[governance] Legal Analysis re: Results of charter amendment
Paul Lehto
lehto.paul at gmail.com
Wed Sep 30 18:38:09 EDT 2009
The main idea of a 2/3 requirement is to make it NOT EASY to gather
that kind of group together, therefore it's not easy to improvidently
amend the charter without a lot of member involvement in the issue.
The problem appears to be with there being no procedure for aging off
inactive members. Or, if the "problem" is that members simply don't
want to change the charter and realize that not voting is one way to
accomplish that, THAT is a legitimate and (within its scope) effective
electoral position to take, one that can't be dismissed as invalid any
more than a "yes" vote can be dismissed as invalid.
As far as signal to noise goes, I don't know what you're referring to
precisely, unless its pizza discussions but I personally don't mind a
bit of humor now and then. The flurry of messages on pizza is
understandable given the reality that appetites like food, sleep
(well, and sex) are nearly universal appetites that everyone can speak
to, or most everyone, except computer experts (I'm not one) who I hear
do not ever sleep, though I haven't confirmed that yet. In contrast,
when it comes to computer technicalities, that becomes white noise for
many, because they don't have the training to understand it.
I certainly can't and won't defend every post made or that could be
made, but part of the solution to the problem of "noise" is to realize
that tolerance at any reasonable level involves putting up with
considerable "noise" especially the grating kind one doesn't agree
with or prefers didn't populate the list, because one doesn't need any
"tolerance" at all to tolerate something one both understands and
approves. Meanwhile, what we all don't care for, just like bad music,
is grating to the ears, and becomes "more noise than signal."
Not many of us, and certainly not I, are important enough to have our
communications summarized and shortened for us so that we can enjoy
high signal to noise ratio, so we've got to do a lot of sorting
ourselves. Having sat myself through many a 3 day long meeting with
wall to wall lawyers, one can't hit "delete" on someone who's talking
in person, nor leave the room for long. It's a lot better here in the
email world since a scan of an email plus a delete key stroke, if
truly merited, is about ten to a hundred times more efficient with
time.
In this light, while not claiming that no poster ever abuses rights,
the bulk of the "problem" with high noise to signal claims is the lack
of tolerance by email receivers. At least those on highspeed internet
and not a metered dialup have no real cause to shift the few seconds
it takes to scan and delete onto the drafters of posts, for whom it
would take many minutes to even hours to streamline, edit and post a
"high signal" post.
Back to the 2/3, if the charter architects didn't foresee some
problem, we're still stuck with the charter provision designed
specifically to make things difficult, even if it makes them slightly
more difficult than perhaps was anticipated. Because it's meant to be
difficult, performing an end-around for reasons of expedience, or
reducing the provision's impact for reasons of expedience, is
unjustified. Expedience will ultimately justify gutting or highly
limiting any given charter position, ones we like and ones we don't
like. Whose job is it to uphold the charter, no one's? That's the
crux.
Paul Lehto, Juris Doctor
On 9/28/09, Jeanette Hofmann <jeanette at wzb.eu> wrote:
>
>
>
>> Personally, I think that if the election were redone and if as is
>> likely the measure passes easily in all respects that would be a
>> victory for best practices and not a waste in any good governance
>> sense of that word. Instead, it bespeaks a high respect for
>> procedural integrity, even if it means the effort of a new election.
>
> Hi Paul, you seem to think that it would be easy to mobilize the same
> number of voters once again. I can assure you, it is everything but
> easy. A lot of people who once cared about this caucus have stopped to
> pay attention, not least because of its worsening signal to noise ratio.
>
> The 2/3 threshold was designed with the aim to make changes of the
> charter difficult. What the charter architects didn't and couldn't
> foresee is that a changing of the charter would become nearly impossible
> because a growing number of caucus members abandons the group simply by
> ignoring it. Unless we manage to improve the quality of discussion on
> this list, it will soon be impossible to establish majorities for anything.
> jeanette
>>
>> Paul Lehto, Juris Doctor
>>
>> On 9/28/09, Jeffrey A. Williams <jwkckid1 at ix.netcom.com> wrote:
>>> Paul and all,
>>>
>>> Thank you Paul for this execellent and substative legal analysis. Well
>>> done
>>> and I concur! Now are you willing to officially a protest accordingly?
>>> If
>>> so I would join you as seemingly Ginger and Ian have indicated is
>>> required,
>>> but by what authority I know not. Please advise as soon as possible.
