.

-415-

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged and decreed that

the Judgment of said District Court be

and it hereby is Affirmed in accordance

with the opinion of this Court with costs

to be taxed against the appellant.

ELAINE B. GOLDSMITH,

Clerk,

by: /s/ Edward J. Guardaro,

Deputy Clerk

-216-

‘a

Owner ess -

FILED SEPTEMBER 20, 1985

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

REPUBLICAN PARTY OF THE

STATE OF CONNECTICUT

LOWELL P. WEICKER, JR., :

STEWART B. MCKINNEY,

NANCY L. JOHNSON and :

THOMAS J. D'AMORE, JR.,

Plaintiffs-Appellees, :DOCKET NO. 85-7011

V. :

JULIA H. TASHJIAN,

SECRETARY OF THE

STATE OF CONNECTICUT.

Defendant-Appellant.

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that JULIA H.

TASHJIAN, SECRETARY OF THE STATE OF CON-

NECTICUT, the defendant-appellant above

named, hereby appeals to the Supreme

-2l17-

<a. i 7. ) ree oe a ee — aye = << - a > ae re as

Court of the United States from the judg-

ment of the U.S. Court of Appeals for the

Second Circuit entered in this’ action

August 8, 1985, affirmi.g the judgment of

the United States District Court for the

District of Connecticut.

]

-2iG-

This

appeal is taken pursuant to

§ 1254 (2).

FOR DEFENDANTS-APPELLANT

JOSEPH I. LIEBERMAN

ATTORNEY GENERAL

Elliot F. Gerson

Deputy Attorney General

Barney Lapp

Assistant Attorney General

Daniel R. Schaefer

Assistant Attorney General

Henry S. Cohn

Assistant Attorney General

30 Trinity Street

Hartford, Connecticut

Tel: (203) 566-4990

-219-

CERTIFICATE OF SERVICE

I, Daniel R. Schaefer, attorney for

defendant-appellant and member of the Bar

of the Supreme Court of the United States

hereby certify that on September 18,

1985, copies of the foregoing Notice of

Appeal were served on plaintiffs- appel-

lees by mailing one copy each,

first-class postage prepaid, to their at-

torneys: Stanley A. Twardy, Jr., Silver,

Golub & Sandak, 184 Atlantic Street,

Stamford, Connecticut 06904; and Ralph G.

Elliot, Tyler, Cooper & Alcorn, City

Place, 35th Floor, Hartford, Connecticut

06103-3488.

All parties required to be served have

been served.

I further certify that courtesy copies of

the foregoing Notice of Appeal were

mailed first-class postage prepaid, on

September 18, 1985, to amici curiae Pro-

fessor Stephen E. Gottlieb, Albany Law

School, 80 New Scotland Avenue, Albany,

New York 12208; Martin Margulies, Uni-

versity of Bridgeport School of Law, 303

University Avenue, Bridgeport, Con-

necticut 06601; Martha Stone, Connecticut

-220-

a Se

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Civil Liberties Union Foundation, 32

Grand Street, Hartford, Connecticut

06106; and James A. Wade, Robinson &

Cole, One Commercial Plaza, Hartford,

Connecticut 06103-3597.

Daniel R. Schaefer

Attorney for Defendant-Appellant

Member of the Bar of the Supreme

Court of the United States

-2éi-

CONSTITUTION OF THE UNITED STATES

ARTICLE I,

Section 2. The House of Representa-

tives shall be composed of Members chosen

every second Year by the People of the

several States, and the Electors in each

State shall have the Qualifications req-

uisite for Electors of the most numerous

Branch of the State Legislature.

Section 4. The Times, Places and Man-

ner of holding Elections for Senators and

Representatives, shall be prescribed in

each State by the Legislature thereof;

but the Congress may at any time by Law

make or alter such Regulations, except as

to the Places of chusing Senators.

FIRST AMENDMENT,

Congress shall make no law respecting

an establishment of religion, or prohib-

iting the free exercise thereof; or

abridging the freedom of speech, or of

-ééé"

the press; or the right of the people

peaceably to assemble, and to petition

the Government for a redress of griev-

ances.

TENTH AMENDMENT,

The powers not delegated to the United

States by the Constitution, nor prohibit-

ed by it to the States, are reserved to

the States respectively, or to the peo-

ple.

)

FOURTEENTH AMENDMENT,

Section 1. All persons born or natu-

ralized in the United States, and subject

to the jurisdiction thereof, are citizens

of the United States and of the State

wherein they reside. No State shall make

or enforce any law which shall abridge

the privileges or immunities of citizens

of the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdic-

tion the equal protection of the laws.

SEVENTEENTH AMENDMENT,

The Senate of the United States’ shall

be composed of two Senators from each

State, elected by the people thereof, for

Six years; and each Senator shall have

one vote. The electors in each State

shall have the qualifications requisite

-223-

for electors of the most numerous’ branch

of the Stat. legislatures. When vacancies

happen in ti.2 representation of any State

in the Senate, the executive authority of

such State shall issue writs of election

to fill such vacancies: Provided, that

the legislature oi any State may empower

the executive thereof to make temporary

appointments until the people fill the

vacancies by election as the legislature

may direct. This amendment shall not De

so construed as to affect the election or

term of any Senator chosen before it be-

comes valid as part of the Constitution.

CONNECTICUT GENERAL STATUTES,

REV. TO 1985

(Excerpts from State Election Laws)

Sec. 9-56. Application for enrolment

by unaffiliated elector. Except as oth-

erwise provided in the case of an elector

whose name has not been placed on or has

been removed from the enrolment list

under section 9-59, 9-60, 9-61 or 9-62,

any elector not enrolled on any enrolment

list may at any time make a written and

Signed application for enrolment, in ac-

cordance with the requirements of this

section, to the registrars of voters.

The application shall be effective as of

the date of its execution and any person

making application for enrolment in such

manner shall immediately be entitled to

the privileges of party enrolment unless

he executes the application for enrolment

-224-

= e 7 o® @ »

, .

; :

* tal

ae -

. *

after twelve o'clock noon on the last

business day before a primary, in which

case he shall be entitled to the privi-

leges of party enrolment immediately

after the primary or unless he executes

the application for enrolment on the day

of a caucus or convention, in which case

he shall be entitled to the privileges of

party enrolrent immediately after the

caucus or corvention. Such application

shall include an affidavit sufficient to

prove the identity, residence and signa-

ture of such applicant, unless it is made

in person at the office of the registrars

to either registrar or to his deputy, as-

Sistants or his appointed clerks, or un-

less it is made in person at the resi-

dence or usual place of business of

either registrar or deputy registrar in

any municipality in which the registrars

do not maintain a permanent office, or

unless it is made in person, to the _ ad-

mitting official, on the application form

provided in section 9-20, at the time the

applicant was admitted as an elector.

