Connecticut State Conference of NAACP Branches et al v. Merrill

Filing 1

COMPLAINT against Denise Merrill ( Filing fee $400 receipt number ACTDC-5950304.), filed by Connecticut State Conference of NAACP Branches, Gloria Francesconi, League of Women Voters of Connecticut.(Barrett, Dan) Modified on 7/2/2020 to update party (Anastasio, F.).

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
CONNECTICUT STATE CONFERENCE
OF NAACP BRANCHES, LEAGUE OF
WOMEN VOTERS OF CONNECTICUT,
and GLORIA FRANCESCONI,
No. 20-cv-909
Plaintiffs,
v.
DENISE W. MERRILL, in her official
capacity as Secretary of the State of
Connecticut,

July 2, 2020

Defendant.
Complaint
1.

Connecticut Secretary of State Denise Merrill remarked that in “[i]n Connecticut,

no one should be forced to choose between protecting their health and exercising their right to
vote.” 1 Despite this laudable and constitutionally vital goal and the brutal toll the novel
coronavirus, COVID-19, continues to inflict on the State, Connecticut has retained one of the
most restrictive mail voting systems in the nation for the November general election. This action
seeks to remedy the violation of the fundamental right to vote for the many thousands of
Connecticut citizens who cannot safely vote at the polls and do not meet one of Connecticut’s
narrow requirements to vote by mail—and in doing so, seeks to preserve their health and that of
the Connecticut public.
2.

1

We are months into a deadly pandemic that now has afflicted over 46,000

Ltr. from Conn. Sec. of State Denise Merrill at 1 (May 2), https://authoring.ct.gov//media/SOTS/ElectionServices/2020-Voting-Plan-FINAL-DRAFT-May-2-715-PM.pdf?la=en.

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Connecticut residents and killed over 4,300, 2 prompting Governor Ned Lamont to declare a
public health emergency and to issue a number of restrictions to promote social distancing
including closing nonessential business and requiring the use of face masks in many public
places. Indeed, this Court has explained in a recent order that due to advice from the U.S.
Centers for Disease Control and Prevention (“CDC”) that “the best way to prevent illness is to
avoid being exposed to the virus, through, among other means, social distancing,” and thus has
significantly adapted its own operating procedures. 3
3.

Yet this summer will not mark of the end of this pandemic in the United States,

with cases surging in the majority of the county and National Institute of Allergy and Infectious
Diseases Director Dr. Anthony Fauci warning that new cases could soon reach record levels of
100,000 new cases a day. 4 Over 126,000 Americans have already been killed by the
coronavirus. 5 In fact, Director of the CDC Robert Redfield has announced that 24 million
Americans have likely already been infected by COVID-19—a figure ten times higher than the
number of confirmed cases—and that the pandemic is still in its early stages, with much greater
potential for causing harm than has been seen thus far. 6 The current crisis only recently reached
its first “peak” in Connecticut, but it will still pose a grave public health risk in the fall—
2

COVID-19 Update June 30, 2020, CT.gov (Jun. 30, 2020), https://portal.ct.gov//media/Coronavirus/CTDPHCOVID19summary6302020.pdf.
3

Superseding Gen’l Order, In re Ct. Operations under the Exigent Circumstances Created by COVID-19 (D. Conn.
Apr. 27, 2020) (providing that in-person proceedings would be halted through June 15, 2020).
4

See Sheryl Gay Stolberg and Noah Weiland, Fauci Says U.S. Could Reach 100,000 Virus Cases a Day as
Warnings Grow Darker, N.Y. Times (June 30, 2020, updated July 1, 2020),
https://www.nytimes.com/2020/06/30/us/politics/fauci-coronavirus.html.

5

Ctrs. for Disease Control & Prevention, Cases and Deaths in the U.S. (last updated Jun. 30, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/us-cases-deaths.html.

6

Lena H. Sun & Joel Achenbach, CDC chief says coronavirus cases may be 10 times higher than reported: Agency
expands list of people at risk of severe illness, including pregnant women, Wash. Post (Jun. 25, 2020),
https://www.washingtonpost.com/health/2020/06/25/coronavirus-cases-10-times-larger/.

2

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potentially an even greater risk than the first peak. Both experts like Dr. Fauci and reliable
models project that even in places where the current outbreak subsides briefly, infection rates
will rebound again by the fall. 7 Indeed, new cases are once again on the rise in at least 35 states
and territories and are only decreasing in four. 8
4.

Yet despite the importance of maintaining social distancing, and the predicted

next wave of infections, hospitalizations, and deaths, Connecticut has adapted its mail voting
requirements only for the August primary. All registered voters in Connecticut will now be able
to vote by mail ballot for the August election, but the State has not yet taken similar action to
protect public health and individual safety during the November general election, despite the
hardships the pandemic will certainly pose at that time. This inaction threatens public health
while disenfranchising at minimum tens of thousands—if not hundreds of thousands—of
Connecticut voters who are unable to qualify for one of the narrow exceptions under state law to
vote by mail and rightfully believe it will be unsafe for them to vote in person. And while the
Secretary has provided a memorandum of opinion expanding the definition of illness to
individuals with preexisting conditions and some other limited categories of Connecticut
residents, her interpretation appears to apply only to the August primary. 9

7

See Savannah Behrmann, ‘Convinced’: Fauci Says There Will Be Coronavirus in the Fall After Trump Says ‘It
May Not Come Back’, USA Today (Apr. 23, 2020),
https://www.usatoday.com/story/news/politics/2020/04/22/coronavirus-dr-anthony-fauci-says-i-am-convincedsecond-wave/3009131001/; Dr. Fauci anticipates coronavirus outbreak in the fall, CountOnNews2 (Mar. 31, 2020)
(“Fauci said he anticipates coronavirus will be cyclical and return in the fall because of its degree of
transmissibility.”), https://www.counton2.com/news/national-news/dr-fauci-anticipates-coronavirus-outbreak-in-thefall/.
8

Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times (updated July 1, 2020),
https://www.nytimes.com/interactive/2020/us/coronavirus-uscases.html?action=click&module=RelatedLinks&pgtype=Article.
9

See Office of the Secretary of State, Memorandum of Opinion (May 6, 2020), https://portal.ct.gov//media/SOTS/ElectionServices/LEAD_Communications/2020/AB-COVID-Opinion.pdf?la=en (providing that
voters with “a pre-existing illness” as well as “individuals who may have been in contact with a COVID-19 infected

3

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5.

Those who are most susceptible to severe illness if they contract COVID-19

(including individuals with certain preexisting medical conditions and senior citizens) are not
currently eligible to vote absentee in November unless they are “ill” at the time of their ballot
request. Connecticut voters without preexisting conditions who are nonetheless rightfully
concerned about COVID-19 transmission and its consequences are also unable to vote using the
absentee process for the November election.
6.

These consequences fall especially heavily on Black voters in Connecticut—

including many of the approximately 10,000 members of Plaintiff Connecticut State Conference
of the NAACP—who are being afflicted by COVID-19 at significantly disproportionate rates.
Connecticut’s history of discrimination against Black residents, as well as continuing
discrimination in areas such as education, employment, and healthcare, interacts with
Connecticut’s narrow absentee voting requirements to hinder their ability to participate
effectively in the political process in violation of Section 2 of the Voting Rights Act. As an astute
journalist remarked about COVID-19’s disproportionate toll on Black Americans, “we cannot
skirt the fact that what is a nuisance for one person is another person’s plague.” 10
7.

Therefore, Plaintiffs challenge the requirement setting forth exclusive categories

of persons who “may vote by absentee ballot” in Connecticut (the “Excuse Requirement”) in the
context of COVID-19 community transmission. See Conn. Gen. Stat. § 9-135. A voter who does
not qualify under any of the listed categories must vote in-person on Election Day, or not vote at

individual such as healthcare workers, first responders, individuals who are caring for someone at increased risk, as
well as those that feel ill or think they are ill because of the possibility of contact with the COVID-19 virus” can
vote absentee due to illness in the August 11, 2020 primary election).
10

Michele L. Norris, The ‘us and them’ pandemic shows America is still impervious to black pain, Wash. Post., May
21, 2020, https://www.washingtonpost.com/opinions/2020/05/21/us-them-pandemic-shows-america-is-stillimpervious-black-pain/#click=https://t.co/oTQc47yJMt.

4

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all. In continuing to hew to the restrictive categories set out in this statute and failing to allow
absentee voting for individuals who—while not ill or symptomatic themselves, risk contracting
COVID-19 or transmitting the virus to others through in-person voting—Defendant has forced
Connecticut voters who seek to vote in the November election to make an untenable decision: to
risk the health of themselves and their household members or to give up their right to vote.
8.

The Excuse Requirement unreasonably burdens Plaintiffs’ members, Ms.

Francesconi’s, and many similarly situated Connecticut voters’ fundamental right to vote
because it does not allow them to practice recommended physical distancing to protect personal
and community health. Plaintiffs therefore respectfully request that the Court enjoin
Connecticut’s Excuse Requirement to vote absentee during community transmission of COVID19 and declare this requirement unconstitutional during continuing community transmission,
including for the November general election.
PARTIES
9.

Plaintiff Connecticut State Conference of NAACP Branches (“NAACP-CT”) is a

non-profit, non-partisan organization principally headquartered at 2074 Park Street, in Hartford,
Connecticut that is part of the National Association for the Advancement of Colored People.
NAACP-CT has 30 local units in various parts of the state. NAACP-CT’s mission is to secure
the political, educational, social, and economic equality of rights in order to eliminate race-based
discrimination and ensure the health and well-being of all persons. The organization envisions a
society in which all individuals have equal rights without discrimination based on race. The
NAACP’s game plan for eliminating race-based inequality and discrimination in the twenty-first
century focuses on six areas, including Voting Rights and Political Representation.
10.

NAACP-CT has approximately 10,000 members, most of whom reside in
5

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Connecticut and many of whom are registered voters in Connecticut. Some of these members
wish to vote via absentee ballot during the November 2020 election because of the risk of
COVID-19 transmission, even though many of them do not qualify under current law. The
majority of NAACP-CT’s members are fifty-five years old or older and a significant number are
older than age 65, and are thus particularly susceptible to severe infection or death from COVID19. NAACP-CT also has a youth leadership arm. A significant portion of NAACP-CT’s
members have underlying health conditions that put them at heightened risk of hospitalization or
death if they are exposed to COVID-19.
11.