>>>
>>> -----Original Message-----
>>>> From: Paul Lehto <lehto.paul at gmail.com>
>>>> Sent: Sep 28, 2009 12:50 PM
>>>> To: governance at lists.cpsr.org, Anriette Esterhuysen <anriette at apc.org>
>>>> Subject: Re: [governance] Legal Analysis re: Results of charter
>>>> amendment
>>>> vote
>>>>
>>>> I don't know if constitutional case law and principles from courts in
>>>> the USA concerning elections would be deemed to have application here,
>>>> but it may, at least by analogy in furtherance of a proper analysis of
>>>> facts. So here's some structure that might be applicable, or at
>>>> least any departure from its reasoning would seem to call for an
>>>> explanation at least:
>>>>
>>>> 1. Elections are PURE procedure.
>>>>
>>>> 2. Because they are procedures, any substantial defect in procedure
>>>> renders the procedure invalid or worthless procedure, or at least
>>>> renders the election "irregular" in the sense of the term "election
>>>> irregularities."
>>>>
>>>> 3. Lack of a quorum, as pointed out by one poster, means that a body
>>>> is unable to legitimately take action. In the case of a meeting,
>>>> substantive business might not be discussed until such time as a
>>>> quorum appears at the meeting, in which case all attending are present
>>>> for the entire substantive meeting and have equal voting rights
>>>> therein.
>>>>
>>>> 4. Scheduled elections end at the time prescribed, except for such
>>>> persons as are in line at time of closing, who are entitled to proceed
>>>> to complete the voting process.
>>>>
>>>> 5. In the case of extraordinary circumstances such as the closing of
>>>> a polling location due to a bomb threat, illness of all pollworkers,
>>>> or the like, after meeting a relatively heavy burden of proof of
>>>> showing good cause, an independent court of proper jurisdiction may
>>>> rule to extend polling place hours to accommodate or adjust only for
>>>> the loss of time or access to voting, such that the end result
>>>> intended is that all voters in various jurisdictions had an equal
>>>> opportunity to vote.
>>>>
>>>> 6. An individual voter, even in cases of intentional delay by the
>>>> sheriff for the specific purpose of preventing them from casting a
>>>> vote, can not be allowed to vote if they arrive after closing time,
>>>> even by court order. This voter has a strong legal cause of action
>>>> against the sheriff for damages for violation of their constitutional
>>>> rights, but ballot boxes can not be left open or re-opened even in the
>>>> most extreme cases where good excuse is proved by a voter that they
>>>> were faultless in not casting a timely ballot. This is why "vote
>>>> suppression", while illegal in the extreme, is or can be effective in
>>>> achieving the desired results if for any reason it keeps people away
>>> >from the polls.
>>>> 7. Under both Bush v. Gore ( a bad or even void case, in parts, but I
>>>> cite it for its noncontroversial part) and the law it cites in the
>>>> opinion and briefs, it is a violation of Equal Protection and election
>>>> principles to make up new rules after the election commences. The
>>>> parties to an election rely upon the rules as they exist when the
>>>> election commences or just prior to the commencement of the election,
>>>> and rule changes during the process are therefore unfair for various
>>>> reasons, including but not limited to affecting one side of the debate
>>>> more than others, in most circumstances.
>>>>
>>>> For the above reasons, in a "real election" in the USA (understanding
>>>> the corporate elections operate by somewhat different rules) the
>>>> persons running an election would not, no matter how much good cause
>>>> they felt they had, be able to extend the hours of voting without
>>>> going to a neutral magistrate or judge after putting all interested
>>>> parties on notice, and arguing their case under the general rules
>>>> above. In no case would being on vacation or at work in Geneva be
>>>> grounds for extending time, nor would the lack of a quorum be grounds
>>>> for extending time, because the very purpose of the 2/3 rule
>>>> requirement is to ensure that measures that don't achieve the 2/3
>>>> requirement FAIL.
