December 3, 2004
HISTORY AND CONSTITUTIONALITY OF EARLY VOTING IN CONNECTICUT
By: Sandra Norman-Eady, Chief Attorney
You asked if the Connecticut General Assembly has considered early voting proposals in the past 10 years. If so, you wanted to know what happened to them. You also asked us to comment on the constitutionality of early voting legislation in Connecticut.
The Office of Legislative Research is not authorized to give legal opinions and this report should not be viewed as one.
The Connecticut General Assembly has not considered legislation to allow early voting. We understand “early voting” to mean a process by which qualified electors can cast their ballots before Election Day without excuses like those required to vote by absentee ballot. However, resolutions proposing amendments to extend the state constitution's provision on absentee voting have been considered during this time frame. These proposals are important to note because no-excuse early voting by mail is really an extension of the absentee voting law to all people, regardless of their presence in the state, physical health, or religious beliefs on Election Day (i.e., the reasons currently allowed by the constitution for voting by absentee ballot). None of the resolutions were enacted for submission to the voters as required to amend the constitution. Two died after public hearing, one was never fully drafted, and the remaining two (both House Resolutions) died on the House calendar after receiving favorable reports from the Government Administration and Elections Committee (GAE). The 1997 proposal, H.J. Resolution 96, would have allowed all qualified voters to cast their ballot by mail, without appearing at a polling place. Additionally, one bill was introduced giving towns permission to allow voting on referendums entirely by mail. It died after the House referred it to the Legislative Management Committee.
Unlike the 31 states that currently allow early voting (see OLR Report 2004-R-0821), Connecticut's constitution fixes the qualifications of electors and the time, place, and manner for voting in this state in such a way that a constitutional amendment appears necessary to allow early voting in Connecticut. This apparent need for a constitutional amendment to allow early voting raises a question about the constitutionality of our current absentee voting statute.
EARLY OR ALTERNATIVE VOTING PROPOSALS
The Connecticut General Assembly has not considered legislation to allow early voting. However, during the past 10 years there were at least five attempts to alter voting procedures in Connecticut. All attempts, except one, were in the form of resolutions to amend the constitution instead of bills to amend state statutes and all five died. Table 1 shows each proposal by year and its disposition.
TABLE 1: METHODS OF VOTING PROPOSALS
Would have allowed the General Assembly to extend the use of absentee ballots
Favorably reported by GAE; adopted by the House; died on the Senate calendar
Would have allowed the General Assembly to pass a law permitting voters to vote by mail
Died in the GAE Committee after a public hearing
Would have allowed the General Assembly to pass a law permitting voters to vote by mail
Favorably reported by GAE; died on the House calendar
Gave towns the option to allow votes on a referendum entirely by mail
Favorably reported by GAE; died in Legislative Management after referral from the House
Would have allowed the General Assembly to extend the use of absentee ballots to all people age 70 and older
Died in GAE without a hearing
CONSTITUTIONALITY OF EARLY VOTING IN CONNECTICUT
As currently written, neither the state constitution nor state statutes gives voters the option to cast their ballot before Election Day by absentee ballot or visiting a polling place or town office before that date and voting in person. No Connecticut court has decided whether a constitutional amendment is necessary to allow early, no-excuse voting. However, it appears that such an amendment is necessary.
Rules of Construction
In the analysis of issues arising for the first time under the state constitution, a court must consider, to the extent applicable, six factors: (1) the text of the constitutional provision, (2) related Connecticut precedents, (3) persuasive federal precedents, (4) persuasive precedents of other states' courts, (5) historical insights into the intent of the constitution, and (6) contemporary understandings of applicable economic and sociological norms (State v. Glenn, 47 Conn. App. 706 (1998)).
Analysis and Conclusion
As a general rule, state constitutions are viewed as “limitations on the otherwise plenary power of the people of each state to do as they will” (16 Am. Jur. 2d. § 40). “Whatever that supreme original will (constitution) prescribes, the General Assembly, and every officer or citizen to whom the mandate is addressed, must do; and whatever it prohibits, the General Assembly, and every officer and citizen, must refrain from doing; and if either attempt to do that which is prescribed, in any other manner than that prescribed, or to do in any manner that which is prohibited, their action is repugnant to that supreme and paramount law, and invalid” (Opinion of the Judges of the Supreme Court as to Constitutionality of Soldiers' Voting Act, 30 Conn. 591 (1862)).
