Ballot-Access Lawsuit Lands In Court

Voters have begun casting their absentee ballots in September’s Democratic primary for mayor — and a state court shouldn’t intervene in an election already underway.

So argued the lawyer representing New Haven’s registrar of voters, as he urged a state judge to throw out a ballot-access lawsuit filed by mayoral challenger Shafiq Abdussabur.

On Wednesday morning and early afternoon in a fourth-floor courtroom at the state courthouse at 235 Church St., roughly 15 people — a mix of city elected officials, candidates for office, campaign supporters, election observers, and local and state attorneys — gathered before state Superior Court Judge Paul Doyle for the first hearing in the case Shafiq Abdus-Sabur v. Shannel Evans.

That’s the lawsuit that Abdussabur — a retired police sergeant, former Beaver Hills alder, and mayoral candidate — filed on Aug. 17 in a bid to overturn a recent decision by the city’s Democratic registrar of voters and get his name on the ballot for Sept. 12’s Democratic primary election so that he can challenge two-term incumbent and local Democratic Party-endorsed candidate Mayor Justin Elicker. 

Hartford-based attorney Proloy Kumar Das, representing the defendants in the case — Democratic Registrar of Voters Shannel Evans and City/Town Clerk Michael Smart — called on the judge on Wednesday to dismiss the lawsuit because absentee ballots became available on Tuesday. The first votes have already been cast in the Sept. 12 primary. 

An employee in the city clerk’s office confirmed for the Independent that, as of around 3 p.m. Wednesday, four New Haven Democrats have indeed submitted their absentee ballots for the primary. They’ve done so by filling out the sheet pictured above, as the full ballot for the Sept. 12 election hasn’t actually been printed yet. 

“The court has no jurisdiction to act in the middle of an election,” Das said in court on Wednesday, citing the so-called ​“Purcell doctrine” prohibiting courts from changing the rules of an election so close to the start of voting. ​“It’s too disruptive to the electoral process.”

Doyle didn’t issue a decision on Wednesday. Instead, he ordered the defense to file a written motion to dismiss by Thursday at 5 p.m. He ordered Abdussabur, city clerk challenger Robert Lee, and their attorney Patricia Kane to file a written response to that motion to dismiss by 5 p.m. on Friday. And he said the court would hold oral arguments on the defense’s motion to dismiss on Monday.

“The people have the jurisdiction,” Abdussabur said during an interview with the Independent after Monday’s hearing wrapped up at around 2:30 p.m. ​“We have the numbers. We know the process [of approving and rejecting petition signatures] was inconsistent. … This is my fight for the people.” 

Abdussabur and Lee, who are running together on a slate, filed the state lawsuit in question the day after Evans’ office rejected Abdussabur’s primary-ballot-access petition on Aug. 16. She did so on the grounds that Abdussabur submitted only 1,406 valid signatures from registered New Haven Democratic voters, and not the 1,623 needed to qualify for the ballot. Abdussabur’s lawsuit contends that he did indeed submit enough valid petition signatures, that Evans’ office improperly rejected too many of them for being illegible, and that the court should order that his name be placed on the ballot after all. 

Asked on Wednesday for an explanation of why they think Abdussabur has enough valid signatures to qualify for the primary despite the finding of the registrar of voters, Abdussabur and Kane said that his mayoral campaign has reviewed again all 2,700 signatures they submitted by the Aug. 9 deadline. They said that they have found in their review more than enough valid signatures that will lift them above the 1,623 threshold, and argued that the registrar inappropriately and inconsistently rejected too many signatures for being illegible and for not having information like a signer’s correct date of birth or most up-to-date address.

At the time of her office’s rejection of his petition, Evans made clear that she turned down Abdussabur’s Democratic primary petition for five reasons: 1) too many signatures were from people who are not registered Democrats; 2) too many were from people who are not registered to vote in New Haven; 3) too many signatures and other relevant signer information (including printed name, date of birth, and address) were illegibly written; 4) the back sides of some of the petition papers — where, for example, the petition circulator has to sign their name and the petition itself has to be notarized — were incomplete; 5) and too many signers did not list their addresses. 

Back on Aug. 16, Evans’ office also rejected Democratic mayoral challenger Tom Goldenberg’s primary petition for not having enough valid signatures. Click here to read a letter that Goldenberg has subsequently sent to the Secretary of the State’s office protesting that finding. Evans’ office did, however, approve the petition filed by former legal aid attorney Liam Brennan, who as of now is the only Democratic mayoral candidate besides Elicker who will have his name appear on September’s ballot.

"That's The Change We Need"

Wednesday’s hearing in the state court case was scheduled for 10 a.m. in Courtroom 4E.

