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*********************************************** 
JIM FEEHAN v. RICK MARCONE ET AL.

(SC 20216)

(SC 20217)

(SC 20218)

Robinson, C. J., and Palmer, McDonald, D’Auria,

Mullins, Kahn and Ecker, Js.

Syllabus

Pursuant to the elections clause of the Connecticut constitution (art. III,

§ 7), the state House of Representatives ‘‘shall be the final judge of the

election returns and qualifications of its own members.’’

Pursuant to statute (§ 9-319), votes for state representatives ‘‘shall be canvassed, during the month in which they are cast,’’ by the treasurer, the

secretary of the state and the comptroller, ‘‘and they shall declare,

except in case of a tie vote, who is elected . . . representative’’ in each

assembly district.

The plaintiff, the endorsed republican candidate for the office of state representative in the November, 2018 election for the 120th assembly district,

sought certain relief in connection with an alleged mistake at a multidistrict polling place whereby approximately seventy-six voters were given

ballots that were intended for use in the 122nd assembly district and

the opposing democratic candidate, the intervening defendant Y,

received only thirteen more votes than the plaintiff. In addition to seeking

declaratory relief, the plaintiff sought a mandatory injunction requiring

a new election and a prohibitive injunction preventing the three state

defendants, the treasurer, the secretary of the state, and the comptroller,

from declaring a winner. The plaintiff subsequently amended his complaint to include federal statutory (42 U.S.C. § 1983) claims alleging the

deprivation of certain federal constitutional rights and filed an application for an order temporarily enjoining the state defendants from canvassing votes or declaring the results of such canvass. Y moved to

dismiss the plaintiff’s amended complaint for lack of jurisdiction, arguing

that, under the elections clause of the Connecticut constitution, the

state House of Representatives has exclusive jurisdiction to resolve

disputes regarding the election of its own members. The plaintiff

objected, contending, inter alia, that the trial court had jurisdiction

pursuant to the statute (§ 9-328) governing contested municipal elections. The trial court granted Y’s motion to dismiss with respect to the

claims for declaratory relief and a mandatory injunction. The court

nevertheless granted the plaintiff’s motion for a temporary injunction,

precluding the state defendants from canvassing the votes or declaring

a winner, in order to maintain the status quo until the House of Representatives was provided with an opportunity to exercise its authority. Thereafter, the plaintiff, the state defendants, and Y, upon certification by the

Chief Justice pursuant to statute (§ 52-265a) that a matter of substantial

public interest was involved, filed separate interlocutory appeals. Held:

1. The trial court properly dismissed the plaintiff’s claims for declaratory

relief and for a mandatory injunction requiring a new election: this court

examined the factors set forth in State v. Geisler (222 Conn. 672) for

construing state constitutional provisions and concluded that the elections clause afforded the state House of Representatives exclusive jurisdiction over the plaintiff’s election challenge, as Connecticut case law

analyzing that provision, federal and sister state case law analyzing

other, analogous constitutional provisions, historical concerns regarding

the separation of powers attendant to adoption of the 1818 constitution,

the existence of statutes authorizing courts to hear election contests in

contexts other than state legislative elections, and the adoption of a

rule in the state House of Representatives establishing a committee on

contested elections all indicated that the legislature’s exclusive jurisdiction in matters regarding the election of its own members was not, as

the plaintiff argued, limited to the mere vetting of arithmetic in tallying

the votes cast; moreover, § 9-328 did not afford state courts jurisdiction

over the plaintiff’s claims, this court having concluded that the applicable
statutory (§ 9-1 [h]) definition of municipal election limits such contests

to the election of public officials of a municipality, that the plaintiff’s

reliance on a separate statutory (§ 9-372 [7]) definition of municipal

office, which includes those officials elected by voters within a single

municipality, was misplaced because § 9-328 was not within the exclusive list of statutes to which the definition of municipal office set forth

in § 9-372 (7) applied, and that the construction of § 9-238 urged by the

plaintiff would yield absurd results by authorizing different treatment

of state legislative elections depending on whether an assembly district

is located in one town or multiple towns; furthermore, this court declined

to address whether the supremacy clause of the United States constitution would override the elections clause of the Connecticut constitution

with respect to the jurisdiction of the courts to entertain federal constitutional claims arising from state legislative elections because, in the

absence of the plaintiff’s allegation of intentional misconduct on the

part of election officials, he had failed to sufficiently plead such a

violation under standards set forth in applicable federal case law.

2. The trial court lacked jurisdiction to grant the plaintiff’s application for

a temporary injunction, and, accordingly, the trial court’s granting of

that application was reversed: contrary to the plaintiff’s claim, the defendants’ appeals from the trial court’s order of injunctive relief were not

rendered moot by the passage of the deadline set forth in § 9-319 because

that deadline applied only to the canvassing of votes, and not to the

declaration of a winner, and because § 9-319 does not contain other

negative words invalidating or nullifying a late canvass or declaration;

moreover, in light of this court’s conclusion that the trial court lacked

jurisdiction over the plaintiff’s claims in the present case, the trial court

also lacked jurisdiction to enjoin, even temporarily, the state defendants

from canvassing the votes cast or from declaring a winner.

Argued December 21, 2018—officially released January 30, 2019*

Procedural History

Action for a declaratory judgment ordering that a new

election be held for the office of state representative

for the 120th assembly district, and for other relief,

brought to the Superior Court in the judicial district of

Fairfield, where Philip L. Young III intervened as

a defendant; thereafter, the court, Bellis, J., granted

the plaintiff’s motion for an emergency temporary

restraining order and granted in part the intervening

defendant’s motion to dismiss, and the plaintiff, the

defendant Denise Merrill et al., and the intervening

defendant, upon certification by the Chief Justice pursuant to General Statutes § 52-265a that a matter of substantial public interest was at issue, filed separate

appeals to this court. Affirmed in part; reversed in

part; judgment directed.

Proloy K. Das, with whom were Matthew A. Ciarleglio and Kevin W. Munn, for the appellant in Docket

No. SC 20216 and the appellee in Docket Nos. SC 20217

and SC 20218 (plaintiff).

Michael K. Skold, assistant attorney general, with

whom, on the brief, was George Jepsen, former attorney

general, for the appellants in Docket No. SC 20217 and

the appellees in Docket Nos. SC 20216 and SC 20218

(defendant Denise W. Merrill et al.).

William M. Bloss, with whom were Alinor C. Sterling

and Emily B. Rock, for the appellant in Docket No. SC

20218 and the appellee in Docket Nos. SC 20216 and

SC 20217 (intervening defendant Philip L. Young III).

Opinion

ROBINSON, C. J. These expedited public interest

appeals arise from an apparent mix-up at the Bunnell

High School polling place in the town of Stratford

(town), where it is alleged that approximately seventysix voters who should have received ballots for the

120th assembly district election were instead given ballots for the 122nd assembly district, rendering those

voters unable to vote for their assembly district’s state

representative. The plaintiff, Jim Feehan, who is the

Republican Party’s candidate for state representative in

the 120th assembly district, brought this action seeking

declaratory relief, a new election, and an injunction

prohibiting the defendants, Secretary of the State

Denise W. Merrill, Treasurer Denise L. Nappier, and

Comptroller Kevin Lembo (state defendants), from

declaring the intervening defendant, Phillip L. Young

III, the Democratic Party’s candidate, as the winner of

that election.1 After the Chief Justice granted the parties’ separate applications for permission to appeal pursuant to General Statutes § 52-265a, the plaintiff

appealed from the judgment of the trial court dismissing

the complaint in part as barred by the elections clause

set forth in article third, § 7, of the Connecticut constitution,2 and the defendants appealed from the grant of

the plaintiff’s application for a temporary injunction.3

We conclude that the elections clause gives our state

House of Representatives exclusive jurisdiction over

this election contest, and we disagree with the plaintiff’s

claims that (1) General Statutes § 9-328,4 which governs

contested elections for ‘‘municipal office,’’ confers jurisdiction on the courts over this case, and (2) under the

supremacy clause of the United States constitution; see

U.S. Const., art. VI, cl. 2;5

state courts have jurisdiction

over his federal constitutional claims, notwithstanding

the elections clause in the Connecticut constitution.

Accordingly, we also agree with the defendants’ claim

that the trial court lacked jurisdiction to enjoin the state

defendants from canvassing the votes and declaring a

winner. We, therefore, affirm the judgment of the trial

court insofar as it dismissed the complaint and reverse

the judgment of the trial court with respect to its issuance of a temporary injunction.

The record reveals the following facts, as alleged in

the operative complaint, and procedural history. On

November 6, 2018, the election for the state representative for the 120th assembly district took place. There

were three candidates for that position: the plaintiff,

who was endorsed by the Republican Party and the

Independent Party, Young, who was endorsed by the

Democratic Party, and a petitioning candidate, Prez

Palmer. One of the polling places for the 120th assembly

district was Bunnell High School, which also served as

a polling place for the 122nd assembly district. At some

point midday, a packet of ballots for the 122nd assembly
district was distributed to voters in the voting line for

the 120th assembly district. As a result, approximately

seventy-six voters who received those ballots were

unable to cast a vote for the office of state representative from the 120th assembly district.6 A voter detected

the mistake and reported it to the moderator, who

replaced the 122nd assembly district ballots with the

correct ones and noted the incident in his log, allowing

for investigation by the town registrar of voters after

the election.

After the initial vote tabulation for the 120th assembly

district, the vote count was 5217 votes for Young, 5199

votes for the plaintiff, and 55 votes for Palmer. Because

there was a difference of only 18 votes between Young

and the plaintiff, a statutory recanvass was required

pursuant to General Statutes § 9-311a. That recanvass

was held on November 13 and 14, 2018, and resulted

in 5222 votes for Young and 5209 votes for the plaintiff,

a difference of 13 votes. Palmer again received 55 votes.

On November 15, 2018, the plaintiff filed a complaint

in the trial court, seeking the following relief: (1) ‘‘a

declaration that, as a result of the errors committed at

the Bunnell [High School] polling place and resulting

disenfranchisement of voters in the 120th assembly district, a new election must be held for the office of state

representative for the 120th [assembly] district’’; (2) ‘‘a

mandatory injunction requiring the defendants to hold

a special election for the office of state representative

in the 120th assembly district’’; and (3) ‘‘a prohibitory

injunction precluding [the state defendants] from

declaring a candidate elected state representative in

the 120th assembly district before a new election is

held.’’ The plaintiff subsequently amended that complaint to include claims pursuant to 42 U.S.C. § 1983,

alleging that the voters who received incorrect ballots

had been deprived of their fundamental rights to vote

and to equal protection of the laws under the United

States constitution. In addition, the plaintiff filed an

application for a temporary injunction7 barring the state

defendants from canvassing the votes for state representative from the 120th assembly district or declaring

the results of any such canvass.

After the trial court granted Young’s motion for permission to intervene in the action as a defendant, he—

supported by the state defendants—moved to dismiss

the amended complaint8

for lack of jurisdiction, arguing

that, under the elections clause of the Connecticut constitution, our state House of Representatives has exclusive jurisdiction to resolve election disputes involving

the election of its members. Young also objected to the

plaintiff’s application for a temporary injunction. The

plaintiff objected to the motion to dismiss, contending

that the trial court had jurisdiction to grant relief pursuant to § 9-328, and that he did not seek to challenge the

final decision as to who won the election but, rather,
whether the election was conducted under ‘‘procedures

that comply with the General Statutes and the state and

federal constitutions.’’

After conducting a hearing on the motion to dismiss

the amended complaint, the trial court granted the

motion in part with respect to the plaintiff’s requests

for a declaration and mandatory injunction requiring a

new election for the office of state representative for

the 120th assembly district.9 The court concluded that

our state House of Representatives had exclusive jurisdiction over those matters pursuant to our state elections clause, even though the plaintiff had also asserted

federal claims pursuant to 42 U.S.C. § 1983. The court

granted, however, the plaintiff’s request for a temporary

injunction enjoining the state defendants from canvassing the votes or declaring the winner of the election

pursuant to General Statutes § 9-319,10 reasoning that

the ‘‘limited exercise of its jurisdiction over the application’’ for the injunction was necessary to maintain the

status quo and to ‘‘ensur[e] that the House [of Representatives] has an opportunity to exercise its authority.’’

The trial court rendered judgment accordingly. These

expedited public interest appeals pursuant to § 52-

265a followed.

We held oral argument in these appeals on December

21, 2018.11 Immediately after oral argument, we issued

the following order: ‘‘After a hearing and based on the

record and claims before the court, it is hereby ordered

that the judgment of the trial court is affirmed insofar

as it lacks jurisdiction at this time. In accordance with

this determination, it is further ordered that the trial

court’s injunction is vacated. A written decision will

follow.’’ This is that written decision.

‘‘A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of

action that should be heard by the court.’’ (Internal

quotation marks omitted.) Giannoni v. Commissioner

of Transportation, 322 Conn. 344, 349, 141 A.3d 784

(2016). Thus, ‘‘[w]e begin with the standard of review

and the general principles governing a trial court’s disposition of a motion to dismiss that challenges jurisdiction.’’ Rocky Hill v. SecureCare Realty, LLC, 315 Conn.

265, 276, 105 A.3d 857 (2015). ‘‘A determination regarding a trial court’s subject matter jurisdiction is a question of law,’’ particularly when it presents questions

of constitutional and statutory interpretation. (Internal

quotation marks omitted.) Id. Accordingly, ‘‘[o]ur

review of the court’s ultimate legal conclusion[s] and

resulting [determination] of the motion to dismiss will

be de novo. . . .

‘‘Depending on the record before it, a trial court ruling on a motion to dismiss for lack of subject matter

jurisdiction pursuant to Practice Book § 10-31 (a) (1)

may decide that motion on the basis of: (1) the com-
plaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint

supplemented by undisputed facts plus the court’s resolution of disputed facts. . . . Different rules and procedures will apply, depending on the state of the record

at the time the motion is filed. . . .

‘‘If [as here] the court decides the motion on the basis

of the complaint alone, it must consider the allegations

of the complaint in their most favorable light. . . . In

this regard, a court must take the facts to be those

alleged in the complaint, including those facts necessarily implied from the allegations, construing them in

a manner most favorable to the pleader.’’ (Citations

omitted; internal quotation marks omitted.) Id., 276–77.

