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OLR Bill Analysis
sSB 1226
AN ACT CONCERNING STATE VOTING RIGHTS IN RECOGNITION
OF JOHN R. LEWIS.
SUMMARY
This bill generally codifies into state law several aspects of the federal
Voting Rights Act of 1965 (“VRA,” see BACKGROUND), which bans
discrimination in voting and elections and establishes a mechanism for
certain jurisdictions with a history of discrimination against racial and
language minorities to seek preapproval before changing their election
laws.
The bill prohibits applying or enacting any municipal elector
qualifications; voting prerequisites; other election administration
ordinances, regulations, or laws; or standards, practices, procedures, or
policies that result in impairing a protected class member’s right to vote.
“Vote” or “voting” under the bill is any action needed to cast a ballot
and make the ballot effective in an election or primary. A “protected
class” is a class of citizens who are members of a race, color, or language
minority group as referenced in the federal VRA (§ 2).
The bill also authorizes the secretary of the state (SOTS) and certain
parties aggrieved due to an alleged violation to file a civil action in the
Superior Court for the Hartford judicial district (J.D.) (§ 2).
It establishes a statewide information database in the Office of the
Secretary of the State to help the state and any municipality (1) evaluate
whether, and to what extent, current election laws and practices are
consistent with the bill’s provisions; (2) implement best practices in
election administration to further the bill’s purposes; and (3) investigate
a potential infringement on the right to vote (§ 3).
Similar to the federal VRA, the bill requires municipalities to provide 2023SB-01226-R000610-BA.DOCX
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language-related assistance in voting and elections for limited English
proficient individuals if they comprise a minimum threshold of the
municipality’s voting-age residents (§ 4).
It also subjects certain jurisdictions to preclearance by SOTS or the
court before enacting or implementing certain elections policies or
requirements (a “covered policy”). The bill authorizes court action to
prevent enacting or implementing a covered policy without
preclearance and to seek sanctions against the covered jurisdiction
involved (§ 5).
Generally, the bill prohibits engaging in intimidating, deceptive, or
obstructive acts that affect the right to vote (§ 6).
It specifies that any voting statute, regulation, special act, home rule
ordinance, or other state or municipal enactment must be construed
liberally in favor of (1) protecting the right to vote and having the vote
be valid and counted, (2) ensuring qualified individuals may register to
vote, (3) providing voting access to qualified individuals, and (4)
ensuring equal access for protected class members (§ 7).
Additionally, nothing in the bill may be construed to limit the powers
of the (1) Commission on Human Rights and Opportunities or (2) State
Elections Enforcement Commission’s (SEEC’s) attempts to secure
voluntary compliance in remedying election-related violations (§ 8).
Lastly, the bill authorizes the court to award reasonable attorney’s
fees and litigation costs to a prevailing party, except the state or a
municipality, that filed an action to enforce the bill’s provisions. The
filing is considered to have prevailed if, because of the litigation, the
other party yielded much or all the relief sought in the court action. A
prevailing party that did not file the action cannot receive any costs
unless the court finds the action is frivolous, unreasonable, or without
foundation (§ 9).
In general, under existing law, SOTS administers, interprets, and
implements election laws and ensures fair and impartial elections, and
SEEC has broad authority to enforce election laws (see 2023SB-01226-R000610-BA.DOCX
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BACKGROUND).
EFFECTIVE DATE: July 1, 2023, except that provisions on the
statewide elections database and language-related assistance are
effective January 1, 2024, and the provisions regarding preclearance are
effective January 1, 2025.
§§ 1 & 2 — PROHIBITION ON DENYING OR ABR IDGING THE
VOTING RIGHTS OF PRO TECTED CLASS MEMBERS
The bill prohibits municipalities from applying or enacting any of the
following in a way that impairs a protected class member’s right to vote:
(1) municipal eligibility qualifications; (2) election methods; (3)
ordinances, regulations, or other laws on election administration; or (4)
related standards, practices, procedures, or policies. More specifically,
the bill makes it a violation if it:
1. results, or will result, in a disparity among protected class
members’ electoral or political participation or voting access or
2. impairs their ability to participate in the political process, elect
their chosen candidates, or otherwise influence an election’s
outcome, based on the totality of the circumstances (i.e., a legal
standard that considers all relevant facts and circumstances
rather than specific factors).
Prohibited Election Methods
Additionally, the bill prohibits implementing any election method
that has the effect, or is motivated in part, to dilute protected class
members’ votes and impair their ability or opportunity to participate in
the political process, elect their chosen candidates, or otherwise
influence the elections’ outcome.
