Republican Party Gets Top Spot On Connecticut Ballot

The Connecticut Supreme Court issued a summary order today effectively telling the Secretary of State (“SOS”) to give Republican Party candidates the top spots on the ballots in the upcoming November elections.  The order, which will be followed by a written opinion at a later date, addresses several thorny jurisdictional issues, as well as the merits of the question at the heart of the lawsuit, which involved the interpretation of General Statutes section 9-249a.

Predicting the rationale of a judicial decision is a dangerous thing, but I’m going to go out on a limb and make a few predictions anyway about the Court’s resolution of the jurisdictional issues.  The Court determined that the Republican Party had an administrative remedy.  Although the summary order does not say what the remedy was, I think the Court will likely accept the Attorney General’s argument (on behalf of the SOS) that the Republican Party could have sought a declaratory ruling from the SOS and then pursued a state Uniform Administrative Appeal Act (“UAPA”) appeal if it didn’t like the SOS’s ruling.  Because the Republican Party had an administrative remedy but did not pursue it–it chose to go straight to Superior Court instead–the failure to exhaust that remedy would normally be fatal.  But the Republican Party argued in its briefs that pursuing such a remedy would have been “futile” because the SOS had written a letter publicly stating her position that the Democratic candidates would get the top ballot positions.  In response, the Attorney General argued that the futility exception to the exhaustion requirement requires more than a showing that the administrative decisionmaker was likely to rule against the party seeking relief; rather, futility requires proof that the relief requested was beyond the power of the decisionmaker to grant.  My prediction is that the Court accepted the Republican Party’s position, thereby concluding that the Party had effectively exhausted its administrative remedies because pursuing them would have been futile.

The Court also held that sovereign immunity did not bar the Republican Party’s lawsuit.  This holding follows logically from the Court’s conclusion that an administrative remedy existed (under the UAPA), which necessarily means that the State had waived sovereign immunity.