MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION ...

UNITED STATES DISTRICT COURTDISTRICT OF CONNECTICUT-------------------------------------------------------------------xJIM CAMPBELL, PAMELA BYRNES, COMMONCAUSE OF CONNECTICUT, CONNECTICUTCITIZEN ACTION GROUP, MARK NIELSEN,GORDON HAAVE, TOM CULLEN, JOHN FIXARY,and JONATHAN WATERS WILCOX.Plaintiffs,Civ. No-against-SUSAN BYSIEWICZ, in her official capacity asSecretary of the State for the State of Connecticut,Defendant.-------------------------------------------------------------------xMEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’MOTION FOR PRELIMINARY INJUNCTIONWilliam M. BlossElizabeth B. DanielJacobs, Grudberg, Belt & Dow, PCBrennan Center for Justice350 Orange Street at NYU School of LawPO Box 606161 Avenue of the AmericasNew Haven, CT 06503-060612 th Floor(203)772-3100 New York, NY 10013(212)998-6730

TABLE OF CONTENTSTABLE OF AUTHORITIES………………………………………………………………………………..iiiPreliminary Statement………………………………………………………………………………………..1Statement of Facts…………………………………………………………………………………………….5A. Connecticut’s Dual System of Ballot Access for Primary Elections…………………………51. Primary Ballot Access in Single-Town Districts……………………………………..52. Primary Ballot Access in Multi-Town Districts………………………………………6a. The town committees and endorsed delegate slates………………………….7b. The de facto requirement of the pre-primary primary………………………..9c. Overall burdens consistently skew the process to favorincumbents……………………………………………………………….….13B. The Statistics Demonstrate the Severe Burden Imposed on Voters and Candidatesin Multi-Town Districts……………………………………………………………………..141. Statewide and Congressional Races………………………………………………...142. A Comparison of Primary Races in Multi-town and Single-Town Districts……….15C. The Burdens Imposed by this System are Deterring Bona Fide Candidates fromRunning for Office This Year and Will Deny Voters in those Districts theOpportunity to Participate in their Party’s Nomination Process……………………………16D. Connecticut is Alone Among the 50 States in Denying its Voters a Direct Primaryfor Most State and All Federal Offices and in Establishing a Dual Ballot AccessSystem That Imposes Starkly Different Burdens on Candidates and, thus, Voters,Depending on Where They Live……………………………………………………………17E. There is No Legitimate Rationale for the Dual System…………………………………….19Argument……………………………………………………………………………………………………20I. THE BALANCE OF HARMS TIPS OVERWHELMINGLY IN FAVOR OFPLAINTIFFS – INDEED, PLAINTIFFS WILL SUFFER IRREPARABLE HARMABSENT RELIEF WHILE DEFENDANT FACES NO HARDSHIP……………………..22

TABLE OF AUTHORITIESAnderson v. Celebrezze, 460 U.S. 780 (1983)..………………………………. 4, 24, 25, 26………………………………………………………………………………. 32, 33, 35, 37Bery v. City of New York, 97 F.3d 689 (2d. Cir. 1996)………………………………….. 21Buckley v. American Const. Law Foundation, 525 U.S. 182 (1999)……………….…… 38Bullock v. Carter, 405 U.S. 134 (1972).………………………………………………… 25Burdick v. Takushi, 504 U.S. 428 (1992)………………………………………………...32California Dem. Party v. Jones, 530 U.S. 567 (2000)…………………………………... 31Council of Alternative New Parties v. Hooks, 121 F.3d 876 (3rd Cir. 1997)………….…21Gjersten v. Board of Election Comm’rs, 791 F. 2d 472 (7 th Cir. 1986)……………...29, 38Gray v. Sanders, 372 U.S. 368 (1968)………………………………………………. 21, 22Green v. Mortham, 155 F.3d 1332 (11 th Cir. 1998)……………………………………... 28Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979)……. 25, 26……………………………………………………………………………………36, 37, 38Jenness v. Fortson, 403 U.S. 431 (1971)………………………………………... 26, 27, 32Krislov v. Rednour, 226 F.3d 851 (7 th Cir. 2000)……………………………………….. 39Latino Officers Ass’n v. City of New York, 196 F.3d 458 (2d Cir. 1999)………………...20Lerman v. Board of Elections, 232 F.3d 135 (2d Cir. 2000)………………..………..38, 39Lubin v. Panish, 415 U.S. 709 (1974)………………………………………………..24, 29Molinari v. Powers, 82 F. Supp.2d 57 (E.D.N.Y. 2000)…………………. 4, 28, 30, 31, 34Rockefeller v. Powers, 917 F. Supp. 155 (E.D.N.Y. 1996)……………4, 22, 25, 27, 28, 29………………………………………………………………………..30, 31, 32, 33, 35, 36Rockefeller v. Powers, 74 F.3d 1367 (2d Cir. 1996).…………………………………….20Rockefeller v. Powers, 78 F.3d 44 (2d Cir. 1996).………………………...4, 22, 32, 33, 36Smith v. Board of Election Comm’rs, 587 F. Supp. 1136 (N.D. Ill. 1984)….. 29, 31, 36, 38Storer v. Brown, 415 U.S. 724 (1974)………………………………………..26, 27, 28, 31Tansley v. Grasso, 315 F. Supp. 513 (D. Conn. 1970)……………………………… 33, 36Williams v. Rhodes, 393 U.S. 23 (1968)………………………………………… 24, 25, 26

Plaintiffs respectfully submit this Memorandum of Law in support of theirMotion, pursuant to Rule 65 of the Federal Rules of Civil Procedure, to preliminarilyenjoin the enforcement of Conn. Gen. Stat. §§ 9-400 and 9-416 in that they impose anundue burden, under the First and Fourteenth Amendments, on candidates seeking accessto the September 10, 2002 primary ballot in multi-town and statewide districts.PRELIMINARY STATEMENTFor 47 years, the state of Connecticut has imposed on its citizens a fundamentallyirrational and nationally unique dual system of primary ballot access that creates a severeand often insurmountable burden on the ability of candidates in multi-town and statewidedistricts to gain access to their party’s primary ballot. This ballot access regime, in turn,imposes a severe burden on the ability of rank and file party members in the multi-townand statewide races to participate in their party’s nominating process. These heavyburdens are unreasonable, unjustified, and unnecessary. They simply will not passConstitutional muster.In one set of Connecticut districts, those that cover a single town, candidatesachieve primary ballot status by receiving the party’s endorsement, or by simplygathering the petition signatures of 5% of the district’s registered party members. SeeConn. Gen. Stat. §§ 9-390, 9-406. Yet, in all other districts – those that cover more thanone town, including all statewide and congressional offices – candidates are denied theability to obtain primary ballot status by petition. Instead, they are forced by state law towin the support of at least 15% of the delegates to the party’s district convention. See §§9-400, 9-416. To secure the support of these delegates, candidates who are not a clearfavorite of party leadership – particularly those challenging an incumbent – must undergo1

a grueling, months-long process that includes wooing hundreds of party insiders and,often, running in elections called “delegate primaries.” See §§ 9-405, 9-407. In short, justto get on the primary ballot in these districts, candidates must run in and win actualelections, and they must conduct campaigns to win the support of political insiders. Yetin the State’s other districts, candidates are able to get on the ballot by meeting a simplepetition requirement.Connecticut stands alone among the 50 states and the District of Columbia in itsrefusal, by state law, to allow its candidates for most state offices and all federal officesaccess to a direct primary – that is a primary where candidates achieve ballot status bypaying a fee, submitting petition signatures, or submitting a declaration of candidacy.See Survey of Primary Ballot Access Laws in 50 States and District of Columbia (50-State Survey) (attached hereto as Exhibit 1). Indeed, Connecticut stands alone in itsmaintenance of a dual system of primary ballot access that establishes starkly differentstandards of primary ballot access based on solely on geography, one set of which isseverely burdensome.In 44 states and the District of Columbia, state law requires the major politicalparties to use primaries as the means of nominating the party’s candidate for the generalelection. Id. In all of these jurisdictions, access to the ballot is direct and usually quitesimple – candidates qualify for the ballot by submitting petitions or by paying a filing fee.Id. A handful of these states also have a convention system, but each also provides foralternative access to the primary ballot by petition. None of the remaining five statesprohibit the party from using a direct primary system to nominate candidates – asConnecticut does for candidates in multi-town districts. As detailed in Exhibit 1, these2