>>>>
>>>> Given the existence of a rule on point whose purpose is to cause
>>>> charter amendments to fail if they don't achieve 2/3 voting, there can
>>>> be no "good cause" to extend time under that purpose, because such a
>>>> claim of good cause works directly to undermine or perform an
>>>> end-around the express election requirement of the 2/3 rule. If the
>>>> 2/3 threshold were not an issue, it would be different. Another way
>>>> to think of this is that a charter amendment would be necessary to get
>>>> around the charter provision requiring 2/3. If this were not the
>>>> case, voting could simply be extended indefinitely until the 2/3 were
>>>> achieved, even if it took months, and through that technique the whole
>>>> purpose of having a 2/3 majority of the electorate actively engaged in
>>>> a scheduled election would be defeated. A supermajority requirement
>>>> for turnout like 2/3 is designed so that charters are not amended
>>>> unless the electorate is sufficiently interested and energized to turn
>>>> out in those numbers during a regularly scheduled election time.
>>>>
>>>> A requirement to have a minimum turnout like 2/3 has twin purposes of
>>>> ensuring that no charter amendment passes unless there is intense
>>>> enough interest in the election to stimulate turnout. Thus, a
>>>> proposition that 1/3 or more of the electorate is blase' about isn't
>>>> entitled to have supreme status in the charter, and in addition to
>>>> those who forget to vote or are out of town, one way to vote against
>>>> the amendment is simply not to vote at all.
>>>>
>>>> Whenever the 2/3 requirement for turnout is not achieved during the
>>>> regularly scheduled election time, no extension is legitimate in order
>>>> to achieve that quorum given the purposes of 2/3 rules in the first
>>>> place. The remedy, if there are circumstances like spam traps or
>>>> work absences, illnesses or vacations, is to have a new election,
>>>> which will cause more light to be shed on the issues in the
>>>> amendments. Perhaps in the new election the 2/3 is easily achieved
>>>> and it passes overwhelmingly, or perhaps new debate causes new focus
>>>> and concern and it is defeated. In either case, however, the purpose
>>>> of the 2/3 to ensure the focus of 2/3 of the electorate within the
>>>> requisite time period for an election is vindicated, and in no case is
>>>> a new election a waste of time or resources. Only the 2/3 rule itself
>>>> could be considered ill-advised or causing waste, but then that would
>>>> require a 2/3 turnout and another election to amend, as well.
>>>>
>>>> In sum, the justification of expedience (to help Geneva folks vote) or
>>>> the justification of spam traps affecting individual voters (like
>>>> voter suppression, discussed above) would neither singly nor in
>>>> combination constitute good cause to extend a REAL election under
>>>> normal election law.
>>>>
>>>> That being said, since this is not a 'real' election and different law
>>>> or rules may apply, less rigorous standards for election procedure
>>>> might apply, though they would still be undermining the legal
>>>> principles above (which principles only apply as "principles" and not
>>>> as law per se), and many people consider "fairness" to consist of
>>>> replicating or determining what a court of law would do, presuming it
>>>> was fairly constituted and understood the law.
>>>>
>>>> For what it's worth, a fairly constituted court not afraid of
>>>> political consequences (which isn't always the case) that neutrally
>>>> applied the law would rule, in my humble opinion, assuming there was
>>>> no 2/3 quorum at the regular time of election close, that the votes
>>>> tallied after the close of election could be counted (perhaps) but NOT
>>>> for purposes of determining that a 2/3 requirement was met,
>>>> particularly in this case where the extension of time was self-granted
>>>> so to speak due to the presumptive non-availability of a court of
>>>> proper jurisdiction. The defect is a procedural one, which undermines
>>>> the integrity of the election which is pure procedure, and the remedy
>>>> taken on the spot seriously undermines and/or renders nugatory a core
>>>> purpose of the 2/3 rule, since 2/3 could be obtained in nearly every
>>>> election simply through extending the time. But for the 2/3 rule it
>>>> would be a much closer case.
>>>>
>>>> Paul Lehto, Juris Doctor
>>>>
>>>> PS By way of disclosure, I did not vote in the charter amendment
>>>> process, presuming I was even a qualified voter, nor have a formed a
>>>> firm and clear opinion about which way I would have voted if I had
>>>> voted.
>>>> On 9/28/09, Anriette Esterhuysen <anriette at apc.org> wrote:
>>>>> Dear IGC
>>>>>
>>>>> I respect the concerns raised by Danny and others with regard to the
>>>>> extension of the vote, particularly as the nature of the vote involved
>>>>> amending the IGC charter.
>>>>>
>>>>> But I believe that in the final analysis the majority of voting members
>>>>> expressed their view, and, if the voting period was not extended, and
>>>>> there were a number of people who felt that for one reason or another
>>>>> they did not have an opportunity to vote, we would be in a state of
>>>>> limbo that would undermine our ability to work as a caucus.
