Commissioner of the Superior Court Assistant Clerk

ADMINISTRATIVE APPEAL UNDER CONNECTICUT GENERAL STATUTES SECTION 4-183 — CITATION (For use when service is made by a proper officer or indifferent person) JD-CV-138 Rev. 2-20 C.G.S. § 4-183; P.B. § 14-7AInstructions to Person Appealing Decision : 1. The Judicial District you name in this Citation must be the Judicial District of New Britain or Judicial

District where the plaintiff resides. 2. Attach the original Appeal to the original Citation. 3. If you are self-represented, bring this Citation and the Appeal to a clerk of court for the Judicial District

you name below. The clerk will review and sign the Citation. 4. Give this Citation and the Appeal to a proper officer or indifferent person for service on each defendant. 5. After service has been made, file this Citation, Appeal, and the Officer's Return of Service with the clerk

of court for the Judicial District named below.

To Any Proper Officer or Indifferent Person: By the authority of the State of Connecticut, you are commanded to serve, according to law, a copy of the Appeal and this Citation by personal service on the agency that made the decision that is being appealed at the address of the agency or, if allowed by law, at the Office of the Attorney General, 165 Capitol Avenue, Hartford, Connecticut. Also serve, according to law, a copy of the Appeal and this Citation on each party named as a defendant in this Appeal, at the address provided on this form.

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1. The Plaintiff will file the attached Appeal of a final administrative decision. The Appeal attached to these papers states the claims that the Plaintiff is making.

2. To receive further notices, you or your attorney must file an Appearance (form JD-CL-12) with the clerk at the address above within thirty (30) days of the mailing of the Appeal. You do not have to come to court on that date unless you receive a separate notice telling you to come to court.

3. If you do not file an Appearance on time, the Court may enter sanctions against you. 4. You can get an Appearance form at the Court address above or on-line at https://jud.ct.gov/webforms/. 5. If you have questions about the Notice of Filing and the Appeal, you should talk to an attorney. The court staff is not allowed to give advice on legal matters.

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If this Citation is signed by a Clerk: a. The signing has been done so that the plaintiff(s) will not be denied access to the courts. b. It is the responsibility of the plaintiff(s) to ensure that service is made in the manner provided by law. c. The court staff is not permitted to give any legal advice in connection with any lawsuit. d. The Clerk signing this Citation at the request of the plaintiff(s) is not responsible in any way for any

errors or omissions in the Citation, any allegations contained in the Appeal, or the service of the Citation or Appeal.

06/17/2020Proloy K. Das

Dominic Rapini, et al. v. Denise Merrill, Secretary of the State

New Britain 20 Franklin Square, New Britain, CT 06051

A 90

(860) 515-5180

Rapini, Dominic4 Mariners Way, Branford, CT 06405Szynkowicz, Linda140 Knox Boulevard, Middletown, CT 06457Merrill, Denise, Secretary of the State, Office of the Secretary of State, 30 Trinity Street, Hartford, CT06106; and Office of the Attorney General, 55 Elm Street, Hartford, CT 06106

4 1 ✖

Murtha Cullina LLP 040248

✖ pdas@murthalaw.com

6000240860

STATE OF CONNECTICUT JUDICIAL BRANCH CASE TYPE CODES

January, 2020

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Appeals from Administrative Boards

MINOR DESCRIPTIONCODE Major/ Minor

MAJOR DESCRIPTION

RETURN DATE: JULY 7, 2020

DOMINIC RAPINI, LINDA SZYNKOWICZ, STATE SENATOR ERIC BERTHEL, AND STATE REPRESENTATIVE JASON PERILLO v. DENISE MERRILL, SECRETARY OF THE STATE

: : : : : : : : :

SUPERIOR COURT JUDICIAL DISTRICT OF NEW BRITAIN AT NEW BRITAIN JUNE 17, 2020

PETITION FOR ADMINISTRATIVE APPEAL

TO THE SUPERIOR COURT FOR THE JUDICIAL DISTRICT OF NEW BRITAIN ON THE SEVENTEENTH DAY OF JUNE, 2020, COME JOINTLY DOMINIC RAPINI, LINDA SZYNKOWICZ, STATE SENATOR ERIC BERTHEL, AND STATE REPRESENTATIVE JASON PERILLO, APPEALING PURSUANT TO SECTIONS 9-3 AND 4-183 OF THE CONNECTICUT GENERAL STATUTES FROM A MEMORANDUM OF OPINION ISSUED BY THE OFFICE OF THE SECRETARY OF THE STATE, DATED MAY 6, 2020, AND COMPLAIN AND SAY:

INTRODUCTION

Fair elections are central to our republican form of government. Democracy

demands that there be public confidence in the integrity of the election process. The

Connecticut Constitution safeguards our elections through two significant provisions.