More specifically, it makes it a violation if a municipality has:
1. an at-large election method or a district-based or alternative
election method (e.g., ranked-choice voting, cumulative voting,
and limited voting), in which protected class electors’ preferred
candidates or electoral choices would usually be defeated and 2023SB-01226-R000610-BA.DOCX
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2. (a) racially polarized voting by protected class members (i.e.,
their preferred candidate or electoral choice differs from that of
non-protected class members electors) or (b) based on the totality
of the circumstances, these electors’ ability to participate in the
political process, elect their chosen candidates, or otherwise
influence election outcomes is impaired.
Under the bill, an “at-large method of election” is a way of electing
candidates to the municipal legislative body in which all municipal
electors vote upon the candidates. A “district-based method of election”
is a way of electing candidates to a municipal legislative body in which,
for municipalities divided into districts, a candidate for any district
must reside in the district and candidates representing or seeking to
represent the district are voted upon by only the electors of that district.
An “alternative method of election” is a way of electing candidates to
a municipal legislative body other than an at-large method of election
or a district-based method of election. It includes proportional ranked-
choice voting, cumulative voting, and limited voting. (It is unclear
whether existing law allows a municipality to adopt an alternative
method of election, as, for example, CGS § 9-173 provides that, “Unless
otherwise provided by law, in all municipal elections a plurality of the
votes cast shall be sufficient to elect.”)
Under the bill, a “municipality” or “municipal” is any town, city, or
borough, whether consolidated or unconsolidated; any local or regional
school district; fire district; water district; sewer district; fire and sewer
district; lighting district; village, beach, or improvement association;
other district wholly within a town that can make appropriations or tax;
or any other district authorized under the general statutes. The
“legislative body” is a municipality’s board of aldermen, council, board
of burgesses, representative town meeting, board of education, district
committee, association committee, or other similar body, as applicable.
Initiating Court Action
The bill authorizes SOTS, an aggrieved person, or an organization
whose membership includes or likely includes aggrieved persons to file 2023SB-01226-R000610-BA.DOCX
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actions for violations under the bill with the Superior Court for the
Hartford J.D. Members of two or more protected classes may jointly file
if they are politically cohesive in the municipality.
Notification Letter Before Filing Action
Before filing a court action against a municipality for an alleged
violation, the bill requires an aggrieved party to send a notification letter
asserting a violation to the municipality’s clerk by certified mail, return
receipt requested. The bill prohibits the party from filing an action
earlier than 50 days after sending this letter.
Municipal Response to Notice of Violation
Before receiving a notification letter, or within 50 days after a
notification letter is sent to a municipality, the municipality’s legislative
body may pass a resolution to (1) affirm the municipality’s intent to
enact and implement a remedy for a potential violation, (2) provide
specific measures the municipality will take to obtain approval of and
implement the remedy, and (3) provide a schedule for enacting and
implementing the remedy.
The bill further prohibits an aggrieved party from filing a court action
within 90 days after the resolution’s passage. Thus, if the municipality
does not pass a resolution within 50 days after receiving a notification
letter, the aggrieved party may file an action at that time. If the
municipality passes a resolution before the 50-day deadline, the
aggrieved party must wait until 90 days after the resolution passes to
file a court action.
If under state law, town charter, or home rule ordinance, a municipal
legislative body lacks authority to enact or implement a remedy
identified in any resolution within 90 days after its passage, or if the
municipality is a covered jurisdiction under the bill, then its legislative
body may hold at least one public hearing on any proposed remedy to
the potential violation. (Under the bill, it is unclear whether the public
hearing provision is mandatory or permissive.) Before the hearing, the
municipality must conduct public outreach, including to language
minority groups, to encourage input. The municipality’s legislative 2023SB-01226-R000610-BA.DOCX
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body may approve any proposed remedy that complies with the bill and
submit it to SOTS for approval (see below).
Agreement Between Municipality and Aggrieved Party
The bill allows a municipality that passed a resolution to enter into
an agreement with an aggrieved party who sent a notification letter, so
long as the (1) party will not file an action within 90 days after entering
into the agreement and (2) municipality will either (a) enact and
implement a remedy that complies with the bill’s provisions or (b) pass
a resolution as described above and submit it to SOTS. If the party
declines to enter into an agreement, it may file an action at any time,
presumably regardless of the timelines described above.
SOTS Approval
The bill requires SOTS to approve or reject the proposed remedy
within 90 days after the municipality submits it. She may make a
determination independent of the state’s election laws or any special act,
charter, or home rule ordinance. But if she does not act on it within this
period, the bill prohibits the proposed remedy from being enacted or
implemented. The secretary may require the municipalities or any other
party to provide additional information on the proposed remedy.
The secretary may only approve the proposed remedy if she
concludes that the municipality may be violating the bill’s requirements
and the proposed remedy (1) would address any potential violation, (2)
does not violate the state constitution or federal law, and (3) can be
implemented without disrupting an ongoing or imminent election.