NAACP-CT regularly expends significant resources on get-out-the-vote efforts

(including voter registration) and other election-related programming. As part of this effort,
NAACP-CT regularly shares information about voting rules and procedures with its
membership. NAACP-CT anticipates that it will have to divert additional resources from its
regular get-out-the-vote activities to advocate for suspension of the Excuse Requirement and to
conduct outreach to its members to ensure they understand whether they are eligible to vote
absentee during the November election. Indeed, NAACP-CT leaders have already been fielding
questions from their membership about whether and how they will be able to safely vote in
upcoming elections, in light of COVID-19.
12.

NAACP-CT has also devoted significant organizational resources to research,

education, and advocacy to minimize the harmful impacts of COVID-19 on its membership and
on racial minorities in Connecticut, generally. For example, the organization has convened a
“COVID-19 Urban Strategic Planning Committee” composed of over 100 local officials, experts,
and leaders which regularly meets.
13.

Plaintiff League of Women Voters of Connecticut (“LWVCT” or “the League”) is
6

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a membership organization dedicated to promoting civic engagement and protecting democracy
through advocacy, voter education, and voter assistance. LWVCT is an affiliate of the League of
Women Voters of the United States which was founded in 1920 to enfranchise more than 20
million voters and the organization’s mission is to empower voters and defend democracy. As
part of its mission, LWVCT advocates for the expansion of voting opportunities, including
through vote-by-mail, and provides information directly to members who wish to vote by mail,
including providing links on its website where members can find information about voting by
mail. LWVCT shares this voter education information during in-person and virtual events.
14.

LWVCT has 1536 members across the state and 25 local Leagues. A substantial

number of LWVCT members intend to vote by mail in August and Connecticut’s other
upcoming elections including November if able. LWVCT membership is broad and diverse and
includes many individuals who due to age, disability, and/or other preexisting conditions are at a
heightened risk of contracting COVID-19. The League’s members who are registered voters will
not be able to vote in person due to the COVID-19 public health crisis without risking their
health and safety. This includes members who do not meet the current Excuse Requirement to
qualify for a mail-in ballot.
15.

The League has members who are election officials and poll workers or work

directly with poll workers and other election officials who will need to assist voters on Election
Day regarding any new rules around how to cast a ballot. Without action now, the League will
face an increased burden to avoid widespread confusion for poll workers and election officials,
resulting in eligible voters being disenfranchised. A substantial part of the League’s work
includes registering voters and generally encouraging voter participation in elections, but its
work to educate voters about who may and may not vote by absentee ballot in light of the Excuse
7

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Requirement has already and will continue to cause the League to divert resources from other
priority areas including voter registration and participation efforts. Additionally, the League has
created a CT VOTES! Campaign that focuses on voter registration, voter education and efforts to
encourage citizens to vote in the 2020 general election in November. Many Connecticut citizens
rely on and trust the nonpartisan election information provided by the League. This campaign
needs to be able to distribute to voters accurate information about voting well in advance of the
2020 general election due to the complexities of absentee voting—which will be unfamiliar to
many voters. Connecticut’s maintenance of the Excuse Requirement for the November general
election will increase the complexity and cost of that campaign, draining additional resources
from other programmatic areas. Additionally, LWVCT anticipates that many voters will be
confused about their eligibility to cast an absentee ballot in November if the Excuse Requirement
is not suspended for the 2020 general election, given that many voters will have voted via
absentee ballot in the August 11, 2020 primary election who are not currently eligible to vote
absentee for the November 3, 2020 general election.
16.

Plaintiff Gloria Francesconi is an 88-year-old registered voter who lives in

Trumbull, Connecticut. She is also a member of the League. She has voted in person in nearly
every election since she turned 21but is now greatly concerned about contracting COVID-19
while voting in person. Because of her age, she runs a higher risk of serious complications or
death if she contracts COVID-19, and therefore has been practicing social distancing since the
outbreak began. Because of these significant risks to her health, Ms. Francesconi would like to
vote by absentee ballot for the November general election but does not meet any of the statutory
criteria in the Excuse Requirement for the November election. If the Excuse Requirement is
enjoined, however, or if the State expands the Excuse Requirement to allow all registered voters
8

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to vote by absentee ballot during COVID-19 transmission as it did for the August primary, Ms.
Francesconi would be able to safely vote by absentee ballot. If the Excuse Requirement is not
lifted or enjoined, she will be forced to either risk her health to vote in November or not vote at
all.
17.

Defendant Denise W. Merrill is the Secretary of State of Connecticut. As

Secretary of State, she is Connecticut’s Commissioner of Elections and thus its chief election
official, “with such powers and duties relating to the conduct of elections as are prescribed by
law.” Conn. Gen. Stat. § 9-3(a). As Commissioner, the Secretary has duties to, among others:
“advise local election officials in connection with proper methods of conducting elections”;
“prepare regulations and instructions for the conduct of elections, as designated by law”; and
“prescribe, provide and distribute absentee voting forms for use by the municipal clerks.” Conn.
Gen. Stat. § 9-4. During any municipal, state or federal election, primary or recanvass, or any
audit conducted pursuant to section 9-320f, “the Secretary of the State may issue an order. . . to
any registrar of voters or moderator to correct any irregularity or impropriety in the conduct of
such election.” Conn. Gen. Stat. § 9-3(b).
18.

Unless otherwise provide by law, “the Secretary’s regulations, declaratory rulings,

instructions and opinions, if in written form, and any order issued under subsection (b) of this
section, shall be presumed as correctly interpreting and effectuating the administration of
elections and primaries under this title.” Id. Additionally, the “Secretary of the State may make
any changes in any forms prescribed” in the absentee voting laws “which, in the opinion of said
secretary, are necessary to conform to the applicable provisions of federal law.” Conn. Gen. Stat.
§ 9-139b. In fact, Secretary Merrill used her authority as Commissioner of Elections for the state
to advise local election officials that a broad set of voters would be able to use the “illness”
9

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excuse to vote via absentee ballot during the August 11 primary. 11 Secretary Merrill is sued in
her official capacity.
JURISDICTION AND VENUE
19.

This action arises under the First and Fourteenth Amendments to the U.S.

Constitution and the Voting Rights Act and is brought under 42 U.S.C. §§ 1983 and 1988 and 52
U.S.C. §§ 10301, 10302(b) and 10501 to seek injunctive and declaratory relief for violations of
constitutional rights under color of state law. This Court therefore has subject matter jurisdiction
under 28 U.S.C. §§ 1331 and 1343.
20.

This Court has personal jurisdiction over Defendant, who is sued in her official

capacities as a state official. The violations complained of concern their conduct in such
capacities.
21.

Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202.

22.

Venue is proper under 28 U.S.C. § 1391(b)(1) because Defendant resides in this

judicial district, and under 28 U.S.C. § 1391(b)(2) because a substantial part of the events that
gave rise to Plaintiffs’ claims occurred there.
STATEMENT OF FACTS
I.

Transmission of COVID-19 and Public Health Guidelines
23.

Our nation faces a public health emergency caused by the exponential spread of

COVID-19, the respiratory disease caused by the novel coronavirus SARS-CoV-2. According to
the CDC, this coronavirus spreads aggressively and asymptomatic people can spread it. 12 All age

11

See Office of Sec’y of State, supra n.9.

12

Ctrs. for Disease Control & Prevention, How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/how-covid-spreads.html (last updated Jun. 16, 2020).

10

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groups have contracted the disease. 13
24.

The United States is the current epicenter of the global COVID-19 pandemic. It

leads the world in the total number of COVID-19 cases with now over 2.58 million. 14 To date,
over 126,000 Americans have died from COVID-19. 15
25.

The World Health Organization (WHO) estimates that approximately 20% of

those who are infected by SARS-CoV-2 require hospitalization. 16 COVID-19 can severely
damage tissues in the lung, kidney, heart, and liver. 17 Surges of COVID-19 cases have strained
healthcare systems in several regions, causing critical shortages of doctors, nurses, hospital beds,
medical equipment, and personal protective equipment (PPE). 18
26.

Estimates from early March put the fatality rate for people infected with COVID-

19 at approximately ten times higher than even a severe flu season, including in countries with
advanced healthcare systems. 19

13

Robert Verity, PhD. et al., Estimates of the Severity of Coronavirus Disease 2019: A Model-Based Analysis at 6,
Lancet Infec. Dis. (Mar. 30, 2020), https://www.thelancet.com/action/showPdf?pii=S1473-3099%2820%2930243-7.
14

Ctrs. for Disease Control & Prevention, Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html (last updated July 1, 2020).
15

Id.

16
World Health Organization, Q&A on Coronaviruses (COVID-19), “What are the Symptoms of COVID-19?,”
https://www.who.int/news-room/q-a-detail/q-a-coronaviruses (last visited July 1, 2020).
17

Lois Parshley, The Emerging Long-term Complications of Covid-19, Explained, Vox (June 12, 2020),
https://www.vox.com/2020/5/8/21251899/coronavirus-long-term-effects-symptoms (citing studies).
18

See, e.g., Covid-19, Fnancial Distress and the Struggle to Stay off the Critical List: One Hospital’s Story, Wash.
Post (May 13, 2020), https://www.washingtonpost.com/health/2020/05/13/coronavirus-damaged-hospitalfinancial/?arc404=true (describing the severe operational and financial challenges Griffin Hospital in Derby,
Connecticut has faced due to COVID-19); Margaret Barthel & Jenny Gathright, Stretched D.C.-Area Hospital
Workers Say They Need More Protective Gear—And Hazard Pay, DCist (May 21, 2020),
https://dcist.com/story/20/05/21/stretched-d-c-area-hospital-workers-say-they-need-more-protective-gear-andhazard-pay/.
19

Betsy McKay, Coronavirus vs. Flu: Which Virus is Deadlier, Wall St. J. (Mar. 10, 2020),
https://www.wsj.com/articles/coronavirus-vs-flu-which-virus-is-deadlier-11583856879; see also Castillo v. Barr,
No. 20-00605, 2020 WL 1502864, at *2 (C.D. Cal. Mar. 27, 2020) (“COVID-19 is highly contagious and has a
mortality rate ten times greater than influenza.”).

11

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27.

People of all ages have contracted COVID-19 and died from it, but the illness

poses special risks for the elderly and those with certain preexisting medical conditions. As the
CDC has explained, the risk of getting severely ill from COVID-19 increases as you get older,
with 8 out of 10 COVID-19-related deaths in the United States occurring among adults aged 65
years and older. 20 COVID-19 also poses greater risks for people with preexisting heart and
respiratory conditions, individuals with compromised immune systems, and those with many
other conditions. 21 The CDC has also found that some people with disabilities are at a higher risk
of infection or severe illness because of their underlying medical conditions. 22
28.