I

THE PLAINTIFF’S APPEAL

In attacking the trial court’s jurisdictional conclusion,

the plaintiff contends that (1) the elections clause of

the Connecticut constitution does not ‘‘divest the judiciary of jurisdiction over this dispute,’’ (2) § 9-328 provides a statutory basis for jurisdiction, and (3) the

supremacy clause of the United States constitution renders inapplicable any restriction imposed by the state

elections clause with respect to his federal constitutional claims brought pursuant to 42 U.S.C. § 1983. We

address each of these claims in turn.

A

Whether the Elections Clause Divests State

Courts of Jurisdiction over This Case

We begin with the plaintiff’s claim that the elections

clause does not divest state courts of jurisdiction over

this case. The plaintiff contends that the plain language

of the elections clause, which makes ‘‘each house . . .

the final judge of the election returns and qualifications

of its own members’’; Conn. Const., art. III, § 7; renders

final the legislature’s judgment about which candidate

received the most votes during the election, but does

not give the General Assembly ‘‘any authority to resolve

disputes concerning the procedures employed during

an election, much less [the] sole authority to do so.’’

In support of this argument, the plaintiff relies on

Roudebush v. Hartke, 405 U.S. 15, 92 S. Ct. 804, 31 L.

Ed. 2d 1 (1972), and decisions of several sister state

courts; see, e.g., State ex rel. Wahl v. Richards, 44 Del.

566, 64 A.2d 400 (1949); State ex rel. Wheeler v. Shelby

Circuit Court, 267 Ind. 265, 369 N.E.2d 933 (1977); State

ex rel. Olson v. Bakken, 329 N.W.2d 575 (N.D. 1983);

McGann v. Board of Elections, 85 R.I. 223, 129 A.2d

341 (1967); McIntyre v. Wick, 558 N.W.2d 347 (S.D.

1996); in support of the ‘‘distinction between the authority to determine which candidate is entitled to be seated

in the legislature (which is the purview of each house

of the legislature), and the authority to decide disputes

over the election process itself.’’ The plaintiff further
argues that only the courts, and not the state House of

Representatives, have the institutional authority to

issue the requested equitable relief, namely, a new election. The plaintiff emphasizes that ‘‘he is not asking the

court to declare him the winner of the election’’ but,

instead, ‘‘is asking the court to remedy constitutional

and statutory violations in the administration of the

election . . . which is a core function of the judiciary.’’

In response, the defendants contend that the plaintiff’s interpretation of the elections clause would ‘‘inject

our courts into a General Assembly election . . . for

the first time in our history’’ and that the state House

of Representatives ‘‘is the sole entity that is constitutionally authorized to determine how such disputes

shall be resolved.’’ Relying on State ex rel. Morris v.

Bulkeley, 61 Conn. 287, 23 A. 186 (1892), Selleck v.

Common Council, 40 Conn. 359 (1873), and In re Application of Mylchreest, 6 Conn. Supp. 435 (1938), together

with a decision of the United States Court of Appeals

for the District of Columbia Circuit interpreting the

elections clause of the United States constitution, Morgan v. United States, 801 F.2d 445 (D.C. Cir. 1986), cert.

denied, 480 U.S. 911, 107 S. Ct. 1359, 94 L. Ed. 2d 529

(1987), the defendants argue that the House of Representatives—acting via its contested elections committee pursuant to House Rule No. 19—has ‘‘exclusive

jurisdiction over house elections contests.’’ See House

Res. No. 2, 2019 Sess. (adopted January 9, 2019). The

defendants further argue that Roudebush v. Hartke,

supra, 405 U.S. 15, and the sister state cases on which

the plaintiff relies are distinguishable because the

courts in those cases had specific statutory authorization to act, and also had functioned ministerially to

order recounts, rather than to render a ‘‘judicial finding

that the election process was so unreliable that a new

election should be ordered . . . .’’ Young then contends that Connecticut’s elections clause provides the

legislature with the authority to declare a vacancy and

order a special election to fill it, upon a determination

that the elections process was fatally flawed in this

case. We agree with the defendants and conclude that

the elections clause divested the courts of authority

over the election contest at issue in this case.

In State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d

1225 (1992), we enumerated the following six factors

to be considered in construing the state constitution:

‘‘(1) persuasive relevant federal precedents; (2) the text

of the operative constitutional provisions; (3) historical

insights into the intent of our constitutional forebears;

(4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary

understandings of applicable economic and sociological norms, or as otherwise described, relevant public

policies. . . .

‘‘The Geisler factors serve a dual purpose: they
encourage the raising of state constitutional issues in

a manner to which the opposing party . . . can

respond; and they encourage a principled development

of our state constitutional jurisprudence. Although in

Geisler we compartmentalized the factors that should

be considered in order to stress that a systematic analysis is required, we recognize that they may be inextricably interwoven. . . . [N]ot every Geisler factor is

relevant in all cases. . . . Moreover, a proper Geisler

analysis does not require us simply to tally and follow

the decisions favoring one party’s state constitutional

claim; a deeper review of those decisions’ underpinnings is required because we follow only persuasive

decisions.’’ (Citation omitted; internal quotation marks

omitted.) Doe v. Hartford Roman Catholic Diocesan

Corp., 317 Conn. 357, 407–408, 119 A.3d 462 (2015); see

also Connecticut Coalition for Justice in Education

Funding, Inc. v. Rell, 295 Conn. 240, 271 n.26, 990 A.2d

206 (2010) (plurality opinion) (‘‘the Geisler framework

is equally useful in analyzing the scope of a right guaranteed by the state constitution that has no federal analog’’

[internal quotation marks omitted]); Honulik v. Greenwich, 293 Conn. 641, 648 n.9, 980 A.2d 845 (2009)

(‘‘Although we typically employ a Geisler analysis to

determine whether a provision of our constitution

affords broader individual rights than an analogous provision of the United States constitution . . . we have

at times considered the Geisler factors in interpreting

language in our constitution that does not have a similar

federal counterpart. . . . We consider a structured and

comprehensive approach to be helpful in either context.’’ [Citations omitted.]).

We begin with the relevant constitutional text, which

provides in relevant part: ‘‘The treasurer, secretary of

the state, and comptroller shall canvass publicly the

votes for senators and representatives. The person . . .

in each assembly district having the greatest number

of votes for representative shall be declared to be duly

elected for such district. . . . The return of votes, and

the result of the canvass, shall be submitted to the

house of representatives and to the senate on the first

day of the session of the general assembly. Each house

shall be the final judge of the election returns and

qualifications of its own members.’’ (Emphasis added.)

Conn. Const., art. III, § 7. We note at the outset that the

plaintiff does not appear to dispute that this language

suggests that each house of the legislature has exclusive

jurisdiction over disputes that come within the scope

of the elections clause. Instead, he claims that disputes,

such as that presented in this case, concerning irregularities in the conduct of the legislative election itself,

rather than the correctness of the tally of the votes

cast, simply do not come within the scope of that constitutional provision. Although the use of the specific

phrase ‘‘election returns’’ may reasonably be read—as

argued by the plaintiff—to suggest that the legislature’s
exclusive jurisdiction is limited to vetting the state

defendants’ arithmetic,12 this narrow interpretation is

inconsistent with case law from Connecticut construing

our state elections clause and with federal and sister

state authority construing analogous constitutional provisions.

Turning to Connecticut case law, the seminal case on

the elections clause is In re Application of Mylchreest,

supra, 6 Conn. Supp. 436, in which our Superior Court

concluded that, under the elections clause—then set

forth within article third, § 6, of the 1818 Connecticut

constitution—it is ‘‘not proper for any court to be given

power to pass upon the question as to who has been

elected state senator or representative.’’ The court

rejected an application for an order seeking a recount

of votes in a state senate election because ‘‘a judge of

the Superior Court has no jurisdiction to declare [the

applicant] elected as senator [or] to issue a certificate

to that effect, nor has a judge of the Superior Court

jurisdiction to grant any other ultimate relief . . . . No

statute authorizes a judge of the Superior Court to order

a recount of votes for [s]tate [s]enator and failing that

and likewise lacking jurisdiction to grant any relief

which would be predicated on a finding as to what the

actual vote was, such a judge has no jurisdiction either

to order a recount or make such a finding.’’ Id., 437. In

so concluding, the Superior Court relied on this court’s

decision in Selleck v. Common Council, supra, 40 Conn.

359, which held that, by using the word ‘‘final’’ in legislation providing that ‘‘ ‘the board of councilmen . . .

shall be the final judges of the election returns and of

the validity of elections and qualifications of its own

members’ ’’; id., 360 (preliminary statement of facts and

procedural history); the legislature ‘‘intended to divest

the Superior Court of jurisdiction . . . and make the

common council the sole tribunal to determine the

legality of the election of its members.’’ (Emphasis

added.) Id., 362; see also In re Application of Mylchreest, supra, 436. Moreover, in State ex rel. Morris v.

Bulkeley, supra, 61 Conn. 362, this court stated that,

‘‘[w]hen the people, speaking in their sovereign capacity

by the constitution, appoint a single tribunal to ascertain and declare a certain result, and that tribunal does

so ascertain and declare, there is no other authority

that can interfere with or revise such declaration and

change the result.’’

With respect to the constitutional history, there was

‘‘no significant debate in either 1818 or 1965’’ at the

constitutional conventions with respect to the elections

clause, which originally dates to 1818. W. Horton, The

Connecticut State Constitution (2d Ed. 2012) pp. 115–

16. Particularly given the importance in 1818 of the

concept of the separation of powers;13 see id., pp. 11–13;

this silence directs our attention to the federal authority

discussing the history of the elections clause of the

United States constitution,14 because ‘‘[w]hen the states
of the union adopted their own constitutions most followed both the substance and the procedures adopted

by the founding fathers in the federal constitution.’’

Kinsella v. Jaekle, 192 Conn. 704, 721, 475 A.2d 243

(1984). Thus, the elections clause of the Connecticut

constitution, which differs only slightly from its federal

counterpart, ‘‘may be understood in light of . . . federal provisions and the intent of the founding fathers

. . . .’’ (Footnote omitted.) Id.; see also id., 717–18 (relying on history of United States constitution for historical

analysis of impeachment power under 1818 constitution

given that ‘‘records of the constitutional convention of

1818 do not explain the framers’ reasons’’ for ‘‘specifically reserv[ing] the power of impeachment and

removal of executive and judicial officers to the General Assembly’’).

Our discussion of federal authority begins with the

United States Supreme Court’s decision in Roudebush

v. Hartke, supra, 405 U.S. 15, upon which the plaintiff

relies heavily. In that case, the Supreme Court considered whether Indiana’s state statutory recount procedure was a valid exercise of the state’s power to

prescribe the time, place, and manner of holding an

election pursuant to article one, § 4, of the United States

constitution15 or, instead, was an unconstitutional

infringement on the United States Senate’s power under

the elections clause of the United States constitution;

see footnote 14 of this opinion; to judge the election

returns for its own members. See Roudebush v. Hartke,

supra, 23–24. The court acknowledged that ‘‘a [s]tate’s

verification of the accuracy of election results pursuant

to its [article one, § 4 powers] is not totally separable

from the Senate’s power to judge elections and returns.’’

Id., 25. The court concluded, however, that ‘‘a recount

can be said to ‘usurp’ the Senate’s function only if it

frustrates the Senate’s ability to make an independent

final judgment. A recount does not prevent the Senate

from independently evaluating the election any more

than the initial count does. The Senate is free to accept

or reject the apparent winner in either count, and, if it

chooses, to conduct its own recount.’’ (Emphasis

added; footnotes omitted.) Id., 25–26. Accordingly, the

court concluded that Indiana’s statutory recount procedure was constitutional. Id., 26; see also McIntyre v.

Fallahay, 766 F.2d 1078, 1086 (7th Cir. 1985) (noting

that ‘‘states may give advice’’ to Congress regarding

apparent winner of election ‘‘in accordance with their

own rules,’’ although Congress may ignore that advice);

Durkin v. Snow, 403 F. Supp. 18, 20 (D.N.H. 1974)

(under Roudebush, New Hampshire statute authorizing

recount procedure for election for office of United

States senator was constitutional); Franken v. Pawlenty, 762 N.W.2d 558, 562–63 (Minn. 2009) (state statute

authorizing court to make findings and conclusions as

to which party received highest number of votes in

election for United States senator did not violate federal
elections clause).

We read Roudebush to hold only that state legislatures have constitutional authority pursuant to article

one, § 4, of the United States constitution to enact their

own laws for the purpose of verifying the accuracy of

the results in Congressional elections, subject to the

right of each house of Congress to make a final determination on that issue. Roudebush does not stand for the

proposition that the elections clause affords the courts

an inherent role in resolving a dispute over a legislative

election, particularly in the absence of statutory authority to do so. Instead, post-Roudebush federal case law

interpreting the elections clause of the United States

constitution even more clearly supports the exclusivity

of the legislative branch’s jurisdiction to determine the

lawfulness of an election to that body. The leading case

on this point is the decision of the District of Columbia

Circuit in Morgan v. United States, supra, 801 F.2d 445.

In an opinion written by then Judge Antonin Scalia, the

court concluded that the elections clause deprived it

of ‘‘jurisdiction to review the substance or procedure

of a determination by the [United States] House of Representatives that one of two contestants was lawfully

elected to that body.’’ Id. The court concluded that it

lacked subject matter jurisdiction over numerous constitutional and federal claims brought to challenge the

party line decision of the House of Representatives—

following a task force investigation and recount—to

reject a state recount declaring the Republican candidate the winner and to seat, instead, the Democratic

candidate. Id., 446. Following Roudebush, the court concluded that it lacked jurisdiction over these claims

because the elections clause of the United States constitution ‘‘unambiguously proscribes judicial review of the

proceedings in the House of Representatives that led

to the seating of’’ the Democratic candidate and that it

would be ‘‘difficult to imagine a clearer case of ‘textually

demonstrable constitutional commitment’ of an issue

to another branch of government to the exclusion of the

courts16 . . . than the language of [the federal elections

clause], that ‘[e]ach House shall be the Judge of the

Elections, Returns and Qualifications of its own Members.’ The provision states not merely that each House

‘may judge’ these matters, but that each House ‘shall

be the Judge’ . . . . The exclusion of others—and in

particular of others who are judges—could not be more

evident. Hence, without need to rely upon the amorphous and partly prudential doctrine of ‘political questions,’ . . . we simply lack jurisdiction to proceed.’’17

(Citations omitted; emphasis altered; footnote added.)

