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Is The Election Process Fair?

Gill v Rhode Island
94-0331-B
Donald Gill, John M. Carlevale, Sr. and Robert F. Plante are plaintiffs in Gill v. Rhode Island

Federal District Court for the District of Rhode Island

Before starting, note these figures.

27% of Rhode Island's registered voters are Democrats
11% of Rhode Island's registered voters are Republican
62% of Rhode Island's registered voters are Unaffiliated (independent)

Overview

All five of the Plaintiffs in the above captioned 1994 case had ran for public office prior to 1994 and they were aware of just how much political bias and prejudice exist in the Rhode Island Election Laws. If there were to be even a glimmer of hope of getting elected, or even getting their name on the ballot, they knew that the Rhode Island Election Laws would have to be reformed. In an attempt to level the political playing field the Plaintiffs filed the above captioned case challenging the constitutionality of the Rhode Island election laws in the Federal Courts. Following is a synopsis of the Gill case and a few examples of "bad" election laws and the reasons the Plaintiffs claimed these laws violated all of Rhode Islanders' political and civil rights. I encourage the readers of this synopsis to come to their own conclusions. Consider whether the Plaintiffs were misguided or whether or not our judges are just the puppets of the "two-party" system?

In their capacities as voters, candidates and citizens, the Plaintiffs brought this suit, "pro se." They also brought this suit on behalf of all other similarly situated citizens (a class action). While the case was in the District Court, Plaintiff Joseph F. Devine moved out-of-state and ceased to be active in the case. Plaintiff Anthony Almonte did not participate in the case after the District Court's Decision. Plaintiffs Donald Gill, John M. Carlevale, Sr. and Robert F. Plante stayed with the case all the way through to the United States Supreme Court. The complaint, pleadings, briefs, appeals, appearances in court, etc., were done by the Plaintiffs with no outside help. All the cost for filing fees, postage, transcripts, certifications, printing, copying, etc., were paid for by the Plaintiffs.

The main reason Devine became inactive in the Gil case was because when he left the State he left no forwarding address so he gave Gill the power-of-attorney to sign pleadings for him. At a hearing before Magistrate Judge Timothy M. Boudewyns on an unrelated matter, Boudewyns threatened to charge Gill with "the unlawful practice of law" for signing for Devine. This threat was outrageous when you consider that District Court Judge Francis J. Boyle and Magistrate Judge Timothy M. Boudewyns not only heard the Gill case, but both judges argued (the unlawful practice of law) most of the case for the Defendants, thereby engaging in the unlawful practice of law themselves.

Except for the standard motions to dismiss, during the entire travel of this case through the Courts, neither the Attorney General Office, nor any of the other law firms representing the Defendants, put forth cogent arguments refuting the Plaintiffs' claims. At no time during the entire case, from District Court to the Supreme Court, did the Defendant's advance a defense against the Plaintiffs' claims, nor pointed out where they believed the Plaintiffs were wrong in their claim that the election laws violated one or more of their political liberties or civil rights.

Following are some of the injustices which the Plaintiffs had to contend with:

  • In open court Boyle energetically professed his undying loyalty to the Democrat Party and on several Plaintiffs' motions for recusal, he refused to recuse himself.
  • Boyle threatened the Plaintiffs with sanctions because they presented the Court with what he called a "who's who" witness list.
  • No witnesses, neither the Plaintiffs' nor the Defendants' were heard at the so-called trial.
  • At the so-called trial the Defendants did not argue in defense of their clients.
  • On several occasions the Courts refused to address or honor the Plaintiffs' demand for a "trial by jury" on issues of fact.
  • On several occasions both the District Court and the Circuit Court refused to address or honor the Plaintiffs' demand for a "speedy trial." A necessary in an election year trial.
  • The transcripts of the hearings and the trial were useless because the transcripts had been heavily edited and did not reflect a true accounting on what was done and said in the Court.
  • The case was tried by judicial intimidation and judicial interference.
  • Throughout the trial in the District Court, the Plaintiffs were constantly threatened with sanctions and on one matter they were sanctioned for cost.
  • In Boyle's final decision he levied "cost" against the Plaintiffs.
  • In an election case "time is of the essence;" however, the District Court stalled the case for more than two years.
  • The Defendants did not present any written arguments in defense of their case to the First Circuit Court.
  • The First Circuit Court did not allow oral arguments.
  • The First Circuit Court handed down a one sentence decision denying the Plaintiffs' appeal.
  • The First Circuit Court ordered that the record of the appeal not to be published.
  • The Defendants' did not present any written arguments in defense of their case to the Supreme Court.
  • The United States Supreme Court simply denied the Plaintiffs' Writ of Certiorari without comment.