If approved, the proposed remedy must be enacted and implemented
immediately, unless implementing would disrupt an imminent or
ongoing election, in which case it must be implemented as soon as
possible. If the municipality is a covered jurisdiction, it does not have to
get the proposed remedy precleared (see below).
If the secretary denies the proposed remedy, it cannot be enacted or
implemented. In addition, she must give her reasons for the denial and
may recommend another proposed remedy that she would approve. 2023SB-01226-R000610-BA.DOCX
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SOTS’s decision to approve, deny, or not act on a remedy is final and
not subject to review except as provided in the state constitution.
Cost Reimbursement
Under the bill, if a municipality enacts or implements a remedy or
SOTS approves a proposed remedy, then an aggrieved party who sent
a notification letter may submit a municipal reimbursement claim for
the costs associated with producing and sending a letter. The party must
(1) submit this claim in writing within 30 days after the remedy’s
enactment, implementation, or approval and (2) substantiate it with
financial documentation, including a detailed invoice for any
demography services or analysis of municipal voting patterns.
Upon receiving a claim, the municipality may ask for additional
financial documentation if the provided information is insufficient to
substantiate the costs. The bill requires the municipality to reimburse
the party for reasonable costs claimed or for an amount to which the
party and municipality agree, but it caps the total reimbursement
amount to all involved parties (other than SOTS) at $50,000 adjusted to
any change in the consumer price index for all urban consumers. If a
party and municipality fail to agree to a reimbursement amount, either
one may file an action in Superior Court for the Hartford J.D. for a
declaratory ruling.
Superior Court Determination
The bill requires the court to consider certain factors as more
probative (i.e., tending to prove or disprove a point in issue) than others
when determining whether (1) racially polarized voting by protected
class electors in a municipality occurs or (2) based on the totality of
circumstances, protected class members’ ability to participate in the
political process or election of their choice candidates is impaired.
Specifically, the court must consider:
1. elections held before the action’s filing as more probative than
elections conducted afterward,
2. evidence about elections for municipal office as more probative 2023SB-01226-R000610-BA.DOCX
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than evidence about elections for other offices, and
3. statistical evidence as more probative than nonstatistical
evidence.
The bill prohibits the court from requiring evidence of the (1)
electors’, elected officials’, or municipality’s intent to discriminate
against protected class electors and (2) causes or reasons for racially
polarized voting.
Under the bill, if two or more protected classes bring claims, the court
must combine the classes if they are politically cohesive in the
municipality. The court cannot require evidence that each class is
separately polarized from other electors.
The bill allows the court to consider the following when determining,
based on the totality of the circumstances, whether an impairment of
protected class members’ voting rights, ability to elect their chosen
candidates, or otherwise influence elections’ outcomes has occurred:
1. the municipality’s or state’s history of discrimination;
2. the extent to which protected class members were elected to
municipal office;
3. the municipality’s use of any (a) elector qualification or other
voting prerequisite; (b) statute, ordinance, regulation, or other
law on election administration; or (c) related standard, practice,
procedure, or policy, that may enhance dilutive effects of its
election method;
4. any history of unequal access of protected class members or
candidates to election administration or campaign finance
processes that determine which candidates will receive ballot
access or financial or other support for municipal office;
5. the extent to which protected class members in the municipality
or state historically make campaign expenditures at lower rates
than other individuals in the municipality or state; 2023SB-01226-R000610-BA.DOCX
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6. the extent to which protected class members in the municipality
or state vote at lower rates than other individuals in the
municipality or state, as applicable;
7. the extent to which protected class members in the municipality
are disadvantaged, or otherwise bear the effects of discrimination
in education, employment, health, criminal justice, housing,
transportation, land use, environmental protection, or other areas
that may hinder their ability to participate effectively in the
political process;
8. the use of overt or subtle racial appeals in political campaigns in
the municipality, or surrounding the adoption or maintenance of
challenged practices;
9. the extent of hostility or barriers faced by protected class
members while campaigning;
10. a significant or recurring lack of responsiveness of elected
municipal officials to protected class members’ needs
(responsiveness does not include compliance with a court order);
and
11. whether a valid and substantial state interest exists for a
particular (a) election method; (b) ordinance, regulation, or other
law on election administration; or (c) related standard, practice,
procedure, or policy.
No combination or number of factors is required for a determination
of impairment.
Court Remedies
Under the bill, the court must order appropriately tailored remedies
when it finds a municipal violation of the above-prohibited acts,
regardless of the state’s election laws or any special act, charter, or home
rule ordinance, even if otherwise normally precluded by state law. The
remedy must (1) not contravene the state constitution or court ruling on
a contested election, (2) ensure protected class members can equitably 2023SB-01226-R000610-BA.DOCX
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participate in the political process, (3) not impair protected class
members’ ability to elect their candidates of choice or otherwise
influence the election outcome, (4) be implemented in a way that will
not disrupt an imminent or ongoing election, and (5) take into account
the ability of election administration officials in the municipality to
implement the remedy in an orderly and fiscally sound manner.