Article Sixth, Section 5 protects the right to vote in secret. Article Sixth, Section 7

provides that voting must be done in person and limits the use of absentee voting to

circumstances where a person is unable to appear due to one of the limited reasons

set forth therein.

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As a bi-partisan election reform commission, chaired by former President

Jimmy Carter and James Baker, explained, “[a]bsentee ballots remain the largest

source of potential voter fraud.” Commission on Federal Elections Reform, Building

Confidence in U.S. Elections 46 (2005). Absentee ballots can be mailed to the wrong

address, can get lost in the mail, or can get intercepted by, for example, other

residents in large residential buildings or even roommates. Absentee ballots can be

the subject of ballot harvesting, where third parties, unknown to the voter and to

election officials, gather ballots and may pressure electors to vote a certain way or

dispose of ballots that do not support a particular candidate. Absentee ballots run the

danger of not being secret ballots. Individuals might sign their absentee ballots. A

spouse may influence the other to vote a certain way. Third parties, including family

and friends, can oversee how a person is voting on an absentee ballot. The privacy

and security of the voting booth disappears with absentee ballots. In addition, eligible

electors voting by absentee ballot can be disenfranchised when their ballots are not

counted for being statutorily defective or untimely. For all of these reasons,

Connecticut requires in person voting and its absentee ballot system is strictly limited.

And since those limitations are rooted in our state constitution, only the electorate, by

amending the constitution, can expand the circumstances under which absentee

ballots can be used.

This case is a challenge to the Secretary of the State’s declaration expanding

who is entitled to vote by absentee ballot based, in part, on the COVID-19 public

health and civil preparedness emergency in Connecticut. The Secretary’s actions will

decrease public confidence in the election process and increase the election’s

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susceptibility to irregularities, from errors to fraud. Moreover and fundamentally, it is

for Connecticut’s electorate – not the Secretary of the State – to decide whether and

when absentee ballot use should be expanded. The Plaintiffs herein challenge the

Secretary’s May 6, 2020 Memorandum of Opinion as an unlawful and unconstitutional

expansion of absentee balloting.

NOW COME the Plaintiffs, Dominic Rapini, Linda Szynkowicz, Senator Berthel,

and Representative Perillo, by and through counsel, and for their Complaint state as

follows:

PARTIES AND JURISDICTION

1. Plaintiff Dominic Rapini is a Connecticut elector, former candidate for the

United States Senate, and potential future candidate for elected office.

2. Plaintiff Linda Szynkowicz is a Connecticut elector, former candidate for

state representative, and a candidate for state representative in the November 2020

general election.

3. Plaintiff Hon. Eric Berthel is a member of the state senate representing

the 32nd Senatorial District and a candidate for re-election in the November 2020

general election.

4. Plaintiff Hon. Jason Perillo is a member of the state house of

representatives representing the 113th Assembly District and a candidate for re-

election in the November 2020 general election.

5. Defendant Denise Merrill is the Secretary of the State of Connecticut and

by virtue of her office, the commissioner of elections with general supervisory authority

over elections in the State of Connecticut. She is named solely in her official capacity.

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6. This petition and complaint is brought pursuant to General Statutes

§§ 9-3 and 4-183 and the Connecticut Supreme Court’s decision in Republican Party

v. Merrill, 307 Conn. 470 (2012).

SECRETARY MERRILL’S MEMORANDUM OF OPINION

7. General Statutes § 9-3 provides, in relevant part, that:

[T]he Secretary's regulations, declaratory rulings, instructions and opinions, if in written form… shall be presumed as correctly interpreting and effectuating the administration of elections and primaries under this title… and shall be executed, carried out or implemented, as the case may be, provided nothing in this section shall be construed to alter the right of appeal provided under the provisions of chapter 54. Any such written instruction or opinion shall be labeled as an instruction or opinion issued pursuant to this section, as applicable, and any such instruction or opinion shall cite any authority that is discussed in such instruction or opinion.

