Former Cool Moose party leader Robert J. Healey, Jr., was approved to appear on the ballot as the Moderate Party nominee for governor of Rhode Island as the State Board of Elections rejected a challenge from the Republican Party at a hearing on Wednesday, September 17.
The Moderate Party, recently created in 2009, in order to survive as an officially recognized political party under state law and preserve its ballot access, needs to field a candidate for governor who can muster at least 5% of the vote in the November 2014 election. The party is pinning their hopes on the widely known and respected Healey, who is probably the most successful third-party politician active in the state. After party founder Kenneth Block transferred his party affiliation in order to run unsuccessfully for governor in the Republican primary, a number of Moderate Party rank-and-file members decided in June to try to prevent it from becoming defunct and met to reorganize it at the home of William H. Gilbert, who was named Moderate Party chairman and one of a three-member state committee.
James B. Spooner, who had previously run for office unsuccessfully as a Democrat, declared his candidacy for governor on the Moderate Party ticket. Apparently the party was happy to have him and endorsed his candidacy. After obtaining the required 1,000 voter signatures to qualify to be listed on the ballot for governor, Spooner signed a hand-written letter, dated September 11, withdrawing his candidacy. Gilbert, on the same date, sent a letter to the Board of Elections explaining that Spooner had “undergone radical and invasive surgery” and therefore sought to invoke the right of a party under state law to replace a qualified candidate who “dies after the primary, or removes him or herself from the jurisdiction of or as a candidate for the office for which the nominee seeks election, or becomes physically or mentally disabled,” substituting Healey for Spooner on the ballot. Spooner and Healey also signed Gilbert’s letter, but not as senders. Gilbert said in his letter that if Healey could not be on the ballot as the party nominee for governor, then Spooner should be retained. Both Spooner’s handwritten letter and Gilbert’s letter were filed together and timestamped as received by the Secretary of State at the same minute, 10:51am on September 11.
Mark Smiley, chairman of the state Republican Party and represented by attorney Brandon S. Bell of Fontaine Bell, filed a petition objecting to the replacement of Spooner by Healey on the ballot. The objection raised four arguments:
(1) that the conditional wording of Gilbert’s letter did not constitute a withdrawal by Spooner, thereby failing to trigger the statute allowing Spooner to be replaced;
(2) that when the statute is triggered the replacement must be made by “the state committee of that party or a duly authorized subcommittee of the state committee,” and therefore Gilbert as party chairman could not do it on his own;
(3) that the Moderate Party had actually ceased to exist and therefore Gilbert was not really its chairman, leaving him no authority to appoint anyone, citing the failure to file annual forms with the Secretary of State required of the Moderate Party non-profit corporation and the formal closing by Block of the party campaign fund; and
(4) that Healey was not eligible to be the replacement candidate because he was not a member of the Moderate Party prior to his appointment.
Healey, acting as the lawyer representing the Moderate Party, filed an answer to the objection:
(1) that the handwritten letter from Spooner was an unconditional withdrawal separate from the replacement letter from Gilbert, so the statute was properly triggered;
(2) that Gilbert was acting as a “subcommittee of one” and that the objectors had the burden to prove that he was not so authorized by the state committee as he claimed;
(3) that the Moderate Party as a political party was separate from Block’s non-profit Moderate Party corporation and that the remaining members of the political party, led by Gilbert, had a legitimate right under the law to take control of it; and
(4) that Healey, as a voter unaffiliated with any party for a sufficiently long time before his appointment as a replacement candidate, was eligible to be appointed.
Additionally, Healey argued that only members of the Moderate Party had “standing” to challenge the internal workings of the party, since political parties are private organizations. This means that the Republican Party could not even raise the issue of, for example, whether Gilbert had been properly authorized by the state committee or whether he was in fact party chairman.
Bell, arguing for the Republican objector, opened the hearing by challenging the propriety of Healey representing the Moderate Party as their lawyer. Logically, if whether the Moderate Party existed was in doubt, how could a lawyer be allowed to represent it without deciding that it did exist and prejudging that issue? The effect of this approach was to force the Board to take up at least part of the third objection first, deciding by unanimous vote, 7-0, to accept Healey’s argument that the political party and Block’s non-profit corporation were separate things, and therefore, to allow Healey to represent the political party regardless of what had happened to the non-profit corporation.