Either registrar of voters and either of

their deputy registrars, assistant regis-

trars or special assistant registrars may

take the acknowledge of the affidavit

provided for in this section. Each ap-

plication for enrolment shall be made in

duplicate if filed by the applicant and

in triplicate if filed by a person other

than the applicant. The application and

each copy thereof shall be signed or ini-

tialed by the registrar, deputy,

-225-

assistant or registrar's clerk receiving

it, or by such other personnel as_ such

registrar or deputy may appoint for the

purpose, showing the date when such ap-

plication is received and, in the case of

an applicant not immediately eligible

under section 9-59, 9-60, 9-61 or 9-62 to

the privileges accompanying enrolment in

the party named in his application, the

date upon which such applicant becomes so

eligi»le. If application is made by the

applicant in person as hereinbefore pro-

vided, the duplicate copy shall be handed

to such applicant to such registrar, dep-

uty, assistant or clerk receiving it, at

the time such application is made. If

such application is mailed by the appli-

cant, such registrar, deputy, assistant

or clerk receiving such application shall

mail such duplicate copy to such appli-

cant forthwith. If such application is

brought to such registrar, deputy, assis-

tant or clerk by any person other than

the applicant, such registrar, deputy,

assistant or clerk receiving such appli-

cation shall mail a copy thereof to such

applicant forthwith and shall hand the

other copy to the person filing the ap-

plication. The form of such application

shall be prescirbed by the secretary of

the state and, either on the face or on

the back of each application form, there

shall be printed a copy of section

53a-157. Unless application for

enrolment is made pursuant to this sec-

tion, section 9-12, 9-20 or section

-226-

9-23a, at the time of admission as an

elector, each applicant for enrolment

shall state in his application (1) the

street and number, if any, at which he

resides, (2) the mame of the political

party on the enrolment list of which he

desires to be enrolled, (3) that he is

not a member of or connected with any po-

litical party other than that in which

enrolment is then being sought by hin,

(4) the mame of the political party, if

any, in which he was entolled, or had ap-

plied for enrolment, or had an applica-

tion for enrolment pending, within the

period of six months prior to the time of

his present application and (5) the date

upon which he applied for erasure of his

name from the list of such political

party in which he was so enrolled, or had

so applied for enrolment, or so had an

application for enrolment pending, within

the period of six months prior to the

time of his present application. In mu-

nicipalities divided into voting dis-

tricts in which an enrolment session is

held in each district thereof under. sec-

tion 9-51, application for enrolment

shall be made to the registrar or assis-

tant registrar, as the case may be, in

the voting district in which such elector

is entitled to vote at the time of making

such application. If any registrar or

assistant registrar fails to add any name

to any such list on written application

or adds any name to any such list except

as herein provided, he shall be fined not

-227-

more than two hundred dollars or impris-

oned not more than thirty days or both.

Sec. 9-249a. Order of parties on the

ballot label. (a) The names of the par-

ties shall be arranged on the machines in

the following order:

(1) The party whose candidate for gov-

ernor polled the highest number of votes

in the last-preceding election;

(2) Other parties who had candidates

for governor in the last-preceding elec-

tion, in descending order, according to

the number of votes polled for each such

candidate;

(3) Major parties who had no candi-

date for governor in the last-preceding

election;

(4) Minor parties who had no candi-

date for governor in the last-preceding

election;

(5) Petitioning candidates with party

designation whose names are contained in

petitions approved pursuant to section

9-4530, and

(6) Petitioning candidates with no

party designation whose names are

contained in petitions approved pursuant

to section 9-453o0.

~228-

(b) Within each of subdivisions (3),

(4) and (5) of subsection (a) of this

section, the following rules shall apply

in the following order:

(1) Precedence shall be given to the

party any of whose candidates seeks an

office representing more people than are

represented by any office sought by any

candidate of any other party;

(2) A party having prior sequence of

office as set forth in section 9-251

shall be given precedence, and

(3) Parties shall be listed in alpha-

betical order.

subsection (a) of this section, candi-

dates shall be listed according to the

provisions of section 9-453r.

Sec. 9-256. Filing of sample _ ballot

label with secretary. The clerk of each

municipality shall, not less than ten

days prior to an election, file with the

secretary of the state a sample ballot

label identicai with those to be provided

for each polling place under. section

9-295. The secretary of the state shall

examine the sample ballot label required

to be filed under this section, and if

such sample ballot label contains an

error, the secretary of the state shall

order the municipal clerk to reprint a

-229-

corrected sample ballot label or to take

other such action as the secretary may

deem appropriate.

PART I

GENERAL

Sec. 9-372. Definitions. The follow-

ing terms, as used in this chapter and

sections 9-51 to 9-67, inclusive, 9-169e,

9-217, 9-236 and 9-361, shall have the

following meanings:

(B) on and after November 4, 1981, for

offices contested at 1981 elections, and

on and after November 3, 1982, for of-

fices contested at the November 2, 1982,

election and all subsequent elections,

"major party” shall mean a political

party or organization whose candidate for

governor at the last-preceding election

for governor received, under the designa-

tion of that political party or organiza-

tion, at least twenty per cent of the

whole number of votes cast for all candi-

dates for governor;

(11) "Primary" means a meeting of the

enrolled members of a political party

hetd during consecutive hours at which

such members may, without assembling at

the same hour, vote by secret ballot for

candidates for nomination to office or

for town committee members or delegates

to conventions;

-230-

PART II

PARTIES ENTITLED TO PLACE ON BALLOT

Sec. 9-379. Eligibility for placing

on ballot. No name of any candidate

shall be printed on any official ballot

at any election except the name of a can-

didate nominated by a major or minor

party unless a nominating petition for

such candidate is approved by the secre-

tary of the state as provided in sections

9-453a to 9-453p, inclusive.

PART III

NOMINATION OF CANDIDATES

MAJOR PARTIES

Sec. 9-381. Nomination __ procedure.

The provisions of section 9-382 to 9-450,

inclusive, shall apply to the nomination

by a major party of any candidate for an

elective office, including an office es-

tablished after the last-preceding elec-

tion, and to the selection in any munici-

pality by a major party of town committee

members or delegates to conventions.

-23l-

Sec. 9-38la. Election procedures

applicable to primaries unless otherwise

provided. Except as otherwise provided

by statute, the provisions of the general

statutes concerning porcedures’ relating

to regular elections shall apply as near-

ly as may be, in the manner prescribed by

the secretary of the state, to primaries

held under the provisions of this’ chap-

ter.

Sec. 9-382. Party-endorsed

candidates; state or district office.

The state or district convention, as_ the

case may be, shall, in a manner con-

forming with applicable law and with the

rules of the party calling such conven-

tions, choose a candidate for nomination

to each of the state or district offices,

as the case may be. No such convention

shall choose more than one candidate for

nomination to any such office. Candi-

dates so chosen shall run in the primary

of such party as party-endorsed candi-

dates, except as provided in section

9-416.

Sec. 9-400. Filing of candidacies;

State or district office. (a) Within

fourteen days following the close of the

State convention, a candidacy for nomina-

tion by a political party to a state of-

fice may be filed by or on behalf of any

person whose name appears upon the

last-completed enrolment list of such

party in any municipality within the

-234-

state and who has received at least

twenty per cent of the votes of the con-

vention delegates present and voting on

any roll-call vote taken on the’ endorse-

ment or proposed endorsement of a candi-

date for such state office, whether or

not the party-endorsed candidate for such

office received a unanimous vote on the

last ballot, by the filing with the sec-

retary of the state, of a certificate,

Signed by such candidate and attested by

either (1) the chairman or presiding of-

ficer, or (2) the secretary of the con-

vention, that such candidate received at

least twenty per cent of such votes, and

that he consents to be a candidate in a

primary of such party for such state of-

fice. Such certificate shall specify the

candidate's name, his full residence ad-

dress and the title of the office for

which his candidacy is being filed. Ex-

cept as provided in section 9-41l6a, upon

the expiration of the fourteen-day peri-

od, if ome or more candidacies for _ such

State office have been filed pursuant to

the provisions of this section, the sec-

retary of the state shall notify all town

clerks in accordance with the provisions

of section 9-433, that a primary for such

state office shal! be held in each munic-

ipelity in accordance with the provisions

of section 9-415.