>>>>>
>>>>> As Magaly said: "...the number of votes in favor of the charter
>>>>> amendment is very higher in relation to who is against, I think this
>>>>> disparity say much more about the decision of list members to adopt the
>>>>> new text than if all the rules were strictly followed or not." It is
>>>>> also not clear that extension violated any rule.
>>>>>
>>>>> My understanding of the coordinators' decision was that they were
>>>>> motivated by trying to maximise participation. I think this was the
>>>>> right thing to do, even if not ideal.
>>>>>
>>>>> The consequences of a charter amendment vote being taken when some
>>>>> people felt that they did not have sufficient opportunity to vote would
>>>>> have been equally unsettling for the caucus. I would have prefered for
>>>>> the voting period not to be extended, but under the circumstances I
>>>>> believe it was the best course of action, and consistent with the goal
>>>>> of getting as many people as possible to participate (which I believe
>>>>> is
>>>>> the responsibility of the coordinators).
>>>>>
>>>>> This period in the IGC has been a pretty grim one, but such periods are
>>>>> normal in groups of people that work together. We will get beyond it.
>>>>>
>>>>> >From my many years of experience in online voting (APC has been using
>>>>> this method since the early 1990s) extension of voting periods, or
>>>>> meeting periods, has been needed more often than not.
>>>>>
>>>>> We have never done this to influence the outcome of the vote, but
>>>>> rather
>>>>> as a means to give the decisions and outcomes greater legitimacy and
>>>>> endurance through ensuring that the largest number of people in our
>>>>> network participates. We also rarely make use of secret ballots. In
>>>>> fact, we only make use of a secret ballot when members elect the board
>>>>> of directors.
>>>>>
>>>>> Btw, I found Paul Lehto's comments about the secret ballot very
>>>>> interesting.. thanks for posting Paul.
>>>>>
>>>>> Recently APC has revised our bylaws in line with changes in non-profit
>>>>> law in California (where APC is registered).
>>>>>
>>>>> One of the really awkward things we had to get around was that
>>>>> California law does not allow for asynchronous online meetings of the
>>>>> organisation's governing bodies (we have a board, and a member
>>>>> council).
>>>>> Eletronic meetings are considered legal, but only if they are in real
>>>>> time using telephone, online or video conferencing.
>>>>>
>>>>> We found this very annoying as we have always worked asynchronously,
>>>>> and
>>>>> want to to continue to do so. It is cheaper, suits people who are busy,
>>>>> and who are located in just about all timezones.
>>>>>
>>>>> To get around this we have developed a complex methodology for online
>>>>> meetings that involved an online "pre-meeting discussion" which can be
>>>>> asynchronous, and which is then followed by a written ballot which can
>>>>> be submitted electronically.
>>>>>
>>>>> Not ideal... but necessary to comply with the rules :) Fortunately we
>>>>> don't use voting very often.
>>>>>
>>>>> Cheers
>>>>>
>>>>> Anriette
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> ____________________________________________________________
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>>>>>
>>>>
>>>> --
>>>> Paul R Lehto, J.D.
>>>> P.O. Box #1
>>>> Ishpeming, MI 49849
>>>> lehto.paul at gmail.com
>>>> 906-204-4026
>>>> ____________________________________________________________
>>>> You received this message as a subscriber on the list:
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>>>>
>>>> For all list information and functions, see:
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>>> Regards,
>>>
>>> Jeffrey A. Williams
>>> Spokesman for INEGroup LLA. - (Over 294k members/stakeholders strong!)
>>> "Obedience of the law is the greatest freedom" -
>>> Abraham Lincoln
>>>
>>> "Credit should go with the performance of duty and not with what is very
>>> often the accident of glory" - Theodore Roosevelt
>>>
>>> "If the probability be called P; the injury, L; and the burden, B;
>>> liability
>>> depends upon whether B is less than L multiplied by
>>> P: i.e., whether B is less than PL."
>>> United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947]
>>> ===============================================================
>>> Updated 1/26/04
>>> CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS. div.
>>> of
>>> Information Network Eng. INEG. INC.
>>> ABA member in good standing member ID 01257402 E-Mail
>>> jwkckid1 at ix.netcom.com
>>> Phone: 214-244-4827
>>>
>>>
>>
>>
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--
Paul R Lehto, J.D.
P.O. Box #1
Ishpeming, MI 49849
lehto.paul at gmail.com
906-204-4026
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