[governance] Legal Analysis re: Results of charter amendment vote

[Paul Lehto]

At the present moment, I see some issues and I see why there are
different views expressed on this list.  My post speaks for itself in
suggesting that I think invalidity of the election has the upper hand
because of purpose of the 2/3 requirement (a charter provision) to
force a simultaneous focus by a supermajority before allowing charter
amendment is undermined and/or defeated by extending the time to vote,
because any charter amendment could pass given an extension of a day,
a week, or more...    That being said, I don't presently have the fire
in the belly, as they say.

Looking at it another way, if my analysis doesn't persuade in the post
(presuming it's read reasonably carefully), then an adversarial appeal
to the same body is unlikely succeed.  Thus, my email post is my
appeal, such as it is.  Whether or not these reasons succeed this
time, hopefully the elections in the future will all be planned and
operated such that an extension like this doesn't happen again.  While
folks are acting out of a sense of justice in a certain sense by
supporting what seems like an expedient, turnout-increasing action
done apparently in the spirit of participation, the more weighty point
is that election rules are "games," albeit rather serious games with
real consequences, whose rules can't be changed in mid-stream or after
the fact.

BEFOREHAND, we should all support rules that maximize participation,
information, and so forth.  That's not the issue before us here.

As in our case, once an election is set, it's quite different:  The
rules especially aren't supposed to be changed for any reasons that
fall under the classes of expedience, convenience, or accommodation of
some late arrivers (I being among that class it appears, but not
voting), because that means that certain late arrivers are being
treated unequally compared to others, and in this specific case that
the purpose of 2/3 rules is defeated: to force an engaged electorate
to exist in a given time on pain of not passing the amendment.

People running elections can and should pride themselves in running
fair elections.  The trick is whether or not this pride translates
into denial if a mistake happens, or even if a valid action is
perceived reasonably by others as invalid, thus undermining the
appearance of fairness of the election (which is also fatal to the
acceptance of the election's result).  As with judges, they are
disqualified from deciding cases even if innocent, if a reasonable
person could conclude that there's an appearance of a conflict of
interest, or bias, or other factor that would impede the fairness and
impartiality of the process.  It seems to me that at the very least
the appearance standard is met, based on several people taking issue
with the decision.

Elections are supposed to be squeaky clean even in appearance such
that they are the unimpeachable voice of the voters.  To achieve that
voice and have it be authoritative in any given election, we have to
come together as a community under particular rules of
time/place/duration etc.

At minimum, for future elections, a rule or rules should be
promulgated (preferably as a charter amendment to the 2/3 rule)
governing extensions of time under circumstances where quorum could be
questioned, but of course that would not resolve the issues of
appearance as to this election.  Particularly since this is a group
dedicated to the purpose of good governance, good procedures
rigorously followed would be a good thing to strive for and stick to
in all cases.

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.

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