8. On May 6, 2020, citing her authority under General Statutes § 9-3,

Secretary Merrill issued a “Memorandum of Opinion” that unconstitutionally and

erroneously expands the definition of “illness” in General Statutes § 9-135 for

purposes of broadening who is entitled to vote by absentee ballot. A copy of the

Memorandum of Opinion is attached hereto as Exhibit A.

9. In the Memorandum of Opinion, Secretary Merrill unconstitutionally and

erroneously determined “that any registered voter who has a pre-existing illness can

vote by absentee ballot because that voter’s illness would prevent them from

appearing at their designed polling place safely because of the COVID 19 virus.”

(emphasis in original).

10. Furthermore, Secretary Merrill unconstitutionally and erroneously

determined that “individuals who may have been in contact with a COVID-19 infected

individual such as healthcare workers, first responders, individuals who are caring for

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someone at increased risk, as well as those that feel ill or think they are ill because of

the possibility of contact with the COVID-19 virus should also be included in the

category of voters that would qualify as ‘ill’ for the purposes of absentee voting.”

11. If not overturned on appeal, said Memorandum of Opinion will have an

overall adverse effect on the fairness of Connecticut’s electoral process. The Plaintiffs

respectfully request that this appeal be sustained because the Secretary of the State

lacks the constitutional authority to broaden the use of absentee ballots, the

Memorandum of Opinion is based on an erroneous and improper construction of

General Statutes § 9-135, and the Memorandum of Opinion unconstitutionally

broadens the use of absentee ballots in violation of Article Sixth, Section 7 of the state

constitution.

THE SECRETARY OF THE STATE LACKS THE CONSTITUTIONAL AUTHORITY TO BROADEN THE USE OF ABSENTEE BALLOTS

12. Article Sixth, Section 7 of the state constitution provides as follows:

The general assembly may provide by law for voting in the choice of any officer to be elected or upon any question to be voted on at an election by qualified voters of the state who are unable to appear at the polling place on the day of election because of absence from the city or town of which they are inhabitants or because of sickness or physical disability or because the tenets of their religion forbid secular activity.

13. In enacting General Statutes § 9-135 (a), the General Assembly

identified several categories of electors who are eligible to vote by absentee ballot:

Any elector eligible to vote at a primary or an election and any person eligible to vote at a referendum may vote by absentee ballot if he or she is unable to appear at his or her polling place during the hours of voting for any of the following reasons: (1) His or her active service with the armed forces of the United States; (2) his or her absence from the town of his or her voting residence during all of the hours of voting; (3)

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his or her illness; (4) his or her physical disability; (5) the tenets of his or her religion forbid secular activity on the day of the primary, election or referendum; or (6) the required performance of his or her duties as a primary, election or referendum official, including as a town clerk or registrar of voters or as staff of the clerk or registrar, at a polling place other than his or her own during all of the hours of voting at such primary, election or referendum.

(emphasis added). 14. Although General Statutes § 9-3 authorizes the Secretary of the State,

as the commissioner of elections in the state, to promulgate regulations, declaratory

rulings, instructions, and opinions concerning the conduct and administration of

elections and primaries, only the General Assembly or the electorate can expand the

use of absentee voting.

15. Only the General Assembly is permitted to alter state law implementing

absentee voting as limited by the state constitution.

16. Only the electorate can expand the use of absentee ballots in

Connecticut through amendment of the state constitution.

17. In the November 2014 election, the electorate rejected a proposed

amendment to the state constitution that would have removed restrictions on absentee

ballot use and authorized the General Assembly to expand the use of absentee

ballots.

18. The Secretary of the State has no authority to unilaterally expand the use

of absentee ballots.

19. Through the Memorandum of Opinion, the Secretary of the State made a

clear error of law in concluding that she has the legal authority to expand the definition

of “illness” in General Statutes § 9-135.

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20. Given that the Secretary of the State lacks the authority to alter the

parameters of who is entitled to vote by absentee ballot, the Memorandum of Opinion

violates Article Sixth, Section 7 of the state constitution and is unconstitutional.