The state constitution establishes an elective government, and under it there must of necessity be a fixed time, place, and manner of holding elections. It was the intention of the men who framed the constitution of this state, and of the people who adopted it, to place every thing pertaining to the election of state officers and members of the General Assembly beyond the reach of subsequent legislatures (Opinion of the Judges of the Supreme Court, supra). If these are clearly and sufficiently fixed and prescribed by the constitution, and nothing is expressly delegated or by implication left to the legislature, that body cannot interfere to alter, extend or suspend them, or either of them, in the slightest particular. If they are not thus fixed and prescribed by the constitution, it is by implication incident to the general legislative power to do it, so that the government may be perpetuated and sustained (Pratt v. Allen, 13 Conn. 119 (1839)).
Section Eight of Article Third provides for the election of members of the General Assembly on the Tuesday after the first Monday of November, biennially, in the even-numbered years. Section One of Article Fourth provides for the election of state officers on the Tuesday after the first Monday of November, quadrennially. Section Nine of Article Third provides that “at all elections for members of the general assembly the presiding officers in the several towns shall receive votes of the electors, and count and declare them in open meeting.” Section Four of Article Fourth provides “at the meeting of the electors in the perspective towns held quadrennially…for the election of state officers, the presiding officers shall receive the votes and shall count and declare the same in the presence of the electors.”
Given the general rule that the state constitution is a limitation on the otherwise exclusive power of the legislature to make laws, the General Assembly, with one exception, cannot pass a law that allows electors to cast their votes in any manner other than that stated above (i.e., in person on Election Day). The exception is contained in Section Seven of Article Sixth, which authorizes the General Assembly to allow absentee voting under certain circumstances.
Article Sixth, Section Seven of the state constitution provides as follows:
The general assembly may provide by law for voting in the
choice of any officer to be elected or upon any question to
be voted on at an election 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
This conclusion appears to be supported by Connecticut precedents. In 1862, when there was no provision for absentee voting in the state constitution, the Supreme Court declared unconstitutional a statute allowing soldiers serving in the Civil War to vote by absentee ballot (Opinion of the Judges of the Supreme Court, supra). The people
responded in 1864 with an amendment to the constitution that allowed soldiers who volunteered or were drafted during the Civil War to vote by absentee ballot. This provision applied only to the election in 1864, after which the war ended and the amendment expired.
Additionally, although not binding on a state court, we also found a 1957 attorney general's opinion where then-Attorney General John Bracken, citing Opinion of the Judges of the Supreme Court, advised then- Secretary of the State Mildred Allen that legislation providing for the counting of absentee ballots before the opening of the polls on Election Day would violate the provisions of the state constitution. In this opinion, the attorney general stated “in reading the constituional provision concerning absentee voting with the other provisions of the Constitution, it becomes apparent that absentee ballots cannot be cast at any other place, time or in any manner other than that provided by the constitution” (30 Op. Atty. Gen. 10 (January 10, 1957)).
Other examples in support of this conclusion are 1993 public hearing testimony by then-Secretary of the State Pauline Kezer and the position taken by the Legislative Commissioners' Office in 1987. In her testimony before the GAE Committee in support of HJR 67 (a proposal to extend the use of absentee ballots), Secretary of the State Kezer stated that it would make sense to take the reasons for voting by absentee ballot out of the constitution “especially if you want to end up in a situation where you want early voting later on or some other change in election law to allow more use of absentee ballots….” (GAE Public Hearing Transcript, March 8, 1993).
Finally, in 1987, the Legislative Commissioners' Office returned to the GAE Committee as unconstitutional a bill (HB 5768) that would have allowed electors to vote by absentee ballot if they work during all hours of voting. The commissioners stated “Section Seven of Article Sixth… provides that absentee voting may be provided for by law…only in the cases where an elector is absent from the city or town…by reason of sickness, physical disability or religious tenets…. The Constitution makes no provision for the general assembly to provide for absentee voting where the elector is employed during all of the hours of voting.”
STATUS OF CURRENT ABSENTEE VOTING STATUTE
The current statute on absentee voting provides that any person may vote by absentee ballot if:
1. he is absent from his city or town of residence during all hours of voting;
2. he is ill;
3. he is physically disabled;
4. the tenet of his religion forbid secular activity on the day of the primary, election or referendum;
5. he is in active service with the armed forces of the United States; or
6. he is an election or referendum official outside of his voting district and his duties will keep him away during all hours of voting (CGS § 9-135).
Although reasons one through four above for voting by absentee ballot are consistent with the power granted to the legislature by Section Seven of Article Sixth of the state constitution and reason five implies absence on Election Day, reason six appears to go beyond that grant of power. Given the analysis in this report, it appears that, if challenged, a court would find that reason for voting by absentee ballot unconstitutional.