(Although it was his candidacy at issue, Healey was not a part of the dispute until he asked the permission of the Board to intervene personally, representing himself as well as the Moderate Party, and the request was granted.)
Addressing the issue of what he argued was Spooner’s conditional withdrawal, Bell used the analogy of a baseball manager who sends a pitcher to the showers and only after realizing the new pitcher is not going to work out tries to bring back the earlier pitcher. Everyone understands why it’s against the rules of baseball to say, as Bell phrased it, “Before the existing pitcher leaves the mound, let’s see how the new pitcher does.”
Board member Stephen Erickson, who retired as a District Court judge in 2010 after 20 years on the bench, took the lead in trying to frame the elements of the dispute. “The issue right now is, did Spooner withdraw and was the letter facially sufficient under the statute?” he said. (“Facially” means judging just by reading the letter alone without looking into any facts behind it.) The Board’s own legal counsel, Raymond A. Marcaccio, put the question even more directly: “Was there an appropriate withdrawal?” Erickson then moved to find “that the letter written by Spooner was unconditional and sufficient to satisfy the statute,” and the Board adopted his motion unanimously.
Bell then turned to the legitimacy of the claims by the group led by Gilbert to be the Moderate Party. “It is my understanding from the limited amount of time we’ve had to review, that Mr. Gilbert was not a member of the Moderate Party during Mr. Block’s tenure,” he said. “We have no idea of how Mr. Gilbert became chairman.” Emphasizing the difference between the scale of the Moderate Party and the two more established parties, Bell said, “The Democrat and Republican Parties have meetings and make filings with the Secretary of State and the Board of Elections, but there’s no evidence that the Moderate Party did anything of that nature.” Marcaccio challenged Bell, “Do you have any other evidence [to the contrary]?”
Healey then referenced a letter that had been marked into evidence but not seen by most of those in the hearing room, leading Robert Kando, the executive director of the Board, to read it aloud. Written on Moderate Party stationery by Gilbert and dated June 26, addressed to the Board of Elections but sent to the Secretary of State, the letter said that “an emergency meeting was held of the then active members of the Moderate Party of Rhode Island State Committee” on the prior day because of party chairman Block transferring his affiliation to the Republican Party. At the meeting, Gilbert wrote, those present unanimously voted to replace Block with Gilbert and to form a new state committee with three members including Gilbert. The letter was timestamped as received by the Secretary of State on June 26 at 3:02pm.
Board Vice-Chairman William E. West noted that Gilbert’s June 26 letter should have gone to the Board of Elections and was in fact addressed to the Board of Elections, but was sent in care of the head of the Elections Division of the Secretary of State. Apparently Gilbert did not know that his letter never reached its addressee and was never forwarded by the Secretary of State, and it is a reasonable inference that Gilbert was simply unaware that he sent it to the wrong place.
Marcaccio then challenged Healey along the same lines he had earlier challenged Bell: “Is there any evidence that the state committee met?” Healey replied that proving the facts behind Gilbert’s June 26 letter was “not my burden,” meaning that the letter was entitled to be presumed accurate unless it could be proven otherwise. Healey also said that whether Gilbert had acted correctly in reorganizing the Moderate Party was an “internal party matter” that could be challenged only by other Moderate Party members and not by Republicans.
Bell pointed out that the by-laws of the Moderate Party filed in 2009 set out conditions that Gilbert’s group would be unlikely to satisfy, such as that a quorum to conduct business of the state committee was eight members plus the chairman, despite that the entire state committee after the reorganization, according to Gilbert’s letter, was only three people.
Board member Erickson summarized at some length the issue as he saw it, saying, “A political party is a private entity although regulated by state law,” and asking, “Where’s the burden of proof?” He said that there was “no precedent for one party challenging the internal workings of another party,” leading to his “serious reservation about standing.” (In this context, “standing” means a right to raise the question for a decision by the Board.) Erickson said that, in his opinion, the Republican Party had no standing to question whether the Moderate Party followed their own rules or otherwise acted appropriately in deciding to send the letter from Gilbert, and that the issue for the Board was narrowly whether the letter itself was sufficient to meet the requirements of the election laws.
