Lewis Trondheim vs. Secretary of Forum Affairs

[TomC]

First, the instructions clearly stated the election was to fill one seat ("All properly registered Atlasian voters are eligible to cast a ballot in this special election—this is an at-large Class B senate seat."), Some of us voted accordingly. If two senators are to be elected from this election, those of us who followed the instructions and chose to only preference the candidate we preferred, as we are allowed to do, would be harmed by changing the parameters of the election ex post facto.

Second, Article I, section 4, clause 5, clearly indicates what to do in case of a vacancy (emphasis on the singular. Below is what calls for filling a class B vacancy:

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Clearly, due to the use of the singular and the word "shall," according to the Constitution, each vacancy calls for its own special election.

This:

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is an Act of the Senate and cannot supercede the constitutional requirements for a special election of Class B Senators.

[TomC]

That's probably why he wants a schedule. Look at what Jas did in his two recent cases.

[TomC]

This election is held in accordance with Article I, Section 4, Part 5 of the Constitution and with Section 20 of the Proportional Representation Act.  The absentee voting booth opens at 12:00 PM EDT, July 22, and closes at 12:00 PM EDT, July 24th 2008.

Although I announced some five days ago that I would remain in the Atlasian Senate until my term has completed in August, I feel that upon my decision to leave the Senate some five days ago I have contradicted everything I said and become what I never wanted to be. Thus I hear by announce my resignation from the Atlasian Senate.

Also, just to note, eight citizens voted prior to Senator Flynn's resignation, including two who only preferenced one candidate. Overall, I count seven voters who only preferenced one candidate. Electing a second candidate from this election would cause harm to these voters, myself included.

[TomC]

May it please the court, I’d like to present this amicus brief as an Atlasian citizen who would be harmed if the plaintiff’s remedy is enacted.

Statement of Facts

July 17, 2008 (11:46 am) Earl AW resigns from Senate when he assumes the position of SoFA
July 17, 2008 (4:18 pm) Special election announcement (to fill seat due to Earl AW’s resignation)
July 22, 2008 (noon) Deadline for candidate to declare for special election
July 22, 2008 (12:00 pm) Opening of the Absentee Voting booth
July 22, 2008 (5:59) Senator Conor Flynn officially resigns from the Senate
July 24, 2008 (12:00 pm) Opening of election booth
July 24, 2008 (1:18 pm) Special election announcement (to fill seat vacated by Conor Flynn’s resignation)

Questions

Should the by-election necessitated by the Senate vacancy occurring at 5:59 on July 22 have been combined with the Special election arising from the vacancy that occurred July 17?

Arguments

I. Voting for the election had already commenced almost six hours prior to Senator Flynn’s resignation. Eight absentee voters voted not even knowing a second vacancy would occur. Over the course of the election, seven voters chose only one candidate, two of these before Senator Flynn’s resignation.

It is not mere coincidence that the absentee booth opens following the deadline for declaring for office; voters must know the choices before them. I think this would include not only which candidates were running but how many candidates would be elected. I assure you, had I known, contrary to the voting booth instructions, that I was electing two Senators, I would have voted for at least two candidates. To grant a senate seat to the second place finisher in an election that was explicitly intended to fill one senate seat would cause harm to voters who only chose one candidate, and possibly to others engaging in strategic voting. If this certification doesn’t stand as an election of one senator, then the entire election should be thrown out. Changing the parameters of the election ex post facto and “adjusting” the certification would do injury to voters who followed the “notice of election,” the “candidacy declaration,” and the “voting booth instructions,” which primarily exist for the benefit of candidates and voters.

II. SoFA Earl AW’s interpretation of events and timelines to hold special elections is legally sound and should not be overturned.

No one was seeking an injunction to delay the election already underway when Senator Flynn resigned; the Secretary had no cause to alter the voting schedule he had communicated to citizens. Further, if he had combined the two elections, there would have been insufficient time for candidate declaration. Members of some political parties choose to avoid running against each other to fill a single seat. While that in itself is not a Constitutional guarantee for parties, these parties and potential candidates should be able to count on officials following the law providing for a period of candidacy declaration.

Sometimes when there is constitutional ambiguity, precedent or previous practice is considered. Earl AW’s actions fall within the parameters put forth by a previous SoFA, the plaintiff, Mr. Trondheim. Earlier this year, Secretary Trondheim gave the following instructions as he notified the public of a special election to the Senate:
 

Just pointing out:
The by-election for Ebowed's seat will begin Thursday, 13th and conclude 36 hours later. Poll opening and closing is provisionally scheduled as 1pm ET. (Fingers crossed that planet real life doesn't intrude here.) The filing deadline is Tuesday, 11th, 01:00 pm ET. Declared candidates so far: Everett (JCP-OR) and CultureKing (PLP-WA).