These remedies include the following:
1. a district-based or an alternative election method;
2. new or revised districting or redistricting plans;
3. eliminating staggered elections so that legislative body members
are simultaneously elected;
4. a reasonable increase in the legislative body’s size;
5. additional voting days, voting hours, or polling locations;
6. additional means of voting or opportunities to return ballots;
7. holding special elections;
8. expanded elector admission opportunities;
9. additional elector education; or
10. restoring or adding people to registry lists.
The court may also retain jurisdiction and place a moratorium on
implementing any different eligibility qualifications or prerequisites,
voting standards, practices, or procedures. The moratorium must
remain in place until the court determines whether the qualification,
prerequisite, standard, practice, or procedure does not have the
purpose, and will not have the effect, of impairing the right to vote
based on protected class membership or violating the bill’s provisions.
The finding cannot preclude a future cause of action preventing
enforcement. 2023SB-01226-R000610-BA.DOCX
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The bill requires the court to consider remedies proposed by any
involved party and other interested persons but it prohibits giving
deference or priority to a municipality’s proposed remedy.
Proposals After Letter or Court Filing
Under the bill, after receiving a notification letter or the filing of a
court action alleging a violation of the bill or federal VRA, a
municipality must have its legislative body take certain actions on any
proposal to enact and implement (1) a new election method to replace
an at-large method or (2) a new districting or redistricting plan.
Before drawing a draft districting or redistricting plan, or
transitioning to an alternative election method, the bill requires the
municipality to hold at least one public hearing to receive input on the
draft or proposal. Notice of the hearing must be published at least three
weeks before the hearing. The bill also requires the municipality to do
public outreach before the hearing, including to language minority
groups, to explain the districting or redistricting process and encourage
input.
The bill requires the municipality to publish and make available for
public dissemination the draft districting or redistricting plans after
they are drawn, but at least three weeks before a public hearing. The
information must include the potential election sequence if the
municipality’s legislative body members will be elected to staggered
terms under the plan.
The bill requires the municipality to hold at least one public hearing
to discuss the draft or proposal. It must also publish and make available
for public dissemination any plan or plans revised at or after the
hearings at least two weeks before adopting them.
Preliminary Election Relief
Under the bill, an aggrieved party may seek preliminary relief from
the court for an upcoming regular election held in a municipality by
filing an action during the 120 days before the election. To do so, the
party must also send a notification letter to the municipality before they 2023SB-01226-R000610-BA.DOCX
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file. The bill requires the court to grant relief if it determines that the (1)
aggrieved party has shown a substantial likelihood of success on the
merits and (2) remedy would resolve the alleged violation before the
election and not unduly disrupt it.
If the action is withdrawn or dismissed as moot due to the
municipality enacting or implementing a remedy or SOTS approving a
proposed remedy, then the party may only submit a reimbursement
claim for costs associated with the notification letter (see above).
§ 3 — STATEWIDE ELECTION S INFORMATION DATABA SE
The bill establishes a statewide information database in the SOTS
office to help the state and any municipality (1) evaluate whether, and
to what extent, current election laws and practices meet the bill’s
provisions; (2) implement best practices in election administration to
further the bill’s purposes; and (3) investigate potential infringements of
voting rights. The database must be published on the secretary’s
website, excluding any data or information that identifies individual
voters.
The bill requires the secretary to designate an employee of her office
to serve as the database manager. This employee must hold an advanced
degree from an accredited college or university, or have equivalent
experience, and have expertise in demography, statistical analysis, and
electoral systems. The bill allows (1) the manager to operate the database
and manage staff as needed to implement and maintain it and (2) SOTS
to give nonpartisan technical assistance to municipalities, researchers,
and the public on using the database’s resources.
Database Contents
Under the bill, the database must electronically maintain, at
minimum, the following data and records from at least the last 12 years:
1. estimates of total population, voting-age population, and citizen
voting-age population by race, color, and language minority
group, broken down annually to the municipal district level,
based on information from the U.S. Census Bureau, including 2023SB-01226-R000610-BA.DOCX
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from the American Community Survey (ACS), or information of
comparable quality collected by a similar governmental agency,
accounting for population adjustments for incarcerated
individuals as required under state law (see BACKGROUND);
2. district level election results for each statewide and municipal
election;
3. regularly updated registry lists, geocoded locations for each
elector, and voter history files for each election in each
municipality;
4. contemporaneous maps, boundary descriptions, and similar
items in shapefiles or a comparable electronic format if available;
5. geocoded locations for polling places and absentee ballot drop
boxes for each election in the municipality, including a list or
description of the location’s service area; and
6. any other information the secretary deems advisable to further
the bill’s purposes.