Id., 446–47.

Significant to our historical analysis under Geisler is

the court’s observation in Morgan that the ‘‘history of

the [federal elections clause] is entirely consistent with

its plain exclusion of judicial jurisdiction. In the formative years of the American republic, it was the uniform
practice of England and America for legislatures to be

the final judges of the elections and qualifications of

their members. . . . There was no opposition to the

[e]lections [c]lause in the [f]ederal [c]onstitutional

[c]onvention . . . and the minor opposition in the ratification debates focused upon the clause’s removal of

final authority not from the courts, but from the state

legislatures, where the Articles of Confederation had

vested an analogous power. . . . It is noteworthy that

none of the responses to the opposition mentions the

safeguard of judicial review. Such a safeguard was evidently unthinkable, since the determination of the legislative House was itself deemed to be a judicial one.’’

(Citations omitted; emphasis added; internal quotation

marks omitted.) Id., 447. The court cited James Kent for

the proposition that the legislature, in judging election

returns and the qualification of its members, acts in a

‘‘ ‘a judicial character’ ’’ and that such decisions, ‘‘ ‘like

the decisions of any other court of justice, ought to

be regulated by known principles of law, and strictly

adhered to, for the sake of uniformity and certainty.’ ’’

(Emphasis altered.) Id., citing 1 J. Kent, Commentaries

on American Law (8th Ed. 1854) p. 248. Thus, the court

further emphasized that the federal elections clause’s

‘‘command to ‘be the Judge of . . . Elections’ excludes

other judges.’’ Morgan v. United States, supra, 801 F.2d

450; see also McIntyre v. Fallahay, supra, 766 F.2d

1082 (‘‘[I]t is inappropriate for a federal court even

to intimate how Congress ought to have decided’’ an

election dispute because ‘‘[t]he House is not only ‘Judge’

but also final arbiter. Its decision about which ballots

count, and who won, [is] not reviewable in any court.’’).

Turning to a review of the sister state decisions, we

note that the ‘‘almost universal constitutional doctrine

in the United States and the several states which have

constitutions containing this or similar provisions is

that . . . [e]ach legislative body is the sole judge of

the elections, returns, and qualifications of its own

members, and its action in admitting or expelling a

member is not reviewable in the courts. Furthermore,

a statute which requires a court to inquire into the

commission of corrupt practices in the election of a

member of the legislature is not constitutional.’’18 (Internal quotation marks omitted.) Foster v. Harden, 536

So. 2d 905, 906 (Miss. 1988), overruled on other grounds

by Dillon v. Myers, 227 So. 3d 923 (Miss. 2017). Thus,

consistent with the District of Columbia Circuit’s decision in Morgan, the vast majority of our sister states

hold that courts lack jurisdiction to entertain a contest

pertaining to a legislative election, particularly in the

absence of statutory authorization to do so. See Beatty

v. Myrick, 218 Ga. 629, 629, 129 S.E.2d 764 (1963) (trial

court lacked jurisdiction over ‘‘equitable action in which

the plaintiffs seek to have adjudicated which of two

named candidates was legally elected to represent’’

state senate district because state constitution’s elec-
tions clause ‘‘vested [state senate] with exclusive power

to adjudge the qualifications of its own members’’);

Stephenson v. Woodward, 182 S.W.3d 162, 168–69 (Ky.

2005) (rejecting argument under state constitution’s

elections clause that court lacked subject matter jurisdiction to entertain challenge to candidate’s qualifications to appear on ballot, filed before election, because

it ‘‘does not involve an election contest,’’ namely, a

‘‘[postelection] procedure involving an election that has

been held,’’ as authorizing statute did not require adjudication of dispute before election);19 Wheatley v. Secretary of Commonwealth, 439 Mass. 849, 853 and n.8,

792 N.E.2d 645 (2003) (concluding that court lacked

authority under state constitution’s elections clause to

order new election in light of decision by state house

of representatives to seat candidate, but ‘‘express[ing]

no opinion whether any differences in those facts,

sequence of events, or procedural history might have

affected the outcome of [the] proceedings’’); Scheibel v.

Pavlak, 282 N.W.2d 843, 847–48 (Minn. 1979) (observing

that, under state constitution’s elections clause, courts’

statutory jurisdiction over legislative election contests

left state supreme court without ‘‘jurisdiction to issue

a final and binding decision in [the] matter, and our

opinion by statute will be and by the [state constitution]

must only be advisory to the [state] House of Representatives,’’ but leaving for another day constitutionality

of that question under separation of powers and preclusion on advisory opinions); Dillon v. Meyers, 227 So.

3d 923, 927–28 (Miss. 2017) (concluding that state constitution’s elections clause ‘‘places judging the election

of members of the [l]egislature in the [l]egislature’s

bailiwick,’’ for purposes of ‘‘general [or special] elections,’’ with separate constitutional clause governing

party primaries and ‘‘requir[ing] the [l]egislature to

enact laws to secure fairness in primary elections,’’

operating to afford state courts jurisdiction over legislative primary election dispute); Gammage v. Compton,

548 S.W.2d 1, 5 (Tex. 1977) (rejecting reliance on Roudebush, and construing statute giving state court ‘‘original

and exclusive jurisdiction of all contests of elections,

general or special, for all school, municipal, precinct,

county, district, state offices, or federal offices’’ as inapplicable to federal congressional elections because of

federal elections clause).

A separate line of sister state cases holds, consistent

with Roudebush, that state legislatures may enact statutes setting forth procedures by which the vote may

be tabulated and, in the case of close elections, retabulated, in elections for state legislative office—provided

that those statutes do not impinge on the ultimate constitutional right and obligation of the legislative body

to judge the election returns for its own members.20

See Meyer v. Lamm, 846 P.2d 862, 870 (Colo. 1993)

(‘‘proceedings involving recounts of election results

which are inherently tentative and are not final or con-
clusive, and in which recounts are conducted pursuant

to the election laws prior to the certification by the

secretary of state that a person has been duly elected,

are not ‘election contests’ ’’ for purpose of state constitution’s elections clause); State ex rel. Wheeler v. Shelby

Circuit Court, supra, 267 Ind. 268 (statute requiring

court to order and superintend recount involving state

legislative office did not impinge on legislature’s authority under elections clause because recount is not binding and ‘‘is merely an extension of this voting process

and has been provided for by the legislature in an effort

to [ensure] the correctness of the vote count’’); Rice v.

Power, 19 N.Y.2d 106, 108, 224 N.E.2d 865, 278 N.Y.S.2d

361 (1967) (statute conferring jurisdiction on court to

order recanvass of ballots in order to ensure ‘‘that the

certificate reflect[s] an accurate tally of the votes cast’’

did not impinge on constitutional authority of constitutional convention to judge election returns of its members when convention remained free to disregard

certificate of election); Williamson v. State Election

Board, 431 P.2d 352, 355–56 (Okla. 1967) (court has

constitutional authority to enforce statutory recount

procedure by order of mandamus); McIntyre v. Wick,

supra, 558 N.W.2d 356–57 (concluding that statute conferring power on state supreme court to review procedures of judicially appointed recount boards that was

‘‘necessary to guard against irregularities and errors in

the tabulation of votes and [to verify] the accuracy

of elections results’’ did not violate elections clause

because court ‘‘lack[ed] . . . any jurisdiction to dictate

the final determination of a legislative election,’’ and

noting that its ‘‘review of a recount and judgment in

such a proceeding merely constitutes evidence’’ [footnote omitted]).

In our view, these recount cases are distinguishable

because a recount is a process that requires the ministerial action of tallying the votes cast—thus ensuring the

accuracy of the vote tally that the legislature is ultimately to consider—rather than finding facts in a judicial manner with respect to the fairness or legality of

the underlying elections process. See Young v. Mikva,

66 Ill. 2d 579, 584–85, 363 N.E.2d 851 (1977) (distinguishing Roudebush as upholding constitutionality of administrative recount of ballots under state procedures,

rather than sanctioning election contest for congressional seat); Lamb v. Hammond, 308 Md. 286, 303–304,

518 A.2d 1057 (1987) (concluding that state constitution

did not preclude jurisdiction over action based ‘‘upon

a timely complaint that canvassing officials have

improperly refused to canvass votes that were lawfully

cast,’’ and that ‘‘the appropriate court . . . may inquire

into the matter, determine whether the administrative

officials have carried out their ministerial duties in

accordance with the law, and, if they have not, command them to do so,’’ because this exercise of jurisdiction was ‘‘complementary’’ of legislature’s jurisdiction
over election contests under state elections clause);

McIntyre v. Wick, supra, 558 N.W.2d 356 n.7 (distinguishing ‘‘election contest,’’ which ‘‘relates to a determination of the election,’’ from ‘‘[a] recount [that] is

addressed only to the correct determination of the true

and actual count of the ballots cast,’’ and noting that

‘‘[d]uties in connection with a recount . . . are more

in the nature of a ministerial or administrative function

than a judicial or determinative function’’).

The plaintiff raises several prudential arguments to

bolster his interpretation of the elections clause that

would allow the exercise of jurisdiction by the courts

over legislative election disputes. He contends that the

courts must have jurisdiction over disputes involving

the election process because only they have the authority to grant the relief that he is requesting, namely, a

new election. In support of this claim, he relies on the

statement of the North Dakota Supreme Court in State

ex rel. Olson v. Bakken, supra, 329 N.W.2d 579, that

‘‘the [l]egislature is not in a position to provide any

affirmative equitable remedy. The [l]egislature could

reject the ‘election’ of a legislator which may put into

operation certain provisions of the [state] [c]onstitution

and statutes resulting in the [g]overnor calling a special

election. But other affirmative equitable remedies

would not be available.’’ See also McIntyre v. Wick,

supra, 558 N.W.2d 356 n.7 (describing ‘‘dearth of affirmative equitable remedies available from the legislature

for irregularities in the election process’’). Second, the

plaintiff relies on the South Dakota Supreme Court’s

observation in McIntyre, supporting the complementary exercise of jurisdiction over election challenges by

the courts and the legislature, that the ‘‘legislature is

not normally in session when the general election is

held. Consequently, considerable confusion and delay

would result if the above superintending responsibilities were borne exclusively by the legislature.’’ Id., 356;

see State ex rel. Olson v. Bakken, supra, 578 (same).

These arguments bring us, then, to the Geisler factor

requiring us to consider the public policy aspects of

the constitutional question.

First, we disagree with the plaintiff’s reliance on the

North Dakota decision in State ex rel. Olson v. Bakken,

supra, 329 N.W.2d 579. That decision is an outlier in

that it is one of the very few in which a state court has

held that a state constitutional provision analogous to

our elections clause does not confer exclusive jurisdiction on each legislative house to judge the elections

returns for its own members.21 Moreover, the court in

Bakken cited no authority in support of its statement

that the only relief that a legislative house can provide

when exercising its power to judge election returns is

the rejection of a member and the scheduling of a special election. Finally, Bakken is squarely distinguishable

because, unlike in the present case, that court had the

benefit of a broadly worded election contest statute to
support its exercise of jurisdiction.22 Accordingly, we

conclude that Bakken is of minimal persuasive value.

Instead, we find telling, as a public policy matter, the

absence of a statute authorizing elections contests in

state legislative elections, when the legislature has provided such a statute for virtually every other state, federal, and municipal election. See General Statutes § 9-

323 (election of presidential electors, United States senator, and United States representative); General Statutes § 9-324 (election of probate judges and governor,

lieutenant governor, secretary of the state, treasurer,

attorney general, and comptroller); General Statutes

§ 9-328 (municipal officers and justice of peace); General Statutes § 9-329a (primary elections). The General

Assembly has simply passed no statute sharing its

authority over general legislative elections with the

courts. Insofar as the legislature has ‘‘primary responsibility in pronouncing the public policy of our state’’;

(internal quotation marks omitted) Doe v. Hartford

Roman Catholic Diocesan Corp., supra, 317 Conn. 438;

we do not presume to fill this gap in our statutory

scheme, particularly given the questionable constitutionality of doing so.23 See footnote 20 of this opinion.

Instead, our state House of Representatives has thus

far addressed this gap in the election contest statutory

scheme by adopting House Rule No. 19 to implement

its constitutional function of judging the elections

returns for its own members. The current version of

House Rule No. 19 provides: ‘‘At the opening of each

session a committee on contested elections, consisting

of four members, at least two of whom shall be members

of the minority party in the House, shall be appointed

by the speaker to take into consideration all contested

elections of the members of the House and to report

the facts, with their opinion thereon in a manner that

may be directed by House resolution.’’ House Res. No.

2, 2019 Sess. (adopted January 9, 2019). Inasmuch as

proceedings pursuant to House Rule No. 19 are ‘‘in a

judicial character’’; (emphasis omitted; internal quotation marks omitted) Morgan v. United States, supra,

801 F.2d 448; we understand the committee, and our

state House of Representatives as a whole acting pursuant to the opinion of the committee, to have all of the

powers that a judicial body would have. The exercise

of this judicial power ‘‘necessarily involves the ascertainment of facts, the attendance of witnesses, the

examination of such witnesses, with the power to compel them to answer pertinent questions, to determine

the facts and apply the appropriate rules of law, and,

finally, to render a judgment which is beyond the

authority of any other tribunal to review.’’

24 (Emphasis

in original; internal quotation marks omitted.) Id.

Accordingly, in the absence of a rule, statute, or constitutional provision otherwise limiting the state House

of Representatives’ remedial authority, we can see no

reason why it—sitting as a quasi-judicial body—would
lack that authority to order equitable remedies, including a new election, upon receipt of the committee’s

report.25 See P. Salamanca & J. Keller, ‘‘The Legislative

Privilege To Judge the Qualifications, Elections, and

Returns of Members,’’ 95 Ky. L.J. 241, 338 (2007)

(describing Senate’s ‘‘pragmatic step of declaring [New

Hampshire] seat vacant’’ when, in ‘‘closest [United

States] Senate race in history, the Senate decided that

it could not satisfactorily determine [who] had prevailed, yet no one had established that the two [candidates] had received the same number of votes’’

[footnote omitted]). We conclude, therefore, that, as a

public policy matter, legislative election contests are

‘‘an adequate and constitutional remedy . . . .’’ Gammage v. Compton, supra, 548 S.W.2d 4.