The effects of the pandemic on everyday life will likely last well through and past

the 2020 election cycle. 23 Experts have indicated that COVID-19 “as a virus new to humans, will
face less immunity and thus transmit more readily even outside of the winter season,” and that
season changes are “unlikely to stop transmission.” 24 And as emerging diseases expert Amesh
Adalja of the Johns Hopkins University Center for Health Security recently stated, “October

20

Ctrs. for Disease Control & Prevention, Older Adults, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/older-adults.html (last updated June 25, 2020).
21

Ctrs. for Disease Control & Prevention, People of Any Age with Underlying Medical Conditions,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last updated
June 25, 2020).
22

Ctrs. for Disease Control & Prevention, People with Disabilities, https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-with-disabilities.html (last updated Apr. 7, 2020); Ctrs. for Disease Control &
Prevention, CDC Updates, Expands List of People at Risk of Severe COVID-19 Illness (June 25, 2020),
https://www.cdc.gov/media/releases/2020/p0625-update-expands-covid-19.html.
23

See, e.g., League of Women Voters of Virginia v. Virginia State Bd. of Elections, No. 6:20-CV-00024, 2020 WL
2158249, at *6 (W.D. Va. May 5, 2020) (noting “the evidence in the record that the COVID-19 pandemic will likely
pose a threat during [the November 2020] election”).
24

Marc Lipsitch, DPhil, Professor of Epidemiology and Director, Center for Communicable Disease Dynamics,
Harvard T.H. Chan School of Public Health, Seasonality of SARS-CoV-2: Will COVID-19 Go Away on its Own in
Warmer Weather?, https://ccdd.hsph.harvard.edu/will-covid-19-go-away-on-its-own-in-warmer-weather/ (last
visited July 1, 2020).

12

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2020 won’t look nothing like October 2019.” 25 As a recent report from the Center for Infectious
Disease Research and Policy at the University of Minnesota found, “this outbreak will likely last
18 to 24 months” and “likely won’t be halted until 60% to 70% of the population is immune.” 26
Further, even those who develop an immune response to the virus after an infection are not
necessarily safe from reinfection, as we do not yet have sufficient data about how long immunity
to the virus will last. 27 And, the CDC Director recently estimated that only 5-8% of the United
States population has been infected with COVID-19 thus far. 28
29.

There is no known effective treatment for COVID-19 and any effective, publicly

available vaccine is highly unlikely to be available before 2021. 29 As National Institute of
Allergy and Infectious Diseases Director Dr. Anthony Fauci testified before the Senate, “the idea
of having treatments available, or a vaccine” by this this fall “would be something that would be
a bit of a bridge too far.” 30 And even if a vaccine could be developed by the fall, Dr. Fauci has
explained that “there’s no guarantee that the vaccine is actually going to be effective.” 31 Yet

25
Sharon Begley, 3 Potential Futures for COVID-19: Recurring Small Outbreaks, a Monster Wave, or a Persistent
Crisis, Boston.com (May 5, 2020), https://www.boston.com/news/coronavirus/2020/05/05/3-potential-futurescovid-19.
26
Kristine A. Moore, et al., COVID-19: The CIDRAP Viewpoint, Part 1: The Future of the COVID-19 Pandemic:
Lessons Learned from Pandemic Influenza, Ctr. for Infectious Disease Research & Policy, Apr. 30, 2020,
https://www.cidrap.umn.edu/sites/default/files/public/downloads/cidrap-covid19-viewpoint-part1_0.pdf.
27

Robert D. Kirkcaldy, MD, MPH, et al., COVID-19 and Postinfection Immunity: Limited Evidence, Many
Remaining Questions, JAMA 2245–2246 (May 11, 2020); Apoorva Mandavilli and Katie Thomas, Will an Antibody
Test Allow Us to Go Back to School or Work?, N.Y. Times (Apr. 10, 2020),
https://www.nytimes.com/2020/04/10/health/coronavirus-antibody-test.html.
28

Lena H. Sun & Joel Achenbach, CDC Chief Says Coronavirus Cases May Be 10 Times Higher Than Reported:
Agency Expands List of People at Risk Of Severe Illness, Including Pregnant Women, Wash. Post (Jun. 25, 2020),
https://www.washingtonpost.com/health/2020/06/25/coronavirus-cases-10-times-larger/.
29

See, e.g., Decl. of Dr. Arthur L. Reingold, League of Women Voters of Virginia v. Virginia State Bd. of Elections,
No. 6:20-CV-00024, Dkt. No. 17-1 ¶¶ 12-15 (Apr. 21, 2020).
30

Dr. Anthony Fauci & CDC Director Senate Testimony Transcript May 12 at 32, Rev (May 12, 2020),
https://www.rev.com/blog/transcripts/dr-anthony-fauci-cdc-director-senate-testimony-transcript-may-12.
31

Id. at 19, 92.

13

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public health experts warn that the virus will continue to pose a serious threat to public health
and safety until that point. 32 Public health officials thus are urging the public to practice ‘social
distancing,’ frequent (and thorough) hand washing, and avoidance of close contact with others. 33
Governor Lamont has prohibited “indoor social and recreational” gatherings of more than 10
people and has prohibited outdoor gatherings of more than 25 people and allowed larger
gatherings only for strictly distanced “drive-in” religious, spiritual, and worship gatherings and
“drive-in” graduation ceremonies. 34
30.

Dr. Anthony Fauci, head of the National Institute of Allergy and Infectious

Diseases and member of the White House’s coronavirus taskforce, recently called the a second
round of COVID-19 in the fall “inevitable” and explained that the severity of the next wave will
depend on factors like continuation of current precautionary measures. 35 As Dr. Fauci has stated,
“[w]e will have coronavirus in the fall . . . . I am convinced of that because of the degree of

32

Devan Cole, Fauci Admits Earlier Covid-19 Mitigation Efforts Would Have Saved More American Lives, CNN
(Apr. 12, 2020), https://www.cnn.com/2020/04/12/politics/anthony-fauci-pushback-coronavirus-measurescnntv/index.html.
33

Johns Hopkins University, Coronavirus, Social Distancing and Self-Quarantine,
https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-social-distancing-andself-quarantine (last visited Apr. 21, 2020); Declaration of Dr. Jonathan Louis Golob at ¶ 8, ECF No. 5, Dawson v.
Asher, No. 2:20-cv-00409-JLRMAT (W.D. Wash. Mar. 16, 2020).
34
A prohibition on gatherings greater than 5 people was announced in Executive Order 7N, and was extended
through June 20 in Executive Order 7PP. Conn. Exec. Order No. 7N (Mar. 26, 2020), https://portal.ct.gov//media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-7N.pdf; Conn.
Exec. Order No. 7PP (May 18, 2020), https://portal.ct.gov/-/media/Office-of-the-Governor/ExecutiveOrders/Lamont-Executive-Orders/Executive-Order-No-7PP.pdf. On May 29, Governor Lamont issued Executive
Order 7TT, allowing for indoor gatherings of up to 10 people and outdoor gatherings of up to 25 people. Conn.
Exec. Order No. 7TT (May 29, 2020), https://portal.ct.gov/-/media/Office-of-the-Governor/ExecutiveOrders/Lamont-Executive-Orders/Executive-Order-No-7TT.pdf. Soon after, he allowed for “drive-in” ceremonies
for very limited occasions. Conn. Exec. Order No. 7XX (Jun. 5, 2020), https://portal.ct.gov/-/media/Office-of-theGovernor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-7XX.pdf.
35

Christina Maxouris, US Could be in for ‘a Bad Fall and a Bad Winter’ if it’s Unprepared for a Second Wave of
Coronavirus, Fauci Warn, CNN (Apr. 29, 2020), https://www.cnn.com/2020/04/29/health/us-coronaviruswednesday/index.html.

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transmissibility that it has, the global nature.” 36 He also noted that he “can’t guarantee” in-person
voting will be safe in November, because of a potential resurgence of COVID-19 in the fall. 37
31.

Of course, this litigation is not seeking to eliminate in-person voting options,

which are important for voters with accessibility needs due to disability, low-English
proficiency, or illiteracy, and to those who do not have access to reliable mail service, among
others. Plaintiffs are merely seeking that a vote-by-mail option be available to all Connecticut
voters.
32.

The CDC has issued specific guidelines concerning voting during the COVID-19

pandemic. Among other things, it notes that states like Connecticut “with only in-person voting
on a single day are higher risk for COVID-19 spread because there will be larger crowds and
longer wait times,” and that ways to lower risk providing a “a wide variety of voting options,”
“longer voting periods (more days and/or more hours),” and “any other feasible options for
reducing the number of voters who congregate indoors in polling locations at the same time.” 38
In other words, by expanding mail voting, states will decrease the risk to voters at polling places.
33.

But for many Americans—particularly people who are older, immune-

compromised, or have underlying health conditions that put them at high-risk for severe COVID-

36
Savannah Behrmann, ‘Convinced’: Fauci Says There Will Be Coronavirus in the Fall After Trump Says ‘It May
Not Come Back’, USA Today (Apr. 23, 2020),
https://www.usatoday.com/story/news/politics/2020/04/22/coronavirus-dr-anthony-fauci-says-i-am-convincedsecond-wave/3009131001/.
37

Jason Silverstein, Fauci says he “can’t guarantee” in-person voting in November will be safe Fauci Says He
“Can’t Guarantee” In-Person Voting in November Will be Safe, CBS News (Apr. 13, 2020),
https://www.cbsnews.com/news/coronavirus-fauci-says-he-cant-guarantee-in-person-voting-in-november-will-besafe/?ftag=CNM-00-10aac3a.
38

Ctrs. for Disease Control & Prevention, Considerations for Election Polling Locations and Voters,
https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html (last updated
June 22, 2020).

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19 infections—voting by mail will be, by far, the safest option for casting a ballot in November.
34.

Accordingly, more than 800 public health experts have called “on our leaders to

prepare for a Presidential election by mail, in which ballots are sent to all registered voters, to
allow them to vote from home and ensure their health and safety” in November 2020, because
“Americans should never again be asked to choose between performing one of the most
hallowed obligations and privileges of citizenship—voting for our representatives at the local,
state and federal levels—and our health.” 39
35.

These are essential recommendations given the relatively minimal risks of voting

by mail versus voting in person during the pandemic. There is no evidence that SARS-CoV-2
can be spread through the mail, and the U.S. Postal Service has further changed their policies to
“eliminate the requirement that customers sign our Mobile Delivery Devices for delivery” and
now require the customer “to step back a safe distance or close the screen door/door so that they
may leave the item in the mail receptacle or appropriate location by the customer door.” 40
36.