Except for data, information, or estimates that identify individual
electors, this information must be made publicly available in electronic
format at no cost. Under the bill, any prepared estimate under this
section must use the most advanced, peer-reviewed, and validated
methodologies. The bill also establishes a rebuttable presumption that
the data, estimates, or other information maintained in the database is
valid in any action due to the denial or abridgment of protected classes’
voting rights.
The bill requires municipal election administrators to transmit any
election-specific information listed above in electronic format to SOTS
after certifying election results and completing the post-election voter
history file. Additionally, on an annual basis, or as requested by SOTS,
the Criminal Justice Information Systems Governing Board and any
other state entity identified by SOTS must transmit any data, statistics,
or information that the office requires to carry out its duties and 2023SB-01226-R000610-BA.DOCX
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responsibilities.
Once the secretary is prepared to administer the database, she must
certify this in a report to the Government Administration and Elections
Committee. Within 90 days after this certification, and then at least
annually, she must publish on the SOTS website (1) a list of
municipalities required to help language minority groups (see below)
and (2) the languages for which each municipality must do it. The
secretary must also distribute this information to each municipality.
§ 4 — LANGUAGE-RELATED ASSISTANCE
Assistance Requirements
The bill requires a municipality to provide language-related
assistance in voting and elections if SOTS determines a significant and
substantial need exists based on ACS information or data of comparable
quality. Under the bill, a need exists if a certain percentage or number
of the population are limited English proficient individuals (i.e.,
someone who does not speak English as his or her primary language
and who speaks, reads, or understands the English language less than
“very well,” in accordance with U.S. Census Bureau data or data of
comparable quality collected by a governmental entity).
Under the bill, SOTS must find that a significant need exists if:
1. more than 2% of the municipality’s voting-age citizens, but at
least 100 people, are limited English proficient individuals;
2. more than 4,000 of the municipality’s voting-age citizens are
limited English proficient individuals; or
3. for a municipality with part of a Native American reservation,
more than 2% of the reservation’s Native American voting-age
citizens are limited English proficient individuals (“Native
American” includes anyone recognized as “American Indian” by
the U.S. Census Bureau or the state of Connecticut).
It is unclear if the thresholds apply cumulatively to all limited English
proficient individuals regardless of which language they speak. 2023SB-01226-R000610-BA.DOCX
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Staring by January 15, 2024, SOTS must annually publish on its
website a list of municipalities that must provide language assistance
and which languages they each must cover. (The bill also requires her
to do this within 90 days of certifying that she is ready to administer the
statewide elections information database (see above); presumably, both
deadlines apply.) SOTS must also give this information to every
impacted municipality. The secretary’s determinations for placement on
this list are final and not subject to review except as provided in the state
constitution.
Under the bill, these municipalities must give electors who are
limited English proficient individuals voting materials in English and
each designated language, including registration or voting notices,
forms, instructions, assistance, ballots, or other materials or information
about the electoral process. The requirement does not apply for a
language minority group whose language is oral or unwritten, allowing
the municipality to provide the information orally.
The translated materials must be of equal quality as the English
materials and convey the intent and essential meaning of the original
text or communication, including live translation whenever available. A
municipality may not rely solely on an automatic translation service.
The bill allows aggrieved individuals or an organization that includes
them to file an action in the Superior Court for the Hartford J.D. for
violations of these provisions.
Review Process
The bill requires SOTS, through regulation, to establish a review
process for determining whether a significant or substantial need for
language assistance exists. This process must include:
1. accepting requests for SOTS to consider designating a language
from (a) electors, (b) organizations that include or likely include
electors, (c) organizations whose mission would be frustrated if
language assistance was not provided, or (d) organizations that
would expend resources to rectify a lack of language assistance; 2023SB-01226-R000610-BA.DOCX
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2. an opportunity for public comment; and
3. allowing SOTS, as part of this determination process, to designate
a language-assistance need for any municipality after
considering the request and public comment.
(It is unclear whether this review process is distinct from SOTS’s
determination of need based on the thresholds described above or
required as part of all determinations.)
§ 5 — PRECLEARANCE O F COVERED POLICIES B Y COVERED
JURISDICTIONS
The bill subjects certain jurisdictions (see below) to preclearance by
SOTS or the Superior Court for the Hartford J.D. before enacting or
implementing certain election- or voting-related actions or policies
(“covered policies,” see below). Jurisdictions may be covered if subject
to court orders or government enforcement actions.
Under the bill, government enforcement actions include (1) any
denial of administrative or judicial preclearance by the state or federal
government, (2) pending litigation filed by a state or federal entity, (3)
final judgment or adjudication, (4) a consent decree, or (5) a similar
enforcement action.
