Ruling could affect election in North Stonington

Testa, Main will be considered Republicans even though they disaffiliated from the party

North Stonington — Two unaffiliated candidates participating in contentious races for Board of Selectmen seats will be considered Republicans for Tuesday’s election, Town Clerk Norma Holliday said on Friday.

Holliday’s announcement came shortly after the town received an 18-page memorandum — with six pages of explanation and 12 of supporting documents — from the Shipman and Goodwin law firm early on Friday.

The town consulted Shipman and Goodwin, First Selectman Nick Mullane said, because there was confusion over how first selectman candidate Bob Testa and selectman candidate Tim Main II — who both disaffiliated from the Republican Party July 30 — would be treated in regard to the state’s minority representation requirement.

The issue of party affiliation was first raised by supporters of Shawn Murphy, Testa’s challenger in Tuesday’s election.

After laying out the election timeline, relevant statutes and applicable case law, lawyers Matthew Ritter and Bruce Chudwick concluded that Testa, currently a selectman, and Main, currently chairman of the board of finance, “shall be considered to be members of the Republican Party.”

The two lawyers rely heavily upon subsection G of state statute Section 9-167a, which deals with minority representation, in their

decision.

The subsection essentially says that, for the purposes of minority representation, a candidate’s party affiliation is determined on the day the state secretary of the state’s office approves his or her nominating petition. Candidates who’ve disaffiliated, it continues, “shall be considered a member of the party from whose list he has so applied for erasure or transfer for a period of three months from the date of the filing of such application.”

According to Chudwick and Ritter, that means that even though Testa and Main’s unaffiliated status went into effect Oct. 30 — in time for the election — it wasn’t yet in effect when their nominating petitions were approved Aug. 12.

The decision — and Holliday’s adherence to it — substantially changes how the election could play out in North Stonington.

If Main and Testa were considered unaffiliated — and if that allowed them to fulfill the minority representation requirement — many different outcomes would have been possible: two Republicans and one Democrat, two Republicans and one unaffiliated, two unaffiliated and one Democrat, two unaffiliated and one Republican, or three members with different party affiliations.

Now, four Republicans, including Murphy for first selectman and Mullane for selectman, will vie for two spots. Democrat Selectman Mark Donahue needs just one vote to be elected.

Mullane on Friday applauded the memorandum’s conclusion, suggesting Main and Testa became unaffiliated specifically to have a better shot at winning.

“This decision shows that the people who schemed to cause confusion, their scheme ... whether it was to cause confusion or to get an advantage, didn’t work,” Mullane said.

Testa said the decision to disaffiliate is one he thought about “for a long time,” noting that he used to be unaffiliated before the Board of Education brought him on to fill a Republican vacancy in 2003.

He said he was “surprised” by the memorandum’s findings and called into question the cost and the timing of a legal opinion he said may not even be necessary come Tuesday night.

Holliday said the town consulted the law firm because she asked Mullane for help earlier this week.

“When I found out it was my responsibility to drop the ax ... I told (town officials) I’m not comfortable making that decision without some guidance,” Holliday said. “I am not an attorney and I’m not an election law expert.”

Mullane said the lawyers have not yet sent an invoice. But, he added, because it was only three days of work, this bill should be substantially less than the last one the town received from Chudwick.

In that September instance, Chudwick charged more than $13,000 after issuing an opinion regarding whether the town could change a controversial election procedure and whether it was safe to do so less than two months before an election.

“People should have confidence and know what they’re voting on, what the rules are,” Mullane said. “I would rather consult the lawyer, spend the money you have to now, than take and spend more money on a lawsuit after the election.”

As for what he’ll do if he fails to secure a seat Tuesday, Testa said he hasn’t thought that far ahead, yet.

“We’re out going door-todoor,” he said. “We believe in the old-fashioned way: you actually earn your votes. We’re not looking for a free ride.”