(b) Within fourteen days following

the close of the district convention, a

candidacy for nomination by a political

-é33-

party to a district office may be filed

by or on behalf of any person whose name

appears upon the last-completed enrolment

list of such party within any municipali-

ty or part of a municipality forming a

component part of such district and who

has received at least twenty per cent of

the votes of the convention delegates

present and voting on any roll-call vote

taken on the endorsement or proposed en-

dorsement of a candidate for such dis-

trict office, whether or not the

party-endorsed candidate for such office

received a unanimous vote on the last

ballot, by the filing with the secretary

of the state of a certificate signed by

such candidate and attested by either

(1) the chairman or presiding officer, or

(2) the secretary of the convention, that

such candidate received at least twenty

per cent of such votes, and that he con-

sents to be a candidate in @ primary of

such party for such district office.

Such certificate shall specify the candi-

date's name, his full residence address

and the title and district of the office

for which his candidacy is being filed.

Except as provided in section 9-41l6a,

upon the expiration of the fourteen-day

period, if one or more candidacies for

such district office have been filed pur-

suant to the provisions of this’ section,

the secretary of the state shall notify

all town clerks within the district, in

accordance with the provisions of section

9-433, that a primary for such district

-234-

office shall be held in any municipality

or each part of any municipality within

the district in -:cordance with the pro-

visions of sectioiu 9-415.

Sec. 9-416. No-contest nominations;

state or district office. If at a state

or district convention no person other

than a party-endorsed candidate has re-

ceived at least twenty per cent of the

votes of the delegates present and voting

on any roll-call vote taken on the en-

dorsement or proposed endorsement of a

candidate for a state or district office,

or if within the time specified in sec-

tion 9-400, no candidacy for nomination

by a political party to such office has

been filed by or on behalf of a person

other than a2 party-endorsed candidate in

conformity with the provisions of sec-

tions 9-400 to 9-414, inclusive, no pri-

mary shall be held by such party for such

office and the party-endorsed candidate

for such office shall be deemed to have

been lawfully chosen as the nominee of

such party for such office.

Sec. 9-431. Eligibility to vote at

primary. No person shall be permitted to

vote at a primary of a party unless he is

on the last-completed enrolment list of

such party in the municipality or voting

district, as the case may be, but any

such person offering to vote and being

challenged as to his identity or resi-

dence shall, before he votes, prove by

nies taal ads

‘PPR RTT ete, Mya)

RNAS ARES Se ae Ip RS ENE! Bo mapas 9

the testimony, under oath, of at least

one other elector qualified to vote in

such primary or by such other evidence

acceptable to the moderator either of the

following which are applicable: (1) His

identity with the person on whose name he

offers to vote or (2) his bona fide res-

idence in the municipality or voting dis-

trict, as the case may be, provided if

any person who has moved from one voting

district or ward to another voting dis-

trict or ward within a municipality is

entitled to vote in such primary under

section 9-54, such person shall not be

required to prove his bona fide residence

in the voting district or ward from which

he moved. The rules of each party in

each municipality shall prescribe whether

members of the town committee shall be

elected from the municipality at large,

in which case any person on the

last-completed enrolment list of such

party in such municipality shall be eli-

gible to vote in a primary for the elec-

tion of such committee members, or wheth-

er such committee members shall be

elected from political subdivisions of

such municipality, in which case only

persons on the last-completed enrolment

list of such party in such a political

subdivision shall be eligible to vote in

a primary for the election of such com-

mittee members from such political subdi-

vision; provided no town committee in any

municipality shall be elected both at

large and from political subdivisions.

-236-

Sec. 9-441, Compensation of

registrars and municipal clerks. For the

performance of the duties imposed by this

chapter, each registrar and deputy regis-

trar actually engaged therein and each

municipal clerk shall receive such rea-

sonable compensation from the municipali-

ty as is approved by the selectmen of the

town, the warden and burgesses of the

borough or the common council of the city

or the consolidated town and city, as the

case may be; and all necessary expenses

incurred by registrars and municipal

clerks under the provisions of said sec-

tions shall be paid by the municipality.

Sec. 9-444, Determination of nominee,

committee members or delegates. In the

case of a primary for state or district

office, each person certified by the sec-

retary of the state as provided in sec-

tion 9-440, to have received the greatest

number of votes of the members of the po-

litical party holding a primary for any

office shall be deemed to have been cho-

sen as the nominee of such party to such

office. In the case of a primary for

district delegates, each person on the

slate certified by the secretary of the

State to have received the greatest num-

ber of votes of the members of the polit-

ical party holding a primary for such po-

Sitions shall be deemed to have been

elected as such delegates. In case of a

primary for a municipal office, the mod-

erator, or the head moderator, as the

-237-

case may be, shall declare nominated the

person having the greatest number of

votes for such office, and if more than

one person is to. be nominated for the

same office, he shall declare nominated

the persons having the greatest number of

votes for such office up to the number to

be chosen. In the case of a primary for

members of a town committee, such modera-

tor shall declare elected the persons

having the greatest number of votes ffor

such positions up to the number to be

chosen for such positions. In the case

of a primary for delegates to a conven-

tion other than district delegates, such

moderator shall declare elected each per-

son on the slate having the greatest num-

ber of votes for such positions. in all

primaries, a plurality of the votes cast

shall be sufficient to nominate or elect,

as the case may be.

-238-

BVe — << ——— — deer D ~~

——

‘

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«ny

iad

UNIVERSITY OF ILLINOIS College of Law

at URBANA-CHAMPAIGN 209 Law Building

504 East Penn-

sylvania Avenue

Champaign

217 333-0931

Illinois 61820

June 15, 1984

The Honorable Jose A. Cabranes

Judge, United States District Court

District of Connecticut

450 Main Street

Hartford, CT 06103

Re: Republican Party v. Tashjian

Civ. No. H 84-584

Dear Judge Cabranes:

I am honored to have been invited to

participate as an amicus in the

above-captioned case. However, because I

am not an institutional litigant and my

personal resources are limited, I am sim-

ply unable to participate in the case as

fully as I would like to.

-239-

I have read the papers sent to me by

Deputy Attorney General Gerson pursuant

to your court order of May 23d, 1984,

and, as a Professor of Constitutional

Law, I do not believe that the U.S. Con-

stitution invalidates the state law at

issue here. The state law has no ex-

traterritorial application; it does not

discriminate against any party nor does

it discriminate on the basis of race, re-

ligion, sex or poverty. I also find it

quite relevant that the State has not

placed any unduly high burdens on any

person who wishes to become a registered

party member and vote in the primary: I

understand that State law allows any

voter to register as a party member up

until the day before a primary election.

The present state law does not re-

Strain the Republican Party from se-

lecting candidates with bipartisan sup-

port. See Plaintiffs' Memorandum of May

20, 1984, at 8. The qualified voters in

the primary can vote for whomever they

wish,

Moreover, new Rule: "Article IV a

PRIMARIES" does not open up all Republi-

can primaries; it only opens. up primary

elections for certain electoral offices.