Should any other Senate vacancy arise (Cough. Mr Moderate. Cough) by Sunday, 9th, 11:59pm ET, than all of the above applies to such by-election as well. Should it occur after that, the by-election will be held a week after that.

Clearly, Mr. Trondheim indicated a 48 hour buffer between when two by-elections could be paired and the filing deadline. It is certainly reasonable for Sec. Earl AW to determine the second vacancy needed a separate by-election 6 hours into absentee voting. The plaintiff gave himself a bigger buffer than he expects from the current SoFA. This is further evidence that Earl AW acted reasonably in calling for a second election.

Conclusion

Overturning the certification of the by-election from July 24-26, 2008 will do harm to those voters who were not notified that the election was also to fill a second vacancy and Senate seat. Given the time constraints, SoFA Earl AW acted reasonably and within the law and recent precedent to wait and have another election to fill the vacancy caused by Senator Flynn’s resignation.

[TomC]

I'd like to respond to some of these points, but would first like to ask for assistance in understanding something:

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Could someone help me understand what is meant by distribution of surplus? Is there an example/certification where this has been done so I can see how it works?

I'll add I should not have limited my argument to "preferencing one candidate" but also and more importantly to placement of preferences. In other words, if I had known two candidates were to be elected, and I see from either the votes or from party recommendations and endorsements, that one candidate looks good to reach the quota, but another recommended candidate is trailing, I may have chosen instead to first preference the second candidate I liked to help him or her reach the quota. That would not be a concern if only one candidate is to be elected. 

But if someone could answer my question about surpluses and distribution, it would be appreciated.

Earl, do you plan on submitting a brief? I have left some legal arguments because it seemed more appropriately addressed by the SoFA.

[TomC]

I found the April certification and gleaned what I wanted to know, which I think is relevant. I'll address it later.

[TomC]

I. The court’s ruling that a second or subsequent by-election may be incorporated into one where absentee voting has already begun could do harm to voters who had been instructed their vote was to fill one senate seat. The formula for a quota to elect candidates changes if the number of seats to fill changes; it is a relevant variable to the outcome of the election and voters should be privy to that variable as voting commences. Further, if one candidate receives more than the quota needed to be elected, the official certifying the election will, after adjusting the first place finisher’s votes to match the quota, look to second preferences to fill the second (or any additional) vacancy. Also, a voter who sees or believes that one candidate will meet the quota for votes, could first preference another candidate to help that candidate reach the quota. I make this point for two reasons. One, I am claiming that I would be harmed if the Court alters the purpose and result of this election after it has taken place; if I had known the election was for two seats, I would have voted differently.

Second, the Court will not only resolve this election dispute, but will set a precedent for future elections.  I believe future voters, as well as candidates, will be harmed if this situation recurs. This nation has in many ways valued and respected the intent of the voter. The intent of the voter may very well change if the intent of the election changes. To change the parameters of the election after some have legitimately voted is unfair and goes against our pursuit of orderly (Don’t laugh! I said “pursuit.”) elections.

II. Additionally, I reiterate that Earl’s actions as SoFA did not violate the law and even more, we’re necessary to maintain the timeline prescribed by law. I have already spoken to the timeline, but would like to make two points relating to legality.

First, it is certainly arguable that 3 of the Proportional Representation (By-election) Act violates Article I, Section 4, clause 5 of the Constitution. The Constitution refers to a vacancy and the “special” election that must follow in the singular, while the PR (BE) Act gives the DoFA instructive to combine them if another vacancy occurs before the election starts. If this does not create an outright contradiction (in which case the Court would need to strike down Clause 3 of the PR(BE) Act as unconstitutional), it at least creates an ambiguity, absent a court ruling, the SoFA must resolve. The SoFA also has legal mandates to inform voters of the election timetable; what is the SoFA to do if these requirements seem contradictory? He is to use his best judgment as to what is best for voters and candidates. EarlAW did just that.


Further, another ambiguity the SoFA must consider in a case like this is: when does an election start? When absentee voting begins (after candidate declaration) or only when the regular election booth is opened? While it has a name different from simply “election,” absentee voting is an integral part of the Atlasian voting tradition. These votes should be honored as equal to those cast in the regular booth. Changing the parameters of the election after votes have been cast is unfair and creates an inequity outside of the voters’ control. It is reasonable to determine that (added: clause 3 of) the PR (BE) Act is not even called for in this instance. Given the ambiguity, SoFA made a reasonable determination to continue voting under the guidelines and timetable he set and to call for a second election for the second vacancy. If Senator Flynn had resigned six hours earlier, I would agree with the plaintiff, but that’s not the case, voting had begun.