Considering that the Gill case involved the political and civil rights of all the citizens of Rhode Island, the First Circuit Court of Appeals and the Supreme Court's denial for a hearing and the denial for a written opinion constitutes a violation of due process and an obstruction of justice.

Background

The Plaintiffs appeared "pro se."

The Attorney General's Office represented the State (Governor and General Assembly). The law firm of Pucci, Goldin & Merolla represented the Secretary of State. The law firm of Giannini & Craven represented the Board of Elections. The law firm of Tillinghast, Licht & Semonoff represented both the State's Democrat and Republican Parties.

The Plaintiffs:

Donald Gill, Democratic candidate for Governor,
John M. Carlevale, Sr.; Democratic candidate for Secretary of State,
Robert F. Plante, Republican candidate for Lt. Governor,
Joseph F. Devine, Republican candidate for Governor,
Anthony Almonte, Independent candidate for Attorney General and other similarly situated citizens, voters and candidates.

Vs.

The Defendants in their official capacities:

State of Rhode Island,
Governor Bruce Sundlun,
Secretary of State Barbara Leonard,
The General Assembly,
Joseph DiStephano, Chairman of the State Board of Elections,
Guy Dufault, Chairman Rhode Island Democratic State Committee,
John Homes, Chairman Rhode Island Republican State Committee.

Presiding Judge - District Court Senior Judge Francis J. Boyle
Pleadings Judge - Magistrate Judge Timothy M. Boudewyns

The Courts' Decisions

Federal District Court:
Boyle decided in favor of the Defendants because he claimed the Plaintiffs' rights to ballot access were only slightly violated. (Note: Boyle conceded and stated that the Plaintiffs' rights were violated)
First Circuit Court of Appeals:
The Gill case was appealed to the First Circuit by the Plaintiffs and denied with one sentence. (Note: the First Circuit also ordered that the case not to be reported.)
The United States Supreme Court:
The Supreme Court refused to hear the case. (Note: the Supreme Court denied the appeal; therefore, the case will not be reported)

The Plaintiffs' rights which were violated

On or about June 19, 1994 the Plaintiffs filed to enjoin the 1994 elections for injunctive relief and a complaint with the Rhode Island Federal District Court claiming that about 155 of the Rhode Island election laws violated a number of the Plaintiffs' political liberties and civil rights; therefore, the laws were unconstitutional. Among these rights the Plaintiffs claimed that the Defendants violated were the Plaintiffs' rights of:
(1) privacy,
(2) association,
(3) privacy of association,
(4) expression,
(5) political freedom,
(6) the equal protection of the law,
(7) and the separation of political parties and state.

It is impractical to go into all the details of the Gill case in this document.  However an attempt will be made to give the reader an idea of the issues, the Plaintiff's reasoning behind their claims and what might be expected from the judges in the American judicial system.

Note: Political parties are private political associations (well supported by legal precedent). Political parties are not governmental instrumentalities, nor are they government agencies.

(1) Privacy and the voter registration card. We all have a Constitutional right to privacy. The Plaintiffs claimed that the voter registration card is nothing more than a "political dossier," i.e., because the Rhode Island Election Laws require a person to register by political party affiliation or a lack thereof. Political freedoms: Except for their own purposes of gerrymandering voting districts, why is it necessary for the government to require a person to publicly declare his political philosophies? Voter registration cards also record what party you vote for in primaries. Voter registration cards also record whose nomination papers you signed. Except to maintain a political dossier on a person why is this information recorded as a permanent record? This a violation of federal and state Constitutional rights of privacy, association, expression and political freedoms.