A covered jurisdiction is subject to preclearance if, within the past 25
years, it:
1. has had three or more court orders or government enforcement
actions for violating the bill’s provisions, the federal VRA, a state
or federal civil rights law, or the U.S. Constitution’s 14th or 15th
Amendments, on the right to vote or a pattern, practice, or policy
of discrimination against a protected class or
2. has been subject to a court order or government enforcement
action on districting, redistricting, or election methods.
SOTS may also adopt regulations to implement these preclearance
procedures. The bill also authorizes the secretary or an aggrieved party
under the bill to bring an action to the Superior Court for the Hartford 2023SB-01226-R000610-BA.DOCX
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J.D. to enjoin enacting or implementing a covered policy without this
preclearance and to seek sanctions.
Covered Policies
Under the bill, a “covered policy” includes any municipal eligibility
qualifications, election methods, ordinances, regulations, or other laws
on election administration, or related standards, practices, procedures,
or policies, regarding:
1. districting or redistricting;
2. election method;
3. form of government;
4. annexation, incorporation, dissolution, consolidation, or division
of a municipality;
5. removal of individuals from registry or enrollment lists and other
activities concerning the lists;
6. polling place hours and the number and location of polling places
and absentee ballot drop boxes;
7. district assignment of polling places and absentee ballot drop box
locations;
8. assistance offered to protected class members; or
9. any additional subject matter the secretary identifies for
inclusion, under a regulation she adopts, if she determines that it
may diminish a protected class elector’s right to vote or violate
the bill’s provisions.
The bill specifies that SOTS’s decision to include or not include
additional subject matter is final and is not subject to review except as
provided in the state constitution.
(Municipalities do not have the authority to establish policies and
procedures for many of these aspects of elections which are instead 2023SB-01226-R000610-BA.DOCX
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outlined in the state constitution or laws or are under SOTS’s authority.
For example, the qualifications for admission as an elector are outlined
in the state constitution and Title 9 and only the General Assembly has
authority over the annexation, incorporation, dissolution, or
consolidation of a municipality (see BACKGROUND). )
Covered Jurisdictions
The bill requires SOTS, at least annually, to identify and publish a list
of “covered jurisdictions” that becomes effective upon publication (it is
unclear what effect placement on this list has; covered jurisdictions
appear only to be subject to preclearance as described above). A covered
jurisdiction is a municipality:
1. that, within the last 25 years, was subject to a court order or
government enforcement action based on a finding of a violation
of the bill’s provisions, the federal VRA, a state or federal civil
rights law, or the U.S. Constitution’s 14
th
or 15
th
Amendments
concerning the right to vote or a pattern, practice, or policy of
discrimination against a protected class;
2. that, within the last three years, failed to comply with its
obligations to provide data or information to the statewide
database (see above), excluding inadvertent or unavoidable
delays communicated to SOTS and corrected in a reasonable
time;
3. in which protected class members (1) makeup 10% of eligible
voters or (2) have at least 1,000 eligible electors, and in which
during the last 10 years,
a. based on data from the state criminal justice information
systems, the combined misdemeanor and felony arrest
rate for any protected class exceeded the combined arrest
rate of the municipality’s population by at least 20%,
excluding municipalities that are school districts; or
b. the voter turnout rate of protected class members for
general elections was at least 10% lower than the 2023SB-01226-R000610-BA.DOCX
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percentage of all voters; or
4. that enacted or implemented a covered policy during the last 10
years without obtaining preclearance under the bill (this appears
to include municipalities regardless of whether they were subject
to preclearance requirements).
Any estimates prepared to identify a covered jurisdiction must use
the most advanced, peer-reviewed, and validated methodologies.
Additionally, a determination by SOTS for inclusion as a covered
jurisdiction may be appealed under the Uniform Administrative
Procedure Act (UAPA) and all appeals to Superior Court must be for
the Hartford J.D. and privileged for trial assignment.
SOTS Preclearance
Under the bill, when a municipality submits a policy for preclearance,
the covered jurisdiction bears the burden of proof. As soon as
practicable, but within 10 days after receiving the submission, SOTS
must publish the submitted covered policy on her website.
Preclearance Public Comment and Review Period. Before
granting or denying the preclearance, the secretary must allow
interested parties to submit written comments on the covered policy and
the subsequent determination. SOTS must provide a means for the
public to receive notifications or alerts of preclearance submissions.
The bill also sets a deadline for SOTS to render a decision on a
submission. The comment period and SOTS decision period run
concurrently, and vary depending on the type of policy submitted, as
outlined in the table below.