In contrast, the risks of interpersonal interaction while voting at a polling place are

already evident. A recent study found that COVID-19 bearing droplets could travel as far as 23
to 27 feet as part of a “turbulent gas cloud” exhaled by an infected individual. 41 During Florida’s
recent primary, two Broward County poll workers tested positive for COVID-19, one of whom

39

Sam Hananel, RELEASE: More Than 800 Public Health Experts Urge Congress To Fund Vote by Mail in
November, Center for American Progress (May 5, 2020),
https://www.americanprogress.org/press/release/2020/05/05/484590/release-800-public-health-experts-urgecongress-fund-vote-mail-november/.
40
United States Postal Service, Media Statement – COVID-19 (Apr. 30, 2020),
https://about.usps.com/newsroom/statements/usps-statement-on-coronavirus.htm (citing guidance from World
Health Organization, CDC, and Surgeon General).
41
Lydia Bourouiba, Turbulent Gas Clouds and Respiratory Pathogen Emissions: Potential Implications for
Reducing Transmission of COVID-19, JAMA Insights (Mar. 26, 2020),
https://jamanetwork.com/journals/jama/fullarticle/2763852.

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was handling driver’s licenses as part of the identification verification process. 42 And on April
13, Chicago officials reported that a poll worker for the city’s March 17 election died of COVID19, prompting officials to send letters notifying voters, poll workers, field investigators, and
cartage companies who were present at the same polling site. 43
37.

Elections held on April 7 in Wisconsin saw multi-hour waits and lines stretching

blocks upon blocks in places like Milwaukee and Green Bay, in part, because government
officials there were unable to create a viable vote-by-mail process for all voters. Crowded lines at
polling places are prime locations for person-to-person contagion. And indeed, the Wisconsin
Department of Health Services has directly traced and linked 71 confirmed cases of COVID-19
to people who voted in-person voting in the April 7 primary. 44 More recently, a team of
economists found “a statistically and economically significant association between in-person
voting and the spread of COVID-19 two to three weeks after the election” in Wisconsin. 45
38.

Since then, there have been hours-long waits at polling places on Election Day in

42

Anthony Man, Two Broward Poll Workers, Including One Who Handled Voters’ Driver Licenses, Test Positive
for Coronavirus, S. Fla. Sun Sentinel, Mar. 26, 2020, https://www.sun-sentinel.com/coronavirus/fl-nebrowardelections-poll-workers-coronavirus-20200326-wmgy775dvjc5jis2oagxlpmule-story.html.
43

See Mary Ann Ahern, Poll Worker at Chicago Voting Site Dies of Coronavirus, Election Officials Say, NBC
Chicago, Apr. 13, 2020, https://www.nbcchicago.com/news/local/chicago-politics/poll-worker-at-chicago-votingsite-dies-of-coronavirus-election-officials-say/2255072/.
44

Dee J. Hall, Study: Poll Closings, COVID-19 Fears, Kept Many Milwaukee Voters Away, Wis. Public Radio
(June 24, 2020), https://www.wpr.org/study-poll-closings-covid-19-fears-kept-many-milwaukee-voters-away;
Associated Press, The Latest: 52 Positive Cases Tied to Wis. Election (Apr. 28, 2020),
https://apnews.com/b1503b5591c682530d1005e58ec8c267/.
45

Chad D. Cotti, et al., The Relationship between In-Person Voting, Consolidated Polling Locations, and Absentee
Voting on Covid-19: Evidence from the Wisconsin Primary, NBER Working Paper Series, Working Paper 27187
(May 2020, revised June 2020), available at https://www.nber.org/papers/w27187; see also Phillip Alvelda,
COVID-19 Cases and Deaths Surge: The Impact of Wisconsin’s In-person Primary Vote, Inst. For New Econ.
Thinking (May 27, 2020), https://www.ineteconomics.org/perspectives/blog/covid-19-cases-and-deaths-surge-theimpact-of-wisconsins-in-person-primary-vote (documenting “a measurable resurgence of the virus within six days of
the in-person April 7, 2020 primary election vote”).

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other states around the country, as well. 46
II.

COVID-19 in Connecticut
39.

The COVID-19 pandemic has deeply affected Connecticut. As of June 30, 2020,

the State had confirmed over 46,500 cases. 47 Over 4,300 people in Connecticut have died from
the disease. 48 And the confirmed number of cases may be significantly lower than the actual
total. The FDA recently issued an alert about the accuracy of one of the widely used rapid tests
for COVID-19 after researchers at New York University found those tests could be “missing a
third to almost half of the positive cases.” 49
40.

As has been the case nationally, Connecticut residents of all ages have tested

positive and died of COVID-19. Connecticut was home to one of the youngest people in the
world to die of COVID-19, a 7-week old infant. 50 Researchers have declared that Connecticut
has been among the states most severely impacted by the pandemic in the United States. 51
41.

Models used by health officials predict a sustained outbreak in Connecticut will

continue into the summer, if not longer. 52 Indeed, how quickly the state reopens over the next

46

See, e.g., Steve Peoples & Christina Cassidy, ‘It’s Broken’: Fears Grow About Patchwork US Election System
(June 11, 2020), https://apnews.com/550d11a97af645b1d6e64ad2047cd72a (Las Vegas voters were in line to vote
until 3am for the June 9, 2020 Nevada primary).
47

Conn. COVID-19 Data Tracker, Conn.’s Official State Website, https://portal.ct.gov/Coronavirus/COVID-19Data-Tracker (last updated June 30, 2020).
48

Id.

49

Salvador Rodriguez, FDA Issues Warning on Accuracy of Abbott’s Rapid Coronavirus Test After Study Finds
False Negatives, CNBC (May 14, 2020), https://www.cnbc.com/2020/05/14/fda-data-suggests-abbotts-rapidcoronavirus-diagnostic-test-is-delivering-inaccurate-results.html.
50

Newborn in Conn. Dies of Coronavirus, NBC Conn. (last updated Apr. 3, 2020),
https://www.nbcconnecticut.com/news/local/newborn-in-connecticut-dies-of-coronavirus/2248709/.
51

Forrest W. Crawford, et. al, COVID-19 Projections for Reopening Connecticut, Yale School of Pub. Health (May
20, 2020) at 1.
52
See Institute for Health Metrics and Evaluation, COVID-19 Projections: Connecticut,
https://covid19.healthdata.org/united-states-of-america/connecticut (last visited May 27, 2020).

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few weeks will have a major impact on whether there will be an uptick in COVID-19 infection
rates and deaths in September and beyond. 53
42.

On March 10, Governor Lamont declared both public health and civil

preparedness emergencies—emergency declarations that currently remain in effect until
September 9, 2020. 54 On March 29, President Trump approved a major disaster declaration for
Connecticut, which made federal emergency aid available for recovery efforts due to the
COVID-19 pandemic. 55
43.

To combat viral spread, Governor Lamont has taken a series of increasingly

aggressive steps since early March, including by issuing several dozen executive orders.
44.

The Governor’s executive orders have had the incremental effect of closing down

most “non-essential” businesses, closing schools and requiring residents of the State to “Stay
Safe, Stay Home” and essentially shelter in place.
45.

In coordination with the Secretary of State, Governor Lamont initially postponed

Connecticut’s presidential preference primary from April 28 until June 2. 56 In light of the

53

Michael Greenwood, “Risk of Resurgence” in COVID-19 Epidemic if Connecticut Reopens Too Quickly, YSPH
Report Finds, Yale School of Medicine (May 22, 2020), https://medicine.yale.edu/news-article/24924/ (If the state
reopens at a fast pace “(defined as increasing contact at a rate of 10 percent every two weeks), Crawford and
colleagues found that the number of new infections is likely to spike throughout the summer, potentially exceeding
hospitalization capacity and resulting in anywhere from 5,400 to 13,400 total deaths by September 1.”) (referencing
Crawford et. al, supra n.51).
54

Governor Ned Lamont, Declaration of Public Health and Civil Preparedness Emergencies
(Mar. 10, 2020), https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020-03/Connecticut%2020200310declaration-of-civil-preparedness-and-public-health-emergency.pdf
55
Governor Lamont Announces Approval of Fed. Disaster Declaration for COVID-19 Response in Conn., Office of
Governor Ned Lamont (March 29, 2020), https://portal.ct.gov/Office-of-the-Governor/News/PressReleases/2020/03-2020/Governor-Lamont-Announces-Approval-of-Federal-Disaster-Declaration.
56
Governor Lamont Orders Conn.’s Presidential Primary Election Rescheduled to June 2, Office of Governor Ned
Lamont (Mar. 19, 2020), https://portal.ct.gov/Office-of-the-Governor/News/Press-Releases/2020/032020/Governor-Lamont-Orders-Connecticuts-Presidential-Primary-Election-Rescheduled-to-June-2.

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ongoing public health crisis, he then further rescheduled it until August 11.57
46.

This Court has taken similar steps in light of the pandemic, including suspending

all jury trials and continuing all in court civil and criminal proceedings until June 15, 2020. 58
And on June 12, this Court continued to acknowledge “the public health risks presented by incourt appearances” by giving individual judges the discretion as to “whether it is in the interests
of justice to hold any non-jury civil or criminal proceeding in the courtroom.” 59
47.

The Connecticut legislature also stopped meeting due to the public health crisis on

March 11 and did not reopen before its session adjourned on May 6. 60 The Governor has called
for a special session at some point this summer to address both absentee voting in November and
police accountability measures, but none has been scheduled to date.
48.

The presidential general election will take place on November 3, 2020. Printed

absentee ballot sets will become available to voters starting on October 2, 2020. Conn. Gen. Stat.
Ann. §9-140(f). 61 The deadline to request an absentee ballot for the November election is
November 2, 2020.
49.

Secretary Merrill has already announced that she plans to mail all registered

57

Governor Lamont Orders Conn.'s Presidential Primary Election Further Rescheduled to August 11, Office of
Governor Ned Lamont (Apr. 17, 2020), https://portal.ct.gov/Office-of-the-Governor/News/Press-Releases/2020/042020/Governor-Lamont-Orders-Connecticuts-Presidential-Primary-Election-Further-Rescheduled-to-August-11.
58

General Order, In re: Court Operations Under the Exigent Circumstances Created By COVID-19, U.S. Dist. Ct.
Dist. of Conn. (Apr. 27, 2020), http://www.ctd.uscourts.gov/sites/default/files/4-27-20-COVID-19-SupersedingGeneral-Order-Re-Court-Operations__0.pdf.
59

General Order, In re: Court Operations Under the Exigent Circumstances Created By COVID-19, U.S. Dist. Ct.
Dist. of Conn. (June 12, 2020), http://ctd.uscourts.gov/sites/default/files/General-Order-61220.pdf.
60

Christine Stuart, When Can Connecticut Lawmakers Get Back to Work?, NBC Conn., May 22, 2020,
www.nbcconnecticut.com/news/local/when-can-connecticut-lawmakers-get-back-to-work/2275951/.
61
See also November 3, 2020 State Election Calendar, Office of Sec’y of State
(Dec. 2019) at 29, https://portal.ct.gov/-/media/SOTS/ElectionServices/Calendars/2020Election/2020Calendar.pdf?la=en.