(2) Association, (3) Privacy of association. We all have a Constitutional right to associate with whom ever we please. We also have a Constitutional right to the privacy of our associations. The Plaintiffs further claim that we have a Constitutional right of the privacy of our political associations; nevertheless, the election laws and State funds are used to reward political party association and to penalize those who are so-called politically "independent" or "unendorsed."

(4) Expression. We all have a Constitutional right to the freedom of expression. However, if you express a political view contrary to the State established political parties the election laws will punish you. You will not be qualified to be on many boards, committees, commissions, etc., e.g., the Board of Canvassers. You also not be allowed to be a poling place worker. There are many other positions which the laws will prohibit you from holding, based solely on your declared or undeclared political affiliation.

(5) Political freedom. We have a Constitutional right to our political and civil freedoms. It is unconstitutional to enhance or restrict our civil and political freedom because of our political party affiliation. The State gives to its established (by law) political parties and their members a political citizenship and political privileges much greater than the "unaffiliated." By doing so it creates classes of citizens with unequal rights, privileges, sanctions, etc.

(6) Equal protection of the law. Items (1) through (6) clearly demonstrate how the Rhode Island Election Laws deny the "unaffiliated" and "unendorsed" political party, voter, candidate and citizen the equal protection of the law. Different laws, rules, regulations, requirements apply dependent upon political party affiliation or lack thereof.

(7) Separation of political parties and state. The Plaintiffs claimed that the State should make no law respecting an establishment of political parties, or prohibit or restrict the free exercise thereof. However the election laws facilitate the free exercise of political citizenship for some while stifling political citizenship for others depending upon political affiliation and political classification. State law dictate such terms and are a party to unequal and discriminatory practices.

A few examples of the election laws which the Plaintiffs challenged

The Plaintiffs in the above matter filed a case that basically challenged the constitutionality of about 155 Rhode Island election laws. A few of the challenged laws are listed below in bold type. Following the bold type is a comment on why the law violates your political and civil rights.

Local Canvassing Authority R.I.G.L. 17-8. Also known as the Local Board of Canvassers. This law provided for each city and town to have a three member bi-partisan Board of Canvassers with two alternates. The political make-up of a local city or town's Board of Canvassers would depend on the political party affiliation of the local town council. If it were predominately Democrat, two of the three members of its Board of Canvassers would be Democrats. If it were predominately Republican two of the three members of its Board of Canvassers would be Republicans. Each of the two alternates were required to be from different political parties. The law's requirement for a Democrat or Republican political party affiliation effectively denied 62% of the State's unaffiliated registered voters of their right to be considered to hold a public office on a local Board of Canvassers.

Primary Elections - Chapter 15. Once a person declares a political party affiliation he is only allowed to vote in that party's primary. Rhode Island General Law 17-1-2 (g) definition of a primary election is: "Primary Election shall mean any election to select the candidates of a political party. (emphasis added)"  A general election is considered to be an election. However, in primary day elections, each of the Democrats, Republican and the Cool Moose Parties' primaries constitute a separate election. Since the state's taxpayers pay for the political party primaries each of the party primaries constitute a "state-action." Even though both the federal and state Constitutions guarantee your right to vote in any election, you can vote in only one party primary, not any, not all. If the political parties paid for their own primaries it would be a "private-action" and they could exclude whomever they wished, but when the primaries are paid for by the taxpayer, the primaries become a "state-action" and one has a right to vote in any election.

Eligibility criteria for matching public funds. 17-25-20. "(6) In order to receive payments under this section, any independent candidate shall first meet the following additional minimum requirements., (a) . . . (b) . . . (c) . . . (emphasis added)"  This law is blatantly discriminatory because it does not treat all legally qualified candidates equally. It requires some legally qualified candidates to jump through additional hoops which are not required of endorsed party candidates.