At times, words can have varying but similar definitions. "Election" can mean the precise time an election is taking place; it can also refer to an election period, which could include preliminary events such as candidacy declaration and absentee voting.

The Court should uphold the SoFA’s resolution of the ambiguity. In some past cases, when the SoFA contradicted law, the court has overturned the certification and/or election, but when the law is ambiguous and the SoFA makes a determination as to the best course of action, the Court has upheld the certification. (CDP v. DoFA, for example. It seems there was a dispute the court did not take and let the certification stand, can’t remember the name.)

Earl AW’s choices and actions were reasonable given an ambiguous situation. I urge the court to uphold the certification and permit the second By-election to commence.

[TomC]

If permissible, yes. I had thought the DoFA would address some arguments related to law; since no such submission was made, I wanted to add some points, with the Court's indulgence.

[TomC]

To be clear, I am not arguing my one vote would have changed the election, but that the outcome could have been changed if voters had been aware they were electing two candidates. The plaintiff agrees this knowledge could impact the outcome- we agree on that; how great the likelihood is irrelevant. I'm arguing voters should have a right to know that as they cast their ballot; I see nothing in the law that says an absentee voters vote is any less significant than one cast after the opening of the regular election booth.  I am not concerned about the outcome of this one election, but the precedent the Court would set by saying the parameters of the election could change once voting for that election has begun.

[TomC]

The questions is: Has the election commenced when the absentee voting booth is opened? I believe it has. The plaintiff can point to places in the Constitution where “election” means "the regular period of voting.” But the word may be used differently in the PR (BE) Act. Though sometimes it does, “election” can mean more than ”the regular period of voting that takes place during a 72(?) hour period.”

Let’s look at how two dictionaries define “election”:

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None of these definitions imply that an election is only a period of time; they refer to “selection by vote” “act of electing” and “right or ability to make a choice“ By any of these three definitions, would not the absentee voting be a part of the “election”? How can one be an equal in “the right or ability to make a choice” if the nature or purpose of that choice changes once voting has commenced?

If the Proportional Representation Act read "In the event of further such vacancies arising before the opening of the regular election booth, a single by-election shall be held for all the vacant seats" the plaintiff would be correct that the SoFA must combine the two by-elections. The law doesn’t say that, it says "In the event of further such vacancies arising before the commencement of the by-election, a single by-election shall be held for all the vacant seats"; it is a reasonable, and I would go so far as to say equitable and necessary reading, to believe that once a vote had been cast for the election, even in the absentee booth, the by-election had commenced; and this one commenced almost six hours before Senator Flynn resigned.

OK, Equal protection.

Our Bill of Rights, Article VI, provides in section two that:

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For eight people to exercise their right to absentee vote for an election having been notified that the election was for one seat, and then change that election to one for two seats, violates the equal protection right of those voters. The plaintiff is asking the Court to disregard the fact that some voters chose and preferenced prior to the second vacancy occurring. It is simply unfair for some voters to be in the dark about the nature and purpose of the election and some to be clear how many seats would be filled. If the  Proportional representation (By Elections) Act treats absentee voters as inferior by not being privy to the same legal information, including how many seats are to be filled,  that a regular voter has, it violates the equal protection clause of the Constitution and should be deemed unconstitutional.

However, the Court can avoid that by finding the first by-election did indeed begin when absentee voting commenced and Earl AW was correct in calling for a second by-election.

[TomC]

But write in candidacies and votes as well as when to vote are the choice of the voter and candidate and each one can make a choice. Every voter has an equal right to write in a candidate throughout the entire election, including absentee voting. Changing the nature of the election midstream as the plaintiff is asking here is an act of government and a very different animal so to speak. The equal protection clause begins "No agency of government shall...". The Department of Forum Affairs gives each voter an equal opportunity to vote whenever they choose during the alloted time. Whether or not to wait is a choice of the voter, not an act of government, thus not an equal protection violation. The same is true of write-ins: every voter has an equal opportunity to write in a voter; every write in candidate had the same opportunity to declare during the candidacy declaration the department provided. If votes for write ins change the progress of the election, it is due to individual choice, not government action; the latter is what is limited by equal protection, not the individual.

In this case it is the plaintiff's interpretation of the Proportional Representation (BE) Act and what it instructs the government to do that creates an inequity and therefore a violation.

But again, not a problem if the election commences when the first voter is allowed to vote.

[TomC]

Excellent ruling. It was certainly fun debating the formidible Mr. Trondheim.