Not-So-Cool Moose: The Shell Game

Mike Gardiner

Even if we never played, we all know the old “find the pea “ hustle, or “ shell game.” A “dealer” shows you a pea, and covers it with one of three shells. He challenges you to keep track of where the pea is as he shifts the shells a few times deftly, and then you guess where the pea is bet that you can’t keep track of where the pea is as he switches the positions of the three shells. Alas, many a dollar is lost as one victim after another fails at what appears to be simple. The attentive are defeated over and over again as every time they think they identify the shell covering the pea, the dealer lifts the shell and, alas, no pea. It’s a hustle. The attentive skilled player may pick the right shell, based on the movements he sees, but the pea is actually removed from play. Such was the Board of Elections hearing on the Moderate party substitution of Healey.

On the second day after the Tuesday primary, with the top of the November ballot set as State Treasurer Gina Raimondo, (D) a last minute filer for fun named Spooner( (Moderate) and Cranston Mayor Allen Fung ( R), in that order, on September 11th, 2014, Spooner withdrew citing a physical disability invasive surgeries and all, and the Chairman of the Moderate Party designated Robert Healey, Jr. to replace him. For forty years Healey has been a perennial populist alternative candidate in Rhode Island politics and statewide elections. He is a magnet for people who are disenchanted and looking for a Messiah, and he was immediately perceived as major threat to the Republican, Mayor Allen Fung.


Some think Healey’s entry dooms Fung to a loss. That’s debatable. He recently got 39.6% in the Lt Governor’s contest, but that was because the GOP candidate withdrew, so as to let GOP voters vote for Healey in the best chance to beat Elizabeth Robert, (D) who was also helped by cable show host Bob Venturini getting about 10%.  But Fung won’t be the only candidate affected.  Democrat Gina Raimondo’s pension reform effort also alienated some Democrats. Some Democrats may well choose Healey as an “anyone but Gina vote.” Healey has a way of being Jesus to the lost.


Race against time

While Healey’s candidacy arguably affects both Democrat and Republican candidates, and certainly discounts the efforts of those who have been working for them since January and before, only the RI Republicans (RIGOP) challenged the last minute switch. Because the Ballots must be printed, like, yesterday, they had almost no time to challenge. I suppose that bit of timing was just happenstance. You know, you might almost think that someone who has become expert in election years over forty years of alternative politics might be advising, sort of shouting just over the hill out of direct communication.

So on September 17, just six days later, the RIGOP had to carry the ball alone before the board of elections to protect their candidate and really, the integrity of the whole process to date. With a short time frame the GOP mounted an effort raising three issues. First, Spooner’s withdrawal, for physical disability, was conditional. That makes no sense. You are withdrawing because you can’t run or not. If you are equivocal and reserve rights, people suspect your withdrawal is related more to who won or lost the primary than your actual health. With former Moderate Party head Ken Block losing to Mayor Fung in the GOP primary, inquiring minds wanted to know if there was a connection.

Secondly the RIGOP doubted that the Moderate party was actually functioning as a party. On its face the Moderate party substitution of Healey appeared to be the act of its Chairman and not the Moderate Party state committee or a designated sub-committee as required by law. Under the circumstances they wanted to see the MP State central Committee had one way or another, made the substitution of Healey as required.

Third they argued that Healey was registered unaffiliated so couldn’t run as a Moderate. They should have dropped the third argument as it was mistaken and contradicted page 3 of “How to run for office in 2014” which explains the loophole.  . If you are unaffiliated you can file candidacy into any party. I pointed out this aspect of the law in “Moosetrek V: the Wrath of Khen.” It’s rather hard to comprehend how they missed that, but they were under a tremendous time pressure created by the Moderate Parties last minute switch. In that circumstance if you don’t push an argument you waive or lose it s the tendency is to make ‘em all and weed out the weak ones later.

Why now?

