ATTN: Poirot v. SoFE Peebs, and a request for an immediate injunction

[Oakvale]

Your honors,

I hereby give notice that I am filing suit against the Secretary of Federal Elections, Peebs, on behalf my client, respected Atlasian citizen Poirot. The SoFE has recklessly and wilfully violated both the Constitution of Atlasia and the Federal Electoral Act (2016) in holding a special election, currently ongoing, for the seat in the House of Representatives recently vacated by the departed CXSmith.

In brief, the SoFE called a special election after the deregistration of one CXSmith, then a member of the House of Representatives and one of three members of the 'Liberal Democratic Party'. This perverse decision was taken on the flimsiest of pretexts: the definition of 'major party' is an unknown, established only through de facto tradition ^[1], and the relevant statute only mentions that a party of three or more members is an 'organised political party'.

Regardless, even if we accept the dubious notion that a 'major party' consists of at least three members, the ensuing argument by the SoFE is that, because the Liberal Democrats had three members including CXSmith, the latter's deregistration, which brought the party to below this level, meant that a special election, rather than appointment by his former party was thus necessary.

The Constitution states plainly in §3 c.6 that -

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Former Rep. CXSmith resigned prior to his subsequent deregistration, at which point the Liberal Democrats ceased to be a major party.

While I will, of course, expand upon this in my brief should the Court grant certiorari, it seems blindingly clear that the Constitution mandates a special election only in the event of 'a Representative not being a member of a major party'. At the time of his resignation, the Liberal Democrats were a major party and Rep. CXSmith was a member in good standing of that major party. What happened after is irrelevant. The Liberal Democrats must, constitutionally, be granted an appointment of a replacement to this newly vacant seat.

In addition, the SoFE also violated federal law by failing to give the three-days notice of the upcoming special election as required by the aforementioned Federal Elections Act of 2016, specifically as in §9 c.5, which states -

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No such notice was given. Secretary Peebs instead 'announced' the election on August 3rd, a mere day before the balloting began. This is a blatant violation of federal law - there can be no ambiguity.

Either one of these violations of the Constitution and the federal statute would serve as grounds for halting this election with immediate effect. In combination they reflect a continuing pattern of gross incompetence on the part of the Department of Federal Elections that serves to undermine the very foundations of Atlasian democracy and law.

With great urgency, I am requesting that the Court issue an immediate injunction to half any certification of the 'results' of this election until this matter has been resolved. To do otherwise would be to plunge the country into a constitutional crisis where the citizenry have no confidence that their representatives were fairly elected and that the rule of law has been respected. It is also, I believe, worth noting that a certification of this illegal election would cast an unfair pall over the eventual victory's tenure and their legitimacy in office.

I thank the Court for its time and humbly await the grant of certiorari,



Senior Partner,
Kingman-Oakvale & Associates

[windjammer]

This has been seen.

[Poirot]

I confirm that I have asked to be represented by Oakvale.

[windjammer]

Writ of Certiorari

The Supreme Court of Atlasia grants certiorari to hear the question of whether the August House special election should have been held or not.

Schedule

Petitioner has 24 hours to file his brief.  It is expected no later than 5:00PM EDT on  Monday, August 7, 2017.

Respondent has an additional  24 hours to file her brief.  It is expected no later than 5:00PM EDT on Tuesday, August 8, 2017.

Amicus Briefs will be accepted until 5:00PM EDT on Wednesday, August 9, 2017.

Additional time may be granted to either party, and the right of either party to respond to the filed briefs may be granted upon request.

A period of argument (Q&A) will be scheduled after presentation of the briefs in case any member of the Court has any questions for the parties.

[Oakvale]

Your honors,

On August 1st, Rep. CXSmith, a member of the Liberal Democrats, resigned from the House of Representatives. A minute later, he officially deregistered from Atlasia, effectively ceasing to exist as a citizen.

There are two important points to consider.

First, the Constitution of Atlasia states in §3 c.6 that -

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Let us examine this clause in detail. It concerns firstly a vacancy in the House of Representatives, which I assume we can all agree currently exists as a result of the resignation and subsequent reregistration of former Rep. CXSmith. However, the crux of the issue arises in the latter part of the clause - when a vacancy arises as a result of [...] the resignation of a Representative not being a member of a major party, the Constitution requires that a special election be held rather than a replacement appointed by the former Representative's political party. The SoFE, Peebs, has interpreted this in this instance to mean that an election is necessary.

