Ballot-Access Case Puts Purcell To The Test

What would be a greater affront to the public trust: the court’s intervention in an election already underway, or its adoption of a ​“pernicious” judicial doctrine allegedly geared towards voter suppression?

Those legal questions loomed Monday morning over a half-hour remote court hearing held via live videoconference in the case Shafiq Abdus-Sabur v. Shannel Evans.

The hearing — on the defense’s motion to dismiss on the grounds that the relevant election is already at hand — marked the latest legal effort by Abdussabur, a retired police sergeant and mayoral candidate, to make his way onto the Sept. 12 Democratic primary ballot.

He’s trying to get on the ballot despite a recent finding by the Democratic registrar of voters that his campaign submitted only 1,406 valid signatures from registered New Haven Democrats, whereas he needed 1,623 to qualify. 

The only Democratic candidates for mayor slated to appear on the Sept. 12 primary ballot as of now are two-term incumbent Mayor Justin Elicker and former legal aid attorney Liam Brennan.

Meanwhile, Tara Chozet, a spokesperson for the Secretary of the State’s office, confirmed for the Independent on Monday that Abdussabur has indeed qualified to run in November’s general election as an independent because he submitted 298 valid signatures, and needed only 127 to make it onto the ballot. (Fellow Democratic mayoral challenger Tom Goldenberg has also qualified for the November general election ballot, since he’s been endorsed by the local Republican Party.)

Also on Monday, a deputy in the city clerk’s office told the Independent that, since absentee ballots became available last Tuesday, a total of four people have voted so far in this year’s Sept. 12 primary election.

The judge in the case didn’t make a decision on the motion to dismiss right away on Monday, promising instead to issue an order soon.

Das: Don't Disrupt This Election

On Monday morning, local attorney Patricia Kane, representing Abdussabur and co-plaintiff (and city clerk challenger) Robert Lee, squared off in oral arguments against Hartford-based attorney Proloy K. Das, representing the defendants in the case, Democratic Registrar of Voters Shannel Evans and City/Town Clerk Michael Smart, before state Superior Court Judge Paul Doyle.

Before the judge was the defense’s motion to dismiss on a number of grounds — first and foremost, as Das explained Monday, is the so-called ​“Purcell doctrine.”

That doctrine refers to a U.S. Supreme Court decision in 2006 that reversed an appeals court’s decision to block an Arizona voter ID law. The reason for the high court’s decision was that the legal matter was playing out in court too close to the start of the election, and a change to previously adopted rules so late in the game could confuse voters and muddle the administration of the election.

Just as he said last week in a preview of his motion to dismiss, and as he detailed in a legal filing submitted to the court last Thursday, Das argued on Monday that the Purcell doctrine prohibits the court from jumping into the fray and changing up the names on the primary ballot at this stage of the election.

“The Purcell doctrine is a doctrine that instructs courts to refrain from interfering in an election if it’s in close proximity to an election” starting, Das said. ​“In this particular case, we’re in the middle of an election.” That’s because, per state law, military and absentee ballot voting both began last Tuesday.

Das also said that the plaintiff’s lawsuit doesn’t even state what error they believe the registrar made in reviewing petition signatures, and why they believe they have enough to qualify for ballot access. ​“It’s simply a phishing expedition” at this point, he said. ​“There’s been no established mistake.” 

The appropriate remedy for trying to figure out if there was a mistake is to file a complaint with the State Election Enforcement Commission (SEEC), which investigates such complaints all the time. ​“That’s the process that’s used,” Das said. ​“We don’t disrupt elections in the middle of the election.”

Finally, Das said, the state legislature does not appear to have granted the courts authority to add names of candidates to ballots. State law 9 – 329b only allows the court to remove a name from the ballot. ​“If the legislature wanted the court to have the ability to add a candidate to the ballot in the middle of an election or at all, it certainly would have said so.”

Das concluded his argument by returning to Purcell. That doctrine ​“counsels against the court interfering” near the start of an election in order to avoid voter confusion, he said. ​“Trying to change the ballots now would result in voter disenfranchisement” because military voting has already begun and absentee ballots are already out. The candidates have already begun campaigning based on an understanding of whose names will be on the ballot. Changing things now would disrupt the election as it’s already taking place.

“What’s your opinion [on how] there’s really no direct precedent on Purcell [being used] in Connecticut?” Judge Doyle asked.