five states permit the major parties to nominate their candidates by primary and allow, orin some instances require, access to the primary ballot by petition or filing fee. No stateother than Connecticut by law denies its rank and file voters a direct primary for a criticalshare of its state offices and all federal offices. No other state, by law, erects such highbarriers to ballot access for candidates who do not have the blessing of party leadership.Connecticut’s electoral history over the past 47 years provides the most powerfulevidence of the extreme burdens imposed by the dual system on candidates and theirsupporters in multi-town and statewide districts. Since 1955, when the two-tier systemwas enacted, no incumbent candidate in Connecticut for U.S. House of Representatives,U.S. Senate, or Secretary of the State has faced a primary challenge. See McLoughlinDecl. 1 at Exhibit A. By way of comparison, in the 2000 election 17% of the incumbentU.S. Representatives seeking re-election nationwide faced a primary challenge. SeeHolman Decl. at Exhibit A. In these 47 years, only one incumbent gubernatorialcandidate (Ella Grasso in 1978) has faced a primary challenge. See McLoughlin Decl. atExhibit A. Notably, in 1982 and 1986, two very strong Democratic candidates forgovernor, then-House Speaker Ernest Abate and former congressman Toby Moffett,respectively, were unable to surmount the burdens imposed by this system to mount aprimary challenge to incumbent Governor William O’Neill. See Rapoport Decl.at 12.This system has enabled party leaders to lock out rank and file party members from anyparticipation in the nomination process for the State’s most important public offices.The burdens imposed by the byzantine ballot access procedures required in multitowndistricts are further demonstrated by a comparison of the number of primaries in1 “[Name] Decl.” refers to the declaration of the named individual; all declarations areattached as exhibits to the Plaintiffs’ Motion for Preliminary Injunction.3

single-town state house districts with the number of primaries in multi-town state housedistricts. Election data from the past 22 years demonstrate that single-town districts havehad significantly more primaries. See McLoughlin Decl. at Exhibit C. Indeed, when anincumbent is running, the difference between single-town and multi-town districtsbecomes even more stark: when an incumbent is seeking re-election, single-town housedistricts have had almost nine times more primaries than multi-town districts. Id.The evidence of the severe burdens imposed by Connecticut law on voters andcandidates in multi-town districts cannot be disputed. It is clear that this law operates toseverely burden candidates’ ability to get on the ballot in multi-town districts and theirsupporters’ ability to participate in the party’s nominating process, while candidates andvoters in single-town districts are provided a simple petition system for ballot access.Neither the severely burdensome requirements imposed on candidates in multi-towndistricts nor the dual system itself are related to any legitimate government purpose. It isunnecessary, unjustifiable, and unreasonable. See Anderson v. Celebrezze, 460 U.S. 780(1983) (striking state law that burdened candidate’s access to ballot without sufficientgovernment justification). See also Molinari v. Powers, 82 F. Supp.2d 57 (E.D.N.Y.2000) (striking New York’s ballot access regime for the Republican Presidential primaryas imposing undue burdens on party members right to vote); Rockefeller v. Powers, 917F. Supp. 155 (E.D.N.Y. 1996) aff’d 78 F.3d 44 (2d Cir. 1996) (same).The Court should strike Connecticut’s primary system for multi-town andstatewide districts as unconstitutional. As in the rest of the nation and in Connecticut’ssingle-town districts, all candidates should be permitted to gain primary ballot status bypetitioning.4

STATEMENT OF FACTSA. Connecticut’s Dual System of Ballot Access for Primary ElectionsIn 1955, Connecticut revised its statutory regime governing the major parties’nominating process. The legislature established the dual primary system under which thestate operates today. See Rapoport Decl. at 9. In races for “municipal office” – thoseconfined to one municipality or town – candidates are given ballot status in the primary ifthey have filed petitions with the signatures of 5% of the districts or if they have receivedthe endorsement of the party’s town committee or caucus. 2 Conn. Gen. Stat. §§ 9-390, 9-405, 9-406. By contrast, in races for “district” 3 or statewide offices, access to the primaryballot is controlled by the vote at a district or state convention; candidates must secure thevote of at least 15% of the district’s convention delegates to get on the primary ballot.Conn.Gen. Stat. §§ 9-400, 9-416. 4In these districts, there is no access to the primaryballot by petition.1. Primary Ballot Access in Single-Town DistrictsThe “municipal offices,” which cover what are called “single-town districts,”include all local offices (such as mayor, first selectman, and school board) and 77 of the2 “Municipal office” is defined as “an elective office for which only the electors of asingle town, city, borough, or political subdivision ... may vote....” Conn. Gen Stat. § 9-372(7). These offices include not just local town and city offices but also about half thestate house seats and, formerly, some state senate seats.3 “District” is defined as “any geographic portion of the state which crosses the boundaryor boundaries between two or more towns.” Conn. Gen Stat. § 9-372(3).4 The law has been amended several times since it first passed in 1955. Until 1993,candidates were required to win 20% of the delegate vote obtain primary ballot status.See 1993 Public 93-342 § 2 (amending law). Until 1979, candidates were required to filepetitions in addition to the delegate vote. See 1979 Public Law 79-616 § 5 (amendinglaw).5

state’s 151 Assembly seats. 5In these offices, whether it is for mayor of Hartfordrepresenting 121,578 residents or a single-town Hartford house seat, representingapproximately 21,000 residents – candidates have two paths to the ballot. They cansolicit the town committee or local party caucus endorsement, § 9-390, or they have theopportunity to file petitions with the signatures of 5% of the party’s registered voters inthe district. § 9-405, 9-406. From the view of political activists and candidates inConnecticut, the 5% petitioning requirement is significant enough to keep frivolouscandidates off the ballot, but it is not burdensome for a serious challenger. See, e.g.,Rapoport Decl at 19 (describing his petition campaign to get on the primary ballot tochallenge a Democratic party leader in House District 18 in 1984); Caplan Decl. at 5(describing his work with candidates conducting petition campaigns in the late 1980s). Itis a simple requirement, easily understood by candidates and voters.2. Primary Ballot Access in Multi-Town DistrictsBy stark comparison, candidates seeking ballot status in statewide or multi-townraces face a series of difficult and often insurmountable hurdles just to obtain ballotstatus. The multi-town districts not only include all federal and statewide offices, butalso for instance, a Darien state House district that happens to cross the border to take ina small portion of Norwalk. See Redistricting Report (House District 141). UnderConnecticut law, candidates in these multi-town districts must compete for and win at5 Until re-apportionment following the 2000 census, the Senate had one single-town seatfor 20 years. Until 1980, five of the Senate’s 36 seats were single-town seats. In theAssembly, from 1972-1980, 83 of the 151 districts represented single-towns. From 1982-90, there were 82 single-town districts, from 1992-2000, 72, and, for the next 10 years,beginning with the 2002 election, there will be 77 single-town districts. See McLoughlinDecl. at 6; 2001 Redistricting Maps (available athttp://www.cga.state.ct.us/red/maps.htm).6

least 15% of their convention’s delegates in order to win a place on the primary ballot.Conn. Gen. Stat. §§ 9-400, 9-416. 6But winning those delegates requires any candidatewho is not the clear party favorite to complete a byzantine and burdensome process thatinvolves the wooing of town committee members for several months, running a preprimaryprimary unique to Connecticut (the “delegate primary”), and then campaigningamong the selected delegates before the convention. See, e.g., Campbell Decl. at 7-18;Caplan Decl. at 6, 8-18; Nielsen Decl. at 9-12; Rapoport Decl.at 24. Forincumbents, the process invariably is a cakewalk, but for the candidates who seek tochallenge an incumbent, the hurdles and convoluted requirements are almostinsurmountable. See, e.g., Nielsen Decl. at 7-8; Caplan Decl. at 6; Campbell Decl. at 7-19.a. The town committees and endorsed delegate slatesThe first phase in a campaign for primary ballot access in Connecticut’s multitowndistricts usually begins as early as January of the election year when the membersof the party town committees, such the Greenwich Republican Town Committee or theEast Lyme Democratic Town Committee are chosen. See, e.g., Nielsen Decl. at 7, 9;Caplan Decl. at 9; Campbell Decl. at 7. Any candidate must try to secure the supportof the district’s town committee members because in most towns, the town committeeschoose the endorsed delegate slates for the convention. See, e.g., Rapoport Decl at 3;Caplan Decl. at 10.To win at least some support from the town committees, candidates mustcampaign among the town committee members in the months leading up to the selection6 Each town in the district is apportioned delegates to the convention based on party rule.7