Before delving into the question of major party status itself, let us first note the alarming reality that a 'major party' is never defined in either the Constitution or the Federal Electoral Act (2016), the governing statute of all federal election law. Instead, the Federal Electoral Act, hereafter FEA, refers to, and only to, the status of an 'organised political party', which is defined as a party with three or more registered members. There is zero mention of 'major party' status as referred to in the relevant Constitutional text. This presents an obvious problem - perhaps a party with less than three registered members is not, as per statute, an 'organised political party', but who is, then, to legally say that it does not qualify as a 'major party'? One might argue that there's plenty of examples of major political parties that don't seem particularly organised.

Regardless, let us, for the sake of argument, accept the undefined term of 'major party' and assume that it is analogous to that of 'organized party', though I must again note there is no precedent or legal standing for this claim. In this instance, then, a major party must have three members or more.

At the time of Rep. CXSmith's resignation from the House, his political party, the Liberal Democrats, had three members precisely, including the late Representative. Sixty seconds later, when he deregistered from Atlasia and vanished from the voter rolls, the Liberal Democrats immediately dropped to two members, falling below the magical threshold of three required. SoFE Peebs argues that this thus means that a special election is necessary as the affected party does not possess any longer 'major' status.

There are obvious issues with this line of reasoning from the Department. It seems prima facie absurd that the status of a political party subsequent to the resignation of a member should have any bearing on the circumstances that affect the method of replacement for that vacancy - at what time limit does this matter? If the party had had, say, four members, so that CXSmith's resignation did not alter their status, but an additional unrelated member had deregistered 24 hours subsequently would the party no longer be allowed appoint a replacement? If, as a thought experiment, someone had immediately joined the Liberal Democrats seconds after CXSmith's reregistration, thus bringing them back to three-member status, would the party then be once again allowed to appoint a member to the seat and the special election cancelled?

I believe it is instructive to recall the original amendment text offered by then-delegate Adam Griffin during the Constitutional Convention, which is far clearer in intent and, despite inexplicably being pared down in the final version, stands as a clear notice of the intent behind the ambiguous clauses and was passed overwhelmingly by the delegates as the foundation of the final text. Delegate Griffin's text reads, crucially -

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"at the time the vacancy arises" is, of course, the key text here. The assumptions behind the adopted text are clear.

It is also worth noting that this language is near-identical to that established in longstanding Atlasian precedent in the old Proportional Representation Act (2007), which governed Atlasian federal election law for the better part of a decade. It is thus blindingly obvious that all existing legal precedent points to the situation at the time of the vacancy (one minute prior to CXSmith's deregistration, thus when the Liberal Democrats had three members) than subsequent events as the deciding factor in the method of replacement.

I expect that the response here from the Department may be that precedent is irrelevant given the legislative reset and the changed text of the Constitution. Perhaps. But the very notion of a 'major party' requiring three members is based on exactly that same vague precedent. It appears nowhere in current Atlasian statute or text. If we accept that precedent in that case matters, we must also accept that precedent in this case also applies equally. If 'major party' status requires three members, then it is party status at the time of resignation, not subsequent to it, that counts. [1]

All this makes the current special election that has just concluded illegal and irrelevant. But, let us for a moment disregard all this and accept the incorrect judgement of the Department on their own terms - it is a clear fact that, even if you accept the ludicrous logic demonstrated above, that the Department has also, continuing a worrying pattern of gross incompetence and dereliction of duty, broken federal law in the holding of this election, quite aside from the constitutional issues.

The aforementioned Federal Electoral Act 2016 (FEA), requires, in unambiguous language, in §9 c.5 that -

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Perhaps needless to say, this did not happen. Instead, the Department "announced", if it can be called such, the election less than a day before the election began. This is a clear and unambiguous violation of federal law, and I do not believe there can be any reasonable argument on this point.

