Petition Case Pits Voters’ vs. Parties’ Rights

Petitioning candidates took their quest to federal court Friday to ease barriers to qualifying for the election ballot this year amid the Covid-19 pandemic.

Oral arguments in a lawsuit brought by political challengers took place over Zoom before the U.S. District Court covering the District of Connecticut.

Judge Janet Hall said she plans to issue a ruling on the case early next week, as she weighs the First Amendment rights of voters against the First Amendment rights of political parties. She will also weigh whether, amid a pandemic, rules Gov. Ned Lamont has already eased with an emergency order remain overly ​“burdensome.”
 
Alex Taubes, a local attorney who is seeking to challenge New Haven State Sen. Martin Looney, filed a lawsuit seeking relief on behalf of Andy Gottlieb, Jason W. Bartlett, and Richard Lacourciere, who are also current or former Democratic candidates for public office. Gottlieb’s former campaign treasurer, Lorna Chand, is also named as a plaintiff. The suit asks the court to issue a mandatory injunction to make ballot petitioning requirements more flexible in light of Covid-19.

Assistant Attorney General Maura Murphy Osborne argued on behalf of the state. She was joined by Kevin Reynolds, the Connecticut Democratic Party’s counsel.

Ordinarily, in Connecticut, candidates could make it onto the ballot for a Democratic Party primary election by three possible routes. They could win a party nominating convention; win 15 percent of delegates’ votes in that convention; or gather a petition of signatures from at least 5 percent of all registered Democratic voters in their district within a fourteen-day period.

In May, acknowledging the unprecedented challenge of collecting signatures while social distancing, Lamont issued an executive order amending the requirements for this last avenue. He reduced the mandated percentage of registered voters’ signatures by an additional 30 percent and granted a two-day extension to the fourteen-day signature-gathering petitioning period.

1st Amendment: Parties or People?

The First Amendment played a central role in the arguments Friday for both sides of the case.

Taubes set forth the notion that voters have a First Amendment right to associate themselves with a candidate who represents their beliefs.

The Democratic Party ​“can put more stringent restrictions on a nomination process if they don’t have an election,” Taubes argued. ​“But once they decide they are going to have an election,” the matter becomes a public forum.

“It is a state-run election,” he said. ​“If the state decides to hold such an election, it cannot burden voters from having a full range of candidates in that election by putting overly burdensome requirements” to make it onto the ballot.

Judge Hall asked Taubes whether his claims hinge on a notion of a ​“fundamental right to be on the ballot.” Voters have a right to associate, she said, ​“but I don’t think the candidate has a right to be on the ballot.”

“It is difficult to disentangle the rights of the candidates from the rights of the voters,” Taubes responded, noting that the candidates whom he is representing themselves are registered Democratic voters. ​“There are a number of voters who would like to vote for Jason Bartlett.”

On behalf of the state, Murphy Osborne — and later, Reynolds — argued that the first amendment rights of the Democratic Party itself should be considered.

If a potential candidate is unable to make it onto the ballot under current restrictions, ​“perhaps the party itself would not want that person to be a representative,” Murphy Osborne stated.

Judge Hall suggested that some measure of control over who can make it onto the primary ballot would be necessary.

“If I went to the ballot box to vote for the Democratic election this August and there were 27 people running to become the Democratic nominee, that’s pretty unruly,” she said. ​“It can’t be, ​‘Mickey Mouse gets on the ballot.’” But why is it in the state’s interest to impose these barriers?

“This really is about the party’s rights,” Murphy Osborne replied. ​“We really aren’t regulating ballot access in the same way that we do a general election.”

She noted that Connecticut requires both the Democratic and Republican Parties to hold primary elections.

“We’re not required to make the party bosses face off against the general population of Democratic voters,” she said. ​“Where we do, we do it in a way that respects the party’s rights.”

An Unfair Burden?

Judge Hall stipulated that in order to establish that Lamont’s eased restrictions still pose a ​“severe burden” on candidates, Taubes would need to prove that candidates face ​“exclusion or virtual exclusion.”

“Tell me why this scheme virtually excludes these candidates, each one of them or any of them, from getting onto the ballot.” Hall said. The highest number of signatures that the plaintiffs would need to acquire is 1,028, in Jason Bartlett’s case. ​“It doesn’t seem like a lot of signatures,” Hall said.