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voters an application to vote via absentee ballot for both the August primary and the November
general election. 62 While a positive step for voter access, carrying out this plan in the absence of
an expansion of eligibility to vote via absentee ballot to all registered voters for November will
cause confusion among voters and local election administrators. A voter who receives an
absentee ballot application form in the mail in September or October may be misled to believe
that they are eligible to vote absentee during the November general election; and potentially
result in many thousands of voters who do not qualify for absentee ballots believing that there is
no need to go to the polls on Election Day. This confusion may be heightened by the fact that
many voters successfully voted via an absentee ballot during the August primary but currently
will not be allowed to utilize that process for the November general election.
III.

COVID-19’s Impact on Black Americans in Connecticut in Light of Ongoing and
Historical Discrimination
50.

Nationally, the COVID-19 pandemic has had a particularly devastating effect on

Black communities. An analysis by the Associated Press—one of the first attempts to examine the
racial disparities of COVID-19 cases and deaths nationwide—found that, in areas where the
demographic data has been publicly shared by government officials, Black Americans have made
up 42% of people who have died from COVID-19, despite accounting for roughly only 21% of
the total population in these areas. 63 And a CDC report published on April 8, 2020, which included

62

Press Release: Secretary Merrill Releases Connecticut's Election Plan in the Face of COVID-19, Office of the
Sec’y of State, (May 4, 2020), https://portal.ct.gov/SOTS/Press-Releases/2020-Press-Releases/Secretary-MerrillReleases-Connecticuts-Election-Plan-in-the-Face-of-COVID19 (“The circumstances of the current pandemic make
physically appearing in a polling place difficult or impossible for many voters. In an effort to ensure that every
eligible voter who wants to cast a ballot is able to do so, the Office of the Secretary, contracting with a mail house,
will be sending applications for absentee ballots to every registered voter in the state, and including postage paid
return for those applications.”) (emphasis added).
63
Kat Stafford et al., Outcry Over Racial Data Grows as Virus Slams Black Americans, Associated Press
(Apr. 8, 2020), https://apnews.com/71d952faad4a2a5d14441534f7230c7c?fbclid=IwAR1plunY_qfeA2KrSUPA1Tu
JobAwQh53a_Qlkf5dw0dWjz-iz85GA1FOt4.

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data from 1,482 patients hospitalized across 14 states, found that Black patients made up 33% of
those for whom race or ethnicity information was available, despite representing only 18% of the
states’ populations. 64 As such, the CDC observed that current data on the COVID-19 pandemic
“suggest a disproportionate burden of illness and death among racial and ethnic minority
groups.” 65
51.

A recent Harvard study also confirms the ugly truth that Black Americans and

Latino Americans between the ages of 24 and 54 are far more likely to die of COVID-19 than
whites, with COVID-19 mortality rates ranging from five-to-nine fold higher among racial
minorities than whites. 66
52.

Courtney Cogburn, an associate professor at the Columbia University School of

Social Work, noted that “[t]here are patterns at this intersection of race and socioeconomic status
that make it very clear this is just not a story about poverty.” That is, racial disparities in serious
illness and death due to COVID-19 are inextricably linked to a long history of and ongoing
patterns of racial discrimination against Black Americans:
A history of systemic racism and inequity in access to health care and economic
opportunity has made many African Americans far more vulnerable to the virus.
Black adults suffer from higher rates of obesity, diabetes and asthma, which make
them more susceptible, and also are more likely to be uninsured. They also often

64

Morbidity and Mortality Weekly Report, Hospitalization Rates and Characteristics of Patients Hospitalized with
Laboratory-Confirmed Coronavirus Disease 2019—COVID-NET, 14 States, March 1-30, 2020, CDC (Apr. 17,
2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6915e3-H.pdf.
65
COVID-19 in Racial and Ethnic Minority Groups, CDC (last updated
June 16, 2020), https://www.cdc.gov/minorityhealth/newsletter/2020/summer/news.html.
66

MT Bassett, et al., The unequal toll of COVID-19 mortality by age in the United States: Quantifying racial/ethnic
disparities, Harvard Ctr. For Development & Population Studies, June 12, 2020, https://cdn1.sph.harvard.edu/wpcontent/uploads/sites/1266/2020/06/20_Bassett-Chen-Krieger_COVID-19_plus_age_working-paper_0612_Vol19_No-3_with-cover.pdf.

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report that medical professionals take their ailments less seriously when they seek
treatment. 67
53.

These trends are now quite apparent in Connecticut. As of June 29, Black

Connecticut residents tested positive for COVID-19 at well over twice the rate of white
Connecticut residents. 68 And Black Connecticut residents are also dying of COVID-19 at a
significantly higher rate than white Connecticut residents. 69
54.

As CEO of the Connecticut Convergence Institute Dr. Cato Laurencin explained,

this higher infection rate for Black communities is linked to social inequality such as less reliable
health care access, higher rates of chronic illness, employment in jobs requiring more
interpersonal interaction, and denser living environments that make social distancing harder—all
of which “have a common thread of racism or discrimination.” 70
55.

And as the Connecticut Health Foundation has detailed:
Even before this pandemic, people of color in Connecticut were
more likely to live in poor health than their white counterparts and,
for black residents, to die younger. . . . These differences are not
accidental, nor are they the result of biological differences between
people of different races. Instead, they reflect differences in the
opportunities and barriers to being healthy–differences that are
rooted in structural racism and bias.” 71

56.

67

As of 2018, Black Connecticut residents lacked health insurance at higher rates

Stafford, et al., supra n.63.

68

COVID-19 Update June 28, 2020, Conn. Official State Website (last updated June 28, 2020),
https://portal.ct.gov/-/media/Coronavirus/CTDPHCOVID19summary6282020.pdf.
69

Id.

70

Siobhan McGirl, The Mental Health Effects of COVID-19 on Communities of Color, NBC Conn., (revised Apr.
24, 2020), https://www.nbcconnecticut.com/news/local/the-mental-health-effects-of-covid-19-on-communities-ofcolor/2260124/ (citing a research article co-authored by Dr. Laurencin on the racial disparities in how COVID-19
affects Connecticut residents).
71
COVID-19 in Context: Why We Need to Understand the Roots of Health Disparities, Conn. Health Foundation
(Apr. 16, 2020), https://www.cthealth.org/latest-news/blog-posts/covid-19-in-context-why-we-need-to-understandthe-roots-of-health-disparities/.

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than white residents, 72 and they were also less likely to have a personal doctor or health care
provider. 73 Black Connecticut residents also experience conditions which lead to greater
complications from COVID-19 (including asthma, high blood pressure, obesity, and diabetes) at
higher rates than other groups. 74
57.

Racial discrimination in Connecticut has also resulted in socioeconomic

inequalities that disadvantage Black Americans, like higher rates of unemployment, disability,
poverty, and inadequate health insurance than white people. These factors also make it more
likely that Black voters in Connecticut are forced to work outside the home even during the
current pandemic and are therefore more exposed to COVID-19.
IV.

Connecticut’s Absentee Voting Process
A. Constitutional and Statutory Framework for Allowing Absentee Voting
58.

The Connecticut Constitution provides that the “general assembly may provide by

law for voting . . . by qualified voters of the state who are unable to appear at the polling place on
the day of election because of absence from the city or town of which they are inhabitants or
because of sickness, or physical disability or because the tenets of their religion forbid secular

72

Uninsured Rates for the Nonelderly by Race/Ethnicity, Kaiser Family Foundation,
https://www.kff.org/uninsured/state-indicator/rate-byraceethnicity/?currentTimeframe=0&selectedRows=%7B%22wrapups%22:%7B%22unitedstates%22:%7B%7D%7D,%22states%22:%7B%22connecticut%22:%7B%7D%7D%7D&sortModel=%7B%22colI
d%22:%22Location%22,%22sort%22:%22asc%22%7D.
73
Adults Who Report Not Having a Personal Doctor/Health Care Provider by Race/Ethnicity, Kaiser Family
Foundation, https://www.kff.org/other/state-indicator/percent-of-adults-reporting-not-having-a-personal-doctor-byraceethnicity/?currentTimeframe=0&selectedRows=%7B%22wrapups%22:%7B%22unitedstates%22:%7B%7D%7D,%22states%22:%7B%22connecticut%22:%7B%7D%7D%7D&sortModel=%7B%22colI
d%22:%22Location%22,%22sort%22:%22asc%22%7D.
74

Nepaul et al., The Burden of Asthma in Connecticut 2012 Surveillance Report, Conn. Dep’t of Public Health at 23
(2012), https://portal.ct.gov/-/media/Departments-andAgencies/DPH/dph/hems/asthma/pdf/Fullreportwithcoverpdf.pdf?la=en; Conn. Dep’t of Public Health, Conn.
Cardiovascular Disease Statistics Rep. at 13, 19, and 25 (Sept. 2017), https://portal.ct.gov/-/media/Departmentsand-Agencies/DPH/dph/hems/chronic_dis/HeartDisease/2017_CVDStats_CT_8Sept2017final-pdf.pdf?la=en.

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activity.” Conn. Const. art. VI, § 7.
59.

The General Assembly has implemented this provision more narrowly in some

respects than the Connecticut Constitution allows, providing that eligible voters “may vote by
absentee ballot if he or she is unable to appear at his or her polling place during the hours of voting
for any of the following reasons: (1) His or her active service with the armed forces of the United
States; (2) his or her absence from the town of his or her voting residence during all of the hours
of voting; (3) his or her illness; (4) his or her physical disability; (5) the tenets of his or her religion
forbid secular activity on the day of the primary, election or referendum; or (6) the required
performance of his or her duties as a primary, election or referendum official. . . .” Conn. Gen.
Stat. § 9-135.
B. Recent Expansion of Absentee Voting for the Primary Election
60.

On May 6, 2020, Secretary Merrill issued a Memorandum of Opinion using her

authority under Connecticut General Statutes §9-3 to clarify “the definition of “Illness” for
Absentee Balloting at a time when the Governor has declared a public health and civil preparedness
emergency throughout the State of Connecticut.” 75 This guidance was issued to all of the state’s
town clerks and registrars of voters. In it, Secretary Merrill explained that the “illness” excuse for
voting absentee would cover a much broader set of voters for the upcoming August primary, in
light of the lack of limiting statutory language, the dictionary definition of illness, and the CDC’s
identification of numerous underlying medical conditions that put some individuals at higher risk
for severe COVID-19 infection as “pre-existing illnesses.” Secretary Merrill’s interpretation did
not universally expand absentee voting to all registered voters but it did allow voters who

75

Office of Sec’y of State, Mem. of Op. re: Re: Absentee Balloting Voting During a State of Health Emergency
(May 6, 2020), https://portal.ct.gov/-/media/SOTS/ElectionServices/LEAD_Communications/2020/AB-COVIDOpinion.pdf.

