Case 3:20-cv-00623-JCH Document 28 Filed 06/02/20 Page 1 of 33 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ANDY GOTTLIEB, et al. : CIVIL ACTION NO. 3:20-cv-00623(JCH) Plaintiffs : : v. : : NED LAMONT, : GOVERNOR OF CONNECTICUT, : DENISE MERRILL, : SECRETARY OF THE STATE, : Defendants : JUNE 2, 2020 DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY OR PERMANENT INJUNCTIVE RELIEF I. INTRODUCTION The State of Connecticut has a compelling state interest in conducting orderly, fair, and transparent elections. Eu v. San Francisco Democratic Comm., 489 U.S. 214, 233 (1989). To achieve this state interest it may craft regulations that maintain electoral integrity, minimize voter confusion at the ballot box, maintain the integrity of petition circulation, maintain the stability of its political parties, discourage party splintering and factionalism, discourage cross party raiding and manipulation, and ensure electoral finality. Storer v. Brown, 415 U.S. 724, 730 (1974) (noting “substantial regulation” of elections is necessary to ensure they are fair, honest, and orderly); see also Castine v. Zurlo, 756 F.3d 171, 177 (2d Cir. 2014); Lerman v. Bd. of Elections of City of New York, 232 F.3d 135, 151 (2d Cir. 2000). Notwithstanding these compelling state interests, the State’s ability to advance its interests is not limitless and must balance against the rights of individuals and political organizations. When the State seeks to regulate the internal operations of a political party, as, for Case 3:20-cv-00623-JCH Document 28 Filed 06/02/20 Page 2 of 33 example, Connecticut regulates the Connecticut state branches of the Democratic and Republican parties by, inter alia, requiring those parties hold primary elections, it must do so in a manner that respects their First Amendment associational rights and that of its individual members. This is because political parties are comprised of like-minded individuals who seek to associate to advance political speech and policy goals and, therefore, have their own independent First Amendment rights. Eu, 489 U.S. at 224. The party’s selection of its preferred standard bearer is at the core of these associational rights. Id., at 223-225 (ban on party endorsements affects speech at the core of the electoral process). Thus, states’ regulation of a party’s nomination of candidates cannot exceed what is necessary to ensure “fair and orderly” elections. Id., at 233. Moreover, the state need not, and ought not, seek to protect the political parties from themselves, including by making their party selection process more open. The membership of a political party is fully capable of reaching those decisions on their own terms. Here, the State of Connecticut has sought to advance its interest in a fair and orderly major party candidate selection process by permitting no less than three opportunities for a candidate to gain the party’s nomination. Exhibit 1, Bromley Decl. ¶11. This process has the approval of the parties themselves and, in the case of the Democratic Party, is a direct reflection of the party’s own written party rules. Bromley Decl. ¶8, Exhibit A (Democratic Party Rules). Plaintiffs — three current or former Democratic candidates for office Andy Gottlieb, Jason W. Bartlett, and Richard Lacourciere (collectively “Plaintiff Candidates”) and the former campaign treasurer for Mr. Gottlieb, Lorna Chand — seek the extraordinary relief of a preliminary injunction mandating further State encroachment upon the parties’ First Amendment rights to select their candidate in the manner they prefer and control. See ECF No. 8, Plaintiffs’ First Amended Class Action Complaint for Declaratory & Injunctive Relief (“Compl.”), pp.16-17, 2 Case 3:20-cv-00623-JCH Document 28 Filed 06/02/20 Page 3 of 33 ECF No. 9, Plaintiffs’ Motion for Preliminary or Permanent Injunctive & Declaratory Relief as to First Claim (Ballot Access) (“Motion for PI”), p.3. Such relief, even if available over the objection of the political parties, one of whom has sought intervention, ECF No. 26, Connecticut Democratic State Central Committee’s Motion to Intervene as Defendant (“Democrats’ Motion to Intervene”), is both foreclosed by controlling U.S. Supreme Court precedent, New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008) (“Lopez Torres”) and not even required under any measure of fairness. Major party challengers in Connecticut have a fair opportunity to become the major party standard bearer in the November general election under the current system; indeed, they have ample opportunity. The State’s overall statutory scheme, which is the proper context in which to assess this third petitioning option, LaRouche v. Kezer, 990 F.2d 36 (2d Cir. 1993), provides candidates several paths to the party’s nomination. First, a candidate can seek the endorsement at the convention, and if they cannot achieve that goal they have two more chances to