Why didn’t the Moderate Party tap Healey before the Primary?  If the Moderate Party was only motivated by a desire to attain 5% of the vote again, why did they not run someone for Governor at all until Spooner just happened to file, and “they” (Chairman Gilbert) endorsed him that very night?

At any rate it seems there were only two challenges worth arguing. Umm, make that one.

First it looks like the Republican Party AND the Moderate party and your’s truly got confused by a confusing statute applied to Moderate Party Chairman Gilbert’s claim that Spooner was withdrawing because of physical disability. That’s what the Chairman’s September 11th letter said. So we all looked and saw a statute that allowed for substitution of a candidate for death, when the candidate is removed from the jurisdiction and physical or mental disability. It all made sense. It certainly makes sense that in those circumstances our election laws would allow a state committee to provide a substitute candidate. One can see good cause and also, one can expect a party to replace a qualified candidate with another. But it turns out; Spooner didn’t have to claim a physical disability. Nor did he have to die, which is nice. Spooner could actually just withdraw and be replaced because he wanted to.

Yes that’s right. RI election law actually allows a candidate to drop out of the race after the primary even, and then be replaced by the State committee or a designated sub-committee of the party. All you people who get involved and help candidates early may be wasting your time. Your apple cart can be upset at any time. We’ve replaced you candidate with a very, very wealthy person who is taking every good care of everyone. (Actually the Parties have mostly blown this opportunity so far)

Before the Board of elections, the GOP attorney made a terrible mistake, sort of. He argued the issue exactly as Spooner’s withdrawal framed it really sorry sir, wager again? The Shell game makes everyone look a bit foolish. The statute is as baffling as watching the shells move about.

On the books

Even on September 11th, after a primary, a Party can upset the whole landscape if their candidate withdraws for any reason or no reason at all:

RI General Laws§ 17-15-38  Vacancies among nominees. – (a) Whenever the nominee of a party for a particular office 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, the state committee of that party or a duly authorized subcommittee of the state committee in the case of state officers  *  *  *  * may file with the appropriate authority the name of its nominee for the office; provided, that except in the case of death, the appropriate committee shall file the name with the appropriate authority no later than four o'clock (4:00) p.m. of the third (3rd) day following the last day for the holding of the party primaries.

See it? I made it easy by underlining.  All of the stuff about death or disability and removal from the jurisdiction is really about the candidate who disappeared or is no longer capable of voluntary action, unconscious or dead. Bu the candidate can just quit. Ah ha! I just filed for fun and they endorsed me can you believe it? Now I’m the nominee! That’s Spooner.  The Moderate party and Spooner didn’t even need to say that Spooner had undergone “invasive surgeries “as they did. That was all completely unnecessary. All that was required was someone removes him or herself * * *as a candidate for the office for which the nominee seeks election. I wonder who told Gilbert to call Spooner the night he filed and make him the party “nominee?”

Think about that some more. A party nominee can withdraw for any reason or no reason at all and the party state Committee can replace him Even on September 11th. You people who start participating with in January or sooner, who collect signatures in June and go to conventions and donate time and money are all suckers. You can get played by the other party, even the husk of a party the Moderate Party has turned out to be, or even by your own party. Yes. In fact your own party really can be played by its Chairman given the Board of elections lay back and force others to carry the load and its performance in this controversy. Heck, maybe candidates should worry too. “I have good news and bad news for you, you are the nominee, you won the primary.  The bad news is we think you need to withdraw; we are going to run McMahon because she’s going to donate to everybody in the party and all the PACs. You’re out. If you don’t play ball, we’ll finish you anyways.”

The Attorney arguing for the RI GOP, already defeated by a challenge to Healey’s right to represent the Moderate Party, must have shrank again as he heard Board member Stephen Erikson moved the Board accept Spooner’s withdrawal, no conditions considered, the health stuff Spooner asserted, all irrelevant. Try again sir?

Gamesmanship?