of delegates, which takes place, by law, in late March or early April. For statewidecandidates, this means campaigning among the state’s 169 towns and thousands of towncommittee members. See Rapoport Decl. at 24 (describing 1994 campaign for secretaryof state); Caplan Decl. at 10 (describing Toby Moffett’s 1986 gubernatorial campaign).For plaintiff Campbell, it meant campaigning among the 10 towns in the 4 thCongressional District. See Campbell Decl. at 7,9.Even for candidates who have some support on the town committees or who arerunning in an open race, this campaign can be a grueling process. See Rapoport Decl. at 25-27 (describing 1998 ballot access competition for U.S. House primary); NielsenDecl. at 9-11. It requires the candidates to spend months courting the town committeemembers, particularly the leaders, with phone calls, visits, and political support. SeeNielsen Decl. at 9; Rapoport Decl. at 24. This step alone is more burdensome thanrunning a petition drive – and it does nothing to involve ordinary voters. See RapoportDecl. at 24; Nielsen Decl. at 8.But for the outsider candidate, particularly a candidate challenging an incumbent,the town committee’s delegate selection processes are notoriously closed – and the towncommittees themselves are often hostile to a challenger. See Caplan Decl. at 10(challenges are often seen as disloyal); Carey Decl. at 9-11. Indeed, the towncommittees are so hostile to a challenger that they will sometimes refuse to let acandidate speak before them as part of the delegate selection process. In 2000, forinstance, plaintiff Jim Campbell was excluded from speaking before the town committeesin three of the 10 towns in his district before delegate selection took place. CampbellDecl. at 9; Carey Decl. at 11.8

Because the committee members, particularly the leaders, are often closely linkedwith the incumbent, even when they are not outwardly hostile, it is almost unheard of forthe committee to give any significant support to a challenger. See Caplan Decl. at 6 (“itis almost unheard of for a town committee to buck an incumbent.”). See also NielsenDecl. at 7. The link between the town committee leadership and the incumbent is soimpregnable that it is not uncommon for incumbents to be invited to name the peoplethey want to serve as delegates. See Nielsen Decl. at 8, 12 (as an incumbent, he wasasked to name his delegate slates); Haave Decl. at 5. Even when the town committee’slink with the incumbent isn’t that clear, the town committee leadership names delegateswhose loyalty to the incumbent can be assured. See Carey Decl. 5 (describing closelinks between incumbent and selected delegates); Caplan Decl. at 11; Nielsen Decl. at 12.In short, there is little question among candidates and political activists inConnecticut that the town committees’ delegate selection process is almost always closedto any candidate challenging an incumbent – and that recruiting delegates can be aburdensome and difficult process even for those who are not challenging an incumbent.b. The de facto requirement of the pre-primary primaryBy law, the town committee’s endorsed slate of delegates attends the Julynominating convention unless the slate is challenged in a kind of pre-primary primaryelection, officially called a “delegate primary.” §§ 9-407, 9-417. This delegate primaryis an election creature unique to Connecticut in which slates of delegates challenge thetown committee’s endorsed slate for the right to attend the nominating convention. Thispre-primary primary has become a de facto requirement for challengers and many9

outsiders trying to achieve ballot access for the real primary because, as discussed above,these candidates cannot count on receiving enough delegates on the towns’ endorsedslates. See, e.g.. Caplan Decl. at 6; Campbell Decl. at 10-11; Fixary Decl. at 10.For candidates in hard-fought open seat races, running delegate primaries is oftenstrategically necessary to assure the support of a core group of delegates. See ByrnesDecl. at 5; Rapoport Decl. at 26; Nielsen Decl. at 10-11. It is a burdensome processthat requires challengers to petition for ballot access and then to run in an election just toget on the real primary ballot.To challenge a town committee’s slate, the candidate must first name a slate ofregistered party members who are willing to publicly oppose their party’s leadership byserving as “challenge” delegates. See Campbell Decl. at 12. Thus, just to get a chanceto run in the pre-primary, which in turn gives the candidate a chance to run in the realprimary, which, in turn, puts the candidate on the general election ballot, the candidatemust find 10, 15, 20, or more delegates in a given town who are willing to identifythemselves as opponents of the incumbent and the party leadership. See id. In sometowns, a challenge will be seen as so disloyal that it is difficult for candidates to findparty members willing to take on the town committee. Id. See also Caplan Decl. at 10.Publicly serving as a challenge delegate is far more confrontational than signing or evencirculating a petition. At the very least, recruiting delegates is an additional burden for achallenger candidate who is seeking only to have an opportunity to run in a primary.Once the candidate has a challenge slate lined up, the candidate must collectpetition signatures of 5% of the town’s registered party members in order to qualify theslate for the “delegate primary” – the pre-primary primary where the challenge slate runs10

against the town’s slate for the right to send delegates to the convention. § 9-407. This isthe same percentage of signatures required for actual primary ballot status inConnecticut’s single-town districts, § 9-405, and a significantly higher percentage ofsignatures than that required by most states as the sole requirement for access to a realprimary ballot. See 50-State Chart and attached summary.The two-week petitioning period introduces another set of burdens to thecandidate. Usually, the candidate is seeking pre-primary primary ballot status in severaltowns at once because the delegates from more than one town will be needed to qualifyfor the primary ballot. Thus, the candidates are running several discrete petitioningcampaigns at once within the district. See Caplan Decl. at 14 (Toby Moffett randelegate primaries in 18 towns); Campbell Decl. at 13 (Campbell sought ballot status infour of the district’s 10 towns). 7If the petition requirement is fulfilled, a candidate’s slate would then be qualifiedto run in the pre-primary primary. That campaign lasts about five weeks and requires thecandidate to build a real campaign organization in each town where he or she runs adelegate primary. See Caplan Decl. at 14; Campbell Decl. at 17-18. Candidatesmust campaign door-to-door, leaflet at supermarkets and shopping centers, organizephone banks, and mail campaign literature. See Campbell Decl. at 18; Carey Decl. at 7 Connecticut law imposes another undue burden that has a particularly severe impact oncandidates trying to mount delegate primaries. Under Connecticut law, the candidate isbarred from using petition witnesses who are not registered to vote within the town wherethe delegate primary is taking place, excluding thousands of potential supporters fromwithin a candidate’s district from being able to circulate petitions. § 9-410. For plaintiffCampbell, this law meant that he could not rely on his Greenwich supporters, forinstance, to help him petition in Norwalk. Only registered Norwalk Republicans couldcirculate petitions. See Haave Decl. at 15. Thus, registered Republicans and Campbellsupporters in the district’s nine other town’s were foreclosed from petitioning there.11

14; Byrnes Decl. at 5. In short, it is like running in a real election except that it is acampaign just to get a chance to qualify to run a real primary – which would then give thecandidate a chance to run in the general election. See Rapoport Decl. at 26 (noting that$60,000 was spent in one town’s delegate primary for U.S. House seat).The voting public in these towns rarely understands what they are being asked todo. See Haave Decl. at 14. Many voters are confused about why they are being askedto vote in a primary in May when Connecticut’s real primaries are held in September.Campbell Decl. at 17; Caplan Decl. at 14; Fixary Decl. at 13; Carey Decl. at 14. This confusion makes it difficult for candidates to build support and to develop aclear message. In addition, challenger candidates often have trouble raising money to runthese delegate primaries in part because donors don’t understand what they are butmostly because donors are reluctant to support a candidate who has not even achievedballot status. See Haave Decl. at 13; Carey Decl. at 13.Finally, the delegate primary – like a candidate election – is a winner take allelection. A challenger slate that runs a competitive race suggesting significant supportbut not over 50% will get nothing. See Caplan Decl. at 13 (noting strong delegateprimary showings but no delegates). See also Campbell Decl. at 19-20 .In short, candidates who are not party favorites must mount, run, and win actualcampaigns just to get a chance to run in a real primary while candidates in Connecticut’ssingle-town districts and almost every other state in the country must simply petition toget onto the primary ballot.12

c. Overall burdens consistently skew the process to favorincumbents.Incumbents are usually guaranteed ballot status because they are likely to receivethe endorsement of the convention after the town committees have named delegate slatesthat will support the incumbent. See Nielsen Decl. at 8, 12; Haave Decl. at 5;Caplan Decl. at 11. In comparison, a candidate who is challenging an incumbent oreven one who does not have the support of party leadership faces a grueling andexpensive ballot access procedure that requires months of wooing town committees andthen delegates combined with the mounting, running, and winning of actual campaigns inan effort to win 15% of the district convention’s delegates. All of these high hurdlesmust be passed simply to get on the real primary ballot.In 1986, gubernatorial candidate Toby Moffett spent $900,000 in his unsuccessfulattempt to run against Gov. William O’Neill in a real primary. Caplan Decl. at 16.Plaintiff Campbell spent $40,000 in his unsuccessful attempt to get primary ballot accessto challenge Rep. Christopher Shays. See Campbell Decl. at 16. In a delegate primarybattle in West Hartford during the campaign for the 1998 Democratic nomination for the1st Congressional District, almost $60,000 was spent. See Rapoport Decl. at 26.Indeed, the process is so burdensome that some candidates who were not the partyfavorites have been known to back out of the primary even after achieving real primaryballot status because their means were exhausted. See Nielsen Decl. at 11.Challengers – or any non-favored candidate – in these multi-town districts areforced by this cumbersome system to run three or even four campaigns on their way toelection. First, they must campaign among the party insiders for delegates. See Caplan13