Our review of the Geisler factors leads us to conclude

that the elections clause affords the state House of

Representatives exclusive jurisdiction over the plaintiff’s election challenge in this case, particularly in the

absence of legislation sharing that jurisdiction with the

courts in some way. We are, however, cognizant of the

seriousness of the plaintiff’s allegations in this case,

insofar as the alleged distribution of the wrong ballots

could have deprived numerous electors of their right

to cast a vote for their state representative, and that

the margin was small enough that the alleged error

might have affected the outcome of the election. Given

the seriousness of those claims, and its exclusive jurisdiction under the elections clause, we ‘‘must presume

that the members of the General Assembly will carry

out their duties with scrupulous attention to the laws

under which they serve. [W]e must and should presume

that any officer of the state . . . will act lawfully, correctly, in good faith and in sincerity of purpose in the

execution of his [or her] duties.’’26 (Footnote omitted;

internal quotation marks omitted.) Kinsella v. Jaekle,

supra, 192 Conn. 729; see also General Statutes § 1-25

(prescribing identical oath to uphold Connecticut and

federal constitutions for judges and members of General Assembly). Accordingly, we conclude that exclusive jurisdiction over the plaintiff’s claims in the present

case lies with our state House of Representatives.27

B

Whether General Statutes § 9-328 Confers

Jurisdiction in This Case

We next address the plaintiff’s contention that, even

if the elections clause deprives the court of inherent

jurisdiction to entertain the plaintiff’s complaint seeking a new election, it nevertheless has jurisdiction pursuant to § 9-328, which governs election contests for

‘‘municipal office.’’ In particular, the plaintiff relies on

the broad wording of § 9-328, which extends to ‘‘any

municipal office,’’ and argues that it applies to the election of the state representative for the 120th assembly

district because only the electors of the town may vote
in that election, thus rendering that seat a municipal

office as that term is defined by General Statutes § 9-372

(7).28 The plaintiff also posits that § 9-328 is applicable

because the parties have ‘‘consistently treated this election as one for a ‘municipal office,’ ’’ given that the

‘‘candidates followed the statutory nomination procedure applicable to ‘municipal offices’ ’’ because the

120th assembly district is limited to a single town.

In response, the defendants contend that § 9-328 does

not apply because the office of state representative for

the 120th assembly district is not a ‘‘municipal office.’’

They contend that the statutory scheme plainly and

unambiguously establishes that § 9-328 is inapplicable

because it pertains only to ‘‘municipal elections,’’ as

defined by General Statutes § 9-1 (h) and (i), which are

elections for the ‘‘public officials of such municipality,’’

with ‘‘municipality’’ defined as ‘‘any city, borough or

town within the state.’’ (Internal quotation marks omitted.) To this end, the defendants rely on, inter alia,

Republican Party of Connecticut v. Merrill, 307 Conn.

470, 55 A.3d 251 (2012), and argue that the definition

of ‘‘municipal office’’ set forth in § 9-372 (7) is expressly

inapplicable in this case by its own terms. The defendants contend that the plaintiff’s construction would

lead to a ‘‘mystifyingly absurd and likely unconstitutional result,’’ namely, that ‘‘individuals in a single town

assembly district would be able to seek judicial review

of alleged election irregularities under § 9-328, while

candidates and electors in multitown assembly districts

would have no such remedy. Such differential treatment

of individuals based solely on where they happen to

live plainly is not what the legislature provided or

intended.’’29 We agree with the defendants and conclude

that an election for a house seat is not one for a ‘‘municipal office’’ subject to challenge pursuant to § 9-328.

Whether the office of state representative for the

120th assembly district is a ‘‘municipal office’’ for purposes of jurisdiction under § 9-328 ‘‘presents a question

of statutory construction over which we exercise plenary review. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the

apparent intent of the legislature. . . . In other words,

we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts

of [the] case, including the question of whether the

language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us

first to consider the text of the statute itself and its

relationship to other statutes. If, after examining such

text and considering such relationship, the meaning of

such text is plain and unambiguous and does not yield

absurd or unworkable results, extratextual evidence of

the meaning of the statute shall not be considered. . . .

When a statute is not plain and unambiguous, we also

look for interpretive guidance to the legislative history

and circumstances surrounding its enactment, to the
legislative policy it was designed to implement, and to

its relationship to existing legislation and common-law

principles governing the same general subject matter

. . . . The test to determine ambiguity is whether the

statute, when read in context, is susceptible to more

than one reasonable interpretation. . . . Previous case

law interpreting the statute remains instructive,

because we do not write on a clean slate when this

court previously has interpreted a statute . . . .’’ (Citation omitted; internal quotation marks omitted.) Marchesi v. Board of Selectmen, 328 Conn. 615, 627–28, 181

A.3d 531 (2018).

We begin with the text of § 9-328, which provides in

relevant part that ‘‘[a]ny elector or candidate claiming

to have been aggrieved by any ruling of any election

official in connection with an election for any municipal office . . . may bring a complaint to any judge of

the Superior Court for relief therefrom.’’ (Emphasis

added.) The plaintiff relies on § 9-372 (7), which provides: ‘‘ ‘Municipal office’ means an elective office for

which only the electors of a single town, city, borough,

or political subdivision, as defined in subdivision (10)

of this section, may vote, including the office of justice

of the peace.’’30 Reading the statutory scheme as a

whole, we conclude that the plaintiff’s reliance on the

definition of ‘‘municipal office’’ in § 9-372 (7) is misplaced and that § 9-328 plainly and unambiguously does

not apply to state legislative races, even those for seats

located within the boundaries of a single municipality.

Turning first to the inapplicability of § 9-372 (7), we

observe that the legislature expressly limited the applicability of that definition to cases that do not include

election contests. Section 9-372 expressly provides that

the definitions set forth in that statute apply to ‘‘chapter

[153], chapter 157 and sections 9-51 to 9-67, inclusive,

9-169e, 9-217, 9-236 and 9-361 . . . .’’ We have held that

this itemization in § 9-372 is exclusive. Specifically, in

construing the ballot ordering statute, General Statutes

§ 9-249a, we recently concluded that the ‘‘definitions in

§ 9-372 . . . do not, by their own terms, apply to the

ballot ordering statute. Indeed, § 9-249a is conspicuously absent from the list of statutes to which the definitions in § 9-372 apply. Unless there is evidence to the

contrary, statutory itemization indicates that the legislature intended the list to be exclusive.’’ (Footnote omitted; internal quotation marks omitted.) Republican

Party of Connecticut v. Merrill, supra, 307 Conn.

492–93; see also id., 494 (‘‘[t]hus, in 2010, the Working

Families Party was a ‘minor party’ for the purposes of

[General Statutes] § 9-453t, which permitted it to cross

endorse a major party candidate, but not a ‘minor party’

under the § 9-372 definition, which does not govern the

section we are called on to interpret’’). Because § 9-328

is contained in chapter 149 of the General Statutes, and

therefore not in the chapters or sections listed in § 9-

372, the definition of ‘‘municipal office’’ contained in
§ 9-372 (7), by its own unambiguous terms, does not

apply to § 9-328.31 See, e.g., DeNunzio v. DeNunzio,

320 Conn. 178, 194, 128 A.3d 901 (2016) (‘‘[u]nder the

doctrine of expressio unius est exclusio alterius—the

expression of one thing is the exclusion of another—

we presume that when the legislature expresses items

as part of a group or series, an item that was not

included was deliberately excluded’’).

Rather, the applicable definition is set forth in General Statutes § 9-1, which is the broader definitional

provision applicable to the elections statutes contained

in title 9 of the General Statutes, which contains both

chapter 149 and § 9-372 of the General Statutes

‘‘[e]xcept as otherwise provided . . . .’’ Section 9-1 (h)

provides that ‘‘ ‘[m]unicipal election’ means the regularly recurring election held in a municipality at which

the electors of the municipality choose public officials

of such municipality . . . .’’ (Emphasis added.) In

ordinary usage, a state representative is not a ‘‘public

[official] of a municipality,’’ such as a mayor, first selectman, or council member, but is a public official of an

assembly district. Although § 9-328 does not use the

phrase ‘‘municipal election’’ but, instead, uses the

phrase ‘‘election for any municipal office,’’ it is reasonable to conclude that the legislature intended that, for

purposes of that statute, a ‘‘municipal office’’ is an office

occupied by a public official of a municipality, rather

than a state legislative position voted in a ‘‘state election,’’ which is defined as ‘‘the election held in the state

on the first Tuesday after the first Monday in November

in the even-numbered years in accordance with the

provisions of the Constitution of Connecticut . . . .’’

General Statutes § 9-1 (s).

Beyond the plain and unambiguous statutory text,

the plaintiff’s construction of § 9-328 would authorize

aggrieved electors and candidates for the office of state

representative to bring a complaint to the trial court

pursuant to § 9-328 if the assembly district was located

entirely within one town, but not if the assembly district

crosses town boundaries. The plaintiff has provided no

explanation as to why the legislature might have wanted

to authorize such different treatment of assembly districts based on this arbitrary distinction, which would

also appear to run afoul of the axiom ‘‘that those who

promulgate statutes . . . do not intend to promulgate

statutes . . . that lead to absurd consequences or

bizarre results. . . . Accordingly, [w]e construe a statute in a manner that will not . . . lead to absurd

results.’’ (Citations omitted; internal quotation marks

omitted.) Raftopol v. Ramey, 299 Conn. 681, 703, 12 A.3d

783 (2011). Moreover, given the constitutional concerns

created by this distinction, from the perspective of both

the equal protection and elections clauses, we also rely

on the proposition that ‘‘statutes are to be read so as

to avoid, rather than to create, constitutional questions.’’ In re Valerie D., 223 Conn. 492, 534, 613 A.2d 748
(1992). Given that the legislature has enacted election

contest statutes unambiguously addressing every other

state and federal elected position,32 we conclude that

it similarly would have used unambiguous language to

address this point had it intended to allow legislative

election contests only in certain assembly districts.33

Accordingly, we conclude that the office of state representative for the 120th assembly district is not a ‘‘municipal office’’ for purposes of § 9-328 and that, therefore,

that statute does not confer jurisdiction over this case

on the courts.34

C

Whether State Courts Have Jurisdiction over the

Plaintiff’s Federal Constitutional Claims,

Regardless of the State Elections Clause

We next address the plaintiff’s claim that the trial

court had jurisdiction to entertain his complaint

because he brought a claim pursuant to 42 U.S.C. § 1983,

alleging due process and equal protection violations

under the federal constitution. See Bush v. Gore, 531

U.S. 98, 104–105, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000)

(‘‘[h]aving once granted the right to vote on equal terms,

the [s]tate may not, by later arbitrary and disparate

treatment, value one person’s vote over that of

another’’); Baker v. Carr, 369 U.S. 186, 208, 82 S. Ct.

691, 7 L. Ed. 2d 663 (1962) (‘‘[a] citizen’s right to a vote

free of arbitrary impairment by state action has been

judicially recognized as a right secured by the [c]onstitution’’). Relying on, inter alia, Sullins v. Rodriguez, 281

Conn. 128, 913 A.2d 415 (2007), and Fetterman v. University of Connecticut, 192 Conn. 539, 473 A.2d 1176

(1984), the plaintiff further contends that, under the

supremacy clause of the United States constitution,

‘‘state law defenses [such as lack of jurisdiction under

article third, § 7, of the state constitution] cannot be

asserted against federal constitutional claims . . . .’’

In response, the defendants rely on the decisions of the

United States Court of Appeals for the Second Circuit

in Shannon v. Jacobowitz, 394 F.3d 90 (2d Cir. 2005),

and Powell v. Power, 436 F.2d 84 (2d Cir. 1970), and

contend that the plaintiff has not made a colorable

claim of a federal constitutional violation because he

has alleged only errors in the conduct of the election,

rather than an intentional act by a government official

directed at impairing a citizen’s right to vote. Assuming

that the supremacy clause of the United States constitution would override the divestiture of jurisdiction by the

elections clause in the Connecticut constitution with

respect to federal constitutional claims arising from a

state legislative election, we conclude that the plaintiff

nevertheless has not sufficiently pleaded federal constitutional claims.35

In considering claims of federal law, it is well settled

that, when the United States Supreme Court has not

spoken, we find decisions of the Second Circuit particu-
larly persuasive. See, e.g., Gleason v. Smolinski, 319

Conn. 394, 444 n.41, 125 A.3d 920 (2015); Schnabel v.

Tyler, 230 Conn. 735, 742–43, 646 A.2d 152 (1994). ‘‘In

deciding to adopt the analysis of the Second Circuit

. . . we recognize that the decisions of the federal circuit in which a state court is located are entitled to

great weight in the interpretation of a federal statute.

This is particularly true in 42 U.S.C. § 1983 cases, where

the federal statute confers concurrent jurisdiction on

the federal and state courts.’’ (Internal quotation marks

omitted.) Schnabel v. Tyler, supra, 743 n.4. This avoids

the ‘‘bizarre result’’ that would occur if we adopted one

standard, ‘‘when in another courthouse, a few blocks

away, the federal court, being bound by the Second

Circuit rule,’’ followed a different standard. (Internal

quotation marks omitted.) Id. ‘‘We do not believe that

when Congress enacted the concurrent jurisdiction provision of § 1983 that it intended to create such a disparate treatment of plaintiffs depending on their choice

of a federal or state forum.’’ (Internal quotation marks

omitted.) Id.

The Second Circuit has stated that the ‘‘right to vote

is regarded as a fundamental political right . . . preservative of all rights. . . . As the citizen’s link to his laws

and government . . . the right to vote is at the heart

of our democracy. . . .

‘‘’Principles of federalism limit the power of federal

courts to intervene in state elections, however. . . .

The [c]onstitution leaves the conduct of state elections

to the states . . . and the Supreme Court has recognized that the [s]tates have long been held to have broad

powers to determine the conditions under which the

right of suffrage may be exercised. . . . Because the

states traditionally have authority over their own elections and because the [c]onstitution contemplates that

authority, courts have long recognized that not every

state election dispute implicates federal constitutional

rights. . . . Only in extraordinary circumstances will

a challenge to a state [or local] election rise to the level

of a constitutional deprivation.’’ (Citations omitted;

internal quotation marks omitted.) Shannon v. Jacobowitz, supra, 394 F.3d 93–94.