Some members of the board clearly did not like the appearance of gamesmanship and the unfairness to other candidates and maybe even worried that the Moderate party effort undermined the whole atmosphere of good elections and active citizenry.  Sadly these feelings were only addressed in few questions and three no votes (or abstentions.) Unfortunately, the Moderate party had little concern with anything but its determination to have a candidate that would get them 5%.  Healey hasn’t adopted a Moderate party platform. In fact he’s running on an austerity platform and a philosophy of answering any question by establishing there are two opposite points of view and asserting his will be in the middle.  But Healey has enough name recognition to get 5%. If any alternative perennial candidate can get you to 5% it’s Bob Healey. And the RIGOP failed to seize and hold the high ground which was to demand the Board protect the integrity of the election and the participation of everyone who had got involved early and all the candidates who actually got signatures. Instead the RIGOP was arguing mainly procedure and compliance. The board was not roused to passion or concern and felt no pressure to do a “right thing.”

There were skeptical members of the board clearly unimpressed with the Moderate party. It has no campaign account. It’s submissions to the Board of Elections were all addressed to an official at the Secretary of State’s office. It had waited so long to effect its substitution that it caused all the worry and delay and potential disruption of the whole process. The Moderate party was a bumbling klutz that was lucky the Board itself wasn’t holding its feet to the fire, don’t ask me why.  They were leaving that to the RI GOP, unassisted by the Democrats and the RIGOP was going to be obstructed even on the argument they might’ve, maybe should have won. Had they won no great calamity would have occurred. The Moderate party would be represented on the ballot by Spooner, the guy who filed and whom they endorsed and who could have run, after all.

The best challenge the Republicans had was that the Moderate party chair had simply undertaken to substitute Healey for Spooner without authorization or approval or designation by the State Committee of the Moderate party. Why is that a good challenge? Because a party recognized under title 17 of the R.I. General Laws enjoys a privileged ballot position. Most independent candidates have little or no chance unless they had lots of political relevance from prior offices and everyone knows them. Lincoln Chafee was very grateful to receive the top position among a herd of independents in 2010. In such a circumstance the State of Rhode Island is entitled and has standing to demand of the party some compliance with its statutes. If the statute says the party State Committee designates the substitute that might be to make sure that some rogue Chairman can’t just do whatever he or she wants to do with the stationary. Robert Healey, assisted by Board member Stephen Erikson would take the position that the RIGOP had no standing to challenge how the Moderate party operated. So who would? Only a member of the Moderate party Healey would say. That seems unlikely and a limited guarantee of party integrity.

Here the Republicans got steamrolled. If the Democrats had been there joining in the objection too, it might have changed the dynamics and prevented it. Who knows how that party is functioning what with its Chairman having recently resigned in connection with the Beach Concession controversy. The RIGOP was on its own with nobody on their flanks. The RIGOP was nearly certain to be out maneuvered.

The Board attorney indicated that the GOP had a hearable position on its challenge to the manner of designation. They argued that on its face, the substitution letter of September 11th did not show a designation of Healey by the State Committee. Healey argued that the statute allowed that the state committee could delegate the designation to a subcommittee and that Chairman Gilbert was a subcommittee of one. That’s convenient.

Here, one must look to the letter Moderate party Chairman Gilbert sent on 9/11/2014. In it he claimed he received that authority at a meeting of the state committee on Friday June 27, 2014. But the letter was poorly worded.  Board member Stephen Erikson thought it was poorly worded. The letter appeared to say that Gilbert was given Authority as Chairman on June 27, and might have been read to say he was given authority to substitute Healey on June 27th, but I think it was assumed that given the date, it was interpreted as saying only that Gilbert was authorized to act as party chair on June 27th.  That’s all. But this would be stretched magically into an authority to designate Healey. The Republican position was that on its face, the letter showed Gilbert was acting only as Chairman and did not show state Committee authority for Gilbert to substitute Healey.

Stark, naked, undocumented

Recognizing the danger, In his ‘REPLY TO OBJECTION FILED,” Healey made the stark, naked, undocumented representation that at its June 27, 2014 meeting the State Committee made Gilbert a subcommittee empowered to substitute, Robert Healy, Jr. if Spooner removed himself as a candidate for office.