Your honors, the case is clear. Secretary Peebs and her Department have violated both the spirit and letter of the Constitution of Atlasia, and the spirit and the letter of federal law, in holding this illegal and unrequired special election. My client Poirot, was deprived by these actions of his right under the Constitution to fair and democratic representation, as the small and weak Liberal Democrats party was unjustly and incorrectly denied its proper representation in the democratic life of the nation, narrowing the spectrum of Atlasian political debate and perverting the nation by strengthening yet more the major party duopoly at the expense of smaller parties without the great instruments and power of the state at their beck and call.

In addition, even if one accepts the arguments  the SoFE, all Atlasian citizens, my client included, were deprived through these actions of their right to carefully consider the full slate of candidates and to have the time to observe and follow the election campaign through the illegal announcement of the election in far fewer than the three full days mandated by law. Poirot, among, doubtless, countless others was effectively caught by surprise by the holding of this fraudulent election, having had no time to analyse and decided upon a candidate properly before the election was foisted upon him. Finally, is seems self-evident that such action is even unfair to the apparent 'winner', the respected Atlasian statesman Potus, who, if his election were certified, would be through no fault of his own dogged by questions about his legitimacy and the flaws in the process through what would otherwise doubtless be a commendable turn in office.

Your honors, the facts are clear. The law is plain. I request that the Court nullifies this election, applies the appropriate penalties as they see fit to the Department of Federal Elections and Secretary Peebs for their violations of the law, and remedy this injustice by allowing the executive leadership of the Liberal Democrats to appoint a new Representative to fill the vacant seat as mandated by the Constitution of Atlasia.

Thank you.



[1] It would maybe be a more interesting case, and the Department could make a better argument, had CXSmith simply deregistered rather than resigned beforehand. As he did not I believe the law is clear-cut.

[windjammer]

Thank you Justice oakvale, the Supreme Court will carefully examine your brief.

[Oakvale]

Mr. Chief Justice,

May I inquire as to whether Secretary Peebs applied for - and was granted - an extension to the deadline set by the Court for the submission of the defense brief?

If not, since the deadline has expired I trust the Court will be proceeding with a judgement.

[windjammer]

Mr. Chief Justice,

May I inquire as to whether Secretary Peebs applied for - and was granted - an extension to the deadline set by the Court for the submission of the defense brief?

If not, since the deadline has expired I trust the Court will be proceeding with a judgement.

Peebs told me she asked Harry Truman to represent her.

So I will extend the deadline for one day.

[Unconditional Surrender Truman]

Mr. Chief Justice,

May I inquire as to whether Secretary Peebs applied for - and was granted - an extension to the deadline set by the Court for the submission of the defense brief?

If not, since the deadline has expired I trust the Court will be proceeding with a judgement.

Peebs told me she asked Harry Truman to represent her.

So I will extend the deadline for one day.

I can confirm this; Wednesday is my day off, so I'll submit the brief for the defense tomorrow afternoon.

[Unconditional Surrender Truman]

Your Honors—

I. PRELIMINARY STATEMENT
The defense, represented by the Office of the Attorney General, maintains the Secretary of Federal Elections (hereafter SoFE) acted in compliance with the terms of the Constitution of the Republic of Atlasia and the Federal Electoral Act (hereafter FEA) in conducting a special election to fill the vacancy in the House of Representatives created by the resignation of then-Representative C. X. Smith.

II. STATEMENT OF FACTS
At approximately a quarter to three on the afternoon of August 1 2017, C. X. Smith — then a sitting member of the House of Representatives for the Liberal Democratic Party — resigned his office under the Constitution of Atlasia and promptly withdrew his voter registration with the Census Bureau. Two days later, on August 3, the SoFE issued a statement declaring that "since Smith's de-registration made [the Liberal Democrats] a minor party, there'll be a special election this weekend [to fill the vacancy in the House of Representatives]." The special election took place as announced over the weekend of August 4 - 7.

III. QUESTION PRESENTED
Did the SoFE correctly interpret provisions of the Constitution of the Republic of Atlasia governing the filling of vacancies in the House of Representatives?

IV. ARGUMENT
Article III, Section 3 of the Constitution of the Republic of Atlasia clearly delineates the manner in which vacancies in the House of Representatives are to be filled:

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1. Was Smith a member of a major Party at the time of his deregistration?
He clearly was not. The petitioner correctly notes that neither the Constitution nor the FEA provide an objective definition of "major party" status. The Constitution is entirely silent on the matter; and while the FEA does establish that any party with a membership of three or more registered voters may be considered an "organized political party," this term can be found nowhere in the Constitution, certainly not in the relevant clause of Article III, and therefore bears no relevance to this case.