Decl. at 10-11; Rapoport Decl. at 24-25. Second, they must run actual campaignsin the pre-primary primaries in their attempt to secure delegates. See Caplan Decl. at 13-14; Campbell Decl. at 11. Third, if they’ve been successful, they are finally able torun in the primary. Finally, if successful after three campaigns, they would be able to runin the general election. This is a grueling and expensive process. It chews up theresources of the few candidates who are actually able to mount such a challenge. SeeRapoport Decl. at 26; Nielsen Decl. at 11; Caplan Decl. at 16. Yet, in single-towndistricts and every other state in the nation, candidates must run only two campaigns: theprimary and, if victorious, the general election.B. The Statistics Demonstrate the Severe Burden Imposed on Voters andCandidates in Multi-Town Districts.Forty-seven years of electoral experience illustrate the severe burdens thatConnecticut’s dual system imposes on voters in multi-town and statewide districts.1. Statewide and Congressional RacesSince 1955, when the dual system was enacted, not a single incumbentcongressman seeking re-election from one of Connecticut’s six U.S. House districts faceda primary challenge. In these 47 years, there were primaries for open seats and theoccasional primary in the party seeking to challenge the incumbent in the generalelection. See McLoughlin Decl. at Exhibit A. But of the123 times an incumbentRepresentative sought re-election in Connecticut, not one faced a primary challenge. Id.By comparison, in 2000 alone, 68 of the 403 incumbent representatives seeking reelection(or 17%) across the nation faced primary challenges; in 1998, 19% of theincumbents faced a primary challenge. See Holman Decl. at Exhibit A.14

Similarly, since 1955, no incumbent U.S. Senator from Connecticut has faced aprimary challenge, nor has any incumbent secretary of the state. 8See McLouglin Decl. atExhibit A. Again, by way of comparison, in 2000, 34% of the incumbent U.S. Senatorsseeking re-election nationwide faced a primary challenge; in 1998, 41% of theincumbents faced a primary challenge. Only one incumbent governor – out of the sixwho have sought reelection since 1955 – faced a primary challenge. Id.2. A Comparison of Primary Races in Multi-town and Single-TownDistrictsNo statistic may better illustrate the burden of primary ballot access inConnecticut’s multi-town districts than a comparison of the number of primaries in theState’s multi-town and single-town state House districts.Research from 20 years of election data (from 1980-2000) demonstrates that thenumber of primaries in Connecticut’s single-town districts greatly exceeds the number inmulti-town races. Nearly 19% of the total races in single-town districts have had aprimary compared with only 7.6% of the races in multi-town districts. See McLoughlinDecl. at Exhibit C.But more tellingly, in races where an incumbent sought re-election, the singletowndistricts had nine times as many primaries as the multi-town districts. Since 1980,incumbents seeking re-election in single-town state House districts faced a primarychallenge in 11.5% of the races. Id. In multi-town districts, on the other hand, theincumbent faced a primary challenge in only 1.3% of the races. Id. Only nine incumbents8 In 1970, incumbent Senator Thomas J. Dodd, a Democrat, sought re-election as anindependent candidate. He was not among the several candidates on the Democraticprimary ballot.15

in multi-town districts, out of a total of 669 who have sought reelection since 1980, havefaced a primary challenge. Id.The disparity between the numbers of primaries in multi-town and single-towndistricts – particularly when the incumbent is seeking reelection – is strong evidence ofthe burdens imposed by the ballot access rules for multi-town districts.C. The Burdens Imposed by this System Are Deterring Bona Fide Candidatesfrom Running for Office This Year and Will Deny Voters in those Districtsthe Opportunity to Participate in their Party’s Nomination Process.Every election year, bona fide candidates choose not to seek their party’snomination in multi-town districts because the burdens on primary ballot access aresimply too steep. See Caplan Decl. at 6; Campbell Decl. at 21; Byrnes Decl. at 11.Thus, every election cycle, rank and file party members in multi-town State housedistricts have significantly less opportunity to participate in their party’s nominationprocess than their neighbors in single-town districts, where primaries are more frequentand access to the ballot is possible without the approval of party leadership. SeeMcLoughlin Decl. at Exhibit C. See also Byrnes Decl. at 11; Haave Decl. at 16.Every election year, in congressional races where the incumbent seeks re-election,members of the incumbent’s party are shut out of the nominating process by a ballotaccess system that deters challengers from even trying to get on the ballot. See, e.g.,Nielsen Decl. at 15-16.This election year is no different. Plaintiff Campbell, for instance, is not going tomount another campaign to get on the ballot for the Republican primary in the 4 thCongressional District under the current ballot access regime. See Campbell Decl. at 21.He believes such an effort is futile. Id. Republican voters in the 4 th Congressional16

District, like those across the state in districts where the incumbent is running for reelection,will once again be denied the ability to participate in their party’s nominationprocess.Similarly, Pamela Byrnes, from East Lyme, has been deterred from trying to gainaccess to the Democratic primary ballot for the 37 th state House District because theburden on a candidate like her trying to gain ballot status to challenge an incumbent is toogreat; it is nearly impossible. See Byrnes Decl. at 11. Byrnes believes it is futile for herto try. Id.D. Connecticut is Alone Among the 50 States in Denying its Voters aDirect Primary for Most State and All Federal Offices and in Establishing aDual Ballot Access System That Imposes Starkly Different Burdens onCandidates and, thus, Voters, Depending on Where They Live.Forty-four states and the District of Columbia require the major political partiesto use primaries to nominate their candidate for the general election for most offices. See50-State Chart. Among these states, the vast majority have simple qualifyingrequirements that include filing petitions with a reasonable number of signatures orpaying a simple fee. See 50-State Chart. 9Connecticut, for its multi-town districts,however, imposes a more cumbersome system that includes a convention requirementand the de facto requirement of a pre-primary primary to secure a delegate vote just to geton the real primary ballot. Indeed, just one small step in Connecticut’s primary ballotaccess requirements for multi-town districts, petitioning to force the pre-primary primary9 In Tennessee, for instance, candidates for governor, U.S. Senate, U.S. House, and statelegislative office need only submit a petition with their signature and that of 25 voterseligible to vote for the office. Tenn. Code Ann. § 2-5-101(b)(1). In Maryland,candidates can gain access to the primary ballot for governor and other statewide officesby paying a $290 filing fee; candidates for other offices pay smaller fees, and an indigentcandidate may seek a waiver of the fee. See Md. Ann. Code art 33 § 5-401.17

for delegate slates, is more burdensome than the sole requirement in most states foraccess to the real primary ballot. 10A handful of states continue to include a party convention among it methods ofnominating candidates or selecting candidates for the primary ballot. Three states withmandatory primaries also permit conventions or party committees to name candidates forthe primary ballot, but, each provides, by law, an alternative route to the ballot bypetition. 11See 50-State Chart (specifically, Colorado, New Mexico, and New York).Five states (Alabama, Nebraska, South Carolina, Utah, and Virginia) do not requireparties to use primaries to nominate candidates for the general election, but unlikeConnecticut, each of these has a system of primary ballot access that permits candidatesto pay a fee or submit petitions for ballot access. See 50-State Chart. 12Connecticut, then, stands with only five other states in not requiring its majorparties to nominate their candidates by primary and then allowing access to the primaryballot by petition or filing fee. Connecticut stands alone, however, in prohibiting, bystate law, a direct primary for all statewide and federal offices and most state legislativeoffices, depending on how a district’s lines are drawn. Only in Connecticut are10 To force a pre-primary primary (or to get on the primary ballot in a single-towndistrict), a candidate must file petitions with the signatures of 5% of the party voters inthe town. § 9-410(c) While we do not challenge the petition requirement here, it isnotable that the petition requirement for access to the real primary ballot in most otherstates is significantly lower than 5%. See 50-State Chart.11 Under Massachusetts state law, candidates for statewide races, for example, must filepetitions with the signatures of 10,000 voters (not registered party members) to receiveballot status. Mass. Gen. Laws ch 53 § 44. By party rule, however, candidates must alsoreceive at least 15% of the convention vote for ballot status. See Don’t Just Stand ThereRun: A Guide to Candidate Qualifying in the 2002 Election at 8 (available athttp://www.state.ma.us/sec/ele/elepdf/dontstand.pdf).12 In Indiana and Michigan, candidates for certain statewide offices, such lieutenantgovernor and attorney general, are nominated by convention. See 50-State Chart.18