If a primary election for the office of

U.S. Senator takes place at the same time

aS a Primary election for city mayor or

State Senator, for example, then the

-240-

burden on state election judges may well

be heavy and the confusion on the voters

great. And, if the Republican Party can,

unilaterally, impose such burdens on

state primaries, then the Democratic

Party should also be able to impose its

own rules contrary to state law.

The principle advocated by the plain-

tiff in this case seems to be that any

state political party can invalidate all

(or a portion) of any state law to which

it objects. Even though a nonparty mem-

ber could not force an open primary and

invalidate the law, the political party

could, if it chooses to do so. This

principle does not find support in the

case law.

-241-

I regret that I am unable to pursue

these issues further, but I am honored to

have been invited to participate. I hope

that I have been of some assistance.

Sincerely,

/s/

Ronald D. Rotunda

Professor of Law

RDR:blm

cc: Council of Record and

Invited Potential Amici

(REPRINT)

-242-

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

REPUBLICAN PARTY OF THE

STATE OF CONNECTICUT,

LOWELL P. WEICKER, JR.,

STEWART B. MCKINNEY, :

NANCY L. JOHNSON and

THOMAS J. D'AMORE, JR., :

PLAINTIFFS,

CIVIL ACTION NO.

H 84-548 (JAC)

V. :

JULIA H. TASHJIAN,

Secretary of the State :

of the State of

Connecticut, :

DEFENDANT. :JUNE 5, 1984

-243-

JOINT STATEMENT OF FACTS

The plaintiffs, through counsel, and

the defendant, through counsel, pursuant

to this Court's Scheduling Order dated

May 16, 1984, submit the following state-

ment of facts as to which they agree

there are no genuine issues to be tried.

The parties hereby reserve all objec-

tions which they may have as to the rele-

vance, materiality or probative value of

any fact contained herein.

The parties agree as to the existence

of the following:

l. As of October, 1983, there are

659,268 registered Democrats, 532,723

registered but unaffiliated voters and

425,695 registered Republican voters in

Connecticut.

-244-

ro The plaintiff Republican Party of

the State of Connecticut ("Republican

Party") is a major political party within

the meaning of Sections 9-372 et seq. of

the Connecticut General Statutes.

3 The Republican Party is an asso-

ciation of individuals for the common ad-

vancement of political beliefs and ideas

and for the election of its candidates to

public office.

4. The Preamble to the Convention

and Committee Rules of the Republican

Party of the State of Connecticut pro-

vides that:

Among the goals of the Republican

Party of Connecticut are to seek

out, designate, and secure the

election of, qualified candidates

for public office at the Federal,

State and Local Levels of

government ....

-245-

In its stance as a statewide polit-

ical Organization, dedicated to

governmental improvement on all

levels, the Republican Party of

Connecticut encourages fullest

voter participation in its

activities ....

A complete copy of the Preamble is in-

cluded as Exhibit A in the Joint Submis-

sion of Documents.

9. The plaintiff Lowell P. Weicker,

Jr. ("Weicker") is a registered voter in

the State of Connecticut and is. enrolled

aS a member of the plaintiff Republican

Party. He is a United States Senator

from the State of Connecticut.

6. The plaintiff Stewart B. McKinney

("McKinney") is a registered voter in the

State of Connecticut and is enrolled as a

member of the plaintiff Republican Party.

-246-

He is a United States Representative from

the State of Connecticut and is a candi-

date for party endorsement by the Repub-

lican Party Fourth Congressional District

Convention for renomination and

re-election to the office of United

States Representative in November, 1984.

7. The plaintiff Nancy L. Johnson

("Johnson") is a registered voter in the

State of Connecticut and is enrolled as a

member of the plaintiff Republican Party.

She is a United States Representative

from the State of Connecticut and is a

candidate for party endorsement by the

Republican Party Sixth Congressional Dis-

trict Convention for renomination and

re-election to the office of United

States Representative in November, 1984.

-247-

8. The plaintiff Thomas J. D'Amore,

Jr. ("D'Amore") is a registered voter in

the State of Connecticut and is enrolled

aS a member of the plaintiff Republican

Party. He is the Chairman of the Repub-

lican State Central Committee, the body

designated by the Party to, inter alia,

implement the Party rules,

9. The defendant Julia H. Tashjian

("Secretary of the State") is the Secre-

tary of the State of the State of Con-

necticut. Pursuant to Sections 9-3 and

9-4 of the Connecticut General Statutes,

she is the Commissioner of Elections of

the State of Connecticut and, pursuant to

Statute, is charged with certain duties

pertaining to elections and primaries in

the State of Connecticut, including,

-248-

inter alia, the administration of Section

9-431 of the Connecticut General Stat-

utes.

10. Pursuant to a_ resolution passed

by the members present at the August 23,

1983 meeting of the Republican Party's

State Central Committee, a subcommittee

was established to study and recommend

changes in the party's rules to improve

the party's chances of winning general

elections and to _ improve the two party

system.

ll. The plaintiffs would offer testi-

mony that this subcommittee concluded

that the Republican Party would: in-

crease its chances of winning general

electicns; nominate candidates with

greater bipartisan support; increase the

-249-

involvement of unaffiliated voters in the

electoral process in general; and

Strengthen the two party system by al-

lowing unaffiliated voters to participate

in Republican Party primaries. Defen-

dants stipulate that, subject to the

right to raise objections as reserved on

page one, this evidence is admissible.

12. Based upon the recommendations of

this subcommittee, and in accordance with

Section 9-384 of the Connecticut General

Statutes and applicable party rules and

resolutions, Republican Party Chairman

D'Amore called and noticed a state party

convention to consider, inter alia, "pro-

posed changes [in party rules] to allow

unaffiliated voters to vote in Republican

candidate selection primaries."

-250-

13. On January 14, 1984, at a duly

called, noticed and conducted state party

convention, the Republican Party approved

an amendment (the "Rule") to its party

rules to allow unaffiliated voters to as-

sociate, participate and join with en-

rolled Republicans in votin:: in Republi-

can Party primaries for candidates for

the offices of United States Senator,

United States Representative, Governor

and the gubernatorial underticket. Spe-

cifically, the Rule, entitled "Article

IVa PRIMARIES", provides as follows:

Any elector enrolled as a member of

the Republican Party and any elec-

tor not enrolled as a member of a

party shall be eligible to vote in

primaries for nomination of candi-

dates for the offices of United

States Senator, United States Rep-

resentative, Governor, Lieutenant

-2$l-

Governor, Secretary of the State,

Attorney General, Comptroller snd

Treasurer.

14. The Convention was called pursu-

ant to Section 9-384 of the Connecticut

General Statutes and in accordance with

the opinion of the defendant's office

dated August 23, 1983. That opinion was

in response to a letter on behalf of the

plaintiff Republican Party to the defen-

dant dated August 17, 1983. Copies of

these letters are included as Exhibits B

and C in the Joint Submission of Docu-

ments.

15. The Convention was conducted pur-

Suant to a Call, dated October 6, 1983.

A copy of that Call is included as Exhib-

it D in the Joint Submission of

Documents.

-252-

16. The Rule approved by the plain-

tiff Republican Party was one of a number

of resolutions which came before, and

were acted upon by, the delegates to said

State party convention. The minutes of

that convention are included as Exhibit E

and the resolutions are included as Ex-

hibits F through N in the Joint Submis-

sion of Documents.

