Nick Gorham, center, addresses the Rhode Island Board of Elections during its meeting on Friday, Nov. 22, 2024. To Gorham’s right is his client, Joanne Miller, an independent candidate who lost her bid for Warwick City Council. (Screenshot)
For the second time this election cycle, the Rhode Island Board of Elections grappled with conflicting interpretations of a state law that governs the rare cases in which a candidate drops out of a race after winning a primary.
The board ultimately voted on Friday to fire A. complaint submitted by Joanne Miller, an unsuccessful independent candidate for Warwick City Council. But not before an hour-long debate trying to decipher the intent behind the same obscure clause in the state elections law they had looked at in a September separate and also unsuccessful complaint involving the Rhode Island Senate District 8 race.
The September complaint, filed by independent 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 selected Lori Urso as 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 complaint 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; Salvatore DeLuise, the primary candidate and bakery owner, was chosen to fill Pento’s spot on the Nov. 5 ballot and won.
Miller filed her complaint against DeLuise, the Rhode Island Democratic Party and the Rhode Island Secretary of State on November 14. That’s what she argued Penta didn’t die, he simply decided to retire amid plans to move to East Greenwich after a high-profile feud with Warwick Mayor Frank Picozzi. first reported by the Boston Globe.
Constitutional law states: “The person so named shall be the nominee of the party for the office, and if, in the event of the death of a nominee, time permits, the Secretary of State shall place the name of the nominee on the electoral ballot.”
The Rhode Island Board of Elections on Friday, Nov. 22, 2024, dismissed a complaint challenging the placement of Democratic Warwick City Councilmember-elect Salvatore DeLuise on the November ballot. (Screenshot)
The purpose of the comma
“There is no basis whatsoever for why he was on the ballot,” Gorham, who represented Miller in her complaint, told the Board of Elections on Friday. “It couldn’t be clearer: when 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 eliminate that comma, those two commas, and the sentence will still make sense,” Taveras said, referring to state law. “The exception is the case of death.”
Taveras continued, “Our job is to read the statute in its entirety, and we make sure that makes sense.”
What ultimately swayed the state elections board was the much less vague argument about the timing of Miller’s complaint, filed 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 this objections to the suitability of candidates to be submitted by 4:00 PM the day after the nomination papers are filed; The primary results must be protested within four days of the election.
Miller blamed the time lag between DeLuise’s appointment and her complaint on confusion and miscommunication with state and local officials. She said she was torn between the state elections board, her local board of canvassers and the secretary of state’s office, without any clear answers about what to do or who to approach.
“I’m an independent, I don’t have a whole bunch of lawyers or people behind me,” Miller said. “I did a substantial amount of trying to figure out what to submit.”
She was joined Friday by Gorham, who previously served as a Republican state representative, along with Warwick Republican Town Committee Chairman Majorie Tudino.
Miller said she finally got clarity on what to do during the Nov. 14 recount of her race.
But state law and court precedent are clear: timeliness matters in election issues, and Miller’s conclusion was not enough to outweigh the clear legal “doctrine of finality” about long-completed election results, said Ray Marcaccio, counsel for the state elections board.
Timeliness (or lack thereof) was also a major reason why David Petrarca, DeLuise’s attorney, sought to have Miller’s complaint dismissed, according to a motion Filed Friday with the state elections board.
The Board of Elections ultimately voted 5-0 to dismiss Miller’s complaint based on the issue of timeliness. However, board member Randall Jackvony acknowledged the problems caused by the vague wording of the state statute governing the replacement process and complaints.
“Setting a precedent that any little byzantine part of the rules can prevent someone from being heard concerns me,” Jackvony said.
Cases warrant a closer look at the law
John Marion, executive director of Common Cause Rhode Island, said the two disputes that emerged during this election cycle warranted a closer look at the language of the entire law governing elections.
“It became very clear in the last two months that the part of this state election law that deals with how candidates are replaced when they withdraw needs to be reexamined,” Marion said in an interview Monday. “I think we need to go beyond just filling the one loophole that is being used, we need to look at the whole plan.”
That could include everything from collecting signatures — which are already in the spotlight because of counterfeits during the 2023 Congressional District 1 special Democratic primary — to recounts and even the timing of the state’s primaries, Marion said.
“Miss Miller had little time to appeal what happened because the Rhode Island primary is the last in the U.S.,” Marion said. “If we ultimately want to cut the Gordian knot, we have to start with the primary date.”
An earlier state primary election date would allow more time to review complaints and honor recount requests before general election ballots must be finalized and printed to be sent to overseas and military voters.
Meanwhile, Miller is still considering whether to appeal the board’s dismissal of her complaint to the Rhode Island Supreme Court — the same route Palocsik took, although the state’s highest court opted not to hear the case in that situation to be processed.
“I have mixed feelings,” Miller said in an interview Monday morning. “I want us all to move on with our lives. But if a lawyer wanted to stand up for me, I’d probably say yes. It is more of a warning to the higher circles in the state that they must follow the law.”
Faith Chybowski, a spokesperson for the secretary of state’s office, responded by email Monday.
“As stated by legal counsel at Friday’s board meeting, the RI Department of State remains confident that we acted in accordance with the law,” Chybowski said.
DeLuise, now a city council member-elect, was busy preparing for the flood of holiday orders at DeLuise Bakery when he was reached by phone Monday morning.
“I have no comment on the complaint, but as far as the dismissal is concerned, I am happy with it,” he said. “The most important thing is that she did not file the complaint on time.”
Election board members Diane Mederos and Marcela Betancur were absent from the meeting.
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