candidates for these critical offices denied, by law, the ability to get on the primary ballotwithout securing the approval of party leadership, while candidates for a handful of otheroffices can simply petition onto the primary ballot.E. There is No Legitimate Rationale for the Dual System.The dual system was passed in 1955 as a way to appear to give some ofConnecticut’s citizens a direct primary while ensuring that the party leaders retainedcontrol of the nominating process for most offices. Rapoport Decl. at 10-11.Whatever legitimate rationale existed in 1955, and there was none, fails today when (1)almost half the House districts cut willy-nilly across town lines while others – often rightnext door – are confined to a single town and thus receive the significantly different,more open, nominating procedure; and (2) Connecticut is out of step with every otherstate in the nation in imposing such a severely burdensome – and byzantine – system ofballot access for its statewide, federal, and most legislative offices.The system certainly cannot be justified when voters in one House district, the37 th for instance, are forced to use a cumbersome and burdensome system of ballot accessthat keeps control in the hands of party leaders, while their neighbors in the surroundingdistricts (the 39 th , for instance) have a system that allows candidates to get on theprimary ballot by simply submitting petitions. But the system clearly can’t be justified atall.Finally, recent attempts to amend this system by legislation illustrate the absenceof a legitimate state interest in continuing this system and highlight the system’s guidingprinciple – incumbent protection. In 1993, the Connecticut house passed on lawmandating petition access to the primary ballot for all offices by a vote of 128-19. See19

Rapoport Decl. at 15. Notably, the house at that time had 72 single-town districts and79 multi-town districts. Id. at 3. The Senate, on the other hand, where every member butone was protected by the multi-town district rules, refused to consider the house bill andpassed a minor amendment to the law instead. Id. at 15.Again, just last session, the House, with its many members in single-towndistricts, passed by a vote of 102-46 another bill providing access to the ballot by petitionfor all multi-town districts. See Session Transcript of Connecticut House ofRepresentatives (April 25, 2001) (“4/25/01 House Session Transcript”) (available athttp://prdbasis.cga.state.ct.us). The Senate, with all but one of its members in multi-towndistricts, defeated the bill by a vote of 19-16. Session Transcript of Connecticut Senate(May 17, 2001) (“5/17/01 Senate Session Transcript”) (available athttp://prdbasis.cga.state.ct.us).ARGUMENTTo obtain a preliminary injunction on a First Amendment claim, the party seekingsuch relief must demonstrate “irreparable harm in the absence of an injunction and alikelihood of success on the merits.” Latino Officers Ass’n v. City of New York, 196 F.3d458, 462 (2d Cir. 1999); see also Rockefeller v. Powers, 74 F.3d 1367, 1376-77 (2d Cir.1996) (applying this standard of preliminary relief in the context of candidate ballotaccess in a primary election). In addition, under the established law of the SecondCircuit, preliminary relief is also available to the plaintiff where the plaintiffdemonstrates irreparable harm and “sufficiently serious questions going to the merits anda balance of hardships tipping decidedly” in favor of the plaintiff. Rockefeller, 74 F.3dat 1377.20

Because plaintiffs can show that the ballot access procedures in multi-towndistricts severely burden their First Amendment rights, they can easily satisfy thestandard of demonstrating irreparable harm. See Bery v. City of New York, 97 F.3d 689,693-94 (2d. Cir. 1996). In addition, plaintiffs can clearly show that the balance ofhardships tips decidedly in their favor: Once the election is over plaintiffs have noremedy for their injuries, yet it is hard to envision what serious harm defendant willsuffer from a ruling to allow plaintiffs Campbell and Byrnes to meet a petitionrequirement for ballot status when the state already allows many candidates to petitiononto the ballot. See Gray v. Sanders, 372 U.S. 368 (1968) (infringement upon plaintiffs’right to vote has long been held to give rise to irreparable harm of the sort necessitatinginjunctive relief) See also Council of Alternative New Parties v. Hooks, 121 F.3d 876,883 (3rd Cir. 1997) (finding that elections officials’ assertion that preliminary injunctionwould cause “confusion and disarray” insufficient in the face of First Amendment harmto candidates seeking ballot status).Because plaintiffs can demonstrate that Connecticut’s primary ballot accessrequirements for multi-town districts will cause irreparable harm to their FirstAmendment rights and because the remedy will cause little if any harm to the defendant,plaintiffs bear only the minimal burden of showing that there are “sufficiently seriousquestions going to the merits” of their claim. Plaintiffs, however, can meet the higherstandard of demonstrating a likelihood of success on the merits. This Court should issuean injunction enjoining Conn. Gen. St. §§ 9-400, 9-416, and directing defendant to grantplaintiffs Byrnes and Campbell ballot status if they meet the petitioning requirements ofConn. Gen. Stat. §§ 9-405, 9-406.21

I. THE BALANCE OF HARMS TIPS OVERWHELMINGLY IN FAVOR OFPLAINTIFFS – INDEED, PLAINTIFFS WILL SUFFER IRREPARABLEHARM ABSENT RELIEF WHILE DEFENDANT FACES NO HARDSHIP.Rank and file party members suffer devastating First Amendment harm everyelection year when they are denied the ability to participate in their party’s nominatingprocess for multi-town and statewide offices. Absent intervention now by the Court, thiselection year will be no different. Bona fide candidates will decline to run for office inmany multi-town districts because the burden of primary ballot access is too steep. See,e.g., Campbell Decl. at 21; Byrnes Decl. at 11. Others may try to face downincumbents only to find it nearly impossible. See Caplan Decl. at 6-7; Nielsen Decl. at 7. Voters will again be left with no role in the nomination process and no chance torally around a candidate they support.The harm that will be suffered by the candidates and their supporters – and votersacross the state – without the Court’s immediate intervention is quintessentially“irreparable harm.” No monetary damages, no retroactive relief, no settlement will makeany difference if these rules are not changed well before the September primary and evenbefore the party nominating conventions. It is no surprise then that infringement on theplaintiffs’ right to vote in a primary election – including at the nominating or petitioningphase – has long been held to give rise to irreparable harm of the sort necessitatinginjunctive relief. See Gray v. Saunders, 372 U.S. 368 (1963) (upholding grant ofinjunctive relief to prevent vote dilution in primary election); see also Rockefeller v.Powers, 917 F. Supp. 155, 166 (E.D.N.Y. 1996) aff’d, 78 F.3d 44 (2d.Cir 1996).In contrast to the very real harm that will be suffered by plaintiffs if Campbell andByrnes are not allowed to submit petitions to secure primary ballot status, the State will22

not be harmed by this new rule. Obviously, the State has no particular interest in denyingits citizens the right to participate in their party’s nominating procedures for multi-townand statewide offices. A petition requirement does nothing to undermine the State’sinterest in limiting the ballot to candidates with a significant amount of support – theState already applies this exact standard to numerous races throughout the State, as domost of the states in the nation. In addition, should this ruling require minoradministrative adjustment by election officials, there is ample time to make suchadjustments before the petitioning period begins.Plaintiffs will have no remedy for the harm done to their First Amendment rightsif this Court fails to grant the injunction. On the other hand, the only consequence to theState if the injunction is granted is that more candidates will be able to petition their wayonto the primary ballot – that is, more Connecticut voters will be able to participate intheir party’s nominating process and more candidates will likely qualify for the primaryballot under the same rules already in play in many Connecticut races. The balance ofharms analysis tips overwhelmingly in favor of plaintiffs.II.PLAINTIFFS’ FIRST AMENDMENT AND EQUAL PROTECTIONCLAIMS RAISE SERIOUS QUESTIONS – AND INDEED – ARE LIKELYTO SUCCEED ON THE MERITSConnecticut’s ballot access system for multi-town districts has two criticalconstitutional flaws. First, the regime imposes an undue burden on voters’ FirstAmendment rights by severely burdening non-favored candidates access to the primaryballot without any legitimate rationale for imposing such a burden. See Point A, below.Second, the dual system denies voters in multi-town districts equal protection of the lawsby providing voters in single-town districts a significantly less burdensome system of23

