Lewis Trondheim vs. Secretary of Forum Affairs

[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.

[Sam Spade]

Earl said his absence began on Thursday.  See above.

[bullmoose88]

Is there a D-SoFA now?  Can (s)he answer any of the questions posed?

If no, are there any former SoFAs who'd like to help the court?

[Sam Spade]

Is there a D-SoFA now?  Can (s)he answer any of the questions posed?

If no, are there any former SoFAs who'd like to help the court?

We made Inks.LWC D-SoFA, Stan.  Remember?  (slaps side of head).

[TomC]

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

[Јas]

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

You must be logged in to read this quote.

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?

[...]

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

As I wrote the legislation, I'll give it a shot.

A surplus arises in a PR-STV count when a candidate attains more votes than the quota (i.e. the number of votes necessary to get elected - the formula for calculating the quota is in the Act).

Where the surplus can 'materially affect the progress of the count' (i.e. where it's enough to get someone to the quota or enough to lift the ranking of the last placed candidate) it is distributed.

The distribution of a surplus is done by revaluing all of the votes cast for the elected candidate, such that each vote is now worth a fraction of it's original value (per the formula in the Act) and then passing the votes on to the candidate that each voter had next highest preferenced (and is still in the running to be elected).

Not sure if that's an adequate explanation. Do feel free to ask questions.

I don't have time to dig up an example at the moment (gotta run I'm afraid) but the counts of Lewis and myself during the PR-STV election probably contain a few examples. I'll link to an example later.

[Јas]

Is there a D-SoFA now?

As Inks has neither resigned nor been fired, he is presumably still the DSoFA.

[Torie]

Lewis missed an event in his timeline which is rather critical. The voting booth for the Earl seat opened 5-6 hours before Conor resigned.

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July 22, 11:20 am - Absentee voting booth for Earl seat set up, with voting to commence at 12 PM, July 22. 8 votes cast before Conor resigns. One could argue that the voting booth was opened prematurely given the above announcement, but I think the July 24th date was intended to refer to the regular voting, not the earlier absentee voting.

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[Sam Spade]

Is there a D-SoFA now?

As Inks has neither resigned nor been fired, he is presumably still the DSoFA.

See above.  Our CJ was simply out to lunch...

[bullmoose88]

Is there a D-SoFA now?

As Inks has neither resigned nor been fired, he is presumably still the DSoFA.

See above.  Our CJ was simply out to lunch...

Well yes, and a few brews before step brothers.  I just didn't know if Inks had resigned or been replaced...forum news sometimes comes in waves that if you miss, you have no idea what's going down.

[Sam Spade]

Bumping - only 45 minutes more to submit briefs.

I don't have any more questions - for now.

[bullmoose88]

Bumping - only 45 minutes more to submit briefs.

I don't have any more questions - for now.

I don't have any questions, but reserve the right to ask more as I think of them.

[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.

[Sam Spade]

Amicus reply brief?

[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.

[Sam Spade]

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.

no problem here.

[minionofmidas]

Not a part of my brief... but as I won't be available later today, treat this as a submission to any possible Q&A session.

Lewis missed an event in his timeline which is rather critical. The voting booth for the Earl seat opened 5-6 hours before Conor resigned.

Absentee Voting Booth. Not the same thing as the Voting Booth. Issue adressed in full gory detail in the remainder of the brief, I think, even though it's missing from the timeline (not sure right now if that was an oversight or a conscious decision of mine... )

As to the issue of the remedy to be sought (ie, the possibility of a new election for both seats): I might have sought such an outcome, had the issue of who, exactly, would have won the second seat been at all ambiguous/swayable by a small handful of tactical votes if people had known what they're doing. In this election, that was simply not the case.
To make it clearer to Cash how STV works:
There is, really, only one way tactical voting can affect the outcome of STV elections: If a candidate (let's call him X) is in danger of being eliminated early but has the potential to win a seat if he can avoid early elimination (because he has few first but lots of second preferences). In such situations, it's possible to tactically vote for a lower preference of yours (let's call her Y) ahead of your true first preference Z (provided that Z is in no danger of early elimination) in order to lift Y ahead of X and thus knock out X at an early stage, leading to the eventual election of Z instead of X. There are numerous instances in Atlasian history where this happened or came close to happening, or where it would have been possible but wasn't tried, but not in this election. None of the other candidates besides Andrew and Al were in any position to knock Al out at any stage of the count.

