PROVIDENCE — The state Board of Elections on Wednesday voted 4 to 0 to reject independent candidate Cathyann Palocsik’s challenge to the state Democratic Party’s nomination of Lori Urso to replace Sandra C. Cano in the state Senate District 8 race.
That means Urso and Palocsik will face off in the Nov. 5 general election to succeed Cano, a Pawtucket Democrat who resigned from the Senate on Thursday amid State House buzz that she’s being vetted by President Biden’s administration for a job with the US Small Business Administration.
Palocsik filed the petition on Monday, claiming state law required the Senate District 8 Democratic Committee to nominate Urso, but that the Rhode Island Democratic State Committee made the nomination instead. She asked the board to nullify Urso’s nomination, which would have left her as the sole candidate.
But after hearing from its lawyer, the Board of Elections concluded that the plain language of relevant state law allows the Democratic State Committee to pick replacements for “state officers,” including state senators and representatives.
Palocsik’s lawyer, former state Representative Nicholas Gorham, argued voters approved a “separation of powers” amendment to the state constitution in 2004 that made clear legislators are no longer considered “state officers.” And if they’re not state officers, a state senator would have to be replaced by the district committee in this situation, he said.
Gorham, who served in the House as a Coventry Republican, said the law should have been changed to reflect the amendment, but it was probably accidentally overlooked. He urged the Board of Elections to follow the spirit of the amendment and to grant Palocsik’s petition.
Gorham called this “a perfect example” of constitutional law overshadowing statutory law. “My suggestion is you ignore the word ‘state officers’ because they are not,” he said of state legislators. “It’s a gutsy move, I’ll tell you that right now. That’s why I love it. It’s a gutsy move. You can do it.”
But the board’s counsel, Raymond A. Marcaccio, said, “We do have a very clear definition of who is substituted by the state committee and that is statewide officer holders, as well as state representatives and senators. There is no authority of the board to bypass that language.”
If the Board of Elections ignored that provision, that would be “tantamount to nullifying that provision because we would just not be enforcing it,” Marcaccio said. “And we just don’t have that authority.”
Board member David H. Sholes said, “The Board of Elections is a creature of the General Assembly. And until the General Assembly implements legislation in accordance with a constitutional amendment, we have to follow the legislative mandate.”
Gorham said, “Except that the legislative mandate is premised on the mistaken notion that a senator and a representative ... is an officer of the government. It’s just wrong.”
“Well, that’s your argument,” Sholes told him. “You have nothing in support of that argument.”
“I do,” Gorham said. “I have the constitution.”
Sholes said, “Until the General Assembly implements legislation in accordance with that constitution, we are bound by the statute.”
“I don’t believe that,” Gorham said. “I think you can follow a path that avoids an unconstitutional result.”
Board vice chairman Louis A. DeSimone Jr. agreed with Sholes, and said, “As much as I’d like to be able to change some of the election laws, I don’t think I have the ability to do it here.”
Board member Michael P. Connors concurred. “I respect your argument and your understanding of the separation of powers,” he told Gorham. “But part of your argument was that some portions of state law need to be stricken for us to make that decision, which I’ll also agree with fellow commissioners the board doesn’t have the authority to strike or amend state laws.”
The board also voted to reject a recount request by Alexander E. Azar in his Senate District 17 Democratic primary against Cameron J. Deutsch. The Sept. 10 primary results showed Deutsch winning by 68 votes — 634 to 566.
Board of Elections executive director Miguel J. Nuñez said Azar did not qualify for a recount under the requirements of state law. To be eligible for a manual refeeding of ballots, Azar would have to trail by 2 percent, or 24 votes, and to be eligible for a re-reading of the electronic storage media in election machines, he would have to trail by 5 percent, or 60 votes, he said.
So Deutsch will move on to challenge Senator Thomas J. Paolino, a Lincoln Republican, in the Nov. 5 general election.
Edward Fitzpatrick can be reached at edward.fitzpatrick@globe.com. Follow him @FitzProv.