In Shannon, the Second Circuit emphasized that, in

Daniels v. Williams, 474 U.S. 327, 328, 106 S. Ct. 662,

88 L. Ed. 2d 662 (1986), the United States Supreme

Court ‘‘clearly articulated that a finding of intentional

conduct was a prerequisite for a due process claim.

. . . Although Daniels was not a voting case, this

[c]ourt’s own cases support the application of the Daniels holding to the election context. In Powell v. Power,

[supra, 436 F.2d 85–86], six voters in a Congressional

primary sought a federal remedy for errors committed

by state election officials in permitting a number of

individuals to cast ballots who under state law were

not qualified to vote. The plaintiffs brought suit under
42 U.S.C. § 1983, invoking, inter alia, the [d]ue [p]rocess

[c]lause of the [f]ourteenth [a]mendment. The [c]ourt

found that ‘the due process clause and [article I, § 2,

offer] no guarantee against errors in the administration

of an election.’ ’’ Shannon v. Jacobowitz, supra, 394

F.3d 94. The Second Circuit observed that subsequent

case law had reaffirmed the ‘‘intentional conduct

requirement of Powell and Daniels,’’ and that, in voting

cases, ‘‘plaintiffs must prove an intentional act in order

to show a due process violation.’’ Id., 95–96.

Significantly, the court further emphasized that, in

‘‘general, garden variety election irregularities do not

violate the [d]ue [p]rocess [c]lause, even if they control the outcome of the vote or election. . . . Examples

of such garden variety irregularities as identified by

the federal courts include: malfunctioning of voting

machines . . . human error resulting in miscounting

of votes and delay in arrival of voting machines . . .

allegedly inadequate state response to illegal cross-over

voting . . . mechanical and human error in counting

votes . . . technical deficiencies in printing ballots

. . . mistakenly allowing non-party members to vote

in a congressional primary . . . and arbitrary rejection

of ten ballots . . . .’’36 (Citations omitted; internal quotation marks omitted.) Id., 96. Thus, the court concluded

in Shannon that even an ‘‘ ‘outcome determinative’ ’’

malfunction of a voting machine in a local election was

not a due process violation for purposes of liability

under 42 U.S.C. § 1983; id., 94; because ‘‘[a]t no point

have [the plaintiffs] alleged that local officials acted

intentionally or in a discriminatory manner with regard

to the vote miscount. Both sides concede that the

recorded results were likely due to an unforeseen malfunction with [a particular] voting machine . . . . A

voting machine malfunction is the paradigmatic example of a ‘garden variety’ election dispute.’’ Id., 96. It

described the voting machine malfunction as ‘‘differ[ing] significantly from purposeful state conduct

directed at disenfranchising a class or group of citizens.’’37 Id.; see also id., 97 (declining to ‘‘invite federal

intervention into every negligent disruption of a local

election’’).

It is well settled in the Second Circuit that establishing an equal protection violation requires similar proof

of intentional discrimination. See Powell v. Power,

supra, 436 F.2d 88 (‘‘[u]neven or erroneous application

of an otherwise valid statute constitutes a denial of

equal protection only if it represents intentional or purposeful discrimination’’ [internal quotation marks omitted]); see also Rivera-Powell v. New York City Board of

Elections, 470 F.3d 458, 469–70 (2d Cir. 2006) (extending

Shannon to first amendment violations premised on

‘‘allegedly unauthorized application of an admittedly

valid restriction’’ because ‘‘a contrary holding would

permit any plaintiff to obtain federal court review of

even the most mundane election dispute merely by add-
ing a [f]irst [a]mendment claim to his or her due process

claim’’ [emphasis in original]). Indeed, the Second Circuit subsequently held that ‘‘ ‘fundamental unfairness’

alone, in the absence of intentional state conduct,’’ is

not sufficient to establish a constitutional violation.

Hoblock v. Albany County Board of Elections, 422 F.3d

77, 97–98 (2d Cir. 2005). As the court stated in Powell,

‘‘we cannot believe that the framers of our [c]onstitution

were so hypersensitive to ordinary human frailties as

to lay down an unrealistic requirement that elections

be free of any error.’’ Powell v. Power, supra, 88.

In the operative complaint in the present case does

not allege any intentional misconduct on the part of

the officials charged with conducting the election for

the 120th assembly district. Rather, in the allegations

incorporated into the plaintiff’s constitutional claims,

he pleads that, ‘‘[d]uring the election on November 6,

2018, an irregularity developed during the day at the

Bunnell High School polling location,’’ namely, that,

‘‘[a]round midday, a packet of ballots for the 122nd

assembly district was mistakenly used in the 120th

assembly district voting line.’’ (Emphasis added.) He

further states that, ‘‘[a]s a result of this mistake, voters

who were eligible to vote for state representative for

the 120th assembly district were unable to do so, instead

potentially casting votes in the wrong district.’’ (Emphasis added.) The plaintiff then alleges that the moderator

took corrective action and ‘‘noted the incident in his

log as required’’ after ‘‘a voter detected the mistake.’’

(Emphasis added.) Nowhere does the plaintiff allege

any intentional acts on the part of the election officials,

describing the ballot mix-up only as ‘‘irregularities.’’

Thus, the plaintiff has pleaded only a ‘‘garden variety

election dispute’’ akin to the malfunctioning voting

machine in Shannon, rather than the intentional conduct sufficient to state a constitutional claim under

Second Circuit case law.38 See Hill v. Gunn, 367 F.

Supp. 2d 532, 534–35 (S.D.N.Y. 2005) (concluding that

plaintiff did not state violation of right to vote under

federal due process clause when she pleaded election

workers ‘‘knew or should have known that because

plaintiff’s polling machine malfunctioned, she was

unable to cast her vote and they therefore should have

given her an additional opportunity to recast her vote,’’

and that their refusal to permit her to recast vote was

not act sufficiently intended to deprive her of constitutional right). We, therefore, conclude that the plaintiff

has not made a colorable claim of a constitutional violation because he has alleged only that local elections

officials made an unintentional mistake, rather than

adopted an intentional practice or policy.39 Accordingly,

even if our state courts would have jurisdiction over

such a federal constitutional claim, the plaintiff has not

sufficiently pleaded such a claim in the present case,

and we uphold its dismissal by the trial court. See footnote 35 of this opinion.
II

THE DEFENDANTS’ APPEALS FROM THE

GRANT OF INJUNCTIVE RELIEF

We next turn to the defendants’ appeals in which

they claim that the trial court improperly granted the

plaintiff’s motion for a temporary injunction prohibiting

the state officials from declaring a winner pursuant to

§ 9-319. The plaintiff disagrees, and also contends that

the defendants’ appeals have been rendered moot

because of the passage of the statutory deadline in § 9-

319, which requires that the ‘‘votes from the election

be canvassed and a winner declared ‘during the month

in which they are cast,’ ’’ namely, November, 2018.

A

Mootness

Because it implicates this court’s appellate subject

matter jurisdiction, we begin with the plaintiff’s mootness claim. The plaintiff contends that the defendants’

appeals challenging the trial court’s order of injunctive

relief have been rendered moot because of the passage

of the statutory deadline in § 9-319. The plaintiff posits

that the ‘‘only way that there can be compliance with

. . . § 9-319 is with a new, complete, and constitutional

election, where the votes are canvassed and the winner

declared in the same month in which they are cast,

after all eligible voters have had the opportunity to

participate.’’ The plaintiff contends that the defendants

‘‘cannot get practical relief through their appeals,’’ in

which they seek reversal of the injunction, because

even if this court reverses that order, ‘‘§ 9-319 remains

unchallenged and in effect and, therefore, votes from

the constitutionally infirm November 6, 2018 election

now cannot be canvassed.’’ The plaintiff relies on Office

of the Governor v. Select Committee of Inquiry, 271

Conn. 540, 858 A.2d 709 (2004), which had deemed

significant the fact that an appeal was heard and

decided before the impeachment committee’s deadline,

and argues that the defendants’ appeals are moot

because of the passage of the November 30 deadline.

In response, the state defendants contend that practical

relief remains available because, independent of § 9-

319, article third, § 7, of the Connecticut constitution

gives them a mandatory duty to canvass and declare.

The state defendants also contend that the plaintiff does

not cite any legal authority for the proposition that

noncompliance with the statutory deadline actually precludes them from performing their election duties. We

agree with the defendants, and conclude that their

appeals are not moot.

‘‘It is well established that [m]ootness implicates

[this] court’s subject matter jurisdiction and is thus a

threshold matter for us to resolve. . . . It is a wellsettled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdic-
tion; it is not the province of appellate courts to decide

moot questions, disconnected from the granting of

actual relief or from the determination of which no

practical relief can follow. . . . An actual controversy

must exist not only at the time the appeal is taken, but

also throughout the pendency of the appeal. . . .

When, during the pendency of an appeal, events have

occurred that preclude an appellate court from granting

any practical relief through its disposition of the merits,

a case has become moot.’’ (Internal quotation marks

omitted.) In re Emma F., 315 Conn. 414, 423–24, 107

A.3d 947 (2015); see also, e.g., Statewide Grievance

Committee v. Burton, 282 Conn. 1, 13, 917 A.2d 966

(2007) (‘‘the central question in a mootness problem is

whether a change in the circumstances that prevailed

at the beginning of the litigation has forestalled the

prospect for meaningful, practical, or effective relief’’).

Appeals challenging temporary injunctions may be

rendered moot by, inter alia, the cessation of the challenged activity or the expiration of the injunction by

its own terms. See, e.g., Connecticut State Employees

Assn. v. American Federation of State, County &

Municipal Employees, AFL-CIO, 188 Conn. 196, 199–

200, 448 A.2d 1341 (1982). Whether an appeal from an

injunction is, however, rendered moot by the passage

of a statutory deadline for the enjoined action is a question of first impression for this court.40 On this point, we

find instructive the decision of the District of Columbia

Circuit in Jacksonville Port Authority v. Adams, 556

F.2d 52 (D.C. Cir. 1977). In Jacksonville Port Authority,

the court concluded that an appeal from a denial of a

temporary restraining order was not moot because a

port authority could vindicate its right to a grant from

the Federal Aviation Administration, despite the passage during the pendency of the litigation of a statutory

deadline for the initiation of such grants, because a

‘‘congressional deadline on an agency’s ability to take

action on its own motion does not preclude an agency’s

authority to take later action on direction of a court

exercising judicial review.’’ Id., 56–57. The court emphasized that ‘‘equitable considerations prevent an agency

from raising a statutory prohibition on it—in reality,

[as] a command to meet a deadline—as a defense to a

suit brought prior to that deadline for money withheld

by the agency’s arrogation of unauthorized discretion.’’

Id., 55; see id. (observing that statutory deadline was

intended ‘‘to avoid procrastination and the dangers of

an agency discretion to dip into old unused authorizations’’). The court emphasized that the port authority

had ‘‘made timely application and brought suit within

the time the agency is authorized to act, seeking judicial

determination and vindication of its entitlement to the

funds.’’ Id., 56. The court determined that, ‘‘in the interest of justice, the court may proceed as if action that

should have been taken in the courthouse was timely

taken,’’ and that ‘‘it is a well-established prerogative of
the [c]ourt to treat as done that which should have been

done.’’ (Internal quotation marks omitted.) Id.; see also

Recording Industry Assn. v. Copyright Royalty Tribunal, 662 F.2d 1, 18 n.40 (D.C. Cir. 1981) (‘‘[t]he statutory

provision requiring the [defendant] to render its final

decision within one year from initiation of proceedings

. . . does not preclude further proceedings on direction of a court exercising judicial review’’ [citation omitted]); accord Sierra Pacific Industries v. Lyng, 866

F.2d 1099, 1111–12 (9th Cir. 1989) (when statutory deadline is not ‘‘jurisdictional,’’ court may order equitable

relief to compensate for agency’s failure to act). This

federal case law indicates, then, that the passage of the

statutory deadline for an action that had been enjoined

does not render moot an appeal from that injunction.

The District of Columbia Circuit’s decision in Jacksonville Port Authority is consistent with Connecticut

courts’ authority—in the absence of statutory preclusion—to render judgments nunc pro tunc, or ‘‘now for

then,’’ when ‘‘necessary in furtherance of justice and

in order to save a party from unjust prejudice . . .

caused by the act of the court or the course of judicial

procedure. In other words, the practice is intended

merely to make sure that one shall not suffer for an

event which he could not avoid.’’ (Internal quotation

marks omitted.) Gary Excavating Co. v. North Haven,

163 Conn. 428, 430, 311 A.2d 90 (1972). Thus, it is significant that there is nothing in § 9-319 that suggests that

the appeal from the injunction was rendered moot by

the passage of the November 30 deadline. That statute

provides: ‘‘The votes for state senators, state representatives and judges of probate, as returned by the moderators, shall be canvassed, during the month in which

they are cast, by the Treasurer, Secretary of the State

and Comptroller, and they shall declare, except in case

of a tie vote, who is elected senator in each senatorial

district, representative in each assembly district and

judge of probate in each probate district. The Secretary

of the State shall, within three days after such declaration, give notice by mail to each person chosen state

senator, state representative or judge of probate of his

election.’’ (Emphasis added.) General Statutes § 9-319.

First, the statutory language setting the deadline of ‘‘during the month in which they are cast,’’ modifies only

the canvassing requirement, rather than the timing of

the declaration. Second, there are no ‘‘negative words’’

in the statute invalidating or nullifying a canvass or

declaration made after the passage of one month.41 Cf.

Butts v. Bysiewicz, 298 Conn. 665, 678–80, 5 A.3d 932

(2010) (noting that General Statutes § 9-388, which

requires that certificate of party’s endorsement be

received by prescribed deadline, has language providing

that ‘‘ ‘certificate shall be invalid,’ ’’ or ‘‘lack legal

effect,’’ and also states that absence of certificate means

that political party ‘‘shall be deemed to have made no

endorsement of any candidate for such office’’). Accord-
ingly, we conclude that the defendants’ appeals from

the grant of the temporary injunction are not moot.