When I say stark, naked, undocumented -- I mean it. The letter simply did not do that. Adding to this Healey said “I don’t have to prove anything.” And incredibly, the burden was shifted to the RIGOP and they were asked, essentially can you disprove what the lawyer (Healey) claims in his response?

How could they? Why should they? On its face Gilbert’s letter was an action taken by a chairman, not a state committee. The Board on its own should have demanded a very simple thing of Healey. “Do you have minutes or a record of the meeting where the Moderate Party Central Committee met and made Chairman Gilbert a “designated subcommittee” to substitute you for Spooner?” Yes or no

The answer of course was no.  So the question wasn’t asked of Healey. They demand was made in the reverse of the RIGOP. The shells were moved again.  And once again, the RIGOP had no hope of finding the pea.

The GOP was caught on its back foot. They unfortunately had been form the beginning. They had sandwiched the winning argument in between the losers and it is a hard thing to turn losing into winning when you had an uphill fight to begin with. How can one be against a cool moose?  Those Board members have to appear socially you know.

Instead of forcefully asserting that the September 11th designation on its face lacked evidence of state committee authority, and that Healey’s naked allegation that Gilbert was made a “subcommittee of one” with authority to make him the candidate, was not evidence in any proceeding in the entire universe, the RIGOP maintained a pleading demeanor as the board’s advising attorney asked them if they had any further proof. Instead of hammering the facial inadequacies of the September 17th letter as evidence, They missed the mark and said “no.” It felt like surrender. It probably didn’t matter. One could already see the way the wind was blowing.

The GOP Attorney had protested. The GOP, naturally enough, had no Moderate Party record. The exigency of the proceedings was brought about by the substitution being foist on the state on September 11th, after the primary. I guess they could have inquired of Gilbert under oath, but , oh, how about that, the Chairman of a “ major Political Party” worthy of second position on the ballot was out of state on vacation so the GOP couldn’t even inquire of him, as if Healey would have let that happen anyway

What should have happened was, that given that on its face Gilbert’s September 11 letter appeared to be his own action as chair, the burden then shifted to the Moderate Party to show that Gilbert had in fact, as Healey claimed, been appointed as a subcommittee of the state committee to designate Healey.

No burden of proof

It was an easy burden for the Moderate party to meet if they could. All they had to do as provide the minutes or such documentation of the state committee meeting showing a quorum and the designation of Healey as substitute for Spooner, or the grant of authority to Gilbert acting as a subcommittee. If it happened, and they had it, they would have offered it because it gave them an easy win on the only real issue they might lose. But they didn’t. That’s why they didn’t offer it. Instead all we got was Healey saying “I don’t have to prove anything.”  

That’s what you want to hear from a gubernatorial hopeful at a proceeding that affirms or undermine the integrity of an election? But Healey and the Mod Squad got a gift.  Erikson took over and made the rest easy.

Erikson brusquely declared the burden of proof was on the Republican Party. He completely ignored the GOP counsel’s implicit if not express argument that they had met the burden of proof and the burden had shifted, as it constantly does in civil proceedings back to the Moderate Party. The Board of Elections advising attorney was not consulted on this. I know him and am pretty sure he would have said the burden can and does shift in civil proceedings. Or, viewed another way, everyone agreed the September 11 letter was poorly worded, and the GOP had good cause to argue it fell short of demonstrating Moderate state committee authority to put Healey on the ballot. Nevertheless, Erikson told the Board that the burden was solely on the RIGOP. The Moderates didn’t have to prove anything. Heck, the Chairman didn’t even show up.

GOP KO

I heard one radio host say “Healey cleaned the GOP’s clock.” In reality, Healey was prepared to be lucky and lucky. Healey, was in his element and shrewd, but where the Moderate party rightly held a burden to show that the chair had in fact been made a subcommittee of the state central committee empowered to substitute him in as candidate, Erikson shifted the burden back to the GOP and insinuated they had no standing to challenge anything the moderate party had done “internally.” I guess the Board of Elections feels shut out too. The Moderate party is sort of like a restroom that way I guess. Even if it’s a question of complying with a statute, we don’t want to know what happened in there.

