(ahem)
The CHIEF JUSTICE delivered the opinion of a unanimous court. Sam Spade, JJ, also filed a concurrence.
Today we decide a simple question: whether a second individual was elected in the contest to fill the vacancy created by our current Secretary of Forum Affairs EarlAW. We hold that only one person, the eventual victor AndrewCT, was elected in that race.
We must also decide ancillary questions to the main matter.
First, when does an election begin? We hold that it begins at the opening, that is when votes are allowed to be cast, of the GENERAL election booth.
Second, is a voter who casts his or her vote before the opening of the general election, by absentee ballot, entitled to have the rules governing the election they cast their ballot in remain the same through the full conclusion of that contest? We hold that our constitution affords them that protection.
I
Two Class B Senate seats became vacant within a week of each other. On 17 July, EarlAW resigned his seat, a Class B seat, to become the current Secretary of Forum Affairs (SoFA). Later that day a special election announcement for Earl's seat was posted. At noon 22 July, the absentee voting booth opened as the deadline to declare for the open seat had been reached. Nearly six hours later, Conor Flynn officially resigned his Class B senate seat. At the time of Mr. Flynn's resignation, eight absentee ballots had been cast. At noon on the 24th of July, the SoFA opened the election booth, and about one hour later posted the Special Election Announcement to fill the seat vacated by Conor Flynn's resignation.
II
When does an Election Begin?We dispense of this minor question first. It is clear to us that the commencement of the election under the Proportional Representation Act is the opening of the general, and not absentee, voting booth. Here we agree with the Petitioner in this regard that our constitution means the general election booth when it uses terminology such as "the election", "beginning of the election", "commencement of the election", etc. (A I, S4, C3; A II, S2, C1; A V, S2, C4 & 8 ). To interpret otherwise, as the Petitioner aptly reminds us, would "make the holding of legally correct elections in Atlasia impossible."
For example, to construe that the election begins with the opening of absentee balloting would create a scenario under Sections 6 and 8 of the CESRA where a string of absentee booths be opened to infinity. Each booth would be opened a week after the other as Article V, Section 2, Clause 8 mandates:
As the petitioner reminds us, to treat the absentee booth as the start of the election, would require another absentee booth to serve it, which starts an infinite cycle of absentee booths which surely cannot have been the purpose when the laws pertaining to these institutions were enacted.
At first glance, determining when an election actually begins would seem to solve this issue and compel us to rule in favor of the petitioner because the PR Act (FL 21-2 [Vacancies, 3-Amended]) demands that:
Upon our further constitutional inquiry, we cannot enforce this quoted section of the PR Act as it runs afoul of our constitution.
III
Is Section 2 [Titled Vacancies] Clause 3 of the Proportional Representation Act [FL-21.2] as amended unconstitutional?We find that S2, C3 of the PR-Act to be unconstitutional.
A
Amicus, filed by one of our esteemed former brothers, argues that the clause in question violates of Article 1, Section 4, Clause 5 of the Constitution, which reads:
Amicus argues, and we agree, that our constitution speaks in the singular, not plural, in this section. Amicus further contends that while the PR act compels the SoFA to hold a national vote for a vacant Class B seat and that the clause of the PR Act creates a contradiction with our constitution as to how to treat multiple, but not quite simultaneous class B vacancies. We agree that a conflict exists.
Petitioner relies upon our recent decision in
BrandonH vs Department of Forum Affairs where we stated that our constitution "requires that vacancies to Class B Senate seats be filled by special election held for a specific time period, said time period later altered to that specified by the Eleventh Amendment" (2008). But that case dealt with the unconstitutional retroactive application of a new law AND the party list appointment to fill a vacancy which our constitution demands be filled by election. We do not find the petitioner's argument here compelling.
B
Amicus also asserts that our Bill of Rights, Article VI, Section 2, demands the invalidation of the questioned part of the PR Act on Equal protection grounds. That part of our constitution reads as follows:
Amicus relies upon the fact that eight voters cast their absentee ballots prior the second vacancy and the fact that if the second vacancy were to be lumped into the initial election, those voters would have been denied equal protection of our laws.
Petitioner, on the other hand, argues that we could infer voter intent by looking at who each voter placed second in their order and thus interpreting that to be who they would have voted for if a second seat was at stake. However reasonable this may or may not be in practice (we note that one of the eight voters cast a single preference only), our equal protection clause rightfully entitles those absentee voters to cast their ballots under the same rules as every other person voting in the election, by absentee or general ballot.
While the petitioner is correct that absentee voters aren't necessarily entitled to the same amount of information as general voters due to the fact they cast their ballots early and are often away from the polls during the election (candidates change, information about candidates change), we believe that they are entitled to have the same legal information as every other voter especially when it comes to a fundamental question such as "how many seats am I voting for?"
We think there should be some sort of dividing line between material or fundamental legal information like knowing how many seats one is voting for in an election, and non fundamental or nonmaterial information like write-in acceptances.
We believe that two factors generally distinguish the former category from the latter. The first factor is the nature of the information. Information such as an administrative or agency created condition, or law, is so fundamental for these purposes that it demands equal protection, whereas information relating to an additional person one can vote for has little to do with our equal protection clause as it is not the action of the government.
The second factor concerns foreseeability. Nonmaterial information often is foreseeable or the person claiming equal protection has notice or constructive notice. For instance, voters are aware, by the mere fact laws are on the books on the matter, that write in candidacies can occur at anytime during the election. They are aware of the possibility that an additional candidacy may occur. On the other hand, it is not foreseeable that an agency regulation or decree will be changed especially after the period where one can edit their votes. Such a situation demands the equal protection of our laws.
Therefore we find that S2, C3 of the PR-Act is unconstitutional on both grounds and that the SoFA acted properly with his administration over the election concerning the first Class B seat.
IV
We hereby deny the Petitioner's claim for relief, lift the injunction against the Respondent (the SoFA) holding the election for the Class B seat formerly held by Conor Flynn.