B

Merits

As to the defendants’ challenge to the temporary

injunction, they first contend that, because the trial

court lacked jurisdiction over this case, it similarly

lacked jurisdiction to consider the plaintiffs’ motion for

a temporary injunction, and should have dismissed the

motion on that ground. The state defendants further

emphasize that the trial court improperly relied on

Kinsella v. Jaekle, supra, 192 Conn. 704, in support of

its conclusion that it had jurisdiction over the plaintiff’s

motion for a temporary injunction. In response, the

plaintiff reiterates his jurisdictional arguments, previously addressed in part I of this opinion, to support

the trial court’s exercise of its jurisdiction to order a

temporary injunction. We agree with the defendants,

and conclude that the trial court lacked jurisdiction to

enjoin the state defendants from declaring a winner

pursuant to § 9-319.42

‘‘A prayer for injunctive relief is addressed to the

sound discretion of the court and the court’s ruling

can be reviewed only for the purpose of determining

whether the decision was based on an erroneous statement of law or an abuse of discretion. . . . Therefore,

unless the trial court has abused its discretion . . .

the trial court’s decision must stand. . . . How a court

balances the equities is discretionary but if, in balancing

those equities, a trial court draws conclusions of law,

our review is plenary.’’ (Citation omitted; internal quotation marks omitted.) Commissioner of Correction v.

Coleman, 303 Conn. 800, 810, 38 A.3d 84 (2012), cert.

denied, 568 U.S. 1235, 133 S. Ct. 1593, 185 L. Ed. 2d 589

(2013); see also, e.g., Aqleh v. Cadlerock Joint Venture

II, L.P., 299 Conn. 84, 97–98, 10 A.3d 498 (2010) (standard for granting temporary injunction).

If the trial court lacks subject matter jurisdiction over

a case, it similarly lacks jurisdiction to render even

a temporary injunction. See Olcott v. Pendleton, 128

Conn. 292, 295–96, 22 A.2d 633 (1941) (emphasizing difference between jurisdiction and merits with

respect to temporary injunctions); cf. Park City Hospital v. Commission on Hospitals & Health Care, 210

Conn. 697, 701–702, 556 A.2d 602 (1989) (given that trial

court had equitable jurisdiction pursuant to General

Statutes § 52-1, it did not need to consider aggrievement

for purposes of administrative appeal before granting

application for stay and restraining order); Holley v.

McDonald, 154 Conn. 228, 233, 224 A.2d 727 (1966)

(distinguishing ‘‘an erroneous exercise of the court’s

equitable jurisdiction’’ from ‘‘an action beyond that equitable jurisdiction’’). Given our conclusion that the trial

court lacked jurisdiction over the plaintiff’s claims in
the present case; see part I of this opinion; we conclude

that it similarly lacked jurisdiction to enjoin the state

defendants from canvassing the votes and declaring a

winner, even temporarily. Accordingly, the temporary

injunction must be vacated.43 See footnote 7 of this

opinion.

The judgment is reversed insofar as it denied Young’s

motion to dismiss in part and granted the plaintiff’s

application for a temporary injunction, and the case is

remanded with direction to grant Young’s motion to

dismiss in its entirety; the judgment is affirmed in all

other respects.

In this opinion the other justices concurred.

* January 30, 2019, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 The amended complaint also named the following local election officials

for the town as defendants: Rick Marcone, the town’s Democratic registrar

of voters; Lou Decilio, the town’s Republican registrar of voters; Beth Boda,

the head moderator for the election; John Krekoska, the head moderator

of the recount; and Susan M. Pawluk, the town’s clerk. Although these local

election officials have appeared through counsel both before the trial court

and in these appeals, they have not otherwise participated in this case. For

the sake of simplicity, we refer to Young, Merrill, Nappier, and Lembo,

collectively, as the defendants, and to Young, individually, by name.

2 Article third, § 7, of the Connecticut constitution provides in relevant

part: ‘‘The treasurer, secretary of the state, and comptroller shall canvass

publicly the votes for senators and representatives. The person . . . in each

assembly district having the greatest number of votes for representative

shall be declared to be duly elected for such district. . . . The return of

votes, and the result of the canvass, shall be submitted to the house of

representatives and to the senate on the first day of the session of the

general assembly. Each house shall be the final judge of the election returns

and qualifications of its own members.’’

3 Although an order granting a temporary injunction is ordinarily not an

immediately appealable final judgment; see, e.g., Bozrah v. Chmurynski,

303 Conn. 676, 681–82, 36 A.3d 210 (2012); we have appellate jurisdiction

because § 52-265a ‘‘permits this court to consider an interlocutory appeal

from the trial court.’’ State v. Komisarjevsky, 302 Conn. 162, 165, 25 A.3d

613 (2011); see also footnote 7 of this opinion.

4 General Statutes § 9-328 provides in relevant part: ‘‘Any elector or candidate claiming to have been aggrieved by any ruling of any election official

in connection with an election for any municipal office or a primary for

justice of the peace, or any elector or candidate claiming that there has

been a mistake in the count of votes cast for any such office at such election

or primary, or any candidate in such an election or primary claiming that

he is aggrieved by a violation of any provision of sections 9-355, 9-357 to

9-361, inclusive, 9-364, 9-364a or 9-365 in the casting of absentee ballots at

such election or primary, may bring a complaint to any judge of the Superior

Court for relief therefrom. . . . Such judge shall, on the day fixed for such

hearing and without unnecessary delay, proceed to hear the parties. If

sufficient reason is shown, he may order any voting tabulators to be unlocked

or any ballot boxes to be opened and a recount of the votes cast, including

absentee ballots, to be made. Such judge shall thereupon, if he finds any

error in the rulings of the election official or any mistake in the count of

the votes, certify the result of his finding or decision to the Secretary of

the State before the tenth day succeeding the conclusion of the hearing.

Such judge may order a new election or primary or a change in the existing

election schedule. Such certificate of such judge of his finding or decision

shall be final and conclusive upon all questions relating to errors in the

ruling of such election officials, to the correctness of such count, and, for

the purposes of this section only, such claimed violations, and shall operate

to correct the returns of the moderators or presiding officers, so as to

conform to such finding or decision, except that this section shall not affect

the right of appeal to the Supreme Court and it shall not prevent such judge

from reserving such questions of law for the advice of the Supreme Court

as provided in section 9-325. Such judge may, if necessary, issue his writ
of mandamus, requiring the adverse party and those under him to deliver

to the complainant the appurtenances of such office, and shall cause his

finding and decree to be entered on the records of the Superior Court in

the proper judicial district.’’

5 The supremacy clause of the United States constitution provides in

relevant part: ‘‘This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof . . . shall be the supreme Law of the

Land; and the Judges in every State shall be bound thereby, any Thing in

the Constitution or Laws of any State to the Contrary notwithstanding.’’

U.S. Const., art. VI, cl. 2.

6 The complaint alleges that the voter checklist at Bunnell High School

for the 120th assembly district shows 1575 names crossed off the official

checklist, but only 1499 ballots processed, which would indicate 76 fewer

ballots than voters. In contrast, the checklist at that location for the 122nd

assembly district allegedly shows 952 names crossed off the official checklist, but 1031 ballots processed, which would indicate 79 more ballots

than voters.

We note that the checklist summary for the 122nd assembly district, which

was supplied as an exhibit in the appendix to the plaintiff’s brief, indicates

that the names of 954 voters had been crossed off. This would result in an

actual difference of 77 more ballots than voters. This minor typographical

discrepancy does not, however, affect the substantive analysis within this

opinion.

7 Although the plaintiff styled his application as one for ‘‘an emergency

temporary restraining order,’’ we, like the parties and the trial court, refer

in this opinion to that application as one for a ‘‘temporary injunction’’

because it was granted after notice and a hearing. See, e.g., Canterbury v.

Kukevitch, Superior Court, judicial district of Windham, Docket No. CV-03-

0070337-S (June 17, 2003) (35 Conn. L. Rptr. 14, 16) (‘‘[u]nder Connecticut

law, the phrase temporary injunction refers both to what the somewhat

more highly articulated federal courts would call a temporary restraining

order [i.e., one issued without notice to the adverse party] and to what they

would call a preliminary injunction [i.e., one issued after notice and hearing]’’

[internal quotation marks omitted]).

8 The plaintiff filed the amended complaint while a motion to dismiss,

filed by Young with the support of the state defendants, was pending with

respect to the original complaint.

9 On December 13, 2018, the trial court issued a written memorandum of

decision further articulating its oral decision on the parties’ motions.

10 General Statutes § 9-319 provides: ‘‘The votes for state senators, state

representatives and judges of probate, as returned by the moderators, shall

be canvassed, during the month in which they are cast, by the Treasurer,

Secretary of the State and Comptroller, and they shall declare, except in

case of a tie vote, who is elected senator in each senatorial district, representative in each assembly district and judge of probate in each probate district.

The Secretary of the State shall, within three days after such declaration,

give notice by mail to each person chosen state senator, state representative

or judge of probate of his election.’’

11 We reiterate our gratitude to counsel, first voiced by Justice McDonald

at oral argument before this court, for their thorough and professional

briefing and argument of this case on an expedited basis.

We also note that, in the afternoon of December 20, 2018, the day before

oral argument in these appeals, the ACLU Foundation of Connecticut filed

an application for permission to file an amicus curiae brief. Although we

ordinarily are very receptive to amicus briefs, we denied this application

because its eve of argument timing would have rendered the filing of such

a brief in the present appeals both potentially prejudicial to the parties and

comparatively less useful to the court.

12 The use of the word ‘‘returns’’ to modify ‘‘election’’ renders that phrase

suggestive of the vote tally, rather than the electoral process that produces

the votes. See Henry v. Henderson, 697 So. 2d 447, 451 (Miss. 1997) (‘‘The

[c]onstitution gives authority to each house to judge the return and election

of its own members. Return and election includes the proper number of

votes cast for each candidate.’’), overruled on other grounds by Dillon v.

Myers, 227 So. 3d 923 (Miss. 2017); accord State ex rel. Morris v. Bulkeley,

supra, 61 Conn. 363 (‘‘When a command has been issued from some superior

authority to an officer, the ‘return’ is the official statement by the officer

of what he has done in obedience to the command or why he has done

nothing. Whatever thing the superior authority may require the officer to

do, of the doing of that thing it may require him to make return. The return
made by the presiding officer of an electors’ meeting is his official statement

of what was done at that meeting.’’).

13 Indeed, it is significant that, ‘‘[p]rior to the adoption of the constitution

of this state in 1818, all governmental power, including the judicial power,

was vested in the General Assembly.’’ State v. Clemente, 166 Conn. 501, 512,

353 A.2d 723 (1974); see also W. Horton, supra, pp. 99–100 (discussing

Norwalk Street Railway Co.’s Appeal, 69 Conn. 576, 37 A. 1080 [1897], as

standing for proposition that constitution is grant of power to three branches,

rather than reservation of remaining powers to General Assembly as held

in Starr v. Pease, 8 Conn. 541 [1831]).

14 The constitution of the United States, article one, § 5, provides in relevant

part: ‘‘Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . .’’

15 The constitution of the United States, article one, § 4, provides: ‘‘The

Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the

Congress may at any time by Law make or alter such Regulations, except

as to the Places of chusing Senators.’’

16 See Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).

17 We note that the plaintiff attempts to distinguish Morgan v. United

States, supra, 801 F.2d 445, on the ground that the congressional determination preceded the civil action in that case, whereas the opposite timing is

true in this case, as our state House of Representatives has not yet acted.

In our view, this timing is a distinction without a difference, because the

potential for judicial encroachment on the legislative prerogative is the

same, given the troubling specter of the legislature’s having to reject a

judicial determination of the same issue. Indeed, Morgan itself suggested that

the timing was irrelevant when the court concluded that its interpretation

of the federal elections clause was ‘‘plainly endorse[d]’’ by the Supreme

Court’s decision in Roudebush v. Hartke, supra, 405 U.S. 15, because the

Supreme Court, in considering whether the Senate’s decision to seat a

candidate had rendered the case moot, stated that it had jurisdiction to

consider the broader legal question of whether a state’s recount scheme

violated the elections clause, rather than to decide the specific underlying

dispute, as ‘‘ ‘which candidate is entitled to be seated in the Senate is, to

be sure, a nonjusticiable political question—a question that would not have

been the business of this [c]ourt even before the Senate acted.’ ’’ (Emphasis

altered.) Morgan v. United States, supra, 448–49, quoting Roudebush v.

Hartke, supra, 19.

18 A comprehensive collection of generally early cases on this point is set

forth in an annotation published within the American Law Reports. See

generally annot., 107 A.L.R. 205 (1937 and Cum. Supp. 2011).

19 We note that the Kentucky Supreme Court’s decision in Stephenson v.

Woodward, supra, 182 S.W.3d 162, allowing the court to continue to consider

the qualifications of a legislator, even after the election, has been heavily

criticized as ‘‘extraordinary reasoning, which defies [long-standing] tradition

and precedent, [and as] inconsistent with legislative independence, which

the [Kentucky Supreme] Court itself has recognized as a critical facet of

separation of powers.’’ (Footnotes omitted.) P. Salamanca & J. Keller, ‘‘The

Legislative Privilege To Judge the Qualifications, Elections, and Returns of

Members,’’ 95 Ky. L.J. 241, 244 (2007); see also id., 366 (concluding that

court’s ‘‘most salient conclusion . . . simply cannot withstand scrutiny’’

because legislature ‘‘lacked power to delegate the [state] senate’s authority

under the [Kentucky] constitution irrevocably to the courts’’).

20 We acknowledge that, in In re Application of Mylchreest, supra, 6 Conn.

Supp. 436, the Superior Court, in rejecting the applicant’s request for a courtordered recount of ballots in a disputed state Senate race, observed that,

under the elections clause of the Connecticut constitution, ‘‘it is justifiable

for the [l]egislature to make provision for a judge of the Superior Court to

pass upon the question as to who has been elected governor or to some

other state office but not proper for any court to be given power to pass upon

the question as to who has been elected state senator or representative.’’

(Emphasis added.) Given the fact that no statute authorizes court action in

this case; see also part I B of this opinion; we need not consider whether

the Superior Court properly suggested in In re Application of Mylchreest

that a statute authorizing a court-ordered recount in a legislative race would

be unconstitutional under the elections clause. See id. (‘‘[t]he difference

between the constitutional powers of the General Assembly with reference

to the election of state officers and its power with reference to the election

of its own members is that as to the former the [Connecticut] [c]onstitution
nowhere provides that the General Assembly shall be the ‘final’ judges’’).