override the party endorsement through a showing of 15% support among delegates at the convention or garnering signatures of as few as 9 enrolled party members in a district. Bromley Decl. ¶¶10-11, 34-36. That these Plaintiffs fail to capitalize on these multiple avenues to ballot access, or build the requisite support among their fellow party members, does not render Connecticut’s primary system unconstitutional and certainly does not satisfy the extremely high bar for mandatory injunction relief in the midst of an election cycle. Connecticut’s three paths to the major party’s nomination: 1) win the endorsement at the convention; 2) win the support of at least 15% of the delegates at the convention; 3) petition on the ballot with the signatures of only 5% of the enrolled party members in the candidate’s district, Bromley Decl. ¶10-11, is so generous that it alone could be dispositive of any constitutional inquiry. However, the constitutional inquiry is made even simpler by Supreme 3 Case 3:20-cv-00623-JCH Document 28 Filed 06/02/20 Page 4 of 33 Court precedent directly on point. The Supreme Court has held that the State is not required to treat a challenger candidate as favorably as Connecticut does. Neither the State nor the parties are constitutionally required to provide a candidate with the fullest opportunity to win a party’s nomination or even a “realistic chance,” Lopez Torres, 552 U.S. at 204–205, these matters are largely within the purview of the parties and the individuals who set their internal rules, often by vote. See Kozin Decl. ¶12. Although perhaps Connecticut could mandate the system Plaintiffs seek, and that is hardly a given considering the objection of the political parties, ECF No. 26, Democrats’ Motion to Intervene, that “is a far cry from saying that the Constitution demands it.” Lopez Torres, 552 U.S. at 204-205. Even though a “fair shot” at winning the party’s nomination is not constitutionally required, id., Connecticut’s overall electoral scheme nonetheless provides it. It even, for many candidates, including Mr. Bartlett, Bromley Decl. ¶22, funds their political speech with taxpayer money once they have attained ballot access for the primary. Conn. Gen. Stat. §§ 9-700 to 9-759 (Citizens’ Election Program). The COVID-19 public health crisis does not alter the analysis and it certainly does not compel this Court to step in to impose a primary ballot access requirement more lenient than that approved by the parties or required by the State. Having already considered the burden imposed on candidates by the public health crisis, the State determined that it was appropriate to reduce the number of signatures required for primary ballot access by 30% and permit electronic circulation, collection, and submission of petitions by candidates, which it accomplished by executive order. The parties have not objected to this relaxation of the rules applicable to them. Kozin Decl. ¶15. Indeed, they have sought intervention to defend Connecticut’s electoral scheme and the Executive Order. ECF No. 26, Democrats’ Motion to Intervene. 4 Case 3:20-cv-00623-JCH Document 28 Filed 06/02/20 Page 5 of 33 Even if the State were required to facilitate a candidate’s “fair shot” at winning the party’s nomination, which it is not, any assertion that the accommodations provided by the State in the Executive Order are insufficient is speculative at this point. Plaintiffs have not provided any evidence to this Court that they have attempted to gather a single signature using the additional methods now permitted or of their efforts at the convention to gain the endorsement or the support of 15% of the delegates. Plaintiffs bear the burden in this case and on this motion. Even if Lopez Torres did not foreclose Plaintiffs’ claims, they would still have to meet the high bar of a clear and substantial showing that the overall electoral scheme severely burdens their ability to gain access to the ballot. Their incomplete and speculative factual record renders such a conclusion inappropriate. The petitioning process is not a stand-alone path to the ballot but is part of an integrated statutory scheme. See LaRouche v. Kezer, 990 F.2d at 39. As noted, the major parties in Connecticut afford candidates three avenues to appear on the ballot. Prior to even ascertaining whether any of the Plaintiff Candidates would be able to attain ballot access via the more direct avenues, Plaintiffs brought this action challenging the validity of the third, and final, avenue to primary ballot access- petitioning. Indeed, candidates for state and district office could not even request primary petitioning forms until May 26, 2020 — two weeks after Plaintiffs filed their Motion for Preliminary Injunctive Relief with this Court. Bromley Decl. ¶12. As such, the Court has no basis to conclude that a candidate could not successfully attain primary ballot access in Connecticut in 2020.