[governance] Legal Analysis re: Results of charter amendment

[Jeffrey A. Williams]

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
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Regards,

Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 294k members/stakeholders strong!)
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