21 We also disagree with the plaintiff’s reliance on State ex rel. Wahl v.

Richards, supra, 44 Del. 566, Akizaki v. Fong, 51 Haw. 354, 461 P.2d 221

(1969), and McGann v. Board of Elections, supra, 85 R.I. 223, in support of

his position that Connecticut courts have jurisdiction to afford him relief

because these cases are all factually and legally distinguishable from the

present case. In State ex rel. Wahl v. Richards, supra, 573, the Delaware

Supreme Court held that it had jurisdiction to issue a writ of mandamus to

the Delaware Superior Court, sitting as the Board of Canvass, to recanvass

the vote in an election for the office of state representative in accordance

with a state statute governing vote counting procedures. In the present case,

the plaintiff does not claim that the defendants violated any clear state

statute governing election procedures. In addition, the Delaware Supreme

Court in Richards had authority under a state constitutional provision to

issue writs of mandamus to the Superior Court. See id., 572.

In Akizaki v. Fong, supra, 51 Haw. 356–57, the court was required to

resolve a conflict between a state constitutional provision analogous to

our elections clause and another constitutional provision providing that

‘‘[c]ontested elections shall be determined by a court of competent jurisdiction . . . .’’ The court resolved this conflict by holding that the state house

of representatives’ ‘‘function in judging the elections of its members extends

only to ascertaining whether the [state] [c]onstitution has been complied

with; that is, whether the parties have properly invoked the jurisdiction of

a competent court to judge the contest . . . .’’ Id., 358. The Hawaii Supreme

Court’s decision inAkizakiis of no persuasive value because the Connecticut

constitution contains no provision specifically authorizing courts of this state

to determine election contests. See Wheatley v. Secretary of Commonwealth,

supra, 439 Mass. 855 n.10.

In McGann v. Board of Elections, supra, 85 R.I. 237, the issue before the

court was the constitutionality of a state statute authorizing civilian absentee

and shut-in electors to vote before election day. The court concluded that,

notwithstanding a state constitutional provision authorizing each house to

be the judge of the elections of its own members, the court had exclusive

jurisdiction to decide ‘‘questions of constitutional and fundamental law

. . . .’’ Id., 230. In the present case, however, the plaintiff is not challenging

the constitutionality of any state statute, and merely mounts a narrower

challenge to the administration of a single legislative election.

22 After Bakken, North Dakota subsequently amended its state constitution

to make even clearer the role of the judiciary in deciding elections contests,

including those in legislative elections. See Timm v. Schoenwald, 400 N.W.2d

260, 264 (N.D. 1987) (discussing applicability of post-Bakken state constitutional amendment specifically providing that ‘‘ ‘[e]ach house is the judge of

the qualifications of its members, but election contests are subject to judicial

review as provided by law’ ’’ [emphasis in original]). This amendment to

North Dakota’s constitution, and a similar provision in Hawaii; see Akizaki

v. Fong, 51 Haw. 354, 356–57, 461 P.2d 221 (1969); have been described

as inconsistent with concepts of legislative independence and legislative

privilege, particularly given that the power to remove is the power of control.

See P. Salamanca & J. Keller, ‘‘The Legislative Privilege To Judge the Qualifications, Elections, and Returns of Members,’’ 95 Ky. L.J. 241, 255 (2007).

23 With respect to the separation of powers, we note that the District of

Columbia Circuit Court of Appeals emphasized in Morgan that the exclusivity of legislative jurisdiction ‘‘makes eminent practical sense. The pressing

legislative demands of contemporary government have if anything increased

the need for quick, decisive resolution of election controversies. Adding a

layer of judicial review, which would undoubtedly be resorted to on a regular

basis, would frustrate this end. What is involved, it should be borne in mind,

is not judicial resolution of a narrow issue of law, but review of an election

recount, with all the fact-finding that that entails. If it be said that the

relevant [h]ouse is not the appropriate body to make the determination

because of the possibility of improper political motivation, the response is

that ‘[a]ll power may be abused if placed in unworthy hands. But it would

be difficult . . . to point out any other hands in which this power would

be more safe, and at the same time equally effectual.’ Luther v. Borden, 48

U.S. (7 How.) 1, 44, 12 L. Ed. 581 (1849).’’ Morgan v. United States, supra,

801 F.2d 450; see also P. Salamanca & J. Keller, ‘‘The Legislative Privilege

To Judge the Qualifications, Elections, and Returns of Members,’’ 95 Ky. L.J.

241, 361 (2007) (‘‘[a]llowing the courts to sit in judgment on the qualifications,

elections, and returns of members, particularly where the [c]onstitution

explicitly vests this authority in the legislature, undermines not only text
but also legislative independence and separation of powers’’).

24 We note that we do not understand the plaintiff to argue that the courts

and the legislature share jurisdiction over legislative election contests challenging the administration of the election. Such complementary jurisdiction,

which would render the ultimate judicial determination advisory, has been

criticized as problematic given the constitutional complications attendant

to the issuance of advisory opinions, along with an even greater potential

for interbranch entanglement. See Scheibel v. Pavlak, supra, 282 N.W.2d

849–50; McIntyre v. Wick, supra, 558 N.W.2d 367–68 (Sabers, J., dissenting).

One commentator has described complementary legislative and judicial

jurisdiction as a ‘‘fundamentally flawed’’ concept insofar as ‘‘[t]his sort of

judicial pressure or interference, however innocently couched by the court,

is exceedingly difficult to justify in light of the constitution’s exclusive

commitment of the power to judge state legislative elections to the [l]egislative [d]epartment.’’ R. Parsons, ‘‘Pierre Pressure: Legislative Elections, the

State Constitution, and the Supreme Court of South Dakota,’’ 50 S.D. L. Rev.

218, 234–35 (2005).

25 We note that General Statutes § 9-215, which governs the filling of

legislative vacancies, by its own terms, applies only in the event of a member’s death or resignation. See General Statutes § 9-215 (a) (‘‘When any

member or member-elect of the General Assembly resigns, the member or

member-elect shall resign by notifying the Secretary of the State of the

member’s or member-elect’s decision, and if any member or member-elect

of the General Assembly dies, the town clerk from the town in which the

member or member-elect resides shall notify the Secretary of the State of

such death’’ [emphasis added]).

26 The plaintiff expresses his concern about the impact of partisanship on

the legislature’s ability to resolve election disputes fairly. With respect to

partisanship, we agree with the District of Columbia Circuit’s dismissal of

concerns about ‘‘party-line votes’’ in election cases by emphasizing that the

point that ‘‘institutional incentives make it safer to lodge the function [in

the legislature] than anywhere else still stands. The major evil of interference

by other branches of government is entirely avoided, while a substantial

degree of responsibility is still provided by regular elections, the interim

demands of public opinion, and the desire of each [h]ouse to preserve its

standing in relation to the other institutions of government.’’ Morgan v.

United States, supra, 801 F.2d 450.

27 We emphasize that, although the elections clause requires us to stay

our hand, we do not foreclose a limited role for the courts in cases arising

from legislative election disputes. It is ‘‘conceivable, for example, that in

investigating such a dispute a [legislative body] might go beyond its constitutional power to compel witnesses. In that event, a clear showing of such

arbitrary and improvident use of the power as will constitute a denial of

due process of law would justify limited judicial interference. . . . Such a

due process violation, however, must rest on violation of some individual

interest beyond the failure to seat an individual or to recognize that person

as the winner of an election. That substantive determination, which is the

issue in the present case, resides entirely with the [h]ouse.’’ (Citation omitted;

internal quotation marks omitted.) Morgan v. United States, supra, 802 F.2d

451; see also Office of the Governor v. Select Committee of Inquiry, 271

Conn. 540, 575, 858 A.2d 709 (2004) (‘‘It is true that underlying this matter

was a discretionary decision by the defendant to issue the subpoena to

the governor. Our consideration of whether that decision comports with

constitutional principles, however, does not require us to evaluate the wisdom of that decision, but only whether that decision exceeded constitutional

limitations.’’); Kinsella v. Jaekle, supra, 192 Conn. 726 (‘‘[b]ecause the committee is acting within its jurisdiction, the Superior Court may exercise

jurisdiction in this impeachment controversy only if the plaintiff alleges that

egregious and otherwise irreparable violations of constitutional guarantees

are being or have been committed’’).

28 General Statutes § 9-372 (7) provides: ‘‘ ‘Municipal office’ means an

elective office for which only the electors of a single town, city, borough,

or political subdivision, as defined in subdivision (10) of this section, may

vote, including the office of justice of the peace . . . .’’

29 Specifically, Young argues that the plaintiff’s construction would mean

that ‘‘the election of 73 of the 151 [state representatives] would be subject

to judicial review under § 9-328, and 78 would not. . . . None of the 36

state senators’ elections would be subject to § 9-328. There is no articulable

reason . . . why the General Assembly would have chosen to allow by

statute judicial challenges to fewer than one half of house seats but not the
others.’’ (Citations omitted; emphasis omitted.)

30 ‘‘ ‘Political subdivision’ means any voting district or combination of

voting districts constituting a part of a municipality.’’ General Statutes § 9-

372 (10).

31 As the defendants argue, we note that, in an unpublished decision arising

from a challenge to the election of then-Representative Joan Hartley, the

Superior Court adopted this construction of §§ 9-328 and 9-372 (7) more

than three decades ago. SeeBogen v. Hartley, Superior Court, judicial district

of Waterbury, Docket No. 070798 (November 21, 1984).

32 See General Statutes § 9-323 (election of presidential electors, United

States senator, and United States representative); General Statutes § 9-324

(election of probate judges and governor, lieutenant governor, secretary of

the state, treasurer, attorney general, and comptroller); see also General

Statutes § 9-329a (primary elections).

33 Young also cites the remarks during a 1985 debate in our state House

of Representatives concerning the challenge of the election of then-Representative Joan Hartley as evincing the legislature’s understanding that § 9-

328 is inapplicable because it, and other election contest statutes, did not

apply to state legislative elections, thus rendering legislative proceedings

under the elections clause the exclusive remedy. Although undoubtedly

interesting from a historical perspective, this debate is of minimal persuasive

value with respect to the interpretation of § 9-328 because it is not a contemporaneous statement of legislative intent. See, e.g., State v. Nixon, 231 Conn.

545, 560, 651 A.2d 1264 (1995) (‘‘[a]lthough we have on occasion and under

particularly compelling circumstances inferred earlier legislative intent from

the legislative history of a subsequent legislature . . . the views of a subsequent [legislature] form a hazardous basis for inferring the intent of an

earlier one’’ [citation omitted; internal quotation marks omitted]). In any

event, because we conclude that the statutory scheme at issue in the present

case is plain and unambiguous on this point, § 1-2z precludes our consideration of this proffered extratextual evidence.

34 We acknowledge the plaintiff’s contention that the parties have consistently treated the election as one for a municipal office. Specifically, he

represents that the town ‘‘had six [state legislative] offices up for election

in 2018.’’ Three of those offices were for assembly districts that crossed

town boundaries, and three were for districts that were located entirely

within the town. For the multitown districts, the major political parties

followed the nomination procedures for district offices set forth in General

Statutes § 9-382, which requires them to call a ‘‘state or district convention.’’

For the districts that were entirely within the town, the parties followed

the nomination procedures for ‘‘municipal offices’’ set forth in General

Statutes § 9-390 (a), which, in the absence of a direct primary, requires the

parties to endorse their candidates via a party caucus or town committee.

Even if we assume the correctness of the nominating procedures followed

by the parties, the legislature’s decision to provide different nominating

procedures for the office of state representative, depending on whether the

assembly district was contained entirely within one town or crossed town

boundaries, which reasons the plaintiff does not address, does not mean

that those same reasons would justify treating subsequent election contests

involving state representatives differently on the basis of the same distinction. This is particularly so given the strictly enumerated applicability of

the definitions contained in § 9-372, which extend to chapter 153 of the

General Statutes, a statutory scheme governing the unique concerns attendant to the nomination of candidates by political parties, rather than the

administration of a general election.

35 Although subject matter jurisdiction is a threshold issue that we must

address before proceeding to the merits, we may make legal assumptions

with respect to jurisdiction in appropriate cases. See Sousa v. Sousa, 322

Conn. 757, 779–80, 143 A.3d 578 (2016) (assuming without deciding that

‘‘restriction of postjudgment modification of property distributions in [General Statutes] § 46b-86 [a] is in fact jurisdictional in nature’’ for purposes of

determining whether judgment was subject to collateral attack for lack of

jurisdiction). Given that we ‘‘do not engage in addressing constitutional

questions unless their resolution is unavoidable’’; State v. McCahill, 261

Conn. 492, 501, 811 A.2d 667 (2002); we address the defendants’ relatively

simple pleading argument first, rather than the more complicated constitutional issue with respect to the availability of state law jurisdictional defenses

under the federal supremacy clause, under this court’s decisions in Sullins

and Fetterman, and the United States Supreme Court’s decisions on which

the defendants rely, namely, Haywood v. Drown, 556 U.S. 729, 129 S. Ct.
2108, 173 L. Ed. 2d 920 (2009), and Howlett v. Rose, 496 U.S. 356, 110 S. Ct.

2430, 110 L. Ed. 2d 332 (1990).

In addressing the pleading arguments first, we agree with Young’s

acknowledgment that the failure of the complaint to adequately raise a

federal constitutional violation is ‘‘not necessarily central to the question

of whether the [trial court] had jurisdiction over the federal claims . . . .’’

Given that the parties have briefed this issue, which presents a question of

law on the pleadings in this case, we address it first, even though the

sufficiency of a pleading, namely, whether the allegations therein state a

claim, is addressed via a motion to strike, rather than a motion to dismiss,

which challenges a court’s jurisdiction. See, e.g., Santorso v. Bristol Hospital, 308 Conn. 338, 349–50, 63 A.3d 940 (2013); see also id., 353–54 (concluding

that res judicata did not apply when ‘‘the first action was not disposed of

on its merits, notwithstanding the court’s granting of the defendants’ motions

to strike, when the motions granted should have been treated as motions

to dismiss’’). This is because, given the posture of this case, any potential

impropriety in the dismissal of the plaintiff’s constitutional claims is rendered harmless by the fact that they are properly subject to a motion to

strike, given the lack of any evidence to support a claim of an intentional

deprivation of rights. See Fort Trumbull Conservancy, LLC v. Alves, 262

Conn. 480, 501–502, 815 A.2d 1188 (2003) (procedurally improper granting

of motion to dismiss instead of motion to strike is harmless error when

there is nothing in record to suggest that plaintiff could amend complaint

to state viable claim); McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512,

528, 590 A.2d 438 (1991) (same); Davis v. Davis-Henriques, 163 Conn. App.

