Nick Gorham, center, speaks to the Rhode Island Board of Elections at its meeting on Friday, Nov. 22, 2024. To Gorham’s right is his client, Joanne Miller, an independent candidate who lost her bid for the Warwick City Council. (Screenshot)
For the second time this election cycle, the Rhode Island Board of Elections grappled with opposing interpretations of a state law governing the rare occasions when a candidate drops out of a race after winning a primary.
The board ultimately voted Friday to dismiss a complaint filed by Joanne Miller, an unsuccessful independent candidate for Warwick City Council. But not before an hourlong debate attempting to decipher the intent behind the same obscure clause in state elections law they had looked at in September in a separate and also unsuccessful complaint involving the Rhode Island Senate District 8 race.
The September complaint filed by independent state Senate candidate Cathyann Palocsik alleged errors were made in selecting a Democratic replacement for Sen. Sandra Cano, who ended her campaign two days after winning the Sept. 10 primary. The Rhode Island State Democratic Committee picked Lori Urso to be the party’s replacement for Cano. Palocsik’s attorney, Nicholas Gorham, argued that the Senate District 8 Democratic Committee should have nominated Cano’s replacement, not the state party.
Miller’s grievance instead focused on the name of her Democratic opponent in Warwick’s City Council Ward 4 race being printed on the November ballot. Michael Penta dropped out a day after winning the primary; first-time candidate and bakery owner Salvatore DeLuise was picked to fill Pento’s spot on the Nov. 5 ballot and won.
Miller filed her complaint on Nov. 14 against DeLuise, the Rhode Island Democratic Party and the Rhode Island Secretary of State. She argued that Penta didn’t die, he just decided to withdraw amid plans to move to East Greenwich following a high-profile argument with Warwick Mayor Frank Picozzi, as first reported by the Boston Globe.
State law reads, “The person so named shall be the nominee of the party for the office, and if in case of the death of a nominee time will permit, the secretary of state shall place the name of the nominee upon the election ballot.”
The purpose of the comma
“There’s no basis whatsoever as to why he was on the ballot,” Gorham, who represented Miller in her complaint, told the elections board Friday. “It couldn’t be clearer, if it’s a death, and time is of the essence, you can put them on.”
But Angel Taveras, the attorney representing the Secretary of State, offered a different interpretation: A death is just one example cited in the 1947 law.
“If you have any doubt, you can strike out that comma, those two commas, and the sentence will still make sense,” Taveras said, referring to the state law. “The exception is the case of death.”
Taveras continued, “Our job is that we read statutes in their entirety, and we make sure that makes sense.”
What ultimately swayed the state elections board was the far-less-fuzzy argument over the timing of Miller’s complaint, submitted 10 days after she lost the general election to DeLuise by 53 votes, and more than two months after the primary. State election law requires objections to candidates’ eligibility to be submitted by 4 p.m. the day after nomination papers are filed; protests of primary results must be made within four days of the election.
Miller blamed the lapse between DeLuise’s nomination and her complaint on confusion and miscommunication with state and local officials. She said she was shuffled between the state elections board, her local board of canvassers and the Secretary of State’s office without any clear answer on what to do or who to approach.
“I am an independent, I don’t have a whole bunch of lawyers or people behind me,” Miller said. “I substantially tried to find out what I needed to file.”
She was joined on Friday by Gorham, who formerly served as a Republican state representative, along with Majorie Tudino, chair of the Warwick Republican City Committee.
Miller said she finally got clarity on what to do during the Nov. 14 recount for her race.
But state law and court precedent is clear: Timeliness matters on election issues, and Miller’s conclusion was not enough to outweigh the clear legal “doctrine of finality” on long-completed elections results, said Ray Marcaccio, counsel for the state elections board.
Timeliness (or lack of) was also a key reason why David Petrarca, the attorney for DeLuise, sought to have Miller’s complaint tossed, according to a motion filed with the state elections board on Friday.
The elections board ultimately voted 5-0 to dismiss Miller’s complaint based on the timeliness issue. However, board member Randall Jackvony acknowledged the problems posed by the vague wording of the state statute governing the replacement process and complaints.
“Setting a precedent that any little byzantine portion of the rules can prevent someone from being heard, it worries me,” Jackvony said.
Cases warrant a closer look at law
John Marion, executive director for Common Cause Rhode Island, said the two disputes raised this election cycle warranted a closer look at the language of the entire law governing elections.
“It became very clear over the course of the last two months that the section of this state election law that deals with how candidates are replaced when they withdraw needs to be reexamined,” Marion said in an interview on Monday. “I think we need to go beyond just filling the one loophole that is used, we need to look at the whole scheme.”
That could include everything from signature collection — already in the spotlight due to forgeries during the 2023 Congressional District 1 special Democratic primary — to recounts, and even the timing of the state’s primary elections, Marion said.
“Miss Miller was in a time-pinch to appeal what occurred because Rhode Island’s primary is the latest in the U.S.,” Marion said. “Ultimately, if we’re going to kind of cut the Gordian knot, we need to start with the primary date.”
An earlier state primary date would allow for more time to review complaints and honor recount requests before general election ballots have to be finalized and printed to send to overseas and military voters.
Meanwhile, Miller is still contemplating whether to appeal the board’s dismissal of her complaint to the Rhode Island Supreme Court – the same route Palocsik took, though the state’s highest court opted not to take up the case in that situation.
“I have mixed feelings,” Miller said in an interview Monday morning. “I want us to all get on with our lives. But if some lawyer wanted to step up for me, I would probably say ‘yes.’ It’s more to give a warning to the higher-ups in the state that they need to follow the law.”
Faith Chybowski, a spokesperson for the Secretary of State’s office, responded by email on Monday.
“As expressed by legal counsel at the Board meeting on Friday, the R.I. Department of State remains confident that we acted in accordance with the law,” Chybowski said.
DeLuise, now City Councilor-elect, was busy preparing for the rush of holiday orders at DeLuise Bakery when reached by phone Monday morning.
“I don’t have any comment as far as the complaint, but as far as the dismissal, I am happy about it,” he said. “The main thing is, she didn’t file the complaint in time.”
Elections Board members Diane Mederos and Marcela Betancur were absent from the meeting.
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