Daniel E. Casagrande, Esq.D. Randall DiBella, Esq.

MEMORANDUM

To:District Reapportionment Commission

From:Daniel E. Casagrande, Esq., D. Randall DiBella, Esq.

Date:January 22, 2015

Re: City of Waterbury – Voter Districting Plan Advisory Opinions

Pursuant to your request, Cramer & Anderson, LLP issues the following advisory opinions on several issues raised by the District Reapportionment Commission (“DRC”) in reference to the Voter Redistricting Plan.

  1. The legality of Charter § 3A-1(b)
  1. The legality of the provision

The Charter revision language in § 3A-1(b) provides: “The three candidates with the highest votes in each district will be elected. Of the three Aldermen elected by each district no more than two shall be from one political party.”[1]

Municipalities are granted great latitude in governance of their legislative bodies, including election, appointment, or organization, unless a method or practice is specifically prohibited by the Constitution or the general statutes. Conn. Gen. Stat. § 7-193(b) provides that “[a]ny municipality may, by charter or ordinances or resolutions adopted pursuant to such charter, alter the method of election, appointment or organization of any or all of such officers, departments, boards, commissions or agencies, including combining or separating the duties of each, unless specifically prohibited from making such alteration by the Constitution or the general statutes.” There are no express prohibitions of the type of structure provided for in § 3A-1(b) of the Charter contained within the Connecticut General Statutes. Therefore it is our opinion that the provision is valid.

  1. Determination of candidates’ party affiliation for purposes of compliance with the Charter

The following issue is presented: When all three candidates with the highest number of votes in a district are members of one political party, but one of them has run as an unaffiliated,petitioning candidate, is the unaffiliated candidate deemed to be “from” the party in which he or she is enrolled, thus precluding that candidate from taking office? For the following reasons, in our opinion, the answer is no.

A candidate may generallysecure a place on the ballot via a) party designation (a party-endorsed candidate via caucus or primary pursuant to Conn. Gen. Stat. §§ 9-390(a), 9-391(a));or b) filing an application with the Secretary of State for a nominating petition pursuant to the provisions of Conn. Gen. Stat. §§9-453a et. seq. (a petitioning candidate).

Title 9 of the Connecticut General Statutes precludes party designation on a petitioning candidate’s applicationas a non-party-endorsed candidate. See Conn. Gen. Stat. § 9-453b (“[n]o application made after November 3, 1981, shall contain any party designation unless a reservation of such party designation with the Secretary of State is in effect for all of the offices included in the application or unless the party designation is the same as the name of a minor party which is qualified for a different office or offices on the same ballot as the office or offices included in the application.”) In fact, party designation is omitted from the petition form altogether. See Conn. Gen. Stat. § 9-453a. Reservations for party designation are made on behalf of candidates endorsed by political parties. See Conn. Gen. Stat. § 9-453u. Such reservation effectively “holds the place” for party-endorsed candidates with the Secretary of State. The Secretary of State further supports this analysis in stating that “[t]he name of such [petitioning candidate] cannot incorporate the name of any major party…”[2]This statutory scheme, therefore, does not preclude a petitioning candidate from membership in a political party; it prohibits the petitioner from being designated as a major party candidate.

A harmonious and cohesive reading of the above-referenced statutes results in the conclusion that a candidate may appear on the ballot under a party name, and thereby run for election as a representative of that party, only under said party’s reservation or endorsement. In practical terms, were an independent petitioning candidate permitted to run as a party representative, this would create an end-run around the caucus and primary processes for the major parties of the municipality. To protect that process, the Secretary of State does not permit party designation on the ballot for a petitioning independent candidate. Consistent with this analysis, the Superior Court in Harris v. Mulcahy, 2010 WL 2363972, at *4 (Conn. Super. Ct. Apr. 30, 2010), opined that “a candidate running as the nominee of a single political party would be deemed a member of that party regardless of the party with which he or she is enrolled.”[3] This rationale supports our conclusion that a candidate’s unaffiliated status, not his party membership, controls under the new Charter provision for purposes of determining the “two [Aldermen] from one political party” limit per district.

The language of § 3A-1(b) itself indicates that this is the apparent intent of the Charter Revision Commission (“CRC”). The Final Report of the 2014 CRC indicates that the system as adopted is “designed to ensure that the three highest vote getters in each District would always be seated as Aldermen while still limiting majority party representation… at ten of the fifteen aldermen.” (2014 Charter Revision Commission of the City of Waterbury, Final Report, August 25, 2014, p. 5). Because independent petitioning candidates do not and cannot represent any major political party, based on their independent status, the intent of the Charter drafters in limiting major party representation is achieved even if all three elected Aldermen in one district are registered with the same party, because only two can be designated as representatives of that party.