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previously would not have been able to vote absentee to do so for the August primary (including
those with pre-existing illnesses, those who had been in contact with people infected with COVID19, individuals caring for someone at increased risk of contracting COIVD-19, and voters who
“feel ill or think they are ill because of the possibility of contact with the COVID-19 virus”).
61.

At the beginning of her opinion, Secretary Merrill wrote that her purpose was to

ensure safe voter participation in the August primary election and was done pursuant to emergency
powers that currently expire in September. It appears, therefore, that this definition of illness exists
only through the State of Emergency and thus for the August primary, but not currently for the
November election. It is unclear whether this guidance would continue based on the declaration of
a new public health and/or civil preparedness emergency.
62.

On May 20, 2020, Governor Ned Lamont issued Executive Order No. 7QQ, which

made a number of temporary revisions to the state absentee balloting procedures in order to allow
safe voting in the August 11 primary. Among other reasons for expanding the opportunity to vote
by mail for that election, Governor Lamont cited to the fact that “absentee voting offers a proven
method of secure voting that reduces the risk of transmission of COVID-19 by allowing
individuals to vote by mail and by reducing the density of in-person voting at polling place.” 76
63.

Under Governor Lamont’s May 20 Executive Order, all eligible Connecticut voters

may legally vote via absentee ballot for the August 11 primary, “if, at the time he or she applies
for or casts an absentee ballot for the August 11, 2020 primary election, there is no federally
approved and widely available vaccine for prevention of COVID-19.” In his order, Governor
Lamont also mandated several changes to the typical absentee voting process for the August

76

Protection of Public Health and Safety During COVID-19 Pandemic and Response – Safe Voting During
Statewide Primary, Executive Order No. 7QQ (May 20, 2020), https://portal.ct.gov/-/media/Office-of-theGovernor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-7QQ.pdf.

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primary, including: (1) addition of a notice on absentee ballot envelopes explaining who is eligible;
(2) explicit authorization for Secretary Merrill to make any modifications necessary to accurately
inform voters of their absentee voter eligibility under the executive order (notwithstanding
contrary legal provisions, if any); (3) authorization for municipal clerks to use third party vendors
to mail absentee voting sets for the August 11 primary; and (4) authorization for voters to “mail”
their ballots via secure drop boxes.
64.

The clear import of Governor Lamont’s executive order is that the expansion of

absentee voting eligibility applies only to the August 11 primary election and does not extend to
the November general election.
C. Safeguards in Place to Secure the Absentee Balloting Process
65.

Potential voters may apply for an absentee ballot by filling out an application and

mailing it to their municipal clerk. In addition to making absentee ballot applications available
online for downloading and printing, Secretary of State Merrill recently announced that—
notwithstanding the restrictive Excuse Requirements currently remaining in effect for the general
election—her office “will provide an absentee ballot application to all eligible voters for the 2020
primary and general elections.” 77 The application asks the individual for their name, date of birth,
address and other contact information, how they wish to receive the ballot (by mail for most
voters), the election for which the absentee ballot is requested, and the “excuse” for which they
require the ballot. It also requires applicants to sign a declaration under penalty of perjury, and for
anyone who provided assistance to the individual completing the application to sign a similar

77

Ltr. from Conn. Sec. of State Denise Merrill at 9, May 2, https://authoring.ct.gov//media/SOTS/ElectionServices/2020-Voting-Plan-FINAL-DRAFT-May-2-715-PM.pdf?la=en.

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declaration. 78
66.

Once an application is received, the municipal clerk must “check the name of each

absentee ballot applicant against” the most recent voter registration lists and only send ballots to
those who appear on the list. Conn. Gen. Stat. § 9-140(c). For individuals who do not appear on
the list, the clerk must send them a notification but will not transmit a ballot. Id.
67.

Connecticut has a number of laws governing the handling of absentee ballot

applications, including laws that prohibit providing or accepting compensation to distribute or
assist an individual in completing an absentee ballot. Conn. Gen. Stat. § 9-140(j). Another
provision mandates that an individual who distributes five or more absentee ballot application
outside of their immediate family or designees must register with the town clerk, maintain a list of
individuals to who they distributed applications, and file that list with the town clerk prior to the
relevant election day. Conn. Gen. Stat. § 9-140(k). Any person who willfully violates these
provisions “shall be guilty of a class D felony.” Conn. Gen. Stat. § 9-359.
68.

When the clerk reviews the application, verifies it meets the requirements and that

the individual is on the voter registration, they mail out to the voter “an absentee ballot, inner and
outer envelopes for its return, instructions for its use, and if applicable, explanatory texts
concerning ballot questions.” Conn. Gen. Stat. § 9-140(d).
69.

To properly submit an absentee ballot, the voter must fill out the ballot as instructed,

insert it into the inner envelope, and sign the form on the inner envelope “under the penalties of
false statement in absentee balloting.” Conn. Gen. Stat. § 9-140a. That form requires a voter to

78

Application for Absentee Ballot, https://portal.ct.gov//media/SOTS/ElectionServices/ElectForms/electforms/aabengpdf.pdf?la=en (The declaration of the absentee ballot
applicant reads: “I declare, under the penalties of false statement in absentee balloting, that the above statements are
true and correct, and that I am the applicant named above.”); see also Conn. Gen. Stat. § 9-140.

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state that they are eligible to vote in the jurisdiction and that they “expect to be unable to appear
at my polling place during the hours of voting at such primary, election or referendum” based on
one of the designated excuses in the Excuse Requirement. Conn. Gen. Stat. § 9-137. The voter
then must insert the inner envelope into the outer envelope. Conn. Gen. Stat. § 9-140a.
70.

The voter may submit the ballot in several ways, including:
a. By mail if it is mailed by the voter, “a designee of a person who applies for an
absentee ballot because of illness or physical disability,” or “a member of the
immediate family of an applicant who is a student,” such that is received by the
municipal clerk by the close of the polls.
b. In person by the voter to the clerk by the day before the election, or by a “designee
of an ill or physically disabled” voter or immediate family member by close of the
polls on Election Day.

Conn. Gen. Stat. § 9-140b. This year, Secretary of State Merrill has also committed to providing
secure drop boxes for in-person submission of absentee ballots to avoid person-to-person
contact. 79
71.

In examining the submitted absentee ballots, the clerk must reject ballots where (a)

the inner envelope statement is not signed by the voter, or (b) a first-time voter registered by mail
but did not submit the appropriate identification. Conn. Gen. Stat. Ann. § 9-150a(d).
72.

Connecticut also has a number of criminal penalties directed at improper voting by

absentee ballot and otherwise. For example, individuals are subject to criminal penalties if they
are “not legally qualified [and] fraudulently vote[]” in any election, if they are legally qualified
but “fraudulently vote[] more than once at the same” election, or if they vote “by assuming the
name of another legally qualified person.” Conn. Gen. Stat. § 9-360.
73.

79

Additionally, any individual who “intentionally makes a false written statement in

Ltr. from Conn. Sec. of State Denise Merrill, supra n.1 at 9.

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or on [an absentee ballot application] or signs the name of another person to the application for an
absentee ballot or the inner envelope accompanying any such ballot” faces a class D felony. Conn.
Gen. Stat. § 9-359a. And any “person who unlawfully opens or fills out” any voter’s absentee
ballot or otherwise willfully violates any absentee balloting law “shall be guilty of a class D
felony.” Conn. Gen. Stat. § 9-359. Class D felonies in Connecticut are punishable by up to 5 years
of imprisonment and up to $5,000 in associated fines. Conn. Gen. Stat. § 53a-35a(8); Conn. Gen.
Stat. § 53a-41(4). These penalties are printed on the absentee ballot application form itself.
V.

The Challenged Requirements Unduly and Unreasonably Burdens the Voting
Rights of Connecticut Residents.
74.

Historically, most voters in Connecticut vote in person, on Election Day. 80 For

most voters, that means physically appearing at a designated polling place where they risk close
contact with other voters and poll workers. This also means repeatedly touching shared
equipment and material such as voting machines, paper ballots, and writing instruments. At
present, public health officials consider all of these activities as risking exposure to and/or
transmission of COVID-19. These activities are therefore strongly disfavored and/or proscribed
by various government orders.
75.

Meaningful opportunities to vote in person are still necessary for many

Connecticut voters, including those who lack access to reliable mail service or need the kinds of
accommodations for some persons with disabilities, and personal assistance for people with

80

See, e.g., U.S. Election Assistance Comm’n, Election Administration and Voting Survey 2018 Comprehensive
Report at 29 (2018) (91,602 absentee ballots of over 1.4 million ballots cast in Connecticut in 2018 midterm
elections), https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_EAVS_Report.pdf; U.S. Election Assistance
Comm’n, The Election Admin. and Voting Survey 2016 Comprehensive Report at 23 (2016) (129,480 absentee
ballots of over 1.6 million total ballots cast in Connecticut in 2016 general election),
https://www.eac.gov/sites/default/files/eac_assets/1/6/2016_EAVS_Comprehensive_Report.pdf.

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limited English literacy, that are only available at in-person voting sites. To reduce the possibility
of virus transmission at needed in-person sites, the CDC instructs that states “offer alternative
voting methods that minimize direct contact and reduce crowd size at polling locations,” and
encourage use a “a wide variety of voting options” including “any other feasible options for
reducing the number of voters who congregate indoors in polling locations at the same time.” 81
76.

Unlike the vast majority of other states, Connecticut offers no opportunities for in-

person early voting. 82 As a result, polling places are more likely to be crowded on Election Day
in November 2020 because, under current state law, most voters will only have one option for
how to vote: in person on Election Day.
77.