primary ballot access while multi-town districts have a burdensome system that is almostimpossible for any non-favored candidate to surmount. See Point B, below. Theseconstitutional flaws are substantial, and, as demonstrated below, plaintiffs are likely tosucceed on the merits.A. Connecticut’s Byzantine Ballot Access Rules for Multi-town andStatewide Primaries Impose a Severe and Undue Burden on Voters’First Amendment Rights.The Supreme Court has held that the “right to vote is ‘heavily burdened’ if thatvote may be cast only for one of two candidates in a primary election at a time whenother candidates are clamoring for a place on the ballot.” Lubin v. Panish, 415 U.S. 709,716 (1974) (quoting Williams v. Rhodes, 393 U.S. 23, 31 (198)). While Lubin dealt withprimary ballot access that was impermissibly burdened by filing fees, other primaryballot access requirements may operate to impermissibly burden voter choice. SeeRockefeller, 917 F. Supp. at 159 (applying Lubin to New York’s signature and technicalfiling requirements for access to the Republican Presidential primary ballot).Connecticut’s rules for multi-town primary ballot access burden the right to vote farbeyond that imagined in Lubin – for in these districts, the right to vote in the primary isoften cut off completely and the exercise of the right is often dependant upon theapproval of party leadership.In Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), the Supreme Courtestablished the test for determining whether a State’s ballot access requirements place anunconstitutional “undue burden” on First Amendment rights. The Court eschewed a“litmus paper” test for separating valid from invalid restrictions and set out a three-stepbalancing test. Id. First, a reviewing court “must consider the character and the24

magnitude of the asserted injury to the rights protected by the First and FourteenthAmendments . . . .” Id. Second, the court must “identify and evaluate the preciseinterests put forward by the state as justification for the burden imposed by its rule.” Id.Third, and finally, the reviewing court must “determine the legitimacy and strength ofeach of those interests,” while also considering “the extent to which those interests makeit necessary to burden the plaintiff’s rights.” Id. See also, Rockefeller, 917 F. Supp. at160 (applying Anderson’s test to primary ballot access laws). An application of theAnderson test to Connecticut’s dual primary ballot access scheme demonstrates that thesystem for multi-town and statewide districts places an undue burden on rank and fileparty members and on any candidate who is not a clear party favorite.1. The burdensome and convoluted process of primary ballot access forConnecticut’s multi-town districts severely burdens voters’ FirstAmendment rights.The exclusion of candidates from the ballot clearly burdens voters’ rights toassociate and their ability to express political preferences. See Anderson, 460 U.S. at787; Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979).Indeed, courts reviewing restrictions on candidate ballot access have generally found thatthe rights of voters and candidates are tightly interwoven – that burdens on candidateaccess necessarily implicate voters’ rights. See, e.g., Bullock v. Carter, 405 U.S. 134,143 (1972) (“the rights of voters and the rights of candidates do not lend themselves toneat separation.”); Williams v. Rhodes, 393 U.S. 23, 30-31 (1968).In Connecticut, candidates who are not a party favorite in multi-town andstatewide districts are severely burdened by the 15% convention delegate supportrequirement, the achievement of which requires a combination of severely burdensome25

activities. See Statement of the Facts (“Facts”) at pp. 7-12, supra. These candidates mustseek the support of the town committee leaders who name the party’s delegates to thedistrict convention. Id. They must petition for ballot status in pre-primary primaries witha group of petitioners limited by state law. Id. They must then run in and win the preprimaryprimaries in order to secure 15% of the delegates. Id. There can be no questionthat the result of this system – which severely limits the number of candidates who obtainprimary ballot access – imposes a severe burden on voters’ First Amendment rights.Only by analyzing the combined effects of these procedures can a court determinehow severe the burden is on “the right of individuals to associate for the advancement ofpolitical beliefs, and the right of qualified voters . . . to cast their votes effectively,”Williams v. Rhodes, 393 U.S. 23, 30 (1968), rights that effectively boil down to the verypractical question of who actually ends up on the ballot. See Anderson, 460 U.S. at 787-88 (“The exclusion of candidates also burdens voters’ freedom of association, because anelection campaign is an effective platform for the expression of views on the issues of theday, and a candidate serves as a rallying point for like-minded citizens.”); Illinois v.Socialist Workers Party, 440 U.S. at 184 (“By limiting choices available to voters, theState impairs voters’ ability to express their political preferences . . . .”). Thus,Connecticut’s ballot access regime must be viewed in its totality and effects, and incomparison with other jurisdictions, not in isolation. See Storer v. Brown, 415 U.S. 724,730 (1974) (no litmus paper test “separates valid from invalid restrictions”); Williams,393 U.S. at 34 (finding that “totality of the Ohio restrictive laws taken as a whole”impermissibly burdened ballot access).26

a. The burdens are severe when compared to every otherstate in the nation.The first indication that Connecticut’s ballot access regime for multi-towndistricts is unduly severe is a comparison of Connecticut with every other state in thecountry. A critical guidepost for reviewing the severity of ballot access laws is theburden imposed in other states. See, e.g., Storer, 415 U.S. at 739; Jenness v. Fortson,403 U.S. 431, 442 (1971); Rockefeller, 917 F. Supp. at 161.Connecticut’s restrictions on access to the primary ballot in multi-town districtsare undoubtedly some of the most, if not the most burdensome in the nation for anycandidate who is not a party favorite. Connecticut is the only state that by law imposes aburdensome process that includes a cumbersome convention requirement for most of itsstate and federal offices, while in other Connecticut races, candidates are able to obtainballot status by simply meeting a petition requirement. In 44 other states and the Districtof Columbia, primaries are not only the mandatory method of nomination, but access tothe primary ballot is obtained by the filing of petitions or the payment of fee. Indeed, justone of the many burdensome steps in Connecticut’s ballot access regime for multi-towndistricts –the 5% petition signature requirement for forcing a delegate primary (or anactual primary in a single-town district) – is more burdensome than what is required inmost other states as the sole requirement for access to the actual primary ballot. See 50-State Chart. 1313 For instance, no other state requires the signatures of 5% of registered for access to theactual primary ballot; most require a much smaller percentage or a modest fee. See 50-State Chart. Three states require signatures of 5% or more if the signatures are beingsubmitted in lieu of a filing fee. See, e.g. Montana Code. Ann. §§ 13-10-202, 203 (for27

Not one state has legally-mandated restrictions as burdensome as those imposedon Connecticut’s multi-town districts. In the four of the five states where primaries arenot required, state law requires that when parties choose a primary, access to that primaryballot must be by payment of a fee or by petition – not by the decision of party leadershipor by a cumbersome process that forces candidates to run several campaigns just to get onthe ballot. See 50-State Chart. 14Connecticut’s outlier status among the 50 states and the District of Columbiademonstrates that the burdens imposed by this system are “unduly harsh.” SeeRockefeller, 917 F. Supp. at 160.b. The number of primary elections – including a comparisonbetween single-town and multi-town districts – demonstratesthe severe burden placed on disfavored candidates.Courts regularly look to a state’s electoral history when reviewing the burden ofballot access laws. A critical factor in that electoral history is the number of candidateswho have been able to obtain ballot status, which in Connecticut often translates intowhether there is, in fact, a primary. See Storer v. Brown, 415 U.S. 724, 742 (1974)(evidence that candidates rarely qualify for the ballot may demonstrate burdens);Molinari v. Powers, 82 F. Supp.2d 57, 70-71 (E.D.N.Y. 2000)(noting that the very fewcandidates who had even attempted to compete in New York’s Republican primarydemonstrated burden); Rockefeller, 917 Supp. at 157-59 (same). See also Green v.state legislature: $15 filing fee or petition with signatures totaling 5% of the vote cast forthe winner of that office in the last general election); N.C. Gen Stat. §§ 163-107(a), 163-107.1 (in lieu of paying a 1% of salary filing fee, for all non-statewide offices: 10% of theregistered voters in the district but for statewide office only 10,000 signatures of partyvoters); Okla. Stat. Ann tit. 26 § 5-112 (payment of filing fee or a petition signed by 5%of the registered voters eligible to vote for the candidate).14 Utah’s statutory regime makes no provision for how candidates will gain access to theparty primary ballot. See 50-State Chart.28

