In Re: Rescheduling of the Spring 2006 Elections

IN RE: RESCHEDULING OF THE SPRING 2006 ELECTIONS

Cite As: 2006 SJ Ord. 14

Before Fox, CJ, Hodgson, VCJ, Brusda, Leonard, Moe, Thomson, and Tyack, S.JJ.

On Petition for Review of a Student Election Commission Decision.

The Unanimous Order of the Court is handed down PER CURIAM.

PER CURIAM.1. The ASM Spring 2006 Elections were originally scheduled to run from 28 March 2006 through 30 March 2006. After the first day of the elections, it became evident that there were several technical issues with the ballots. The Department of Information Technology (DoIT) confirmed these technical issues. Student Election Commission Chair Timothy Leonard suspended the Spring 2006 Elections at 12.00PM on 29 March 2006 because of the technical issues. The same night, the Student Election Commission met in open session with members of the Student Judiciary serving as Commissioners pro tem under the Student Election Commission Rules of Procedure, Rule 10 (c). At the end of its meeting, the Student Election Commission voted to re-open the segment of the elections dealing with initiatives, but to entirely re-run the segment dealing with candidates at a later date. Votes already cast for the initiatives, per the Student Election Commission’s ruling, would be preserved and counted; votes cast for candidates, because of the technical issues specifically involving candidate seats, would be invalidated.

2. ASM Members Frey, Atluru, Goessl, and Ferniza filed a Petition to Review the decision of the Student Election Commission with the Student Judiciary under the Student Election Commission Rules of Procedure, Rules 16 – 19. The Court held a special session on 1 April 2006 to address the Petition. Petitioners argue that separating the initiative and candidate elections is a due process violation because it treats the different segments of the elections differently when they should be treated the same. Moreover, Petitioner argues that not all of the candidate votes should be invalidated, and should instead be carried over into the new elections. As a final remedy, Petitioners ask that the elections in their entirety be re-run.

I. Motion for Recusal.

3. After oral arguments regarding the Petition for Review, Petitioners moved this Court to force a recusal from Justices Leonard and Tyack since the Justices are the Chair and Vice-Chair of the Student Election Commission, respectively. The Court denies the Motion for Recusal. Under the Student Election Commission Rules of Procedure, specifically Rules 17 – 19, Petitions for Review filed with the Court are not considered “cases” filed with the Court. This was made clear by THE CHIEF JUSTICE in his dismissal of Preliminary Relief for this Petition for Review due to a lack of jurisdiction.Frey Preliminary Relief (Denied), 2006 SJ Ord. 11.

4. The same logic applies here: the ASM Bylaws 5.04(C)(I) require that the Chair and Vice-Chair of the Student Election Commission be automatically recused when any election complaint is formally filed with the Court. However, as discussed previously, the Petition for Review is not a case or complaint filed with the Court, and therefore no automatic recusal provisions are enforceable.

5. Moreover, it should be noted that, since Justices can serve as Commissioners pro tem, supra, any Justice who sits on the Student Election Commission would automatically be recused under Petitioner’s motion. If this was the case, the entire Student Judiciary in the case at bar would be recused because Justices did participate in the Student Election Commission meeting to some extent. Under Petitioner’s logic, all Justices would be recused and the decision of the Student Election Commission would have to be affirmed because would be no judicial body to exercise oversight powers. Accordingly, since the Court finds no affirmative law which requires Justices Leonard and Tyack to be recused, and since any general recusal provision would, by extension, currently recuse the entire Court and therefore strip any review of the Commission’s decision, Petitioner’s Motion for Recusal is DENIED.

II. Due Process and Rescheduling Elections.

6. The Court openly acknowledges that it is placed in a difficult situation. Given the current state of affairs, and their complexity, it is clear that there is no one right answer, as is usually the case with constitutional questions. Moreover, regardless of what the Court decides, large numbers of students will be unsatisfied and cry foul. As VICE-CHIEF JUSTICE ROMANO once wrote for this Court in regards to viewpoint neutrality, “We are dancing between a Scylla and Charybdis; on one side is the right of student groups to be judged neutrally and on the other the right of ASM to function effectively.”CFACT v. Sanders Appeal, 2005 ASM SJ 17, ¶11. So too with this case: the Court must balance the rights of those who have already cast legitimate votes and the rights of those who were denied a fair and error-free chance to vote. The decision is not easy and the line we must draw is fine indeed.