Das recognized that, indeed, no state court judge has had to use Purcell yet in making a decision in an election case. But the Secretary of the State’s office did invoke a similar principle in a 2018 state court case involving a lawsuit filed by the Independent Party trying to get a candidate’s name in a state House race on the ballot on both the Independent and Democratic Party lines.

Das said that the Secretary of the State’s position in that case was to object to the request ​“because absentee ballots had been issued,” because military voting had begun, because the election in that case was already underway. ​“I think that that provides guidance for the kind of prejudice we’re talking about” in this case.

The ​“same rationale that applies to Purcell is absolutely applicable here,” he said.

And what’s your evidence that the election is in fact underway in this municipal Democratic primary? Doyle asked.

“Based on the statute, absentee ballots as a matter of law had to become available to the public, to the Democratic registered voters, starting last Tuesday,” Das said. ​“That’s by law. As a matter of law, the election is underway.”

And as a practical matter, he continued, ​“no one can be denied the right to vote today because this is an ongoing election.”

Kane: Purcell's Primary Use Is "Voter Suppression"

During her time to address the judge, Kane said she agrees with the court that ​“there is absolutely no precedent in Connecticut for applying Purcell.”

Frankly, Kane continued, Purcell is a ​“pernicious doctrine. It’s primarily been applied to voter suppression cases in the South and the West.” She said ​“it would only muddy the waters” if adopted here, ​“because in effect no aggrieved party would have a remedy any more. Everything would be too late” — that is, every legal challenge to a matter pertaining to an election would be deemed by the court to be coming in too close to the start of that election.

Kane referenced a March 2023 article in the Yale Law Journal by David Herman as providing scholarly evidence that ​“basically [Purcell has] been used in a negative way. If it were to be applied in Connecticut, it frankly would undo a complete legislative scheme that does give relief” as laid out in state statutes 9 – 328 and 9 – 329a. (Herman’s article reads in part: ​“Because political partisanship and the volume of late-breaking election litigation have increased, Purcell is now more likely to impede legitimate challenges to unlawful voting procedures. But beyond merely interfering with challenges to existing election laws, the expansion of Purcell has created new, harmful incentives for states already mired in litigation. Indeed, voting-rights advocates have already expressed concern about this dynamic.”)

Kane then took aim at Das’s argument that the court has no authority to add names to the ballot. ​“It’s inventive, but I don’t find it persuasive,” she said, because ​“there’s no evidence” that anyone has actually started voting, even if absentee ballots have been sent out. She noted that there’s precedent in New Haven for the city to send out corrected absentee ballots after the registrar’s office noticed it had made a mistake on the originally printed versions.

And, Kane said, Purcell was specifically cast aside in a footnote of a state court decision from August 2020. 

Kane said that applying Purcell in this case would be ​“a radical and destructive act. … There’s no need to invoke a shadow doctrine that’s heavily attacked by scholars all over the United States. Connecticut does give relief to people who are aggrieved, such as people trying to get on the primary ballot who feel valid signatures were rejected wrongfully and they seek their day in court to put them to their proof.”

“Purcell should be ignored in Connecticut and rejected,” she concluded. Connecticut ​“is not known for voter suppression, and that’s the primary use of the so-called Purcell doctrine.”

Pressed by Doyle as to Das’s argument that, by law, the election has begun because absentee ballots are now available, Kane argued that the registrar’s and city clerk’s offices can easily reach back out to those who have applied for an absentee ballot, because they should have their contact info all on file.

“To the extent a candidate can be knocked out of the box by a so-called doctrine will not add to the public belief that it is a level playing field and, if you play by the rules, you will get at least a shot at a decent outcome,” she said.

But if people have already started voting, Doyle said, won’t they effectively be disenfranchised, because they’re voting on a ballot with candidate names different from what a court-changed ballot could look like?

“There’s no evidence anyone has voted. Period,” Kane said. ​“The burden’s on” Das and the defense to prove that in their motion to dismiss.

Das retorted that the motion to dismiss filed by his clients is indeed all about bolstering ​“the public trust and the integrity of the election.”

Individuals are making decisions right now ​“based on a ballot that has been issued. Those decisions have already been made. The candidates are campaigning based” on this ballot. 

“This is a phishing expedition,” he concluded. ​“If there really is a concern about whether or not the registrar acted properly, the remedy there is just like any other election: it’s State Election Enforcement [Commission], which has time to conduct an investigation … We don’t disrupt an election in the middle of an election.”

Doyle thanked both attorneys for their arguments, and promised to ​“issue a decree in the short term.”