“The reason is coronavirus,” Taubes responded. Candidates seeking to run for office ​“are being forced to make a very difficult choice between the health of their community and the health of their democracy. They believe that that is as burdensome of a burden as can be.”

Gov. Lamont has begun to phase out statewide social distancing restrictions. Taubes argued that a barrier to gathering ballot petition signatures has formed ​“not just by the government but by fear.” Many people are still remaining inside their homes as much as possible, he noted.

Hall interjected, ​“I live in a house. I have a slot in my front door. In apartment buildings, you can slip it under the door.” Why is that not an option for the candidates?

Taubes responded that in-person communication has historically been key to signature-gathering. ​“The way that these petitions get signed is, someone goes up to a person and says ​‘Will you sign?’ Flesh to flesh, face to face,” he said. And many apartment buildings have closed community spaces off to outside visitors in light of Covid-19.

Taubes argued that even before the pandemic, ballot restrictions were burdensome on ​“all but the most well resourced and wealthy candidates.”

Taubes said candidates have needed to create new software in order to acquire online signatures. He said his own attempts at creating software fell through, as the final product made use of electronic signatures, which were ultimately incompatible with the regulations.

Bartlett succeeded in developing a platform that conforms to Lamont’s requirements, which he was able to get up and running by May 30. Within eight days, 600 people had visited the platform and 300 had attempted to sign. But only 100 of the signatures met the state’s requirements. Those 100 signatures will still need to be processed by the state, and some may still be excluded.

Judge Hall pressed Murphy Osborne on the difficulty of reaching potential voters by e‑communication, noting that the pandemic has unveiled a digital divide between households that can afford technology and households that can’t. She also questioned how the candidates could be expected to find out the emails of Democratic voters, which are not typically included on lists of registered voters’ addresses.

Murphy Osborne suggested that the candidates could purchase lists of emails from online vendors, which Democratic Party counsel Kevin Reynolds later seconded.

In the case of Bartlett, a longtime politician and campaign manager, Murphy Osborne said, ​“If he’s been doing this for over a decade, does he not have a list of contacts? Is he really starting from square one?”

She questioned how hard the candidates are working to get on the ballot and whether they truly have the requisite support. ​“If you are a sophisticated political operator or if you have a lot of people wanting to vote for you,” it shouldn’t be that hard to meet Lamont’s new requirements, Murphy Osborne said.

“I don’t know how many people tried [to sign the plaintiffs’ petitions], but the outcome of how many people succeeded is quite small,” Hall said. ​“Or are you going to tell me that the democrats in Connecticut are as happy as can be?”

Murphy Osborne maintained that the number of how many people want to sign the petitions should not be presumed to be high.

Hall compared Connecticut’s altered ballot petition requirements to other states’ Covid-related adjustments. While many states have not changed any ballot requirements in light of the pandemic, the judge said, of the states that have made adjustments, Connecticut has continued to require the highest percentage of the original number of mandatory signatures and has offered the shortest extension.

New York reduced the number of required signatures by 70 percent, for instance, and Massachusetts reduced the number by half, compared to Connecticut’s 30 percent reduction. Washington State waived the requirement altogether. Particularly in light of these comparisons, the judge asked, what makes Connecticut’s number reasonable?

Murphy Osborne responded that a comparison of lowered percentages from state to state does not paint the full picture, as each state has its own set of requirements built around or in addition to the mandated number of signatures. ​“In Massachusetts, they did reduce the percentage by 50 percent, but you have to inquire, ​‘from where?’ And how many days did you have to do this? In New York, do they have the same process as Connecticut’s process?” she said.

The judge continued to press Murphy Osborne on the 30 percent reduction: ​“Why is that the right number?”

“It roughly approximates the diminution in the effectiveness of petitioning. As your honor noted, the process for petitioning has been relaxed dramatically,” Murphy Osborne stated. ​“It’s not an exact science.”

Judge Hall replied that case law requires a ​“precision of regulations.” The numbers in the executive order should be justified, she argued.

“There are a lot of difficult questions in this case,” she said later, referring to the context of the pandemic. ​“This case is not exactly like other cases that have been considered.”