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

[Eric Dierker]

I think it is very sad that the very people being funded to work on an International Governance model are totally ambivilant to the rights of voters.
 
Convenience, "the way we always do it", and "it does not really matter" are just really really sad commentaries on the morals of, not the workers, not the officials, but the membership in general.
 
Sometimes I get tired of being berated and shunned and censored for constantly pounding on the moral and ethical obligations of our high society.  Sometimes I am just defeated. But sometimes, like this, it seems futile but even more of an emergency.
 


--- On Mon, 9/28/09, Paul Lehto <lehto.paul at gmail.com> wrote:


From: Paul Lehto <lehto.paul at gmail.com>
Subject: Re: [governance] Legal Analysis re: Results of charter amendment vote
To: governance at lists.cpsr.org, "Anriette Esterhuysen" <anriette at apc.org>
Date: Monday, September 28, 2009, 5:50 PM


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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