Preparation of nomination papers for candidates - Combination of endorsed candidates - Furnishing of nomination papers to the candidates. - 17-14-4. (emphasis added)  This section requires that all party endorsed candidates' names shall be combined on a single nomination paper. Independent or unendorsed party candidates can not combine their names on a single nomination paper, but must collect their signatures independently. In other words, on the State level, the Party's endorsed candidates for U.S. Senate, U.S. Representative, Governor, Lt. Governor, Secretary of State, General Treasurer and Attorney General get to have their names combined on a single nomination paper where one signature counts for all seven offices. If you are unendorsed or independent one signature only counts for one office. The local boards of canvassers also engage in the practice of combining endorsed party candidates at the local level. Is this the equal protection of the laws?

The above examples of unconstitutional laws are just a few excellent illustrations on how the political parties control our political system. The Rhode Island Election Laws have been enacted without regard for a person's civil or political rights. Nowhere in either the federal or state Constitutions can one find any powers delegated to political parties, nor can one find a Constitutional mandate for the State to establish political parties. Yet, by law, 38% of Rhode Island's voters with strong political party affiliations enjoy far greater benefits of their political citizenship than that of the registered "unaffiliated" voters who constitute an overwhelming 62% of the state's registered voters. Do we live in a democracy where the rule of the "one man one vote" still exist or do we have the rule of a state-established closed "two-party" system?"

Postscript

Rhode Island's symbol of the "Independent Man" stands atop the state house dome. He is the symbol that it is the citizen who is be exalted above all other. Contrary to what you may have been told, Rhode Island is not a "Democrat" State. Rhode Island's voter registration list show that Rhode Island is an overwhelmingly "Independent" State. However, the Rhode Island Election Laws have been written in such a manner that only endorsed Democrats and Republicans have free ballot access and participation in Rhode Island's electoral process. Past Democrat and Republican legislators have effectively enacted these laws to discourage or stifle the political and civil rights of the "independent" and "unendorsed" party candidates.

If Rhode Island is so predominately "independent" how is it that only Democrats and Republicans get elected? Have we allowed the "two-party" system to dictate what is best for us? Rhode Island consistently elects Democrats and Republicans to office because the election laws were so devised as to make it difficult for the voice of the independent thinker to be heard.

Rhode Island also consistently elects Democrats and Republicans to office because of the "special-interest" that supports and control the long entrenched political parties. These special interest are the real political power in Rhode Island. Who are these special-interest which controls our political process? They are financial institutions, insurance companies, the legal profession, major corporations, unions, etc.

At the beginning of this synopsis I asked you to be the judge. What is your decision?


Without going into too much detail, basically what are some of the interest of the special- interest?

Financial institutions. The State is nearly two billion dollars in debt. It will take between four and five billion dollars to retire that amount of debt. From past history we know the State debt will never be retired. It will only grow. Who handles the funds in the State's retirement system? Who handles the indebtedness of the State's cites and towns? Who handles the day to day accounts of the State and the cities and towns?

Insurance companies. There is a tremendous amount of insurance business generated by the State and its cities and towns. These insurances range from compulsory insurance on automobiles and the trades (carpenters, plumber, electricians, etc.) to insurance on liability, fire, theft, workers compensation, capital improvements (bridges, airports, buildings, etc.), municipalities, etc.

The legal profession. The State retains many law firms for many purposes. Law firms are heavily evolved with the State and its cities and towns. They do the legal work for a wide variety for agencies, departments, general officers, general assembly, cities and towns, etc. They do work in such areas as labor negotiations, contracts, bonding counselors, insurance claims, solicitors, administrators of estates, etc. All the judges, in recent memory, came from the legal profession.

The news-media (radio, television, newspapers, etc.).  During any election years millions and millions of dollars are spent on political advertising. Unless a candidate is extremely wealthy and spends his millions on his own campaign, up to half of the money spent on political advertising comes from the state. Most if not all "independent" candidates never qualify for matching funds. To create an interest in the elections and to lure advertising money from the well-funded candidates, the media at the expense of the under-funded candidate, promotes the candidates with the most money to spend. The political parties manipulate the media's political reporting with special-interest money. In turn the media does all it can to ignore and ridicule the independent or unendorsed candidates. Whether the special- interest money comes from State's matching funds (created by the parties in power), financial institutions, insurance companies, legal profession, etc., most of campaign funding trickles down to the media. Is it any wonder that "reform" is nearly impossible?

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