Healey’s presence on the ballot is probably not a disaster for the GOP. Fung has been a resilient candidate whose relevance as a third term Mayor of Cranston, a city doing well and meeting the challenges all Rhode Island faces will keep him in a close race with Gina Raimondo, relevant as State Treasurer, proponent of pension reform, albeit still incomplete and in the courts, and she could be the first woman Governor. And she has to worry some Democrats will still seek their own personal Jesus in Robert Healey’s candidacy too. You can project whatever you want on to Robert Healey. He stays gentle and interested and you start hoping for a miracle of the loaves and fishes. He’s not like those other politicians. Vote for Him and we’ll be saved.

The real loser

The real loser in this case is all the people who got involved in their party and with candidates early and have been exercising not only their right to vote, but all their political rights. Congressman Jim Langevin, opposing a National voter ID law, argued that if a person gets turned away once, they will never come back. Well, thank goodness the people who get involved and exercise all their rights are probably more resilient than that. But there is no questioning Rhode Island needs work on its election laws.

Allowing a candidate to drop out at will after a primary threatens the process in a variety of ways.  That has to be made conditional. Having a Board of Elections that doesn’t itself make inquiry when a party performs serious actions that affect a ballot at such a late time in circumstances that clearly prejudice others is not good. If you are going to deprive the competing parties of standing to challenge violations of statutorily mandated procedures by one another, then you as the Board of Elections should step up and do it yourself and give notice to all interested parties. 

The insinuation that only a member of the Moderate party has the standing to challenge an action that changes the ballot for all voters is ridiculous. That needs to be addressed. And we saw the “Moderate Party of Rhode Island” offended that anyone would confuse it with the Moderate Party, (yes that really happened)  and flee from the hearing because a subpoena duly issued by the RIGOP attorney had not been “authorized by the Board” in the period between September 11th and September 17th. (Like they were sitting to do that?) Let the attorneys issue subpoenas as they need to. Kudos to Barrington for staying if needed and not taking the excuse the subpoena wasn’t authorized.

Just looking to the result and assuming the RIGOP lost again is a mistake. You should applaud their courage. This state suffers greatly from the syndrome of nobody rocking the boat, nobody sticking their neck out, going along to get along, don’t challenge unless the optics look right. That’s how we get 38 Studios. We should not discourage the participation in parties and long before elections by allowing late games and substitutions.

No moose problem

Robert Healey on the ballot really doesn’t concern me. He’s qualified. He’s an attorney in good standing. I think he even knows some of the weaknesses in our election law and that my characterizations as to pivotal moments of the proceedings are at least arguably fair.  Politically I think he will take from both sides and the GOP has a good base in gubernatorial contests. And If my guy loses, that’s part of politics.

But win or lose I believe that if we believe that voter ID  might discourage a voter tuned away, than we must all the more acknowledge how discouraging it is to participation in our system all the candidates and their supporters and the party and candidate volunteers who play by the rules and see their efforts and their candidates and their compliance  mocked by laws that allow for last minute substitutions. To the extent those laws have clear requirements, we should follow them. The Board of Elections should be more proactive and not take a posture of making the victims carry the burden.

The late substitution of a candidate by a party at will is not acceptable; especially if you are not even sure the party followed one simple requirement that shows it is actually a functioning party worthy of its ballot position. We can’t be switching things up on people and expect them to invest.  Our citizens shouldn’t feel that participating in our political system is a fruitless the more you play, the more you lose. Our People should not be playing a shell game. Their play by the rules should give a real chance of success that they will not be cheated of.

Mike Gardiner is an attorney based in Providence, former Republican candidate for U.S. Congress, and host of the Mic Gardiner Show, Tuesdays at 6 PM.

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