Table: Preclearance Comment and SOTS Decision Periods
General Policy Comment Period SOTS Review and
Decision Period
Location of polling places or
absentee ballot drop boxes
10 business days
Within 30 days after submission;
may extend up to 20 additional
days 2023SB-01226-R000610-BA.DOCX
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General Policy Comment Period SOTS Review and
Decision Period
District-based election methods,
districting or redistricting plans,
or a change to the municipality’s
form of government
20 business days
Within 90 days after submission;
may extend up to 90 additional
days twice
All other policies 10 business days
Within 90 days after submission;
may extend up to 90 additional
days twice
During the review period, SOTS may request that the covered
jurisdiction provide any additional information necessary for SOTS
determination. Failure to provide this information may be grounds for
preclearance denial.
Preclearance Determinations. After her review, SOTS must publish
a report of her determination on the SOTS website. SOTS must provide
one of three responses in her determination: approval, denial, or
preliminary preclearance.
If preclearance is approved, the jurisdiction may implement the
policy. However, SOTS’s determination may not be admitted or
considered by a court in an action challenging the policy. A covered
policy is precleared if the secretary does not act within the required time.
If preclearance is denied, SOTS must provide the objections serving
as the basis for denial and the covered policy may not be enacted or
implemented. The bill only allows SOTS to deny preclearance to a
covered policy if she determines that it will more likely than not (1)
diminish protected class members’ ability to participate in the political
process, elect their choice candidates, or otherwise influence the election
or (2) violate the bill’s provisions. The bill allows a denial to be appealed
to the Superior Court for the Hartford J.D. under the UAPA, which must
be prioritized for trial assignment.
The secretary may also designate a policy for preliminary
preclearance (i.e., subsequently make a final preclearance decision
within 90 days after the original submission). (The status of a policy that 2023SB-01226-R000610-BA.DOCX
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receives preliminary preclearance is unclear.)
The bill also authorizes SOTS to establish regulations for an
expedited, emergency preclearance process for covered policies
submitted during or immediately preceding an attack, disaster,
emergency, or other exigent circumstance. Any policy submitted under
these circumstances may only be designated for preliminary
preclearance.
Superior Court Preclearance
Alternatively, the bill allows a covered jurisdiction to seek
preclearance of a covered policy from the Superior Court for the
Hartford J.D. instead of SOTS. The covered jurisdiction must submit the
policy to the court in writing and simultaneously copy the secretary.
Failing to provide this copy results in automatic denial. The bill gives
the court exclusive jurisdiction over the submission despite the
requirement to give SOTS a copy. Just as under the preclearance process
with SOTS, the covered jurisdiction bears the burden of proof for any
preclearance determination.
Under the bill, the court must grant or deny the preclearance within
90 days after receiving the submission. Granting preclearance has the
same effect as if SOTS granted it.
However, the court may deny preclearance only if it determines that
the policy will more likely than not (1) diminish the protected class
members’ ability to participate in the political process, elect their choice
candidates, or otherwise influence the election or (2) violate the bill’s
provisions.
If the court denies preclearance or does not decide on it within 90
days, the covered policy cannot be enacted or implemented. The bill
allows a denial to be appealed under the ordinary rules of appellate
procedure, and it must be prioritized for appeal assignment.
§ 6 — ACTS OF INTIMIDATION, DECEPTION, OR OBSTRUCTION
Prohibited Acts
The bill prohibits anyone, whether acting in an official governmental 2023SB-01226-R000610-BA.DOCX
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capacity or otherwise, from engaging in intimidating, deceptive, or
obstructive acts that affect the right to vote.
Under the bill, these prohibited acts are:
1. using or threatening to use force, violence, restraint, abduction,
or duress; inflicting or threatening to inflict injury, damage,
harm, or loss; or any other type of intimidation;
2. knowingly using a deceptive or fraudulent device, contrivance,
or communication that causes interference; or
3. obstructing, impeding, or otherwise interfering with (a) access to
a polling place, absentee ballot drop box, or an election official’s
office or place of business or (b) an elector or election official.
Court Action
The bill allows (1) SEEC, (2) the attorney general, (3) the state’s
attorney, (4) an aggrieved individual, or (5) an organization whose
membership includes or likely includes aggrieved individuals, to bring
an action to the Superior Court for the Hartford J.D. Any complainant
must certify they have copied SEEC on the complaint through first-class
mail or delivery or will copy SEEC not later than the following business
day.
When finding a violation of these provisions, the bill requires the
court, regardless of state election laws, any special act, charter, or home
rule ordinance, to order appropriately tailored remedies to address the
violation, including additional time to vote at an election, primary, or
referendum. It makes violators of these provisions, and anyone who
helps commit them, liable for court-awarded damages, including
nominal damages and compensatory or punitive damages for willful
violations.
The bill’s prohibition applies regardless of certain state election law
provisions that establish prohibited acts and associated criminal
penalties. For example, under these existing laws, influencing or
attempting to influence an elector to stay away from an election by force 2023SB-01226-R000610-BA.DOCX
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or threat, bribery, or corrupt, fraudulent, or deliberately deceitful means
is a class D felony, punishable by a fine of up to $5,000, up to five years
in prison, or both (CGS § 9-364).