II – A

7. The Court will first address the claim that the initiatives and candidates should be treated similarly and therefore run on the same ballot. It should first be noted that the ASM Constitution Art. 10 (3) (a) gives the Student Judiciary oversight over all elections. This means, in essence, that the Student Judiciary has plenary authority over elections and can take any action regarding the elections provided that the action is constitutional.Schulz v. Student Judiciary, 2006 ASM SJ 3; Gordon v. Leonard, 2005 ASM SJ 3 (per curiam); In re: 2005 Spring Election Complaints, 2005 ASM SJ 2 (per curiam); Egan & Benishek v. Halamish & Kumar, 2003 ASM SJ 22; Dean v. Unity, 2000 ASM SJ 2.

8. There is no constitutional or bylaw provision which mandates that the candidate and initiative elections must be held simultaneously or even on the same ballot. As such, the Court feels that it is perfectly acceptable to run initiative and candidate elections either on the same ballot or on different ballots, or even run the elections at different times. Petitioner argues on this point that the candidate elections substantially rely on the initiatives for voter turnout, and therefore the elections should be kept together on one ballot. However, Petitioner fails to overlook that since there is no constitutional provision requiring this action, the determination to unify or divide the ballot is left to the discretion of the Student Judiciary or Student Election Commission. While the initiatives may increase voter turnout for the candidates, the argument is not enough to compel the Court to take that stance.

9. Petitioner also contends on this point that candidate elections and initiative elections should be treated similarly. Petitioner’s argument fails here because it overlooks the fact that candidates and initiatives are not similarly situated. This Court has long held that similarly situated people or groups must be held to the same standards to ensure due process. In funding cases, we have held that similarly situated groups must be held to the same, consistent standard throughout a funding cycle.UWRCF v. SSFC (II), 2005 ASM SJ 16. Moreover, regarding election cases, this Court has held that similarly situated candidates must be held to the same standard, especially concerning the binding force of the Candidate Declaration Form.Schulz v. Student Judiciary, 2006 ASM SJ 3; Nichols v. SEC, 2003 ASM SJ 10.

10. The same reasoning applies here: candidates and initiatives are not similarly situated when it comes to elections. Candidates and initiatives have different rules imposed upon them. Every student on this campus can vote for an initiative, but not every student on this campus can vote for a particular candidate. Candidates and initiatives have different rules, different constituencies, and different purposes. As such, this Court sees no relation between initiatives and candidates other than the fact that they might be placed on the same ballot for elections.

11. Finally on this point, the ASM Constitution does mandate that elections must be held over two consecutive class days. The Court does not feel that this provision has been violated, since all elections will run at least two consecutive class days. The constitutional provision does not indicate that the elections must run at the same time during the same week; the provision merely states that the elections must at least run over two consecutive class days. Since this is the case under the amended election schedule, the Court does not feel obliged to change the decision of the Commission on this ground.

II – B

12. The Court is compelled at this point to address the votes already cast for the initiative election. Based on various testimony from ASM Staff and DoIT Staff, it has become apparent that votes already cast for the initiatives can be preserved and counted towards the final vote total. Moreover, based on testimony from DoIT Staff, it has become apparent that the election for the initiatives can be re-opened, and all votes already cast can be preserved, and all students who have not yet voted can have a chance to cast an error-free vote for the initiatives.

13. The Court sees no due process violation in extending the initiative election and separating it from the candidate election. Since all students are similarly situated in relation to their right to vote on the initiatives, and since under the Commission’s decision all students who cast and who will cast votes will have their votes counted, it appears that the due process rights of all students and of the sponsors of the initiatives are preserved. All students will be able to cast votes and those votes will be counted. All initiative sponsors will be afforded the right to have their initiatives voted upon. No student will be disenfranchised, and those students who have already vote are assured that their votes will count.

II – C

14. The Court will next address the claim about certain seats not receiving the correct number of votes. It became apparent after the election had begun that some seats were not allotted the correct number of votes. For example, a seat should have been allotted two votes but instead received three votes or one vote. The ASM Constitution Art. XII (2) clearly states, “Voters may cast a number of votes in each district equal to a majority of the seats available in the voter’s district.” This means that if there are 12 seats available in a given district, a majority of those available seats would be 7 (“majority” is defined as 50% plus 1). Consequently, an student in that district should be able to allocate his or her seven votes among any of the candidates in his or her district in any numerical combination which equals the allowable number of votes.

