The Superior Court judge raps the state for failing to explain the rules while investigating a complaint lodged against the state GOP and the governor.

01:00 AM EST on Tuesday, March 28, 2006

BY BRUCE LANDIS
Journal Staff Writer

PROVIDENCE -- After castigating the state Board of Elections for not doing its job, a Superior Court judge yesterday permanently barred the board from investigating an alleged election-law violation by the Republican Party and Governor Carcieri's campaign before the 2002 election.

Judge Stephen J. Fortunato said that the board's years-long failure to make it clear to candidates and political organizations what they can and can't do and how the board would handle violations meant that the investigation trampled on the First Amendment and due process rights of the Republicans.

The underlying question of the case is whether the Republicans did anything wrong in 2002, when the state party got $250,000 from the Republican National Committee and used part of it to finance a pro-Carcieri TV commercial.

During several hours spent listening to arguments and questioning lawyers yesterday, Fortunato focused on the fact that while the state has laws governing the conduct and financing of elections, the Board of Elections has not, in his view, written and adopted rules and regulations that spell out what the laws mean and how the board intends to enforce them.

Some of the regulations are inadequate, he said, and some don't exist at all.

"Without rules, everybody's in the dark," the judge said. "The board has brought this unfortunate and chaotic situation upon itself."

He dismissed the board's existing election handbook as "absolutely inadequate" and said that a recently drafted protocol for handling investigations is "of no validity whatsoever" because the board never adopted it.

He said the board's failures were particularly significant because the board is responsible for regulating the most protected sort of free speech, the most important speech in a democracy, political speech.

"We're not talking about the regulation of fishing licenses here," the judge said. "We're talking about the First Amendment."

The judge's criticism appeared to bear out repeated complaints by James Bopp Jr., the Terre Haute, Ind., lawyer representing the Republicans, that the board had made so many procedural errors, and shortchanged the Republicans' due-process rights so often, that the case deserved to be thrown out.

Despite dragging on for nearly four years after the complaint was filed by Democratic Party Chairman William Lynch, the board's investigation never uncovered the details underlying the case -- how the advertisement was actually financed, whether Carcieri's campaign played a role in it, and how that related to the election laws.

After the judge's ruling, it was a matter of dispute whether, once the board created a satisfactory set of rules and regulations, a similar complaint might prompt a new investigation that could penetrate the disputed episode.

While the judge was still considering the case, but after it was clear that he took a dim view of the way the Board of Elections handled it, Lynch said there seemed to be nothing to prevent him from filing a new complaint and prompting a new investigation.

"I'm not responsible for the lack of rules and regulations," Lynch said, adding that he deserves an answer on the issues his complaint raised.

Bopp said it can't happen. Asked if Lynch could file a new complaint, Bopp said, "It's over. He's had his shot."

The board's lawyers, H. Reed Witherby and Raymond Marcaccio, both declined to discuss the ruling or what might follow it.

Bringing the dispute to a head was Witherby's issuance of a subpoena to compel the Republicans to produce numerous records that could have explained how the advertisement came to be. The Republicans responded on March 16 by taking the case, which had been before the Board of Elections, into Superior Court, leading to yesterday's hearing.

"What the board is trying to do is simply uncover the facts," Witherby said.

But Fortunato dismissed the subpoena, too, as "burdensome, oppressive and overly broad."

Yesterday's decision did not resolve whether the Republicans erred in using money from the national party to help finance the commerical.

After Lynch's complaint, the board ordered the ad off the air and the Republicans complied, but the investigation dragged on without a conclusion.

Special counsel Witherby had said in a report to the board in October that the state Republican Party apparently violated state election law when it used the national party money to pay for the ad supporting Carcieri.

Witherby recommended that the board send the case to the attorney general for civil prosecution, advice it has not yet followed.

Also left hanging was the accusation that the Carcieri campaign and the party violated another section of the law limiting how much a state party can give to a candidate. For that violation to have occurred, Witherby said, proof was needed that the party and the campaign cooperated on the ad.

Bopp had contested those accusations throughout, saying they rested on a misunderstanding of federal court decisions on campaign financing. Witherby just as regularly disagreed.

blandis@projo.com / (401) 277-7487