17. In accordance with Section 9-374

of the Connecticut General Statutes, a

copy of the Rule approved and adopted by

the Republican Party at the state conven-

tion, together with a copy of the com-

plete party rules incorporating such

Rule, was filed with the Office of the

Secretary of the State of the State of

Connecticut on January 23, 1984.

-253-

18. Plaintiff contends that this Rule

became effective on March 23, 1984 pursu-

ant to Section 9-374 of the Connecticut

General Statutes. Defendant acknowledges

that the plaintiff filed the Rule togeth-

er with such copy, as stated in Paragraph

17, but denies that the Rule became ef-

fective because it is in conflict with

Section 9-431 of the Connecticut General

Statutes.

19. Section 9-431 of the Connecticut

General Statutes provides, in relevant

part, that:

No person shall be permitted to

vote at a primary of a party un-

less he is on the last-completed

enrolment list of such party in the

municipality or voting district, as

the case may be ....

-254-

20. Because Section 9-431 of the Con-

necticut General Statutes prohibits the

plaintiff Republican Party from imple-

menting its Rule to allow unaffiliated

voters to participate in primaries in ac-

cordance with the party Rule, RepuDlican

legislators attempted to have the statute

amended during the 1984 session of the

Connecticut General Assembly.

21. In February, 1984, proposed leg-

islation was introduced by State Repre-

sentative Mae Schmidle in the Connecticut

Gene. al Assembly which would have enabled

the Republican Party to implement its

Rule. Specifically, this legislation,

which was assigned Raised Committee Bill

No. 5525 and referred to the Committee on

Government Administration and Elections,

-255-

would have amended Section 9-431 of the

Connecticut General Statutes by

providing, in relevant part, that:

EXCEPT WHERE PROVIDED OTHERWISE BY

STATE PARTY RULES, no person shall

be permitted to vote at a primary

of a party unless he is on the

last-completed enrolment list of

such party in the municipality or

voting district, as the case may

me cece

A copy of the complete Bill is included

as Exhibit O in the Joint Submission of

Facts.

22. On March 7, 1984 the Committee on

Governmental Administration and Elections

voted 13 to 8 against Raised Committee

Bill No. 5525, thereby rejecting the pro-

posed legislation. The Committee further

voted 12 to 9 against reporting the Bill

-256-

out of Committee with an unfavorable re-

port, thereby preventing the proposed

legislation from being considered by the

entire General Assembly. Thereafter, on

March 15, 1984, the Committee voted to

reconsider its earlier vote on the Bill

and voted to send the Bill to the House

of Representatives with an unfavorable

report, thereby indicating to the members

of the House that the Committee was op-

posed to the Bill, but allowing the Bill

to be considered by the members of the

House. However, the Bill never came be-

fore either House of the General Assembly

for a Vote.

23. Albert P, Lenge, Direc-

tor/Elections Attorney in the Office of

the Secretary of the State of the State

-257-

of Connecticut, testified ata hearing

held by the Committee on Governmental Ad-

ministration and Elections on February

28, 1984 concerning the issue of imple-

mentation of the provisions of the

Schmidle Bill, Raised Committee Bil] No.

5525. A copy of his testimony is includ-

ed as Exhibit P in the Joint Submission

of Documents.

24. On April 11, 1984, the Con-

necticut House of Representatives de-

feated two amendments to House Bill No.

59105, "An Act Concerning the Time Limit

for Enrollment of Unaffiliated Voters",

each of which provided in pertinent part

that:

Where state party rules so provide,

an elector whose name does not

-258-

appear on any enrolment list shall

be entitled to vote ina primary

conducted by such party for nomina-

tion for election to the office of

governor, lieutenant governor, sec-

retary of the _ state, treasurer,

comptroller, attorney general, sen-

ator or representative in Congress

Or state senator or state represen-

tative.

One Amendment, which was assigned letter

"B", was defeated by a vote of 92 to 54,

with 83 Democrats voting against the Bill

and none in favor, and 9 Republicans vot-

ing against the Bill and 54 in favor.

The second amendment, which was assigned

letter "F", was defeated by a vote of 93

to 54, with 85 Democrats vot.ng against

the Bill and none in favor, and 8 Repub-

licans voting against the Bill and 54 in

favor. The complete amendments are in-

cluded as Exhibits Q and R, respectively,

in the Joint Submission of Documents.

-259-

han hi beer e,

sane

——

25. At the time of the vote, there

were 87 Democrats and Republicans in the

Connecticut House of Representatives.

26. On April 19, 1984, the Con-

necticut Senate voted 23 to 13 against

Senate Amendment Schedule "A" to Substi-

tute House Bill No. 5105, "An Act Con-

cerning the Time Limit for Enrollment of

Unaffiliated Voters", which incorporated

the provisions of the Schmidle Bill,

Raised Committee Bill No. 9525, thereby

defeating the proposal to allow the Re-

publican Party to implement its Rule.

Twenty-three Democrats voted against the

Amendment and none voted in favor. No

Republicans voted against the Amendment

and thirteen voted in favor. A copy of

the Amendment is included as Exhibit S in

the Joint Submission of Documents.

-260-

27. At the time of the vote, there

were 23 Democrats and 13 Republicans in

the Connecticut Senate.

28. The Republican Party and Demo-

Cratic Party of Connecticut are the only

"major" political parties, as defined in

Section 9-372(5) of the Connecticut Gen-

eral Statutes, in Connecticut.

29. Neither House of the Connecticut

General Assembly voted on any other leg-

islation which would have enabled the Re-

publican Party to implement its Rule dur-

ing the remainder of the 1984 session of

the General Assembly, which adjourned on

May 9, 1984,

30. Plaintiffs Stewart B. McKinney

and Nancy L. Johnson are registered mem-

bers of the Republican Party and are

-261-

United States Representatives from the

State of Connecticut. Both Congressman

McKinney and Congresswoman Johnson will

seek reelection at the November 1984 gen-

eral election and, as such, are seeking

the endorsement of their respective Re-

publican Party Congressional District

Conventions for renomination to their of-

fices.

31. Pursuant to Section 9-423 of the

Connecticut General Statutes, any pri-

maries for party nominations for the of-

fice of United States Representative

would be scheduled for September 11,

1984,

32. Although the Republican Party

Rule would allow the Participation of

unaffiliated voters in a primary for

-262-

United States Representative, Section

9-431 of the Connecticut General Statutes

would not.

33. In the event that Primaries are

qualified for and held for Republican

Congressional nominations in either the

Fourth and/or Sixth Congressional Dis-

tricts, and in the event that Congressman

McKinney and/or Congresswoman Johnson are

candidates in such Primaries, Section

9-431 would prevent Congressman McKinney

and/or Congresswoman Johnson from seeking

nomination in primaries in which

unaffiliated voters may vote pursuant to

the Republican Party Rule.

34. Plaintiffs would offer evidence

that for Congressman McKinney, Con-

gresswoman Johnson and other candidates

-263-

for the Republican nominations for United

States Representatives to Properly plan

and conduct their campaigns for nomina-

tion and re-election to office they must

know whether the Republican Party will be

allowed to implement its Rule providing

for unaffiliated voters to participate

in these primaries. Defendants stipulate

that, subject to the right to raise ob-

jections as reserved on page one, this

evidence is admissible.

35. The defendant Secretary of the

State has administered the Provisions of

Section 9-431 of the Connecticut General

Statutes in the past and will continue to

do so in the future.