Mortham, 155 F.3d 1332, 1337 (11 th Cir. 1998) (reviewing the number of candidates whoobtained ballot status when assessing burden of challenged law); Gjersten v. Board ofElection Comm’rs, 791 F. 2d 472, 477 (7 th Cir. 1986) (weighing effect of statute in pastelections in assessing constitutionality); Smith v. Board of Election Comm’rs, 587 F.Supp. 1136, 1147 (N.D. Ill. 1984) (reviewing the number of contested primary electionsin districts with different ballot access requirements). See also Lubin, 415 U.S. at 716(voters’ rights are burdened if candidates are not able to get on the primary ballot).Connecticut’s electoral history presents two types of evidence that undeniablydemonstrate the heavy burdens imposed by the ballot access regime in multi-town andstatewide districts. First, the history of Connecticut’s primaries since 1956 for governor,secretary of state, U.S. Senate, and U.S. House of Representatives demonstrates thatamong the many, many races that have been held for those offices, only once (EllaGrasso in 1978) has an incumbent faced a primary challenge. See McLoughlin Decl. atExhibit A. In 46 years of elections, not a single incumbent U.S. Senator, U.S.Representative, or Secretary of the State has faced a primary challenge. Id. The nearabsence of candidates able to challenge an incumbent for these critical offices is “mosttroubling.” See Rockefeller, 917 F. Supp. at 163; Smith v. Board of Election Comm’rs,587 F. Supp. at 1148 (dearth of candidates on primary ballot demonstrate injury to voters’rights).Second, a comparison of the number of primaries in single-town and multi-townstate house districts demonstrates that it is far more burdensome to gain primary ballotaccess in the multi-town districts. It is indisputable that there are more primaries insingle-town districts where candidates can simply petition onto the ballot. See29

McLoughlin Decl. at Exhibit C. But, even more tellingly, election data since 1980demonstrate that incumbents in multi-town state house districts are almost neverchallenged while incumbents in single-town districts are challenged in 11.7 % of their reelectionbids. Id. These stark differences demonstrate the burdens imposed on candidatesseeking ballot access in multi-town districts, and the statistics demonstrating how fewincumbents face a challenge in multi-town districts highlight the severity of the burdenimposed on challenger candidates. See Molinari, 82 F. Supp.2d at 70-71; Rockefeller,917 F. Supp. at 163.c. The ballot access regime for multi-town districts forcesdisfavored candidates to complete a gauntlet of requirementsthat impose a severe burden on the party leadership’s nonfavoredcandidates.Connecticut’s system of ballot access for multi-town and statewide offices forcescandidates – who are not the party’s favorite – to spend months wooing party insiders inan intense campaign to win some delegates and, then, to petition for and then run in preprimaryprimaries just to get a chance to obtain the 15% convention delegate support inorder to, then, run in the real primary. Meanwhile, for the party leadership’s favoredcandidates – particularly incumbents – ballot access is a cakewalk. See, e.g., NielsenDecl. at 8. Forty-six years of election history, as well as the testimony of peopleintimate with the system, make clear that this system routinely shuts out any candidatewho is opposing an incumbent and severely burdens those who are not party favorites inopen races.In considering, these severe burdens, the court must address “the inevitablequestion for judgment[:]30

[C]ould a reasonably diligent independent candidate be expected to satisfy the ...requirements or will it be only rarely that the unaffiliated candidate will succeedin getting on the ballot?Storer, 415 U.S. at 742. See also Molinari, 82 F. Supp.2d at 70 (quoting Storer andconstruing “independent” and “unaffiliated” to mean independent of party leadership);Rockefeller, 917 F.Supp. at 165 (same).For statewide and congressional offices, the answer to that question is, almostnever – given that only once has an incumbent faced a primary challenge for any of theseoffices since 1956. For state House and Senate races in multi-town districts, the answeris, rarely. But even if the rare challenger is able to obtain ballot status against anincumbent, there will always be a large number – the great majority – of multi-towndistricts where there is no primary because no challenger has been able to obtain ballotstatus. This system of protecting incumbents and party favorites severely burdens theright to vote in multi-town districts. See Rockefeller, 917 F. Supp. at 165 (such a scheme“heavily burdens the right to vote”); Smith v. Board of Election Comm’rs, 587 F. Supp. at1150 (limiting competition for party nominations “undermine[s] the diversity and vigorand party of our political parties). Cf. California Dem. Party v. Jones, 530 U.S. 567, 581(2000) (ability of party leadership to endorse a candidate is simply no substitute for theparty members’ ability to choose their own nominee).Connecticut’s multi-town primary ballot access scheme “is unconstitutional,”unless “justified by any sufficiently compelling state interest.” Rockefeller, 917 F. Supp.at 165. Far from being justified by a compelling state interest, Connecticut’s system formulti-town primary ballot access is not justified by any rational state interest.31

2. Connecticut’s unique and uniquely burdensome restrictionsgoverning access to the primary ballot in multi-town and statewidedistricts are not narrowly tailored toward achieving any legitimategovernment interest in regulating access to the primary ballot.Because the burdens imposed on voters and candidates in multi-town districts areso severe, the state must come forward with compelling government interests to justifythese restrictions, and, these restrictions must be narrowly tailored to toward achievingthat interest. See Burdick v. Takushi, 504 U.S. 428, 433 (1992); Anderson, 460 U.S. at789. The very existence of the less burdensome alternative for single-town districtsdemonstrates that Connecticut’s interest in regulating access to primary ballots can bemet by a significantly less burdensome requirement. See Rockefeller v. Powers, 78 F.3dat 46. It is not narrowly-tailored toward achieving a legitimate government interest;indeed, it is not rationally related to a legitimate government interest in regulating accessto the primary ballot.a. The traditional government interests in regulating access to theballot are clearly met by the petition requirement imposed onsingle-town districts.The cumbersome set of rules imposed on non-favored candidates seeking primaryballot status in multi-town districts is certainly not about guaranteeing “a preliminaryshowing of a modicum of support” or about avoiding “confusion, deception, and evenfrustration of the democratic process.” Jenness, 403 U.S. at 442. Connecticut has madeit clear that a simple requirement of 5% of the party’s registered voters is sufficient tosatisfy these government interests. Indeed, Connecticut applies this simple requirementto districts as large and complex as the City of Hartford and the City of Bridgeport, whileapplying the more burdensome requirements to state house seats that happen to cross a32

town line. This demonstrates that Connecticut has no compelling interest in a rule that ismore burdensome than the current petition requirement imposed on single-town districts.See Rockefeller, 917 F. Supp. at 164 (holding that less burdensome ballot access rules forNew York’s Democratic presidential primary demonstrated that New York could notjustify the requirements for the state’s Republican primary). Furthermore, almost everyother state in the nation is able to satisfy its ballot access interests with a petition or feerequirement.b. The rationale for the dual system approved in the 1970decision, Tansley v. Grasso, will not stand in light of historicalexperience and changing precedent.In 1970, a federal district court upheld the dual system in use today – andchallenged here – after applying a loose rational basis test in its consideration of thegovernment’s interest in enacting such a scheme. Tansley v. Grasso, 315 F. Supp. 513,516 (D. Conn. 1970). The court’s reasoning stands in stark contrast to Rockefeller v.Powers, 78 F.3d at 45-46, Anderson, 460 U.S. at 789, and most more recent ballot accessauthority in that it found that the legislature “could reasonably conclude that validpractical grounds existed for distinguishing between single and multiple town” districtswithout first considering the burden this dual system imposed on voters and candidates inmulti-town districts. Tansley v. Grasso, 315 F. Supp. at 516 (emphasis added). 1515 Indeed, the Tansley court explicitly stated that it would not decide whether therequirements in the multi-town districts were more onerous than the requirements in asingle-town district and that the parties had not proven the differing burdens. Id. at 518.With no assessment of the burden imposed on candidates in multi-town districts, thecourt proceeded to apply a loose rational basis test to the convention requirement inmulti-town districts. Id. Here, of course, plaintiffs have demonstrated with decades ofelectoral history that the burden imposed by the requirements for ballot access in multitowndistricts are severe standing on their own, in comparison with single-town districts,33