The lack of early in-person voting options in Connecticut also means that some

voters with print disabilities 83 who currently fall within the narrow group that may vote absentee
will have the choice of either (a) voting privately and independently with accommodations 84 at
their polling place on Election Day (but facing heightened risk of viral transmission to do so) or
(b) voting absentee using a non-secret ballot with the aid of a competent third-party (provided

81
Ctrs. for Disease Control & Prevention, Considerations for Election Polling Locations and Voters,
https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html
(last updated June 22, 2020).
82

See, e.g., Denise Merrill, ICYMI: Denise Merrill: It’s Time to Allow Voting by Mail, Office of Sec’y of State
Denise W. Merrill (Mar. 31, 2020), https://portal.ct.gov/SOTS/Press-Releases/2020-Press-Releases/ICYMI-DeniseMerrill-Its-time-to-allow-voting-by-mail.
83

Print disabilities encompass conditions that make it difficult (or impossible) for someone to access standard
printed text. The paper ballots provided as part of Connecticut’s absentee voting process are inaccessible to many
voters with visual impairments, manual impairments, or significant learning disabilities. Unfortunately, at this time,
Connecticut has not yet adopted any accessible absentee ballot formats that would allow voters with print disabilities
to vote privately and independently.
84
Voters with print disabilities may rely on voting machines that have special features such as touch screens,
headphones, or sip-and-puff devices. Using these accessible technologies could result in transmission of the
COVID-19 virus from previous users or poll workers. CDC, Coronavirus Disease 2019 (COVID-19): How It
Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (noting that
while the virus spreads most easily from person-to-person, it “may be possible that a person can get COVID-19 by
touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes”)
(last updated June 16, 2020).

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that someone is available to assist them at home). Both of these voting options will burden the
exercise of Connecticut citizens with disabilities’ constitutionally protected right to vote.
Eliminating the Excuse Requirement would make voting significantly less risky for people with
print disabilities who need to vote in person by reducing the total number of people at the polls—
which, in turn, reduces the number of interactions with other voters, the number of people
touching the voting equipment, and the overall chance of transmission.
78.

Even if COVID-19 cases do not resurge in Connecticut to previous levels,

members of vulnerable or “high-risk” populations who would otherwise vote in person on
Election Day will reasonably opt and/or be required to continue practicing “social distancing” for
the foreseeable future. Those who risk grave medical complications from COVID-19 will
reasonably decide to self-quarantine until a vaccine for the illness is developed or a cure is
identified.
79.

Because Connecticut is an “excuse required” absentee voting state, eligible voters

must fall under one of several enumerated categories of persons who are “qualified” to vote by
absentee ballot. Under this statute, even older Connecticut voters and many of those otherwise at
high risk of complications from COVID-19 are unable to request an absentee ballot. Defendant
Merrill’s own webpage describes the limits on who may vote absentee as “strict,” as the list of
voters who may vote currently via absentee ballot for the November election include only active
members of the U.S. armed forces and people who cannot vote in-person due to (a) “his or her”
illness, physical disability, or religious beliefs; (b) work as an election official outside of their

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assigned polling place; or (c) absence from town during the entirety of voting hours (6 a.m.
to 8 p.m.). 85
80.

As currently construed, the Excuse Requirement severely burdens the

fundamental right of all eligible voters practicing self-quarantining and social distancing to
participate in elections in Connecticut. In particular, it egregiously burdens the right to vote of
persons with pre-existing medical conditions who commonly vote in person and are not
considered “physically disabled,” by placing them at “high-risk” of exposure to severe illness
from COVID-19 (e.g., by being immunocompromised). Older individuals also already face
higher rates of infection and death from COVID-19, further magnifying the burden they face in
having to vote in-person during community transmission and before there is a widely available
and effective vaccine.
81.

The Excuse Requirement will therefore likely prevent tens if not hundreds of

thousands of Connecticut voters who might otherwise vote in scheduled elections from
participating in those contests, as anyone not covered by an enumerated absentee “excuse” will
have to choose between (1) exposing themselves and others to the risk of illness from COVID-19
by voting in person or (2) foregoing their right to vote.
82.

The Excuse Requirement is also particularly burdensome for Black voters in

Connecticut. Black voters in Connecticut continue to bear the effects of discrimination in areas
such as education, employment, and health, which hinder their ability to participate effectively in
the political process. It is precisely because of these patterns that Black Connecticut residents
face particularly severe health risks from COVID-19 exposure arising from being forced to vote

85

Absentee Voting, Office of the Sec’y of State Denise W. Merrill, https://portal.ct.gov/SOTS/ElectionServices/Voter-Information/Absentee-Voting (last visited June 29, 2020); Conn. Gen. Stat. § 9-174 (setting out poll
hours).

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in-person rather than by mail. In these circumstances, the Excuse Requirement interacts with
these conditions to deny Black Americans in Connecticut an equal opportunity to participate in
the political process.
83.

Moreover, Black voters are disproportionately burdened by long lines at the polls.

A recent study based on data from millions of smartphone users during the 2016 presidential
election found that residents of entirely-Black neighborhoods waited 29% longer to vote and were
74% more likely to spend more than 30 minutes at their polling place than residents of all-white
neighborhoods. 86 This disproportionate wait-time problem means that the risks of voting in-person
during community transmission of COVID-19 will fall more heavily on Black voters. 87
84.

Make no mistake, though: the Excuse Requirement will result in long lines for

everyone. These longer lines will make it harder to practice adequate social distancing, and likely
decreases in the number of polling places and poll workers will cause even longer lines and
compound the health risks voters waiting in them will face. Additionally, the fact that Connecticut
is one of only a few states without early in-person voting before Election Day means that there
will be no opportunities to spread out in-person voting.
85.

The Excuse Requirement is plainly unreasonable in the context of COVID-19

community transmission, which, by current expert predictions, will still be occurring during the
absentee voting period for the November 3, 2020, general election at rates that make in-person

86

M. Keith Chen et al., Racial Disparities in Voting Wait Times: Evidence from Smartphone Data at 1 (Nov. 14,
2019), https://www.kareemhaggag.com/f/Racial_Disparities_in_Voting_Wait_Times.pdf.
87

Moreover, Black voters can least afford unnecessarily long wait times as the price to pay for voting, because
Black people are “more likely to working in jobs without flexibility or paid sick leave,” which means any delays at
the polls disproportionately threaten their job security. Laura Williamson, How to Build a Racially Inclusive
Democracy During COVID-19 and Beyond, Demos (Apr. 28, 2020), https://www.demos.org/policy-briefs/howbuild-racially-inclusive-democracy-during-covid-19-and-beyond; Lonnie Golden, Limited Access: Disparities in
Flexible Work Schedules and Work-at-Home, 29 J. Family & Econ. Issues 86–109 (2008).

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voting risky both for individuals and from a public health perspective. The State’s refusal to allow
all Connecticut voters to vote safely from home in response to the pandemic cannot be justified by
any legitimate state interest. The COVID-19 pandemic poses the same concerns for November that
led Governor Lamont and Secretary Merrill to make clear that any state interest in a restrictive
interpretation of the Excuse Requirement must give way in light of the COVID-19 pandemic. 88
By taking steps to permit all Connecticut voters to use mail-in ballots to vote safely from home in
the August 11, 2020, primary, Defendant Merrill has made clear that the pandemic necessitates
such changes in Connecticut.
86.

Because the significant weight of the scientific and epidemiological evidence

indicates that COVID-19 will pose a threat to the health of Connecticut residents for the remainder
of 2020, if not longer, it is unreasonable not to waive the Excuse Requirement for the November
election as well. Public health officials are “convinced” that COVID-19 will continue to threaten
voters’ health and safety this fall, both because of the looming second wave of the virus and the
improbable availability of a vaccine by November 2020. 89 And come November, there will still
be no widely available vaccine or the existence of herd immunity such that large numbers of
individuals voting in person will be safe. 90

88

See Executive Order No. 7QQ, supra n.76; Office of the Sec’y of State, Mem. of Opinion, supra n.75.

89

Savannah Behrmann, ‘Convinced’: Fauci Says There Will Be Coronavirus in the Fall After Trump Says ‘It May
Not Come Back’, USA Today (Apr. 23, 2020),
https://www.usatoday.com/story/news/politics/2020/04/22/coronavirus-dr-anthony-fauci-says-i-am-convincedsecond-wave/3009131001/.
90

TEGNA, FDA Approves Coronavirus Vaccine Candidate to Begin Phase 2 Trial, WUSA 9 (May 7, 2020),
https://www.wusa9.com/article/news/health/coronavirus/fda-approves-coronavirus-vaccine-candidate-to-beginphase-2-trial/507-7119865c-3ffb-42b0-8066-6df24aae2c5d (“Dr. Anthony Fauci, the U.S. government’s top expert,
has cautioned that even if everything goes perfectly, 12 to 18 months to develop a vaccine would set a speed record.
January will mark a year since the National Institutes of Health began creating its COVID-19 vaccine with
Moderna.”); Dr. Anthony Fauci & CDC Director Senate Testimony Transcript May 12, Rev (May 12, 2020),
https://www.rev.com/blog/transcripts/dr-anthony-fauci-cdc-director-senate-testimony-transcript-may-12.

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87.

Indeed, at least some other states that require an excuse to vote by mail are

already taking action for November to widen the scope of mail-voting eligibility to all registered
voters. In New Hampshire, for example, the State has interpreted its “physical disability”
provision to “appl[y] equally to voters who are experiencing symptoms of COVID-19 . . . and
those who are self-quarantining as a preventative measure” for all elections this year. 91
CLAIM FOR RELIEF
COUNT ONE
Violation of the Fundamental Right to Vote
42 U.S.C. § 1983, First and Fourteenth Amendments to the U.S. Constitution
88.

Eligible individuals have a fundamental right to vote under the First and

Fourteenth Amendments of the U.S. Constitution. Under the First and Fourteenth Amendments,
a court considering a challenge to a state election law must carefully balance the character and
magnitude of the injury to the rights that the plaintiff seeks to vindicate against the justifications
put forward for the burdens imposed by the rule. See Burdick v. Takushi, 504 U.S. 428, 434
(1992); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).
89.

In light of the COVID-19 pandemic, Connecticut’s Excuse Requirement and its

enforcement severely and unreasonably burden the fundamental right to vote of Connecticut
voters. These requirements will likely prevent many thousands of eligible voters from voting or
having their votes counted, and severely burden others who nonetheless do vote in-person by
forcing them to risk their health in order to exercise a fundamental right. These burdens will fall
particularly heavily on older voters, Black voters, and voters who are at elevated risk of severe
illness from COVID-19 but who do not fall within the narrow “illness” or “disability” categories

91

Mem. from the Sec’y of State and Att’y General to N.H. Election Officials re: Elections Operations During the
State of Emergency 2 (Apr. 10, 2020), https://www.governor.nh.gov/news-media/press-2020/documents/20200410absentee-voting.pdf.

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that would qualify them to vote by mail under current state law. Yet even if the burdens were
less severe, Defendant and the State lack any interest in maintaining the Excuse Requirement
that would outweigh these burdens.
90.