36. In 1955 the Connecticut General

Assembly enacted a "challenge" primary

-264-

law, now codified as Section 9-372 et

seq. of the Connecticut General Statutes.

37. Under this primcry law, party en-

dorsements for state and district offices

(offices which encompass two or more

towns or parts thereof) occur at a party

convention. Conn. Gen. Stat.

S$ $ 9-372(3), 9-382.

38. Delegates to conventions are en-

dorsed in the municipalities and are sub-

ject to primary. Conn. Gen. Stat.

$ § 9-390, 9-407. Only enrolled party

members may vote in these primaries.

39. Should an unsuccessful candidate

for endorsement for state or district of-

fice receive on any roll call convention

vote at least twenty percent of the num-

ber of the votes of the convention

-265-

delegates present and voting, he becomes

eligible to file as a challenge car.didate

in a primary against the party endorsed

candidate. Conn. Gen. Stat. § 9-400. If

no unsuccessful candidate for endorsement

receives the requisite twenty percent or

if such a candidate does receive twenty

percent but declines to file for a pri-

mary, no primary is held and the conven-

tion endorsed candidate becomes the party

nominee.

40. Such party primaries, if neces-

Sary, are held at the expense of the

State and the political subdivisions

thereof.

41. Section 9-431 of the Connecticut

General Statutes provides that only those

on the last completed political party

-266-

enrollment list are eligible to vote in

such primaries.

42. The only office on the primary

ballot to which the RepubJican Party Rule

would apply in 1984 is for United States

Representative.

43. In case of any such primary in

1984, there may also. be primaries for

state senator, state representative, and

registrar of voters occurring at the same

time.

44, Under the Republican Party Rule,

unaffiliated voters would not be permit-

ted to vote in primaries for state sena-

tor, state representative, or registrar

of voters.

45. The party primaries for all major

political parties in the State of

-267-

Connecticut, including the Democratic and

Republican Parties, are held on the same

day, during the same hours and at the

same polling places. Under present law

and procedure, separate voting machines

are used for each party on primary day.

46. It is possibie that there will be

on the same ballot Republican Party pri-

maries for offices (e.g., Congress) for

which unaffiliated voters may vote under

the Rule, together with offices (e.g.,

State senator, state representative) for

which they may not vote.

In such instances, special proce-

dures will be necessary, as a practical

matter, if the Republican Party Rule be-

comes effective. These precedures will,

among other things, require that separate

-268-

and distinct ballot labels be provided

for unaffiliated electors either on the

same or separate and additional voting

machines. In addition, election offi-

cials, including voting machine mechanics

and voting machine tenders, will require

special training.

47. Furthermore, unaffiliated voters

will have to be separated from enrolled

members of other major political parties,

including the Democratic Party, because

they will not be permitted to vote on any

Democratic ballot.

48. In all towns where primaries are

held for offices for which unaffiliateds

may participate under the party Rule, ad-

ditional officials, as well as additional

voting machines may, in many cases, be

necessary to accomodate these voters.

-269-

49. Present state law does not make

any provisions, including procedural

ones, for such unaffiliated voting, e.q.,

separate ballot labels or separate ma-

chines, number of machines, position of

offices on ballots, and voter check

lists.

50. Where primaries are held for of-

fices for which unaffiliated electors may

vote under the party Rule, together with

those offices for which they may not

vote, special "unaffiliated" absentee

ballots will be required if the Rule be-

comes effective. See Conn. Gen. Stat.

§ § 9-133e, 9-135a.

51. No provision is made under State

law for such unaffiliated absentee bal-

lots. Authorized primary absentee

-270-

ballots are designed by the Secretary of

State and printed and paid for by the

town.

52. If the Rule becomes effective,

defendant will offer testimony that there

will be a question as to which ballot the

town clerk should send to an unaffiliated

voter who requests one for a Republican

primary. This question will be due to

uncertainty as to what that voter's sta-

tus will be on primary day. See Conn.

Gen. Stat. §$ § 9-133d, 9-140. Plaintiffs

Stipulate that, subject to the right v4

raise objections as reserved on page one,

this evidence is admissible. |

53. Sections 9-54 and 9-55 of the

Connecticut General Statutes require pc-

litical party enrollment lists to be

-271-

maintained. State law makes no provi-

sions for lists of unaffiliated electors

to be available at the polls on the pri-

mary day. The party rule is silent re-

garding development of such unaffiliated

lists.

54. Connecticut Public Act 84-118 has

been signed by the Governor and becomes

effective on January 1, 1985. It pro-

vides that party enrollment may occur up

until the day before a primary.

55. To become affiliated with a po-

litical party, an unaffiliated voter need

only sign an application for enrollment

form and present it to the local Regis-

trar of Voters.

56. The State Register and Manuals

may be utilized as competent and

-27é-

authentic evidonce of voting and regis-

tration statistics for the purposes of

this case.

57. The Denocratic Party of the State

of Connecticut, which is the only other

major political party in Connecticut at

this time withir the meaning of Section

9-372, does not have a rule which is in

conflict with Section 9-431 or any other

Similar provision concerning voter eligi-

bility in party primaries. Unaffiliated

voters cannot vote in Democratic Party

primaries.

-273-

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

REPUBLICAN PARTY OF THE :

STATE OF CONNECTICUT;

LOWELL P. WEICK®R, JR.; :

STEWART B. MCKII NEY, NANCY

L. JOHNSON and ‘\HOMAS J.

D'AMORE, JR.

CIVIL

NO. H

V. 84-548

JULIA H. TASHJIAN,

Secretary of State of the

State of Connecticut

RULING ON MOTION TO DISMISS AND

MOTION FOR SUMMARY JUDGMENT

Plaintiffs filed a motion for summary

judgmert, pursuant to Rule 56, Fed. R.

Civ. P., on June 13, 1984, and defendant

filed a motion to dismiss, pursuant to

Rule 12(b)(6), Fed. R. Civ. P., on June

15, 1984. The court heard oral argument

-274-

on both motions at a hearing held July 5,

1984.

It is well-established that if materi-

als outside the pleadings are presented

on a motion to dismiss under Rule

12(b)(6), and the court receives those

materials in the exercise of its discre-

tion, the motion must be treated as one

for summary judgment and disposed of as

provided in Rule 56. Rule 12(b), Fed. R.

Civ. P.; 2A Moore's Federal Practice

12.09 (2d ed. 1984); see Oneida Indian

Nation of New York v. State of New York,

691 F.2d 1070, 1086 (2d Cir. 1982);

Geisler v. Petrocelli, 616 F.2d 636, 639

(2d Cir. 1980).

Defendant relies on the Joint State-

ment of Facts (filed June 6, 1984) and

-273-

Joint Submission of Documents (filed June

6, 1984), as well as a variety of other

materials outside the pleadings -- for

example, the transcript of a public hear-

ing before the 1984 Connecticut General

Assembly Government Administration and

Election Joint Standing Committee, see

Memorandum in Support of Motion to Dis-

miss (filed June 21, 1984) at 33-34. Ac-

cordingly, the court will treat defen-

dant's motion as one for summary

judgment.

A case is appropriate for summary

judgment only if there is no "genuine

issue as to any material fact” and the

moving party is "entitled to judgment as

a matter of law." Rule 56(c), Fed. R.

Civ. P.; See Schering Corp. v. Home

-276-

Insurance Co., 712 F.2d 4, 9 (2d Cir.