In sum, it is our recommendation that, for purposes of clarity, the City adopt an ordinance, in accordance with its standard protocol, specifying the rule for determining partisan affiliation of Aldermen consistent with the above rationale. Such ordinance should be in substantially the following form:

Party affiliation or membership of a petitioning candidate for Alderman shall not be material or relevant for the purpose of determining compliance with Charter § 3A-1(b). An Alderman is deemed elected by and representative of the party which endorsed him or, if independent, deemed independent. In the event an Alderman decides to change party designation during his or her Aldermanic term, the Alderman shall be deemed to have vacated his or her seat, and the vacancy shall be filled in accordance with the provisions of this Charter.

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  1. District v. Ward; Numbering of Districts.

Neither “district” nor “ward” is defined in Conn. Gen. Stat. § 9-1, the definitions section of Title 9, the elections statutes. However, the language of the statute authorizing the geographical division of a municipality for purposes of voting, Conn. Gen. Stat. § 9-169, utilizes the term districts. The statute does not utilize the term “ward” in granting this authority to the legislative body of the municipality. Further, any use of the term “ward” throughout Title 9 is accompanied by the interchangeable qualifier “or voting district”, suggesting the terms are transposable.

There is authority for the proposition that, where the term “ward” was otherwise defined in a municipal charter, such term takes on a different meaning than “voting district” as used in Conn. Gen. Stat. § 9-169. See Lacava v. Carfi, 140 Conn. 517 (Conn. 1953). Because the Waterbury Charter does not draw such a distinction, or utilize or define ward at all, this analysis does not apply to the characterization of the geographical voting divisions created in Waterbury.

There is no statutory mandate requiring voting districts to be either named or numbered. Upon review of other Connecticut municipal voting district schemes, most utilize a numbering and/or lettering system – for example, Darien, Stamford, and West Hartford utilize numbers (1,2,3…), Norwalk, Greenwich, and Hamden utilize letters and numbers (A1, A2, B1, B2; or 1, 2, 3, 4, 4A, 5, 5A…; or L1, L2, L3…). This matter appears to be within the discretion of the City.

Based on the foregoing statutory language contained in Conn. Gen. Stat. § 9-169 authorizing the creation of voting districts (not wards), the use of “voting district or ward” throughout Title 9 suggesting synonymous treatment of the terms, and the lack of Court decisions drawing distinction between the terms based strictly on statutory interpretation, outside of specific city charters drawing contrary definitions, it is our opinion that the terms voting “district” and “ward” are interchangeable terms. Further, it is our opinion that the districts created by the Board of Aldermen and this commission are best described using the term “district” as utilized within the statute authorizing this process for municipalities. The City retains discretion in the naming or numbering of said districts for purposes of identification.

  1. Establishment of polling places.

The Chair of the District Reapportionment Commission has articulated concern about the establishment of polling places pursuant to the new districting plan. In short, the establishment of polling places is within the exclusive authority and purview of the municipal Registrars of Voters.

Pursuant to Conn. Gen. Stat. § 9-169, authorizing the division of a municipality into voting districts, the registrars of voters are charged with the authority and responsibility to establish suitable polling places in each district within thirty-one days before any election. See also Conn. Gen. Stat. § 9-168a(a), which provides that “in any municipality in which, at any election or primary, as a result of the assembly, senatorial or congressional district lines in effect, there is a voting district or a part of a voting district which differs geographically from the district lines as constituted in a municipal election year, the registrars of voters may either provide a suitable polling place therein or may, in lieu thereof, with the approval of the legislative body of the municipality, provide separate voting machines in the polling place of another voting district in said municipality for use by such electors.” Subsection (b) of that statute provides that where such a cross-cut of the municipality’s districts affects less than 1,500 electors, the registrars do not need to seek the legislative body’s approval to provide separate voting machines in an existing polling place. Further, Conn. Gen. Stat. § 9-228a requires the registrars of voters to report the location of each polling place they so designate to be used for a municipal, state or federal election or primary to the Secretary of State not later than thirty-one days prior to such election. The town clerk shall specify in his warning of each municipal election the location of the polling place in each district. Conn. Gen. Stat. § 9-226.

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Exhibit 26 1-22-14 MEMO to DRC from C&A re legal advisories

[1]Charter § 2B-2(c), also adopted in the November 2014 referendum, imposes a limit on the ability of the major political parties to endorse more than two Aldermen per district. It provides that “[n]o elector shall vote for more than two (2) candidates in their district for the Board of Aldermen.” This Charter scheme is consistent with Conn. Gen. Stat. § 9-414, which provides “that “[n]o town committee, caucus or convention shall endorse and certify to the clerk of a municipality, and no primary shall choose, more candidates for nomination to municipal office or more persons as members of a town committee than an elector may vote for in each such case.”

[2]The name of a petitioning candidate also may not incorporate the name of a minor party which is entitled to nominate candidates for office which will appear on the same ballot. See CT Secretary of State “Frequently Asked Questions – Nominating Parties”:

[3] This decision is in reference to determination of partisan affiliation of a candidate running as an independent petitioning candidate for a seat on the Board of Aldermen of Waterbury under the minority representation statute, Conn. Gen. Stat. § 9-169, which is no longer applicable to Waterbury under the districting scheme. For this reason, while the decision is not binding, its rationale remains valid and compelling.