15. Since some seats clearly had a number of allocated votes that conflicted with a constitutional provision, those elections must be declared invalid and re-run. The Court has firmly believed in the hierarchy of laws, in that the ASM Constitution will always trump any other law or rule of ASM.UWRCF v. SSFC (I), 2005 ASM SJ 11; Schober v. Evans, 2004 ASM SJ 14; MCSC v. Greenbaum, 2004 ASM SJ 9. If a constitutional provision has been violated, then clearly the action taken is invalid.

16. Petitioner argues on this point that because everyone in a district received the same number of votes—even if the number was incorrect—that there is no harm done. Petitioner argues that all students in those districts were similarly situated and given the same number of votes to cast in their district. The Court rejects this argument on two grounds. The first ground is addressed supra, in that when a clear constitutional provision is violated, it does not matter if everyone was treated equally in its violation. The ASM Constitution has been violated, and the Court’s inquiry ends there. The second reason for rejecting Petitioner’s argument is that specific clauses of the ASM Constitution will always have persuasive authority in interpreting vague or general clauses. Petitioner argues that the Due Process Clause, Art. 4 (2), could be used to argue that everyone was treated equally in a given district and therefore due process was ensured. However, since there is a more specific constitutional clause regarding this issue, the Court has no other choice but to conform to the requirements of the more specific clause.

II – D

17. The final question remaining for the Court is whether those seats which do not fall under the provisions of II – C, supra, of this Order should be re-run. Based on testimony from DoIT and ASM Staff, it appears that some students in some districts had technical errors when voting for candidates. These errors include the inability to vote for write-in candidates, the inability to vote for multiple write-in candidates, and general error messages which presumably prevented any votes being cast. This is the area of most contention for candidates, and the Court affirms that these seats must be re-run as well.

18. The Court’s opinion is that, as a matter of due process, all students who are similarly situated to vote for a certain district must be afforded the opportunity to vote. DoIT confirms that there were several errors with multiple seats, including the inability to vote for several write-in candidates at once. We can only affirm elections when all students who are similarly situated are afforded the same constitutional right to vote for whomever they want in their district. While many votes may have been cast, it appears that many were not because of these errors. These students were disenfranchised. While it is true that in the past this Court has held that technical errors are not the burden or responsibility of the Commission, Quinn v. Courey, 2003 ASM SJ 17, the Court also feels that the current circumstances are different from those in Courey because of the magnitude of the errors and how many students they affect.

19. The Court acknowledges that there are other options which the Student Election Commission could have chosen to resolve the election issues. These other options may have very well passed constitutional muster as well. However, if the Commission is given several options, and all of the options are constitutional, the Commission may choose which option to select. The argument at bar cannot be about which option is more practical or more feasible; the only question in the case at bar is whether the given choice is constitutional. We find that it is, and therefore shall be affirmed.

III. Motion for Injunction.

20. Finally, Petitioner moved this Court to grant an injunction against the new elections until the legality of the Student Election Commission’s decision was determined. Since the Court has rejected Petitioner’s arguments and consequently affirms the decision of the Commission, the Motion for Injunction is DENIED, and the elections will continue as scheduled.

Wherefore, for the reasons stated above,

IT IS ORDERED that the decision of the Student Election Commission to re-open the initiative election and re-run the candidate election be AFFIRMED.

IT IS FURTHER ORDERED that Petitioner’s Motion for Recusal of Justices Leonard and Tyack be DENIED.

IT IS FINALLY ORDERED that Petitioner’s Motion for Injunction against the special elections be DENIED.

By the Student Judiciary,

IT IS SO ORDERED.

Nicholas J. Fox, Chief Justice

Amber Hodgson, Vice-Chief Justice

Shannon Brusda, Student Justice

Timothy Leonard, Student Justice

Leah Moe, Student Justice

Mark Thomson, Student Justice

Joshua Tyack, Student Justice

Published: 2 April 2006, 11.30PM

Attest: /s/ NJF