In addition, the court’s assessment of the government’s potential interestsjustifying the dual system do not withstand the scrutiny of Connecticut’s electoral historyor ballot access practices in the rest of the nation. For instance, the Tansley courtemphasized that the legislature could have believed that conventions better representedthe interests of party members from districts with multiple municipalities. Id. at 517.Aside from the serious question about whether this assertion is logical, the legislativehistory from the 1955 enactment and from efforts to amend the law in 1993 and 2000hardly support a finding that the purpose of the multi-town system is to ensure that allinterests are represented in the nominating process. See Rapoport Decl. at 10-11, 12-13 (discussing the background of the 1955 enactment and efforts to amend the law in1993). See also, 4/25/01 House Session Transcript, supra; 5/17/01 Senate SessionTranscript, supra.In addition, the state’s potential “interest in not having wide open primaries,”Tansley, 315 F. Supp. at 517, can certainly be met with a significantly less burdensomesystem. This is abundantly proven by the evidence of the number of primaries in singletowndistricts over the last 20 years, where there are significantly more primaries than inmulti-town districts, but the system is hardly flooded. See McLoughlin Decl. at ExhibitC. Furthermore, almost every other state in the nation is able to satisfy this same interestwith a far more open system of primary ballot access. See 50-State Chart. See alsoHolman Decl. at Exhibits A & B (demonstrating that even states with minimal ballotaccess requirements are not “overrun” with candidates).and in comparison with the rest of the nation. Thus, the rational basis test is simplyinapplicable under current ballot access jurisprudence.34

Similarly, the burdens imposed on candidates in multi-town districts are notnecessary to further the state’s interest in “maintaining the integrity and stability ofpolitical parties.” Tansley, 315 F. Supp. at 517. Again, 44 other states and the District ofColumbia are able to satisfy this interest with less burdensome rules that permit access tothe primary ballot by the filing of a petition or payment of a, usually, modest fee. See 50-State Chart.In addition, the Supreme Court in Anderson suggested that legislative decisions toprotect the major parties may not be entitled to deference. While agreeing that protectingthe integrity of political parties was a legitimate interest, the Court stated “we did notsuggest that a political party could invoke the powers of the State to assure monolithiccontrol over its own members and supporters.” 460 U.S. at 803. See also Rockefeller,917 F. Supp. at 164 (applying statement in Anderson to review of New York State’sprimary ballot access laws).Connecticut’s electoral history over the past 47 years – with its dearth ofprimaries in multi-town districts – suggests that the state legislature may well have actedto secure the party leadership’s control over the nomination process for most offices.Indeed, the legislative history of attempts to amend the dual system also indicates that thelegislative rationale behind the law is a kind of incumbency protection and party control.See Rapoport Decl. at 12-13. After all, amendments to the law overwhelminglypassed the House, which has many single-town districts, in 1993 and 2000, but failed inthe Senate. See Rapoport Decl. 15-16; 4/25/01 House Session Transcript, supra;5/17/01 Senate Session Transcript, supra.35

In contrast to the court in Tansley, the courts in Rockefeller, 917 F. Supp. at 164-5, and Molinari, 82 F. Supp. 2d at 77, made it plain that when a court reviews suchlegislative judgments it need not defer. As the court in Rockefeller stated, the desire ofincumbents to craft a system that “consistently and decisively advantages” incumbentsand “disadvantages” challengers or any candidate not in favor with party leadershipcannot be “characterized as a legitimate state interest.” Rockefeller, 917 F. Supp. at 165.Whether or not any of the interests cited in Tansley can be viewed as compellingor even legitimate, plaintiffs have amply demonstrated that the state has not narrowlytailored its law to achieve those interests. See Illinois v. Socialist Workers Party, 440U.S. at 185 (“[W]e have required states to adopt the least drastic means to achieve theirends.”). Every other state achieves the same interests without such draconian rules.Connecticut itself has provided a significantly less draconian set of ballot access rules forother offices. See Rockefeller, 78 F.3d at 46. The dual system cannot withstand suchscrutiny.History and the practical impact of this dual system demonstrate that the multitownballot access rules do not serve legitimate state interests. They were not designed toavoid confusion, to exclude frivolous candidates, or to protect the integrity of the ballot.They were designed, instead, to ensure that party leaders maintained control over theprimary ballot for most races in the state, thus dictating to rank and file party memberswhat choice to make. This system is undemocratic, and it is unconstitutional.36

B. Because Connecticut’s Dual System of Primary Ballot Access AllowsVoters in Single-town Districts Substantially More Access toPrimaries and Thus the Right to Vote, this Dual System Denies Votersin Multi-Town Districts the Equal Protection of the Laws.The record makes plain that voters in single-town districts have the opportunity tovote in primaries – and to participate in the candidate nominating process – far moreoften than those who live multi-town districts. See McLoughlin Decl. at Exhibit C. Inaddition, the record demonstrates that burdens on candidates seeking access to theprimary ballot are far greater for candidates in multi-town districts than for those insingle-town districts, where it is possible to gain ballot access by filing a petition. SeeRapoport Decl. at 19; Caplan Decl. at 5-6; Haave Decl. at 16.Because “voting is of the most fundamental significance under our constitutionalstructure,” a state must establish that ballot access restrictions that create classificationsamong candidates or voters are “necessary to serve a compelling state interest.” Illinoisv. Socialist Workers Party, 440 U.S. at 184. A ballot access law cannot discriminateagainst certain types of candidates. See Anderson, 460 U.S. at 793 (“Our ballot accesscases ... focus on the degree to which the challenged restrictions operate as a mechanismto exclude certain classes of candidates.”) (internal citations omitted). Nor can itarbitrarily allow only some voters to exercise their right to vote for the candidate of theirchoice while denying it to others. See id. (“‘The inquiry is whether the challengedrestriction unfairly or unnecessarily burdens the availability of political opportunity.’”).Connecticut’s dual system of ballot access for multi-town and single-town districts doesboth.37

The classification at issue here – multi-town and single-town – creates remarkablydifferent ballot access schemes with starkly different burdens for otherwise similarlysituated candidates and voters based solely on geography. The state must provide somejustification for this disparate treatment. See Gjersten, 791 F.2d at 477 (equal protectionviolation proven in challenge to primary ballot access classifications without balancingproof of different burdens when state has presented no justification). Here, where thedifference in the burden is substantial, the state must establish that the classification is“necessary to serve a compelling state interest.” Illinois v. Socialist Workers Party, 440U.S. at 184. See also Smith v. Board of Election Comm’rs, 587 F. Supp. at 1149-50(availability of less burdensome alternatives proved that more burdensome ballot accessrequirements for some offices were not necessary to satisfy state’s interests).Connecticut’s dual system cannot withstand such scrutiny. In light of the petitionmethod of ballot access available in single-town districts, the state simply cannot justifythe severe burdens placed on candidates and voters by the byzantine ballot access rules inthose districts.C. The Petition Witness Residency Requirement Imposes an UndueBurden on Supporters’ and Candidates’ First Amendment Rights.In 1999, the Supreme Court held that a Colorado law requiring that a ballot accesspetition circulator be a registered voter was unconstitutional. Buckley v. American Const.Law Foundation, 525 U.S. 182 (1999) (striking limit on petition circulators for ballotinitiatives). One year later, the Second Circuit made plain that this rule applied torestrictions on petition circulators for candidate ballot access. See Lerman v. Board ofElections, 232 F.3d 135 (2d Cir. 2000). In Lerman, the Court struck New York’s rulelimiting candidate petition circulators to registered voters eligible to vote for the38

candidate named in the petition. Id. See also Krislov v. Rednour, 226 F.3d 851, 862 (7 thCir. 2000) (striking similar Illinois rule). Connecticut’s law, which limits petitioncirculator to voters “entitled to vote in the primary for which candidacy is being filed,”see § 9-410, is essentially indistinguishable from the law held unconstitutional in Lerman.See N.Y. Elec. L. § 6-132(2)-(3) (witness to candidate petition must be an “enrolled voterof the same political party” as the candidate and a “resident of the political subdivision inwhich the office or position is to be voted for.”).The law in Connecticut impedes the ability of candidates to get their politicalmessage out by denying the use of the “spokeperson[s] of [their] choice.” See Krislov,226 F.3d at 862. In addition, the rule clearly makes it more difficult for candidates tosecure enough petition signatures to guarantee ballot access. See Lerman, 232 F.3d at147-48 (describing how a political subdivision residence requirement can impede acandidate’s signature gathering efforts). Indeed, such a rule imposes a particularly severeburden on candidates petitioning for delegate primaries in towns within a multi-towndistrict; only those residents of the exact town where the delegate primary is being soughtmay petition, excluding all other district residents from participating.Connecticut’s limitation on candidate petition circulators simply cannot stand inlight of Lerman.39

e granted.CONCLUSIONFor all the foregoing reason, Plaintiffs’ motion for a preliminary injunction shouldDated: March __, 2002Respectfully submitted,_______________________William M. BlossJacobs, Grudberg, Belt & Dow, PC350 Orange StreetPO Box 606New Haven, CT 06503-0606(203)772-3100Elizabeth DanielBRENNAN CENTER FOR JUSTICEat New York University School of Law161 Avenue of the AmericasNew York, NY 10013(212) 998-6730Visiting Attorney40