[governance] Legal Analysis re: Results of charter amendment

[Jeffrey A. Williams]

Ian and all,

  Paul and I filed our appeal withing the 72 hour time period, so
why are you saying the appeals period is now closed?  Please advise.

-----Original Message-----
>From: Ian Peter <ian.peter at ianpeter.com>
>Sent: Sep 28, 2009 4:53 PM
>To: governance at lists.cpsr.org, Paul Lehto <lehto.paul at gmail.com>
>Subject: Re: [governance] Legal Analysis re: Results of charter amendment vote
>
>Paul,
>
>I think a number of the points you make are very valid, and indeed it would
>help if these and other matters were clarified in the IGC Charter (can be
>read at www.igcaucus.org). I would really encourage you to apply your
>knowledge and skills to a working group to amend the charter and get rid of
>some of the anomalies that lead to less than perfect procedures here, and
>also to endless procedural discussions. That could make efforts in the
>future both easier to conduct and also less contentious.
>
>But as regards the comparison you make - there are of course a number of
>differences between US elections and IGC charter amendments, in scale, body
>of law, jurisdiction, and form. Substantial differences and I am sure you
>acknowledge that.
>
>Coming back to the current situation. While acknowledging a less than
>perfect process, it is not the coordinators intention to conduct another
>ballot, unless of course we are so directed by a successful appeal. The
>current Appeals Team selected in 2009 is Jeanette Hofmann (Europe), Adam
>Peake (Asia), Carlos Afonso (LAC), Ken Lohento (Africa) and Fouad Bajwa (Mid
>East/South Asia). If anyone is to mount an appeal they should contact the
>appeals team members directly and advise them. The period for appeals has
>officially closed, but if the coordinators are contacted by the appeals team
>to advise that a late appeal has been accepted and an appeals process is
>underway, we will of course allow that to proceed.
>
>
>
>Ian Peter
>
>
>
>
>On 29/09/09 3:50 AM, "Paul Lehto" <lehto.paul at gmail.com> wrote:
>
>> 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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>> 
>
>
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Regards,

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