At that point, Erickson moved and Board member Rhoda Perry seconded a resolution “that the Moderate Party acted appropriately to replace Spooner.” In what would prove the closest decision of the hearing, the motion carried by vote of 4-3, with Chairman Richard H. Pierce, Vice-Chairman West, Erickson, and Perry in favor, and Richard R. Dubois, Martin E. Joyce, Jr., and Frank J. Rego opposed.
The only remaining question then became whether Healey was eligible to be appointed to replace Spooner. Everyone agreed that someone affiliated with another political party would have been ineligible and that someone affiliated with the Moderate Party would have been eligible, but there were diametrically opposed interpretations as to whether someone unaffiliated with any political party would be eligible. Healey conceded that the Secretary of State had changed his party registration to Moderate from unaffiliated when he was appointed as the party’s candidate for governor, but that this had been done “sua sponte.” (The phrase “sua sponte” is Latin for “on their own initiative,” meaning that the Secretary of State did it without anyone asking them to do so.) The purpose of the restriction, Healey said, was to prevent “raiding” across parties, where people who were really Democrats would declare candidacy as Republicans, or vice versa, in an attempt to cause confusion and distraction in the opposing party primary.
Marcaccio said that he knew of no law addressing the party affiliation requirements of a replacement candidate specifically, and that the law was “silent as to those who are unaffiliated.” In Rhode Island, most voters are registered as unaffiliated, leaving them free to join any party at any time. Marcaccio and Kando tried to clarify Bell’s argument on the issue, asking whether it was sufficient that Healey was eligible to vote in the Moderate Party primary (if there had been one) and was eligible to join the Moderate Party, but Bell countered that he read the law to require that Healey would have had to be a Moderate Party member at the time of the deadline for declaring candidacy, months before Spooner’s withdrawal.
This led to a discussion of the history of the rules, and Marcaccio noted that more restrictive provisions had been thrown out by the courts in prior years. He cited a 1972 case where a three-judge federal court panel examined a 1968 change to the party affiliation rules. Erickson said that the “old 26-month rule” had been deemed unconstitutional by the courts, which had been an attempt to prevent someone from changing from one party affiliation to another within the 24-month interval that typically separates general elections. Erickson said that “both [major] parties have appointed unaffiliated people repeatedly,” and that Bell was asking for a “change from prior practice” that had never been challenged before.
Erickson, seconded by West, then moved to find that Healey was eligible, and this motion carried by vote of 4-0-3, with Pierce, West, Erickson, and Perry in favor, none opposed, and DuBois, Joyce, and Rego abstaining. With all substantive questions decided, that ended the hearing.
Healey said that he was opposed to much of the traditional nominating process. “I don’t vote in primaries. I don’t believe in primaries. I filed a federal lawsuit to get rid of primaries.” When asked why he had decided to run, he answered with a rhetorical question: “Because if I don’t, who will?”
Bell emphasized that the dispute was in no way personal. “I have a lot of respect for Mr. Healey. This was never a personal attack. The purpose was to make sure the laws are followed.” He said that the goal was to “maintain the integrity of the electoral process.” But, he said, the result was unfair to the candidates who had to get voter signatures to run. “Mr. Healey got one signature, but everyone else got a thousand.”
Smiley said that there would be no appeal to the courts, and he accepted the decision of the Board. “We just needed to have clarity in the law,” he said. Questioning the apparent sloppiness of the Moderate Party internal procedures, Smiley said, “I expect them to live with the rules that I have to live by. It’s not easy to be a party.” He declined to predict whether Healey’s candidacy would draw more voters away from the Democrat or Republican candidates. “It could take from both sides,” he said.
Asked whether he thought the Moderate Party really did exist, Smiley said that it seemed “like a bunch of guys decided, ‘Dude! There’s a party there! We can play with it.’”