THE SECRETARY OF THE STATE’S MEMORANDUM OF OPINION IS BASED ON AN ERRONEOUS AND IMPROPER CONSTRUCTION OF GENERAL

STATUTES SECTION 9-135 AND UNCONSTITUTIONALLY BROADENS THE USE OF ABSENTEE BALLOTS IN VIOLATION OF ARTICLE SIXTH, SECTION 7 OF THE

STATE CONSTITUTION

21. The Memorandum of Opinion is based on an erroneous and improper

construction of General Statutes § 9-135 and is otherwise inconsistent with principles

of statutory construction.

22. In expanding the definition of “illness” in General Statutes § 9-135 to

include those with “pre-existing illness,” anyone “who may have been in contact with a

COVID-19 infected individual such as healthcare workers, first responders, [and]

individuals who are caring for someone at increased risk,” anyone that “feel[s] ill,” or

anyone that “think[s] they are ill because of the possibility of contact with the COVID-

19 virus,” the Secretary of the State erroneously and improperly interpreted the

language of General Statutes § 9-135.

23. Article Sixth, Section 7 of the state constitution limits the use of absentee

ballots to “qualified voters of the state who are unable to appear at the polling place on

the day of election because of absence from the city or town of which they are

inhabitants or because of sickness or physical disability or because the tenets of their

religion forbid secular activity.”

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24. The Memorandum of Opinion expands the use of absentee ballots for

reasons beyond those specifically prescribed in Article Sixth, Section 7 of the state

constitution.

25. Through the Memorandum of Decision, the Secretary of the State has

violated Article Sixth, Section 7 of the state constitution.

THE PLAINTIFFS ARE AGGRIEVED BY THE MEMORANDUM OF OPINION

26. Each of the Plaintiffs is aggrieved by the Memorandum of Opinion.

27. Plaintiff Dominic Rapini is aggrieved as a voter and a potential candidate,

specifically based on his right to have his vote counted equally and not be diluted by

votes that are unlawfully cast in contravention of Article Sixth, Section 7 of the state

constitution, as well as his constitutional right to a fair and honest election. See

Anderson v. United States, 417 U.S. 211, 227 (1974); Baker v. Carr, 369 U.S. 186,

208 (1962).

28. Plaintiff Linda Szynkowicz is aggrieved as a voter and a candidate,

specifically based on her right to have her vote counted equally and not be diluted by

votes that are unlawfully cast in contravention of Article Sixth, Section 7 of the state

constitution, as well as her constitutional right to a fair and honest election. See

Anderson v. United States, 417 U.S. 211, 227 (1974); Baker v. Carr, 369 U.S. 186,

208 (1962).

29. Plaintiff State Senator Eric Berthel is aggrieved as a member of the

General Assembly, which is the constitutional body authorized to implement absentee

ballot procedures, because encroachment by the Secretary of the State on the powers

of the legislature is both a constitutional violation and a tangible harm. See Office of

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Governor v. Select Committee of Inquiry, 271 Conn. 540 (2004). Senator Berthel is

also aggrieved as an elector and a candidate for reelection in the November 2020

general election.

30. Plaintiff State Representative Jason Perillo is aggrieved as a member of

the General Assembly, which is the constitutional body authorized to implement

absentee ballot procedures, because encroachment by the Secretary of the State on

the powers of the legislature is both a constitutional violation and a tangible harm. See

Office of Governor v. Select Committee of Inquiry, 271 Conn. 540 (2004).

Representative Perillo is also aggrieved as an elector and a candidate for reelection in

the November 2020 general election.

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WHEREFORE, the Plaintiffs respectfully request that this Court:

(i) Sustain this appeal;

(ii) Vacate Secretary Merrill’s Memorandum of Opinion; and

(iii) Grant such other relief in law or in equity as is required or appropriate.

PLAINTIFFS, DOMINIC RAPINI, LINDA SZYNKOWICZ, STATE SENATOR ERIC BERTHEL, AND STATE REPRESENTATIVE JASON PERILLO

By Proloy K. Das, Esq. pdas@murthalaw.com Matthew A. Ciarleglio, Esq. mciarleglio@murthalaw.com

Murtha Cullina LLP 280 Trumbull Street, 12th Floor Hartford, Connecticut 06103 Telephone: 860.240.6000 Facsimile: 860.240.6150 Juris No. 040248 Their Attorneys

10820671v1

EXHIBIT A

Office of the Secretary of the State 165 Capitol Avenue Hartford, CT 06106

MEMORANDUM OF OPINION

To: All Town Clerks and Registrars of Voters

From: Office of the Secretary of the State

Date: May 6, 2020

Re: Absentee Balloting Voting During a State of Health Emergency

___________________________________________________________________________________

We are writing this opinion to ensure that voters are able to participate in the upcoming August 11, 2020 Republican and Democratic Primaries in the safest manner possible. More specifically, we are clarifying the definition of “Illness” for Absentee Balloting at a time when the Governor has declared a public health and civil preparedness emergency throughout the State of Connecticut.