1983); Schwabenbauer vV. Board of

Education, 667 F.2d 305, 313 (2d Cir.

1981). Moreover, there can be no contro-

versy as to the inferences to be drawn

from the facts in evidence.

Schwabenbauer, supra, 667 F.2d at 313;

see Phoenix Savings & Loan, Inc. v. Aetna

Casualty & Surety Co., 381 F.2d 245, 249

(4th Cir. 1967).

In this action, the parties have been

unable to stipulate to the absence of

disputed facts. Defendant does not’ con-

cede that a subcommittee of the Republi-

can State Central Committee concluded

that the party would

increase its chances of winning

general elections; nominate candi-

dates with greater bipartisan sup-

port; increase the involvement of

-277-

unaffiliated voters in the elector-

al process in general; and

strengthen the two party system by

allowing unaffiliated voters to

participate in Republican Party

primaries.

Joint Statement of Facts, supra, 4% ll.

Defendant also disputes that

for Congressman McKinney, Con-

gresswoman Johnson and other candi-

dates for the Republican nomina-

tions for United States

Representative to properly plan

their campaigns for nomination and

re-election to office they must

know whether the Republican Party

will be allowed to implement its

Rule providing for unaffiliated

voters to participate in these pri-

maries.

Id. 4 34. Plaintiffs contest defendant's

assertion that

if the Rule becomes effective. .

. there will be a question at to

what ballot the town clerk should

send to an unaffiliated voter who

requests one for a Republican pri-

mary.

-278-

Id. 4 52.

The court is not persuaded that it

can, at this stage of the lawsuit and in

the circumstances presented, enter judg-

ment for either side. Accordingly, the

motions for summary judgment are hereby

denied. Before the court is able defini-

tively to consider the merits of the is-

sues presented, a trial must be held to

resolve these disputed issues of fact.

In determining the advisability, if not

necessity, of proceeding to trial, the

court intimates no view on the merits of

the arguments of either party to this

lawsuit.

The court is mindful of the need to

consider these matters expeditiously, in

-279-

light of the possibility that primaries

for nominations subject to the Republican

Party rule in question may be held on

September ll, 1984. Accordingly, the

court has established a schedule for ex-

pedited pretrial discovery on the only

issues arguably in dispute. An evidenti-

ary hearing shall be held on July 25,

1984 at 10:00 A.M. Counsel for each side

are directed to submit proposed findings

of fact with respect to the issues noted

by no later than August l, 1984.

it is so ordered.

Dated at Hartford, Connecticut, this

6th day of July, 1984.

/s/ Jose A. Cabranes

Jose A. Cabranes

United States Distric. Judge

-280-

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

REPUBLICAN PARTY OF THE STATE

OF CONNECTICUT, LOWELL P.

WEICKER, JR., STEWART B.

MCKINNEY, NANCY L. JOHNSON and : CIVIL

THOMAS J. D'AMORE, JR. : ACTION

: NO.

PLAINTIFFS, : H-84-

Vv. :

: 548

JULIA H. TASHJIAN, Secretary of : (JAC)

the State of the State of :

Connecticut :

: JULY

: 24,

DEFENDANT. : 1984

SUPPLEMENTAL JOINT STATEMENT OF FACTS

The plaintiffs, through counsel, and

the defendant, through counsel, hereby

Stipulate and agree that paragraphs li,

34 and 52 contained in their Joint

-28i-

Statement of Facts, filed June 6, 1984,

may be withdrawn.

In addition, the parties hereby sup-

plement their Joint Statement of Facts by

submitting the following facts as to

which they agree there are no genuine is-

sues to be tried:

10a. The resolution passed by the

State Central Committee at the August 23,

1983 meeting provided as follows:

Be it resolved that the Republican

State Central Committee empower Chair-

man Thomas J. D'Amore with the ability

to appoint a fifteen (15) member

by-laws revision committee consisting

of representatives of the Republican

State Central Committee, representa-

tives from various. town committees,

and represantatives from the category

of elected officials, both past and

pres nt.

Such committee to be chaired by an ap-

pointment of Chairman D'Amore from the

membership of said committee.

-262-

The comm.ttee will convene as quickly

@s possible upon the call of its'

chairman to deliberate the amending of

the by-laws of the Connecticut Repub-

lican State Committee to allow

unaffiliated voters the right to par-

ticipate in Republican Party activi-

ties, such as primaries, to allow for

a revision of our present convention

system structure, and any other

by-laws revisions deemed necessary.

Said revisions would then be acted

upon at a special state convention

called for that express purpose.

Said committee shall report back to

Chairman D'Amore with its' findings

and recommendations so that a report

can ke made to the State Central Com-

mittee meeting of September 1983.

This resolution was approved by a

voice vote of the members present at the

meeting following the rejection, by a

voice vote, of a proposed amendment which

would have given the subcommittee until

October 1983 (instead of September 1983)

-283-

to submit its' findinqs and recommenda-

tions.

ll. The subcommittee appointed by

Chairman D'Amore pursuant to the State

Central Committee resolution met three

times in September 1983.

By a vote of 1l in favor to one against,

the subcommittee approved the following

resolution:

RESOLVED: that it is the recommenda-

tion of the [subcommittee] that the

State Central Committee instruct the

Republican State Chairman to call a

convention of the Republican Party in

accordance with applicable provisions

of the party rules and the Connecticut

General Statutes to provide for the

revision of the party rules to permit

unaffiliated voters to vote in Repub-

lican primaries; and that the State

Central Committee explore such other

changes in the law, or action through

the courts, as the State Central Com-

mittee shall deem appropriate to

accomplish this purpose.

-284-

In addition, by a vote of 12 in favor

to one against, the subcommittee approved

the following resolution:

RESOLVED: that it is the recommenda-

tion of the [subcommittee] that the

State Central Committee instruct the

Republican State Chairman to call a

convention of the Republican Party in

accordance with applicable provisions

of the party rules and the Connecticut

General Statutes to consider the se-

lection of Republican candidtates for

office by direct primary instead of

convention; and to explore other’ such

changes in the law, or action through

the courts as the State Central Com-

mittee shall authorize to accomplish

this purpose.

lla. The Republican State Central Commit-

tee, at its September 29, 1983 nieeting,

by a vote of 52 in favor and 7 against,

approved a action providing that it:

receive [the] report of the

-285-

[subcommittee], with thanks, and that

(it] request the State Chairman to

call a State Convention before

Feoruary 15, 1984 for the purpose of

considering the recommended changes to

the by-laws, plus any other changes

that may be deemed necessary.

The member of the State Central Committee

making this motion had originally uti-

lized the word “accept” instead of "“"re-

ceive”. However, he voluntarily modified

his original motion afte: discussion so

that the motion, as approved, provided as

stated above.

x *& & ke kK

52. If the Rule becomes effective,

there will be a question as to what bal-

lot the town clerk should send to an

unaffiliated voter who requests one for a

-286-

Republican primary. This question will

be due to uncertainty as to what that

voter's status will be on primary day.

See Conn. Gen. Stat. SS 9-133d, 9-140.

The parties hereby reserve all objec-

tions which they may have as to the rele-

vance, materiality or probative value of

any fact contained herein.

