[governance] Legal Analysis re: Results of charter amendment

[Jeffrey A. Williams]

Paul and all,

  I second and join you in this appeal.  let's get this debate on this
appeal going so as to bring it to a conclusion in the most diliberate
yet expiditious a manner as possible.

  Ian please make note of the appeal process being underway in whatever
manner is most appropriate and direct.

-----Original Message-----
>From: Paul Lehto <lehto.paul at gmail.com>
>Sent: Sep 28, 2009 1:52 PM
>To: "Jeffrey A. Williams" <jwkckid1 at ix.netcom.com>
>Cc: governance at lists.cpsr.org, Anriette Esterhuysen <anriette at apc.org>
>Subject: Re: [governance] Legal Analysis re: Results of charter amendment vote
>
>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
>>>____________________________________________________________
>>>You received this message as a subscriber on the list:
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>>>
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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
>>
>>
>
>
>-- 
>Paul R Lehto, J.D.
>P.O. Box #1
>Ishpeming, MI  49849
>lehto.paul at gmail.com
>906-204-4026

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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