By JIM BARON

PROVIDENCE — Superior Court Judge Judith Savage promised to decide today on whether she will restrain the Cumberland Board of Canvassers and the Rhode Island Board of Elections from certifying a winner in the Sept. 9 Democratic primary for the second at-large seat on the Cumberland Town Council.

That contest ended in a tie after a recount.
Savage heard arguments Wednesday from the attorney for challenger James McLaughlin on one side and lawyers for incumbent Bruce Lemois, the Cumberland Democratic Town Committee and the Cumberland Board of Canvassers on the other side. The committee had endorsed Lemois prior to the election.
After hearing all parties out, Savage said, “I appreciate all the arguments, I appreciate the need for an expedited decision and I will have that decision (Thursday) afternoon at 3 p.m.”
Lemois led by three votes after polling places closed on Primary Day, but a subsequent recount and the addition of one provisional ballot resulted in a tie, with both candidates garnering 2,855 votes. The other at-large incumbent, and the only other candidate in the three-way race for two council spots, was James Higgins. He received 3,120 votes and is not part of the court case.
The Board of Canvassers, on the recommendation of Town Solicitor Thomas Hefner, referred the matter to the Democratic Town Committee to resolve the tie, pointing to a provision in state law that says a party’s town committee should be called on to break a deadlock.
In a vote Tuesday night, the town committee threw its support to Lemois, 25-15, with one abstention and two blank ballots. But that vote is not yet considered to be a victory for Lemois because McLaughlin filed the court action. 
There are no other candidates for the two at-large council seats, so whoever wins the court case will join Higgins on the Town Council.
Savage said McLaughlin’s attorney, Brandon Bell, overreached when he claimed the judge had issued a temporary restraining order “in part” last Friday.
She said there was an agreement by both parties that no result would be certified before Wednesday’s hearing, which she pointed out is clearly different from a judicial restraining order.
Bell told Savage he is challenging the state law as “unconstitutional on its face” because by allowing a separate group, the town committee, to determine the outcome of the primary, it “disenfranchises” voters. He contends that once the state mandates that there be a party primary, it confers a right to vote on those eligible to participate in the primary – in Rhode Island, that includes non-affiliated voters as well as party members.
Allowing the Democratic Town Committee to pick the winner in the event of a tie, Bell asserted, “ignores the will of the people…There is no connection between the body that breaks the tie, the Democratic Town Committee, and the thousands of people who voted two weeks ago.”
Bell said that method of tie-breaking gives the 51 members of the Democratic Town Committee three votes for that office – once to make an endorsement, on Primary Day, and the tie-breaking vote. That's not fair, he contends, given that everyone else had their say only once, at the polls.
In that case, Bell said, the town committee “gets the right to veto the votes” of everyone who voted for McLaughlin in the primary.
He argued that a restraining order and injunction are needed because if the process is allowed to go forward, “James McLaughlin can’t undo what gets done.”
McLaughlin’s complaint asks the judge to order the town Board of Canvassers and the state Board of Elections to “conduct a special election for registered Democrats and unaffiliated voters at the earliest practical time” to determine a winner between Lemois and McLaughlin. He said there is “more than adequate time” to conduct a special election, and suggested it would be unlikely to result in another tie. 
Stephen Izzi, Lemois’ lawyer, claimed there are no constitutional issues at stake. McLaughlin is merely “a disappointed suitor for a spot on the Democratic ballot," Izzi said. "Using another candidate selection method to break a tie that occurred using another method," he said, “does not raise constitutional issues.”
Izzi cited a U.S. Supreme Court case that he said states: “A political party has a First Amendment right to limit is membership as it wishes and to choose a candidate selection process that will, in its view, produce a nominee that best represents” its political goals. “This is exactly the process that is being undertaken here.
The high court, Izzi said, also ruled in a New York case that “there is no federal constitutional provision proscribing the method a state must use to select a governor and I would submit that applies to mayors, councilors-at-large and dogcatchers or any other political position.”
The Democratic Party in Cumberland had the right, if it so chose, to nominate candidates by a vote of the town committee, Izzi said, noting that the Supreme Court also held that a method that would be valid if used initially “is also valid when employed as an alternative.”