Therefore, Defendant, acting under color of state law, has and will continue to

deprive Plaintiffs of rights secured to them by the First and Fourteenth Amendments to the U.S.
Constitution—namely, the fundamental right to vote—and protected by 42 U.S.C. § 1983 by
enforcing the Excuse Requirement.
COUNT TWO
Violation of Section 2 of the Voting Rights Act
52 U.S.C. § 10301
91.

Section 2 of the Voting Rights Act provides in part that “[n]o voting qualification

or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any
State . . . in a manner which results in a denial or abridgement of the right of any citizen of the
United States to vote on account of race or color . . . .” 52 U.S.C. § 10301(a).
92.

The “essence of a [Section] 2 claim is that a certain electoral law, practice, or

structure interacts with social and historical conditions to cause an inequality in the opportunities
enjoyed by black and white voters to elect their preferred representatives.” League of Women
Voters of North Carolina v. North Carolina (“LWV”), 769 F.3d 224, 238–39 (4th Cir. 2014)
(internal quotation marks and citation omitted). “[A] Section 2 vote-denial claim consists of two
elements:
First, the challenged standard, practice, or procedure must impose a
discriminatory burden on members of a protected class, meaning that members of
the protected class have less opportunity than other members of the electorate to
participate in the political process and to elect representatives of their choice.
Second, that burden must in part be caused by or linked to social and historical
conditions that have or currently produce discrimination against members of the
protected class.
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LWV, 769 F.3d at 240 (internal quotation marks and citations omitted).
93.

The Excuse Requirement, if not enjoined, will materially burden the right to vote,

and will have an adverse and disparate impact on Black voters in Connecticut. Black voters in
Connecticut are more likely to work in jobs that expose them to COVID-19, less likely to have
insurance or financial resources, and more likely to suffer from severe health complications
and/or to die from COVID-19 than white voters. Black voters are therefore significantly more
burdened by the effects of the Excuse Requirement.
94.

The disparate burden resulting from the Excuse Requirement is directly linked to

social and historical conditions. Connecticut has a long history of voting-related discrimination,
including elected officials actively discouraging minority voting by disproportionate purging
from the voter rolls and as reflected in minority districts having the lowest voter turnout,
“markedly racially polarized” voting patterns that prevented the election of minority candidates,
and the inability of an Black individual to win the Democratic Party’s endorsement, among other

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things. 92 Black voters in Connecticut also bear the effect of historical discrimination in activities
ranging from public education 93 to hiring practices 94 to residential housing patterns. 95
95.

Black Connecticut residents continue to suffer from discrimination in areas such

as education, employment, and health, which hinders their ability to participate effectively in the
political process. According to 2018 data from the American Community Survey compiled by
the United States Census Bureau, in Connecticut, 6.8% of Black individuals and only 3.1% of
non-Hispanic white people lack health insurance; 96 12.8% of Black people and only 5.2% of
non-Hispanic white people lack a high school degree and twice as many non-Hispanic white
Connecticut residents had college degrees as their Black peers; 97 18.6% of Black households and

92

These findings are documented in Bridgeport Coal. for Fair Representation v. City of Bridgeport, No.3:93-cv1476(PCD), 1993 WL 742750, at *2–4 (D. Conn. Oct. 27, 1993), aff’d and remanded sub nom. Bridgeport Coal.
For Fair Representation v. City of Bridgeport, 26 F.3d 271 (2d Cir. 1994), cert. granted, judgment vacated sub nom.
City of Bridgeport, Conn. v. Bridgeport Coal. For Fair Representation, 512 U.S. 1283 (1994).

93

Bridgeport Guardians, Inc. v. Delmonte, 553 F. Supp. 601 (D. Conn. 1982) (holding that city police department
discriminated against Black officers in job assignments); Ass’n Against Discrimination in Employment, Inc. v. City
of Bridgeport, 479 F. Supp. 101, 111 (D. Conn. 1979), aff’d in relevant part, 647 F.2d 256 (2d Cir. 1981) (holding
that city fire department had violated the Civil Rights Act of 1964 by “engaging in a policy and practice of
discrimination against black and Hispanic persons relative to entry-level hiring”).
94

There is a vigorous debate ongoing (as well as litigation) around Connecticut’s highly-segregated public school
system and the controversial ways the state has attempted to address racial inequities in that system. See, e.g.,
Lincoln Caplan, Two Connecticut School Systems, For the Rich and Poor, THE NEW YORKER (Sep. 14, 2016),
https://www.newyorker.com/news/news-desk/two-connecticut-school-districts-for-the-rich-and-poor; Rachel M.
Cohen, A Lawsuit Threatens a Groundbreaking School-Desegregation Case, THE NATION (Feb. 11, 2019),
https://www.thenation.com/article/archive/connecticut-segregation-schools-sheff/.
95

Kenneth P. Hadden & Thomas Werling, Residential Segregation in Metropolitan Connecticut, STORRS
AGRICULTURAL EXPERIMENT STATION 1, 7 (1975),
https://opencommons.uconn.edu/cgi/viewcontent.cgi?article=1046&context=saes (showing statistically significant
rates of race-based residential segregation in Connecticut, and even an increase in such segregation in several of the
state’s largest cities between 1960 and 1970).
96

U.S. Census Bureau, 2010-2018 American Community Survey 1-Year Estimates: Selected Social Characteristics
of the United States: Connecticut (2018),
https://data.census.gov/cedsci/table?q=S2701&tid=ACSST1Y2018.S2701&hidePreview=true&g=0400000US09.
97
Educational Attainment, U.S. Census Bureau (2018),
https://data.census.gov/cedsci/table?q=S1501&tid=ACSST1Y2018.S1501&g=0400000US09&hidePreview=true.

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Case 3:20-cv-00909-JBA Document 1 Filed 07/02/20 Page 40 of 42

only 6.1% of non-Hispanic white households lived below the poverty line; 98 24.4% of Black 99
and 6.0% of non-Hispanic white households receive SNAP/food stamps; 100 and non-Hispanic
white median family income ($114,393) 101 is nearly double that of Black families ($61,438). 102
In particular, as discussed above, these discriminatory patterns render Black voters more
vulnerable to COVID-19, such that the Excuse Requirement is particularly burdensome for them
as a group relative to other voters. In addition, voting is racially polarized in Connecticut and
Black residents do not hold elected office in proportion to their population, resulting in state
elected officials who are less responsive to the health, voting, and other concerns of Black voters
amid the COVID-19 crisis.
96.

Under the totality of the circumstances, the Excuse Requirement interacts with

these social and historical conditions to abridge and deny Black Americans in Connecticut the
right to vote during the current pandemic. As a result, Black Americans in Connecticut will have

98

Poverty Status In The Past 12 Months, U.S. Census Bureau (2018),
https://data.census.gov/cedsci/table?g=0400000US09&tid=ACSST1Y2018.S1701&t=Income%20and%20Poverty&
vintage=2018&hidePreview=false&cid=S1701_C01_001E.
99

Receipt of Food Stamps/SNAP in the Past 12 Months By Race of Householder (Black or African American Alone),
U.S. Census Bureau (2018),
https://data.census.gov/cedsci/table?g=0400000US09&t=Race%20and%20Ethnicity%3ASNAP%2FFood%20Stamp
s&tid=ACSDT1Y2018.B22005B&hidePreview=false&cid=B01001A_001E&vintage=2018.
100

Receipt of Food Stamps/SNAP in the Past 12 Months By Race of Householder (White Alone, Not Hispanic or
Latino), U.S. Census Bureau (2018),
https://data.census.gov/cedsci/table?g=0400000US09&t=Race%20and%20Ethnicity%3ASNAP%2FFood%20Stamp
s&tid=ACSDT1Y2018.B22005H&hidePreview=false&cid=B01001A_001E&vintage=2018.
101

Median Family Income in the Past 12 Months (in 2018 Inflation-Adjusted Dollars) (White Alone, Not Hispanic
or Latino Householder), U.S. Census Bureau (2018),
https://data.census.gov/cedsci/table?g=0400000US09&t=Race%20and%20Ethnicity&tid=ACSDT1Y2018.B19113
H&hidePreview=false&cid=B01001A_001E&vintage=2018.
102

Median Family Income in the Past 12 Months (in 2018 Inflation-Adjusted Dollars) (Black or African American
Alone Householder), U.S. Census Bureau (2018),
https://data.census.gov/cedsci/table?g=0400000US09&t=Race%20and%20Ethnicity&tid=ACSDT1Y2018.B19113B
&hidePreview=false&cid=B01001A_001E&vintage=2018.

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Case 3:20-cv-00909-JBA Document 1 Filed 07/02/20 Page 41 of 42

less opportunity than other members of the electorate to participate in the political process and to
elect representatives of their choice.
RELIEF REQUESTED
WHEREFORE, Plaintiffs respectfully requests that this Court:
A.

Declare that Connecticut’s enforcement and interpretation of the Excuse

Requirement (as stated in Conn. Gen. Stat. § 9-135) while the risk of COVID-19 transmission in
Connecticut remains violates the fundamental right to vote under First and Fourteenth
Amendments to the U.S. Constitution and the Voting Rights Act;
B.

Issue a preliminary and permanent injunction that orders relief including:
1.

Prohibiting Defendant from enforcing the Excuse Requirement (as stated

in Conn. Gen. Stat. § 9-135) to prevent any eligible voter, regardless of age and physical
condition, to request, receive, and have counted, an absentee ballot, at least while public health
officials continue to recommend social distancing practices due to risk of community
transmission of COVID-19; and
2.

Ordering Defendant to modify election materials, including absentee

ballots and absentee ballot applications, to reflect the elimination of the Excuse Requirement,
and conduct a public information campaign informing Connecticut voters about the elimination
of the Excuse Requirement, in coordination with local election officials before and during the
absentee balloting period, and ordering Defendant to issue guidance instructing local election
officials to issue absentee ballots to all eligible voters;
C.

Award Plaintiffs attorneys’ fees in this action;

D.

Award Plaintiffs their costs of suit; and

E.

Grant such other and further relief as this Court deems just and proper in the
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Case 3:20-cv-00909-JBA Document 1 Filed 07/02/20 Page 42 of 42

circumstances.

Dated: July 2, 2020

Respectfully submitted,

Davin M. Rosborough *
Ihaab Syed*
Dale E. Ho*
Sophia Lin Lakin*
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Tel.: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

/s/ Dan Barrett
Dan Barrett (ct29816)
Elana Bildner (ct30379)
ACLU Foundation of Connecticut
765 Asylum Avenue
Hartford, CT 06105
[phone]
[e-mail]

Ceridwen Cherry*
American Civil Liberties Union Foundation
915 15th St NW
Washington, DC 20005
Tel.: [phone]
[e-mail]

Attorneys for Plaintiffs
*Motion for admission Pro Hac Vice
forthcoming

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