BACKGROUND
Municipal Election Authority
Under longstanding Connecticut Supreme Court precedent,
municipalities have no inherent powers (see Windham Taxpayers
Association, et al. v. Board of Selectmen, the Town of Windham, et al. 234
Conn. 513 (1995)). Thus, for elections, municipalities may exercise only
the specific powers granted to them by the state constitution’s Home
Rule provision (Article Tenth) and state law (see CGS §§ 7-148 & 7-187
to 7-194). Included in the statutorily enumerated powers are those
implied by the law’s express powers and those essential to accomplish
the municipality’s purpose, but neither give municipalities jurisdiction
over conducting elections.
Additionally, the law generally requires municipal elections to be
held and conducted like state elections (CGS § 9-228). However, some
state laws do give municipalities election-related authority. For
example, municipalities can determine whether to elect their officials at-
large or by districts, where to have polling places, and whether to
change the number of voting precincts (see CGS §§ 9-168 & -169).
SOTS
As the state’s commissioner of elections, SOTS is charged with
administering, interpreting, and implementing election laws and
ensuring fair and impartial elections. Under the National Voter
Registration Act of 1993, the secretary has the same responsibility for
federal elections. The Connecticut Constitution and general statutes also
designate her as the official keeper of many public records and
documents, including the state’s online voter registration system.
SEEC
SEEC has broad authority to, among other things, investigate
possible violations of election laws; refer evidence of violations to the
chief state’s attorney or the attorney general; levy civil penalties for 2023SB-01226-R000610-BA.DOCX
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elections violations; issue advisory opinions; and make
recommendations to the General Assembly about revisions to the state’s
election laws (CGS §§ 9-7a to 9-7c).
Federal VRA
The federal VRA of 1965 (52 U.S.C. § 10301 et seq.) generally prohibits
discrimination in voting to enforce rights guaranteed to racial or
language minorities by the 14th and 15th Amendments to the U.S.
Constitution.
Section 5 of the act is a federal preclearance requirement, which
prohibits certain jurisdictions (determined by a formula prescribed in
Section 4) from implementing any change affecting voting without
receiving preapproval from the U.S. attorney general or the U.S. District
Court for the District of Columbia. Another provision requires
jurisdictions with significant language minority populations to provide
bilingual ballots and other election materials.
The VRA originally scheduled Section 5 to expire after five years. It
was applied to jurisdictions with protected class voter registration or
turnout rates below 50% in 1964 and “devices,” like literacy tests, to
discourage them from voting. On renewal, the law used data from 1968
and 1972 and defined a “device” to include English-only ballots in
places where at least 5% of voting-age citizens spoke a single language
other than English. Jurisdictions free of voting discrimination for 10
years could be released from coverage by a court, as was the case in
Groton, Mansfield, and Southbury, Connecticut.
Additionally, section 3(c), known as the bail-in provision, authorizes
federal courts to impose federal preclearance on jurisdictions. If a
federal court determines that violations of the 14th and 15th
Amendments justifying equitable relief have occurred, the court must
retain jurisdiction for a period it deems appropriate. During that period,
the jurisdiction cannot change specified voting laws or practices until
the court determines that the change neither has the purpose, nor will
have the effect, of denying or abridging the right to vote based on race,
color, or language minority status. 2023SB-01226-R000610-BA.DOCX
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Shelby County v. Holder
In Shelby County v. Holder, (570 U.S. 529 (2013)), the U.S. Supreme
Court struck down the federal VRA’s coverage formula (Section 4),
which determined the covered jurisdictions subject to preclearance
requirements. (It applied to nine states — Alabama, Alaska, Arizona,
Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia —
and many counties and municipalities in other states, including
Brooklyn, Manhattan, and the Bronx.)
Congress had most recently extended the law in 2006 for 25 years but
continued to use data from the 1975 reauthorization to determine
covered jurisdictions. The Court found that using this data made the
formula no longer responsive to current needs and therefore an
impermissible burden on federalism and state sovereignty.
Although the Court did not strike down Section 5, it is unenforceable
without Section 4’s coverage formula or a separate court order. Thus,
changes in voting procedures in jurisdictions previously covered by the
VRA are now generally subject only to after-the-fact litigation.
Adjustment of Census Data for Incarcerated Individuals
Under state law, U.S. census population data must be adjusted to
count most prison inmates at their address before incarceration instead
of at their prison address. It requires that this adjusted data, as well as
the unadjusted data, be the basis for determining state legislative
districts and municipal voting districts. Inmate addresses are not
adjusted if the inmate is serving a life sentence without the possibility
of release.
COMMITTEE ACTION
Government Administration and Elections Committee
Joint Favorable Substitute
Yea 12 Nay 6 (03/27/2023)