Judge Throws Out Ballot-Access Case

A state judge has dismissed mayoral challenger Shafiq Abdussabur’s lawsuit trying to press his way onto the Sept. 12 Democratic primary ballot — on the grounds that the first absentee ballots have already been cast, the election is therefore underway, and changing which candidates are participating now would run ​“the risk of voter confusion.”

State Superior Court Judge Paul Doyle handed down that decision on Tuesday afternoon in the case Shafiq Abdus-Sabur v. Shannel Evans. The judge’s decision was posted to the state court’s online docket on Wednesday morning.

Doyle issued that ruling one day after attorneys for the plaintiffs and defense made their cases during a remote video-streamed hearing as to whether or not Doyle should throw out the lawsuit entirely because of the so-called ​“Purcell doctrine,” which prohibits courts from changing the rules of an election too close to when that election is set to begin.

“With the primary election having begun and absentee ballots being cast, the risk of voter confusion discussed in Purcell is applicable, and the court must invoke the Purcell principle to ensure an orderly primary election process for the September 12, 2023 primary,” Doyle wrote at the end of his seven-page decision. ​“For the foregoing reasons, the defendant’s motion to dismiss is granted.”

The case itself stems from an Aug. 17 lawsuit filed by Abdussabur, a retired police sergeant and mayoral candidate, and co-plaintiff and city clerk challenger Robert Lee against Democratic Registrar of Voters Shannel Evans and City/Town Clerk Michael Smart.

Abdussabur and Lee, who are running on the same ticket together, were trying to get on the ballot despite a recent finding by the Democratic registrar of voters that their campaigns submitted only 1,406 valid signatures from registered New Haven Democrats, whereas they needed 1,623 to qualify. 

Doyle’s ruling means that the only Democratic candidates for mayor who will appear on the Sept. 12 primary ballot will be two-term incumbent Mayor Justin Elicker and former legal aid attorney Liam Brennan. Abdussabur and fellow mayoral challenger Tom Goldenberg will appear on the November general election ballot, however, as Abdussabur submitted enough signatures to qualify as an unaffiliated candidate, and Goldenberg has been endorsed by the local Republican Party.

During Monday’s hearing on the defense’s motion to dismiss, Proloy Das, the Hartford-based attorney representing Evans and Smart, argued that the court should throw out Abdussabur’s lawsuit because of the Purcell doctrine. He said that absentee ballot voting had already begun, and the court interfering in an election already underway would be too disruptive and confusing for voters and would be a violation of the public’s trust in the integrity of the election. (According to a deputy in the city clerk’s office, as of Monday afternoon, a total of four people had cast their absentee ballots in the primary election so far after those ballots became available last Tuesday.)

Patricia Kane, representing plaintiffs Abdussabur and Lee, argued that the Purcell doctrine was geared towards voter suppression by federal courts, has never been invoked by a state court in Connecticut before, and should be set aside so that this case could be decided on the merits of whether or not the registrar of voters properly or improperly rejected Abdussabur’s primary-ballot petition.

In his ruling on Tuesday, the judge wrestled with Purcell and the underlying U.S. Supreme Court decision that gave that principle its name.

“In Purcell, the plaintiffs were Arizona residents, tribes, and community organizations who sued the state of Arizona, challenging its new voter identification requirements that were approved by Arizona voters in 2004, Purcell v. Gonzalez, supra 549 U.S. 2 – 3,” Doyle wrote. ​“In its per curium decision of October 20, 2006, the United States Supreme Court did not decide the case on the merits but instead decided to allow the election of November 7, 2006, to go forward on its then-existing election rules because ‘[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase. … We underscore that we express no opinion here on the correct disposition. … Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the voter identification rules.’ ”

Doyle wrote that the Purcell decision sought to preserve ​“the continuity of the impending election so as to avoid voter confusion and voter apathy,” and thereby led to the creation of the ​“legal rationale known as the Purcell principle. Since the release of Purcell in 2006, courts have applied the Purcell principle in many cases.”

In the current case of New Haven’s Democratic primary election of Sept. 12, Doyle continued, that election formally began when the city/town clerk ​“printed and made absentee ballots available on August 22, 2023, in accordance with General Statutes 9 – 140 (f). The endorsed Democratic candidates for mayor and town clerk as well as the qualified challengers have been campaigning for the primary election. With voting already having begun and election day approaching, the Purcell principle is applicable to the present case. If a restraining order to enjoin the printing of the absentee ballots had been sought and achieved, the primary election would not have begun, and the risk of voter confusion and negative impact on the election would not be at issue.”

Doyle then referenced two other state Supreme Court rulings that acknowledged Purcell in its footnotes, even as it did not invoke the principle in the rulings themselves. The decision in one of those cases, Fay v. Merrill, did reference a U.S. District Court case ​“that had a timing issue similar to the one in the present case,” he wrote, finding that a request for preliminary injunctive relief was — to quote that decision — ​“unreasonable when brought twenty-six days before primary and after [mail in] ballots [had] been sent to Nevada voters.”

The judge also referenced a state trial court ruling in Dean v. Jepsen that ​“dealt with a late challenge to the qualifications of an attorney general candidate, and in its rationale for granting the motions to dismiss, the court involved the Purcell principle.”

In other cases where the state court has issued an injunction on election matters, Doyle wrote, like Nardello v. Merrill, that court ruling came ​“prior to the issuance of absentee ballots and commencement of primary election voting.”

But here, in this New Haven Democratic primary, the election has already begun and the first absentee ballots have already been cast.

Therefore, Doyle ruled, this case is dismissed.

Abdussabur did not immediately respond to a request for comment by the publication time of this article. His campaign did sent out an email press release soon after this article published stating that Abdussabur will be hosting a press conference on Thursday at 11 a.m. at his campaign headquarters at 347 Whalley Ave. to talk about the court ruling. In a separate phone call, Kane said she respects Doyle and wants to read the decision thoroughly before issuing any comment.

On Wednesday midday, Democracy Fund administrator Aly Heimer confirmed for the Independent that Abdussabur’s failure to make it onto the Democratic primary ballot does have implications for his participation in the city’s public financing program, which provides grants and matching dollars to candidates who limit individual contributions at $445 each and who forswear campaign dollars from large donors and PACs.

Namely, Abdussabur is no longer eligible for a $23,000 grant for the Democratic primary. Because he is no longer participating in the primary.

However, he is still eligible for a $23,000 Democracy Fund grant for the general election in November, since he has already qualified for that ballot as an independent.

Abdussabur will not, however, be able to reset his fundraising after the primary — meaning he can still accept no more than $445 each from individual donors. If he had participated in the primary and had won, then, after the primary and before the general, he would have been able to go back to donors who had already maxed out at $445 each to ask for new Democracy Fund-limited dollars again. That path is no longer open to him, again, since he is not participating in the primary.