Simply put, there is no established definition of "major party" status to be found in the Constitution or the body of law. Article III of the Constitution uses the term but does not define it; the FEA does not mention it at all, instead defining a term that has no Constitutional relevance. This leaves two reasonable conclusions as to the nature of "major" and "non-major" political parties:

a) No "major party" currently exists in the Republic of Atlasia. In absence of a formal legislation, it may honestly be said that no established party meets the definition of a "major party," because said definition does not exist. By this conclusion, all vacancies in the House of Representatives must be filled by special election until Congress should rectify this statutory silence.

b) A "major party" is what the SoFE says it is. In the absence of formal legislation, it is left to the executive officer or officers responsible for upholding the Constitution (in this case the SoFE) to determine how best to faithfully apply its provisions. Where uncertainty or vagueness exists, as with the definition of "major party," the responsible officer must provide clarification based on their own best judgement. The Supreme Court upheld this line of reasoning in Bacon King v. Rpryor, when the Court ruled that when the rules for conducting elections are vague, "it is primarily the duty of the SoFE  to interpret the rules." By this conclusion, the SoFE is responsible for deciding what a "major party" is until Congress establishes a formal definition by legislation.

In either scenario, the SoFE acted correctly in conducting a special election to fill the relevant vacancy, whether because there is no such thing as a major party or because what a major party is depends on her own judgement. In any event, it is abundantly clear that the vacancy was not created " as the result of the... resignation of a Representative not being a member of a major Party," because (a) no statutory definition of "major party" exists to be met; and (b) the only other possible definition — the judgement of the SoFE — says otherwise.

2. Did the SoFE give due notice of the special election, as required by law?
The answer to this question is, again, "no." The SoFE announced the special election less than 24 hours before the opening of the polls on August 4. This fact, however, bears no relevance to the validity of the election results. Whether or not due notice was given, all ballots cast during the election were cast in accordance with Article I, Section 4 of the Constitution, which governs voter eligibility and election law. As established above, the fact of the election was not illegal; nor did the SoFE's actions during the election violate the FEA or the Constitution. Accordingly, the results of the special election must be considered valid.

The defense would further note that even had the SoFE announced the impending special election the very minute Mr. Smith resigned his seat, this would still have been in technical non-compliance with the terms of the FEA, because Mr. Smith resigned his seat fewer than 72 hours before the time at which the SoFE was required by law to open the voting booth (12:00 AM on August 4). It would be absurd indeed for the Court to invalidate the results of an election on the grounds that the SoFE broke the law by failing to break the law.


In summary : because no law, order, or other rule exists by which the Liberal Democratic Party may be considered a "major party" under Article 3, Section 3(vi) of the Constitution; and because the dictates of precedent, established by the Court's ruling in Bacon King v. Rpryor, decree that the SoFE is the final authority in interpreting election law whenever the Constitution or federal statute are sufficiently vague as to cause uncertainty; the defense asserts that the SoFE conducted a special election to fill the vacancy in the House of Representatives created by Mr. Smith's resignation in compliance with all relevant provisions of the Constitution of the FEA, and that the results of that election must therefore be upheld.

Thank you.

[windjammer]

I just have a question to the defense.

Peebs considers that a party is minor when it has less than 3 members, correct?

[President of the great nation of 🏳️‍⚧️]

I just have a question to the defense.

Peebs considers that a party is minor when it has less than 3 members, correct?

Yes, a party is considered minor when it has less than three members.

[windjammer]

Thank you Peebs.

[windjammer]

The Supreme Court unanimously sides with Poirot and Oakvale.

CXSmith resigned exactly one minute before deregistered. So when CXSmith resigned, the Liberal Democrats were still a major party (as Peebs herself follows this criteria). Thus, this House special election should have never happened as the Liberal Democrats were at the same time a major party.

The Supreme Court invalidates the results of this special election. It is up to the chairman of CXSmith's former party to appoint a replacement for the remainder of the term.

The Supreme Court would like to thank Oakvale, Poirot, Peebs, Truman for their full cooperation.

[Oakvale]

I thank the Court for its wise and fair decision in this matter. Justice has been done.