This opinion is issued pursuant to Connecticut General Statutes §9-3 which states, “(a) The Secretary of the State, by virtue of the office, shall be the Commissioner of Elections of the state, with such powers and duties relating to the conduct of elections as are prescribed by law and, unless otherwise provided by state statute, the secretary’s regulations, declaratory rulings, instructions and opinions, if in written form, and any order issued under subsection (b) of this section, shall be presumed as correctly interpreting and effectuating the administration of elections and primaries under this title, except for chapters 155 to 158, inclusive, and shall be executed, carried out or implemented, as the case may be, provided nothing in this section shall be construed to alter the right of appeal provided under the provisions of chapter 54. Any such written instruction or opinion shall be labeled as an instruction or opinion issued pursuant to this section, as applicable, and any such instruction or opinion shall cite any authority that is discussed in such instruction or opinion….”

Connecticut General Statutes §9-135 permits a voter to receive an absentee ballot if they cannot appear at their assigned polling place because of “(1) His or her active service with the armed forces of the United States; (2) his or her absence from the town of his or her voting residence during all of the hours of voting; (3) his or her illness; (4) his or her physical disability; (5) the tenets of his or her religion forbid secular activity on the day of the primary, election or referendum; or (6) the required performance of his or her duties as a primary, election or referendum

official, including as a town clerk or registrar of voters or as staff of the clerk or registrar, at a polling place other than his or her own during all of the hours of voting at such primary, election or referendum.”

Webster’s dictionary defines “illness” as “an unhealthy condition of body or mind or sickness.” “Illness.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/illness. Accessed 2 May. 2020. It is clear that this definition as well as the statutory section referenced above, does not limit the term illness to an individual who has limited mobile function or is hospitalized or confined to a bed. In fact, the Centers for Disease Control have identified numerous pre-existing illnesses that put certain individuals at increased risk when exposed to the COVID-19 virus. These include, but are not limited to: (1) People of all ages with underlying medical conditions, particularly if not well controlled, including: People with chronic lung disease or moderate to severe asthma, People who have serious heart conditions, People who are immunocompromised (Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids or other immune weakening medications); (2) People with severe obesity (body mass index [BMI] of 40 or higher); (3) People with diabetes; (4) People with chronic kidney disease undergoing dialysis; (5) People with liver disease; and (6) Pregnant women.

Pursuant to Connecticut General Statutes §1-2z, “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” Looking first at the statutory language and the relationship to other statutes, “illness” cannot be limited to some affliction that leaves an individual debilitated or bed ridden. First, the statutory section itself does not define “illness” in such a way. Second, the statutory section at issue also uses the term “physical disability” which in and of itself identifies an individual with mobility issues that can be described as both an “illness” as well as a limitation on mobility. As such, it would be contrary to statutory construction to place the same or similar meaning to both phrases. In addition, Connecticut General Statutes also provides additional methods of absentee balloting such as Supervised Absentee Balloting see section 9-159q, Emergency Absentee Balloting see section 9-150c, Permanent Absentee Balloting see section 9-140e, and Voting In Person After Voting By Absentee Ballot see section 9-158n. Given the additional meanings of “illness” or “physical disability” when used in the other sections of the General Statutes, it stands to reason that “illness” as used in Connecticut General Statutes §9-135 must have a broad definition, one that gives meaning to the special circumstances by which voters can vote using an absentee ballot. Given the reasoning set forth above and the guidance provided by the Centers of Disease Control, the Office of the Secretary of the State has determined that any registered voter who has a pre-existing illness can vote by absentee ballot because that voter’s illness would prevent them from appearing at their designed polling place safely because of the COVID 19 virus.

In addition, individuals who may have been in contact with a COVID-19 infected individual such as healthcare workers, first responders, individuals who are caring for someone at increased risk, as well as those that feel ill or think they are ill because of the possibility of contact with the COVID-19 virus should also be included in the category of voters that would qualify as “ill” for the purposes of absentee voting.