Somebody (Cash, I think) pointed out that the SoFA is required by law to give ballot instructions to the voters, and these instructions falsely claimed the election to be for a single seat. The relevant statute is CESRA, Section 9, Clauses 2 and 3:
"2. The administrator of a voting booth shall be free to design the ballot as he or she sees fit, as long as the content of the ballot is clear and unambiguous.
3. The administrator of a voting booth shall post links to all relevant statute regarding electoral law on the ballot."
While one might argue that it doesn't say that the content of the ballot needs to be truthful as well as clear and unambiguous I know I wouldn't be swayed by such an argument either.
However, the SoFA's instructions were incorrect not only in not linking to relevant statute, but also in referencing the wrong statute in simple text - referring to the repealed Section 20 of the PR Act instead of the PR (By-Elections) Act. I only just checked this - had he linked to the By-Elections Act, I would have been arguing here that the ballot instructions in the Absentee Voting Booth did in fact address the issue that the no. of vacancies to be filled was as yet indeterminate, and that those in the Voting Booth actually made it clear that there were two vacancies.

Finally, one more issue that hasn't been addressed:
The timing here was somewhat unfortunate. Though Conor resigned a sizeable period of time before the election commenced, he didn't exactly advertise the fact in broad red letters across the top of the Fantasy Elections Board, and it didn't come to the SoFA's attention - nor mine - until the election had commenced. Further time elapsed until the legal situation was noted, by which time (though the polls were still open) everybody had already voted. What I'm trying to say is that the SoFA has my full sympathy here. He made a palpable mistake, but it could have happened to everybody. Of course, as the legal situation is now more widely known, these circumstances are unlikely to repeat themselves.
Should the court find that the two vacancies were to be filled simultaneously but that we can't just turn back the clock and use the actual election results but need a whole new election, I would be very thankful if the verdict addressed the matter of the point in time at which this remedy became unavailable. I'm sure current and future SoFAs would be thankful as well.

[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.

[Sam Spade]

TCash - since you seem to be arguing on behalf of respondent, I'll ask you these two questions:

1) When do you think "commencement of the election" means as it applies to the PR Act or to this election is specific?  I have already heard what Lewis says, I just want to know whether you agree, disagree and/or why?  This, to me, appears to be the key term in interpreting this clause.

2) I want to flesh out your idea a bit more - it seems to me that your argument is based on some type of equal protection rationale.  Could you please explain in those terms?

Which brings me to a similar hypo than this case that may help clarify.  If we assume that "commencement of the election" means start of the general election, not the absentee ballot - It seems to me that Clause 3 makes entirely legal this scenario - 1) Vacancy announced by Senator #1; 2) SoFA makes declaration of special election with candidate declaration; 3) Absentee ballot is opened; 4) Voters cast absentee ballot; 5) Vacancy announced by Senator #2; 6) SoFA changes ballot for special election so that two vacancies are included, not one; 7) General election ballot starts.

Is this scenario correct?  Is there something that I'm missing?  And if so, my concern centers around the voting rights of those who cast the absentee ballots before the election change.

Actually, that last question is for both parties.

[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.

[minionofmidas]

In Atlasia, voting is constitutionally mandated to be by public post. Those who vote late have an immense information advantage over those who vote early, including those who vote absentee.
This is no violation of "equal protection of the laws" principles because voters choose when to cast their ballot, and therefore earlier voters forego the right to that occasionally crucial information voluntarily. (Anyways earlier voters set the framework within which later voters can vote tactically - or cannot, depending how the earlier votes fall exactly).
Similarly - though that's not what the absentee ballot is originally for - absentee voters chose to vote early in this election. I know I did. Every single absentee voter posted during the regular ballot hours (three of them only a handful of times, implying they might have had reason to be unsure of their internet access during polling hours) - 30.5 times on average.
The same holds with candidacies - although there is a filing deadline for getting on the ballot that's before the opening of the absentee booth, write-in candidates may, and frequently do, declare afterwards. According to the logic applied here, that too would have to be declared unconstitutional. And the effect of that can be quite large, if you made a choice between two choices you consider inferior, and then suddenly the candidate you really want declares - imagine if he loses by a vote. By comparison, the exact number of vacancies is basically a trifling point.

[minionofmidas]

"trifling" if voters are aware of the possibility, as they ought to be, that is.

[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.

[minionofmidas]

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.

It remains a pr election, conducted by the same method, with only the number of vacancies to be filled changing. Consider for a moment, not this election but rather future elections - basically, according to the act the number of vacancies is provisionally established during absentee voting. Obviously, that fact should have been clearly advertised by the SoFA. 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.

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An individual's tactical vote options change, due to another individual's action and the way government recognizes such action. That's much the same thing as an additional Senator resigning, the only difference being that the "new candidate" scenario is more likely to actually affect the way people would have voted (in meaningful ways. Low-down preferences on ballots with a first preference for the vote leader don't count.)

[Sam Spade]

We are working on a decision.  Discussion between the justices has been interesting...