THE PLAINTIFFS THE DEFENDANT

s/Stanley A. Twardy s/Elliot F, Gerson

BY BY

STANLEY A. TWARDY,JR. ELLIOT F. GERSON

SILVER, GOLUB & HENRY S. COHN

SANDAK, DANIEL R. SCHAEFER

P.O. BOX 389 DEPUTY ATTORNEY

184 ATLANTIC STREET GENERAL

STAMFORD, P.O. BOX 120

CONNECTICUT 06904 HARTFORD,

(203) 325-4491 CONNECTICUT 06106

(203) 566-4990

RALPH G. ELLIOT

TYLER, COOPER & ALCORN

ONE AMERICAN ROW

HARTFORD, CONNECTICUT 06103

(203) 522-1216

-287-

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF CONNECTICUT

REPUBLICAN PARTY OF THE STATE :

OF CONNECTICUT, ET AL.,

: CIVIL

Plaintiffs, ACTION

NO.

vs. H 84-548

JULIA H. TASHJIAN, SECRETARY : JULY 10,

OF THE STATE OF THE STATE OF 1984

CONNECTICUT,

Defendant.

ANSWERS TO INTERROGATORIES

ahem iV INTERROGATORIES

QUESTION 1. Indicate the name and ad-

dress of all persons who may testify that

if the Rule becomes effective there will

be a question as to what ballot the town

clerk should send to an unqualified voter

who requests a@ ballot for a Republican

primary, as referred to in Paragraph 52

of the Joint Statement of Facts.

-288-

ANSWER 1, Attorney Albert Pp, Lenge,

Elections Attorney, and/or Attorney

Deborah Dickson Shapiro, Assistant Elec-

tions Attorney, both of the Office of the

Secretary of the State, Election Divison,

30 Trinity Street, Hartford, Connecticut

06106. Defendant, in lieu of or in addi-

tion to testimony, also reserves the

right to request the court to take judi-

Cial notice of the existing Statutory

Procedure and the difficulties that would

result if the plaintiffs' "rule" were en-

forced.

QUESTION 2. State the Precise manner in

which it is anticipated that town clerks

will respond to requests from

unaffiliated voters for an absentee

-289-

ballot for a Primary for either party

Pursuant to Connecticut Public Act

84-118, including, but not limited to,

the type of ballot to be sent to

unaffiliated voters.

ANSWER 2. It is anticipated that, pursu-

ant to S$§ 9-133a through 9-133e and §

9-140, none of which were amended by Pub-

lic Act 84-118, town clerks will, begin-

ning on the 19th day before a primary,

issue absentee ballots upon application

Properly made, such ballots to be issued

either by first class mail addressed to

the applicant, or in person at the _ town

Clerk's office to the applicant or (where

applicable under §§ 9-140 ana 9-146 as

amended by Public Act 84-319) to the

-290-

applicant's designee. It is anticipated

that an unaffiliated voter applying for a

Democratic primary absentee ballot, as is

indicated on the application form provid-

ed for in § 9-140, would be issued such a

ballot listing all offices being contest-

ed at such primary in such voter's voting

district. This is currently the proper

Practice as unaffiliated voters may en-

roll up to and including the 14th day be-

fore the primary and ballots are avail-

able beginning the 19th day. In

addition, persons who are not yet elec-

tors, may become electors and enroll up

to and including the day before the pri-

mary due to the "matured rights” provi-

Sion of § 9-23a and to the fact that

cross-town applicants under § 9-19e may

-291-

vote in the Primary if application is

made by the 14th day even though it is

approved by the town of residence after

such 14th day. If Plaintiffs’ "rule" is

required to be enforced, it is antici-

pated that an unaffiliated voter applying

for a Republican Primary absentee ballot

would be issued either (a) such a ballot

listing only those offices being contest-

ed at the Primary in such voter's voting

district for which such voter is eligible

to vote under the Rule, or (b) more like-

ly, such a ballot listing all offices

being contested at such Primary in such

voter's voting district notwithstanding

Such voter's restricted eligibility to

vote under the Rule. Public Act 84-118

does not alter the absentee ballot

-292-

issuance Procedure; but if the Rule is

upheld, said Act will have the effect of

expanding (through the day before the

Primary) the period of time during which

an unaffiliated voter who has applied for

@ Republican absentee ballot may subse-

quently obtain full eligibility,

unrestricted by the Rule, to vote in Re-

publican primaries by enrolling as a Re-

publican.

QUESTION 3. State the Precise manner in

which the question of what ballot should

be sent in response to a request from an

unaffiiiated voter for an absentee ballot

for a Republican primary would differ

from that for a request for an absentee

ballot from an unaffiliated voter for a

-293-

Primary in either Party pursuant to Con-

necticut Public Act 84-118,

ANSWER 3, Under Public Act 84-118,

absent the Rule, there is no question as

to what absentee ballot should be issued

to an unaffiliated voter applying for a

primary absentee ballot of either party:

such a voter would be issued such Party's

ballot applicable to his voting district;

if such ballot is returned and such voter

enrolls in such Party by the deadline the

full ballot will be counted; if the bal-

lot is returned and the voter does not so

enroll, the ballot will not be counted.

(The checking of the ballot's outer enve-

lope against the final Supplementary en-

rollment lists will determine, prior to

-294-

counting, whether the voter has so en-

rolled). The question arises Only under

the Rule. Because the Rule does not af-

fect eligibility to vote at Democratic

Primaries, the foregoing procedure would

continue to apply to unaffiliated voters

applying for Democratic primary ballots:

the full ballot is sent, and it is subse-

quently either counted in full or not

counted at all, depending on whether the

unaffiliated voter has enrolled as a Dem-

ocrat. Because the Rule does affect eli-

gibility to vote in Republican primaries,

the question arises for Republican pri-

maries only: should an unaffiliated

voter be issued a ballot listing only

those offices for which he is eligible to

vote at the time of application (thus

-295-

ae Bee

potentially disfranchising him in part,

in the event he subsequently enrolls); or

should he be sent a full bailot (thus po-

tentially allowing him to vote for more

offices than permitted under the Rule, in

the event he does not enroll)? This is

the precise manner in which the question

of what ballot should be issued differs

depending on the party, not under Public

Act 84-118 but under the Rule. (The Act

merely extends the time period during

which the partially eligible unaffiliated

voter may become a fully eligible Repub-

lican, if the*Rule is upheld).

Most probably, the question would

be resolved in favor of issuing a full

Republican ballot to unaffiliated voters

-296-

——_—- = =-——

oil oe

applying for Republican primary absentee

ballots. Such ballots, when returned

sealed in their outer envelopes which

show the voter's name and address, would

be kept separate from ballots returned by

Republicans after checking the names

against the appropriate final lists of

enrolled Republicans = and unaffiliated

voters. The Republican voters' ballots

and the unaffiliated voters' ballots

would then be opened and counted sepa-

rately on primary day, in two separate

and distinct procedures at each of the

Statutory counting times. All votes on

the Republicans' ballots would be

counted, but on the unaffiliated ballots

only votes for offices permitted under

the Rule would be counted. It should be

-297-

; y ‘ie by Wi led

’

‘

° ~

| : . — es a

“ . 4 P é. ‘ F: —_— er es oY - ;

noted that this procedure is contrary to

statute (as is the alternative of issuing

different versions of the ballot for Re-

publicans and for unaffiliated voters);

would require extreme care in its imple-

mentation; would probably result in con-

Siderable confusion and official error;

and could have the effect of segregating

the unaffiliated absentee vote totals

from the Republican absentee vote totals

on the tally sheets which produce the

overall primary returns.

-298-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.