As Judge Doyle met in private with Kane, Das, city Deputy Corporation Counsel Roderick Williams, and city Assistant Corporation Counsel Earle Giovanniello, the plaintiffs and defendants and interested election observers — all of whom knew one another well through their involvement in local politics and civic life — passed the time in the brightly lit courtroom. 

Abdussabur sat side by side with Smart and Evans, a row in front of his campaign manager Gage Frank and campaign supporters Byron Breland and Rebecca Goddard, two rows in front of Democracy Fund administrator Aly Heimer, and a row behind city school board attorney (and former Woodbridge Democratic Registrar of Voters) Elias Alexiades. The group shared new baby photos, talked through their plans for the rest of the day, talked about the best place to park to get to the courthouse. Lee and Bernard Liu, a staff attorney from the Secretary of the State’s office, sat quietly on the public benches on the other side of the room.

“Let me just say this right now,” because there’s no judge present, Abdussabur addressed the group. ​“Keep your voices down.” Breland laughed in response. ​“I thought you were going to say something serious,” he said. ​“Always start with a joke,” added Frank. The judge’s clerk then got up to change the courtroom’s calendar from July to August after Breland pointed out the month was wrong. ​“That’s the change we need,” Frank observed. 

After more than half an hour of private deliberations, the attorneys emerged from their conference with the judge — only to have Doyle dismiss the group for a three-hour recess so that the plaintiffs could provide proper notice of the case to the other Democratic mayoral candidates, and to representatives from the Secretary of the State’s office and the State Election Enforcement Commission (SEEC).

The parties all reconvened in the same fourth-floor courtroom at 2 p.m. to resume the hearing for the day.

This time, mayoral challenger Liam Brennan and his campaign manager Abdul Osmanu were also present.

After a 20-minute private conference between the two sides’ attorneys and the judge, Doyle called the matter into public view at around 2:20. ​“The notice issue has been resolved,” he said.

He said that the Secretary of the State’s office and SEEC had both been notified of the case and the hearing. Both acknowledged receipt of the notice, both said they will not be intervening in this case, and both said they plan to monitor the case as it makes its way through court.

Kane said that she contacted Elicker’s and Goldenberg’s campaigns, and both provided written responses that ​“they have no interest in the proceedings” and do not plan on intervening.

Brennan, however, ​“wanted to speak to the court directly to ask” what was being asked of him exactly.

Which is exactly what happened next. Brennan approached the defense attorneys’ table, confirmed for the judge that he is indeed a candidate for mayor this election year, and asked what exactly was being asked of him. 

“Because you are a candidate” for mayor, and because this court case pertains to candidate names on the primary ballot, ​“you can intervene” if you’d like, Doyle said. ​“The court has to give you notice. Do you have any intention to intervene?”

“We have no plans to intervene,” Brennan replied. With that, he thanked the group and left the courtroom.

In the final 10 minutes of the hearing, Doyle laid out the schedule for the coming few days — he said the defense would have to file a motion to dismiss by 5 p.m. Thursday, the plaintiffs have to respond by 5 p.m. Friday, and the two parties will get a chance to have oral arguments, during a remote video-streamed hearing, on Monday.

He then asked Das to provide a preview of the argument he plans to make in the defense’s motion to dismiss.

Purcell Doctrine. No Prejudice

Das cited three reasons for why the court should throw out Abdussabur’s lawsuit.

First, because of the ​“Purcell doctrine” that he said derives from a 2006 U.S. Supreme Court decision, and that bars courts from interfering with elections already in process.

“This election started yesterday,” he said, ​“when absentee ballots were made available to the public.” That means that the court no longer has jurisdiction to weigh in on this matter. If the plaintiffs had sought an injunction effective Tuesday, he said, the court could have weighed the merits and made a ruling. But the election has already begun, and the court cannot and should not change ballots going forward from ones that have already been cast.

Second, Das said, ​“there’s no authority to add a name to a ballot.” Courts only have the power to remove a name from a ballot. He cited state law 9 – 329b as bolstering that legal claim.

And third, he said, ​“there’s no prejudice to the plaintiffs” in this case, as they’ve already made clear that they’ll be running in the general election in November as independents. ​“There’s no disenfranchising” taking place by not allowing Abdussabur on the primary ballot, because he’s already going to be on the general election ballot later this year.

Das wrapped up his argument by saying that ​“we would have a serious constitutional problem” if the court decided to buck the Purcell doctrine and intervene after the first absentee ballots have already been cast. ​“The primary election is underway, and under Purcell the court has no jurisdiction to act.”

With that, the judge called the hearing to a close, and Kane told the Independent that she plans on researching the laws and cases that Das cited as she prepares a response to the defense’s motion to dismiss.