Fay v. Merrill, 338 Conn. 1

Background

In May 2020 Governor Lamont issued Executive Order No. 7QQ (later ratified by the legislature in Spec. Sess. P.A. 20-3), adding “COVID-19” as a reason to request an absentee ballot for the August 11, 2020 primary.
Secretary of the State Merrill revised the absentee ballot application to list COVID-19 as a new reason and mailed applications to over 1.27 million registered voters; over 100,000 applications were returned before the election.
Four Republican primary candidates sued seeking declaratory and injunctive relief, arguing the executive order and the application violated art. VI, § 7 of the Connecticut Constitution (which authorizes absentee voting for those “unable to appear … because of … sickness”) and that only the legislature (or electorate) may expand absentee voting.
The Superior Court upheld the executive order; the legislature then ratified it. The plaintiffs appealed. The Connecticut Supreme Court held plaintiffs had standing, declined to decide laches on appeal, dismissed the separation-of-powers claim as moot due to legislative ratification, and upheld the COVID-19 absentee rule.
The court construed “unable to appear” and “sickness” broadly — concluding the constitutional phrase encompasses a public disease like COVID-19 (not solely an individual voter’s personal illness) and that the political branches’ pandemic response was a permissible exercise to protect public health and suffrage.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Separation of powers: could Governor/Secretary expand absentee eligibility by executive order?	Lamont/Merrill usurped legislative power; art. VI, § 7 reserves absentee rulemaking to the General Assembly/electorate.	EO issued under governor’s emergency powers; later ratified by legislature.	Dismissed as moot: the legislature’s ratification (Spec. Sess. P.A. 20-3 §16) cured any separation-of-powers defect.
Meaning of “sickness” in art. VI, § 7 — must sickness be personal to the voter?	“Sickness” means an individual’s illness that renders that voter personally unable to appear.	“Sickness” can mean a particular disease (e.g., COVID-19) and is capacious enough to permit absentee voting for public-health emergencies.	Held for defendant: “sickness” may encompass a disease/pandemic; individual personal illness is not required.
Aggrievement / standing to sue	Plaintiffs’ interest is only a general voter interest; they lack personal, legally protected injury.	As candidates in affected primaries, they have particularized interests (campaign strategy, vote character) and are aggrieved.	Plaintiffs (candidates) had standing; trial court correctly found aggrievement.
Laches / timeliness	Defendant: plaintiffs delayed unreasonably and prejudice occurred (ballots mailed, administrative steps completed).	Plaintiffs: timing was reasonable under the circumstances; trial court did not adjudicate laches.	Appellate court declined to decide laches for first time on appeal and left factual resolution to trial court.

Key Cases Cited

Jacobson v. Massachusetts, 197 U.S. 11 (U.S. 1905) (states’ broad police power in public-health measures).
Purcell v. Gonzalez, 549 U.S. 1 (U.S. 2006) (courts should be cautious altering election rules close to an election).
McDonald v. Board of Election Commissioners, 394 U.S. 802 (U.S. 1969) (no federal right to absentee ballots; states may classify absentee eligibility but must avoid discriminatory denials).
Anderson v. Celebrezze, 460 U.S. 780 (U.S. 1983) (balancing test for burdens on voting-related rights).
Burdick v. Takushi, 504 U.S. 428 (U.S. 1992) (framework for analyzing burdens on voting rights).
Bysiewicz v. DiNardo, 298 Conn. 748 (Conn. 2010) (candidates may have standing to seek declaratory relief where their election-related interests are affected).
Lazar v. Ganim, 334 Conn. 73 (Conn. 2019) (ordinary voters lacked standing where only generalized injury from alleged irregularities was claimed).
State v. Geisler, 222 Conn. 672 (Conn. 1992) (factors for state constitutional interpretation).
Wrinn v. Dunleavy, 186 Conn. 125 (Conn. 1982) (absentee statutes construed liberally to protect the right to vote).
In re State, 602 S.W.3d 549 (Tex. 2020) (Texas Supreme Court construing its absentee statute and declining to treat lack of COVID-19 immunity as a qualifying “physical condition”).