301, 313, 135 A.3d 1247 (2016) (The Appellate Court affirmed a judgment

of dismissal in a probate appeal from a denial of a collateral attack on a

probate decree because the complaint did ‘‘not set forth a colorable claim

that the . . . decree was procured by fraud, mistake, or like equitable

ground. As a result, the plaintiff’s complaint is legally insufficient, and there

is nothing in the record to suggest that the plaintiff could amend his complaint to allege a viable claim for relief under [General Statutes] § 45a24.’’); Mercer v. Rodriquez, 83 Conn. App. 251, 267–68, 849 A.2d 886 (2004)

(affirming judgment dismissing complaint because, although trial court

improperly determined that prisoner’s failure to exhaust available administrative remedies as required by federal Prison Litigation Reform Act of 1995,

42 U.S.C. § 1997e [a], was subject matter jurisdictional, failure to plead

exhaustion nevertheless rendered complaint subject to motion to strike);

see also Gold v. Rowland, 296 Conn. 186, 205 n.18, 994 A.2d 106 (2010)

(noting that plaintiff failed to identify evidence that would cure deficiencies

in complaint, and concluding that ‘‘[w]hen a complaint properly would have

been subject to a motion to strike and the plaintiff cannot cure the deficiencies in the complaint, we properly may reverse the trial court’s denial of a

motion to dismiss rather than remand the case to the trial court so that the

defendant may file a motion to strike that the trial court would be required

to grant’’).

36 The Second Circuit further noted that, ‘‘[w]ithout question, courts have

found due process violations in voting cases before, but each case involved

an intentional act on the part of the government or its officials. . . . Infringements of voting rights that have risen to the level of constitutional violation

include: dilution of votes by reason of malapportioned voting districts or

weighted voting systems . . . purposeful or systematic discrimination

against voters of a certain class . . . geographic area . . . or political affiliation . . . and other [wilful] conduct that undermines the organic processes

by which candidates are elected . . . . Each required intentional state conduct directed at impairing a citizen’s right to vote.’’ (Citations omitted.)

Shannon v. Jacobowitz, supra, 394 F.3d 96; see also footnote 38 of this

opinion.

37 The Second Circuit has observed that it is not alone in requiring proof

of intent, citing Rossello-Gonzalez v. Calderon-Serra, 398 F.3d 1, 14 (1st

Cir. 2004), Siegel v. LePore, 234 F.3d 1163, 1181 (11th Cir. 2000), Bennett

v. Yoshina, 140 F.3d 1218, 1226 (9th Cir. 1998), cert. denied sub nom. Citizens

for a Constitutional Convention v. Yoshina, 525 U.S. 1103, 119 S. Ct. 868,

142 L. Ed. 2d 770 (1999), and Hutchinson v. Miller, 797 F.2d 1279, 1283 (4th

Cir. 1986), cert. denied, 479 U.S. 1088, 107 S. Ct. 1295, 94 L. Ed. 2d 151

(1987). Rivera-Powell v. New York City Board of Elections, 470 F.3d 458,

469 n.16 (2d Cir. 2006).

38 A review of federal case law provides various examples of purposeful

misconduct generally found sufficient to state such a constitutional claim.

See Acosta v. Democratic City Committee, 288 F. Supp. 3d 597, 646–47
(E.D. Pa. 2018) (allegations of poll workers threatening and intimidating

voters, and distributing literature and encouraging voters to choose particular candidate, were sufficient evidence of intent if attributable to state actors

named as defendants); Westchester County Independence Party v. Astorino,

137 F. Supp. 3d 586, 622 (S.D.N.Y. 2015) (concluding that election officials’

decision to accept improper or late absentee ballot applications was sufficiently intentional to defeat summary judgment motion, and proceeding to

next step, whether ‘‘fair and adequate state remedy exists’’); Willingham v.

Albany, 593 F. Supp. 2d 446, 459–60 (N.D.N.Y. 2006) (denying motion for

summary judgment on equal protection claim arising from absentee ballot

abuses during primary by party leader and campaign manager who worked

at public housing complex where abuses took place, including ‘‘[o]btaining

absentee ballot applications, soliciting voters to complete those applications,

asserting false reasons on the applications, delivering the applications to

the [board of elections], and receiving back the ballots for the voters’’).

39 In support of his claim to the contrary, the plaintiff relies on Hunter

v. Hamilton County Board of Elections, 635 F.3d 219, 234–35 n.13 (6th Cir.

2011), in which the United States Court of Appeals for the Sixth Circuit

held that, in the context of elections, there can be an equal protection

violation even in the absence of evidence of intentional discrimination. See

id., 235 n.13 (rejecting defendant’s ‘‘argument that there can be no violation

of the [e]qual [p]rotection [c]lause . . . without evidence of intentional

discrimination’’). In support of this conclusion, the court in Hunter relied

on the United States Supreme Court’s decision in Bush v. Gore, supra, 531

U.S. 104–105. See Hunter v. Hamilton County Board of Elections, supra,

234 n.13. We disagree with the plaintiff’s reliance on Hunter, even if we

were to follow it instead of the Second Circuit case law that we generally

follow in cases of circuit splits. See, e.g., Gleason v. Smolinski, supra,

319 Conn. 444 n.41. Indeed, Hunter is factually distinguishable because it

concerned an election board’s lack of coherent or consistent standards for

the treatment of provisional ballots, rather than an isolated error like the

one at issue in the present case. See Hunter v. Hamilton County Board of

Elections, supra, 234–37; cf. Northeast Ohio Coalition for Homeless v.

Husted, 696 F.3d 580, 597–98 (6th Cir. 2012) (finding sufficient evidence of

purposeful conduct given state’s ‘‘intent to enforce its strict disqualification

rules without exception, despite the systemic poll-worker error identified

in this litigation and others,’’ which had ‘‘result[ed] in the rejection of thousands of provisional ballots each year’’).

The Supreme Court’s decision in Bush is similarly distinguishable because,

in that case, the court concluded that an equal protection violation occurred

when, during a recount procedure, ‘‘each of the counties used varying standards to determine what was a legal vote. Broward County used a more

forgiving standard than Palm Beach County, and uncovered almost three

times as many new votes, a result markedly disproportionate to the difference in population between the counties.’’ Bush v. Gore, supra, 531 U.S.

107. In addition, the state officials in Bush used ‘‘variant standards’’ to

determine which votes would be counted, and, as the result of the certification deadline that had been imposed by the Florida Supreme Court, one

county had completed only a partial count. Id., 108. We conclude that Bush

is readily distinguishable because that case involved a state’s widespread

application of arbitrarily varying standards in determining the intent of the

voters. That decision does not stand for the proposition that any unintentional mistake by an election official that casts doubt on the result of an

election violates the United States constitution.

Thus, we also disagree with the plaintiff’s reliance on Butterworth v.

Dempsey, 229 F. Supp. 754 (D. Conn.), aff’d sub nom. Pinney v. Butterworth,

378 U.S. 564, 84 S. Ct. 1918, 12 L. Ed. 2d 1037 (1964), and the decision that

followed on remand, Butterworth v. Dempsey, 237 F. Supp. 302 (D. Conn.

1964), for the proposition that, ‘‘under Baker v. Carr, [supra, 369 U.S. 186],

a claim made under the federal constitution cannot be limited by the state

constitution.’’ That case is distinguishable because it involved a challenge

to our state’s legislative districting in light of recently announced one person,

one vote principles, and the need for a state constitutional convention and

redistricting sooner than provided by the Connecticut constitution. See

Butterworth v. Dempsey, supra, 237 F. Supp. 306–307. Thus, the allegation

at issue in that case involved an equal protection violation that had been

imposed de jure, rather than the limited challenge to a flawed election at

issue in the present case. See Westchester County Independent Party v.

Astorino, 137 F. Supp. 3d 586, 619–20 (S.D.N.Y. 2015) (noting distinction

between ‘‘[l]aws that by their own terms burden the fundamental rights of
minority groups [that] raise particular concerns of invidious discrimination’’

and cases alleging ‘‘[u]neven or erroneous application of an otherwise valid

statute [that]constitutes a denialof equal protectiononly if itrepresents intentional or purposeful discrimination’’ [internal quotation marks omitted]).

40 We disagree with the plaintiff’s reliance on this court’s decision in Office

of the Governor v. Select Committee of Inquiry, supra, 271 Conn. 540, for

the proposition that the expiration of an underlying statutory deadline renders moot an appeal challenging a temporary injunction ordered prior to

that deadline. In Office of the Governor, this court noted that our state

House of Representatives had obliged the select committee to report its

findings and recommendations on or before June 30, 2004. Id., 548–49. This

court scheduled oral argument of the appeal for June 18, 2004, on the basis

of a representation from the select committee that, if the court ‘‘were to

hear the appeal on [that date], its proceedings would still be open as of that

date, so that, as of that date, the case would not be moot.’’ Id., 549. The

court stated that it then ‘‘heard and decided’’ that appeal on June 18, 2004,

and, ‘‘[b]ecause at that time the defendant was still in session, any question

of mootness by operation of the passage of time, which might have occurred

had this appeal been heard and decided at a later date, had been dispelled.

The appeal, therefore, is not moot by virtue of the defendant’s time frame

for reporting to the House of Representatives.’’ (Emphasis added.) Id. Office

of the Governor, therefore, does not support the plaintiff’s mootness analysis

because, although this court expressed some concern about the potential

for mootness caused by the passage of the June 30 deadline during the

pendency of the appeal, it never concluded that the appeal would have been

rendered moot by the passage of the deadline. Rather, the court simply

observed that any potential mootness concerns had been alleviated by the

scheduling of argument and the issuance of the court’s decision in that

appeal.

41 The plaintiff cites a 1933 Attorney General’s Opinion as standing for

the proposition that there is ‘‘significance in the ‘during the month’ requirement.’’ See Opinions, Conn. Atty. Gen. (May 1, 1933) pp. 147–48. We disagree

with the plaintiff’s reliance on that opinion, which was limited to whether

an election to fill a probate judge vacancy may be held at the same time

and same place as a vote for delegates to a constitutional convention. That

opinion did not address the consequence, if any, of a failure to complete

the canvass during the month of the election.

42 Accordingly, we need not reach the merits of the defendants’ argument

that the trial court abused its discretion by granting a temporary injunction.

43 We acknowledge the well established ‘‘strong presumption in favor of

jurisdiction’’; (internal quotation marks omitted) State v. Evans, 329 Conn.

770, 784, 189 A.3d 1184 (2018); as well as the fact that the textual commitment

of jurisdiction over a matter to the legislative branch does not completely

preclude courts from certain limited actions related to those proceedings.

See Kinsella v. Jaekle, supra, 192 Conn. 723 (‘‘[a] court acting under the

judicial power of article fifth of the constitution may exercise jurisdiction

over a controversy arising out of impeachment proceedings only if the

legislature’s action is clearly outside the confines of its constitutional jurisdiction to impeach any executive or judicial officer . . . or egregious and

otherwise irreparable violations of state or federal constitutional guarantees

are being or have been committed by such proceedings’’ [citation omitted]);

see also footnote 27 of this opinion. Accordingly, we leave to another day

the extent to which a trial court may have jurisdiction over an application for

injunctive relief that is ‘‘incident to,’’ or in aid of preserving the legislature’s

jurisdiction, such as if a state officer refused to canvass the votes or declare

a winner in accordance with his or her duties under § 9-319, both of which

appear to be ministerial duties necessary to furnish prima facie evidence

of election results and to move the electoral challenge process to the legislature in order that it may exercise its prerogative to act as final judge of

election returns pursuant to the elections clause. See State ex rel. Morris

v. Bulkeley, supra, 61 Conn. 359 (‘‘That part of the election process which

consists of the exercise by the voters of their choice is wholly performed

by the electors themselves in the electors’ meetings. That part of it is often

spoken of as the election. But it is not the whole of the election. The

declaration of the result is an indispensable adjunct to that choice . . .

because the declaration furnishes the only authentic evidence of what the

choice is.’’); see also Butts v. Bysiewicz, supra, 298 Conn. 679 (The court

concluded that a certificate of party endorsement under § 9-388 ‘‘is the

only statutorily authorized means by which the [Secretary of the State] is

permitted to recognize a party’s endorsement of a candidate as its nominee.
The nomination evidenced by the certificate, in turn, is an essential predicate

to the [Secretary of the State’s] authority to place a candidate’s name on

the ballot. . . . Thus, in the absence of a valid certificate, the [Secretary

of the State] has nothing upon which to act.’’ [Citation omitted; footnote

omitted.]); see also Keogh v. Horner, 8 F. Supp. 933, 934–35 (S.D. Ill. 1934)

(federal district court lacked jurisdiction to issue writ of prohibition

restraining governor from issuing certificate of election required by state law

because issuance of certificate was ministerial duty, and to hold otherwise

‘‘would confer upon him the right to conduct and settle contests concerning

members of Congress, when that power is expressly conferred upon the

respective [h]ouse of Congress by the [c]onstitution of the United States’’);

State ex rel. Wahl v. Richards, supra, 44 Del. 573–74 (concluding that court

had jurisdiction to issue writ of mandamus requiring trial court, sitting as

board of canvass, to conduct recount in state election, noting that if plaintiff

‘‘appear[ed] before the [state house of representatives] armed with a certificate indicating his election, that body would still have the exclusive right

to determine whether he was a duly elected member’’ and that ‘‘presentation

of the certificate would bring the question before [that body] and would

be pertinent evidence for its consideration in determining [the plaintiff’s]

rights’’); People ex rel. Fuller v. Hilliard, 29 Ill. 413, 419–20 (1862) (elections

clause did not deprive court of jurisdiction to compel canvassing board to

issue certificate of election to candidate for state legislature because issuance of certificate was ministerial, noting that ‘‘sole purpose’’ of application

for mandamus was ‘‘to procure the requisite evidence, to present to that

body, of a prima facie right to a seat in it, independent wholly of the question

of qualification’’).