Ruling of the Chair re: Fall 2013 Councillor Elections

This is a ruling of the Chair made under Procedural Handbook §III.49, and resulting from the unofficial results of the KSU Fall Councillor Elections issued on October 10, 2013.

  1. On October 10, 2013, following the close of voting for the King’s Students’ Union Fall Councillor Elections, the Chief Returning Officer announced that the elections for Journalism Representative, Arts Representative, and Member-at-Large did not receive the 25% quorum required by Procedural Handbook section III subsection 50.

  1. There is no provision in the KSU bylaws for failure to achieve quorum in an election, although Section X, subsection 69 of the Constitution provides in part:

The primary function of the KSU Elections Procedure is to provide for an orderly and democratic succession from one KSU Council of Students to another.

  1. As the primary function of the KSU Elections Procedure is to provide for an “orderly and democratic succession”, the elections mentioned above should be regarded as incomplete, rather than invalid. To find otherwise would necessitate at least two weeks of nominations, campaigning, and elections, which would leave the Council of Students without a significant part of its members for almost an entire month.

  1. The failure to achieve quorum is clearly an extraordinary circumstance. Therefore, pursuant to Procedural Handbook Section III subsection 49, which states in part that  “during extraordinary circumstances the dates and times of elections may be adjusted by a ruling of the Chair” shall take effect.

  1. Pursuant to Procedural Handbook Section III, subsection 49, the elections for Arts Representative, Journalism Representative, and Member-at-Large are rescheduled for Thursday, October 17, and Friday, October 18. Nominations will not be re-opened. Candidates may campaign in accordance with all provisions of the Procedural Handbook. Specifically, Procedural Handbook Section III subsection 35, which provides in part that “open and obvious campaigning must cease by midnight the night before the first day of elections” will take effect the night of Wednesday the 16th of October.

JAKE EIDINGER

CHAIR OF THE UNION

Blue Line

This is an appeal from the decision of the Elections Committee of October 9, 2013, made under Procedural Handbook §III.67 and §III.67.a, by Ms. Tiphaera Ziner Cohen & Ms. Carli Gardner. The appeal is submitted to the Chair of the Union, Mr. Jake Eidinger.

AUTHORITIES CITED

  • Constitution of the King’s Students’ Union, as amended August 29, 2013
  • Procedural Handbook of the King’s Students’ Union, as amended August 29, 2013
  • Robert’s Rules of Order, Newly Revised, 11th edition, as published 2011

OTHER DOCUMENTS USED

  • Tiphaera Ziner Cohen & Carli Gardner, Letter of Appeal to the Chair of the Union, submitted by e-mail October 11, 2013 and received October 12, 2013
  • Elections Committee of the King’s Students’ Union, KSU Fall 2013 Election Nomination Package
  • Elections Committee of the King’s Students’ Union, Formal Decision of the Elections Committee with regards to the Disqualification of Two Candidates from the 2013 Fall KSU Election, as published October 9, 2013

All subsections are from the Procedural Handbook unless otherwise noted.

FACTS

  1. Upon review of the submissions of both the appellants and the Elections Committee, the facts listed below are uncontested.

  1. On October 9, 2013, the Chief Returning Officer, acting on his own initiative, disqualified both of the appellants for breaches of Procedural Handbook Section III, subsection 35. Their names were crossed off the ballots by hand. Later the same day, the Elections Committee ratified the decision of the CRO, in a formal decision which is attached to this ruling as Appendix A.

  1. Ms. Cohen was disqualified for the following violations of elections procedure:

    1. leaving five posters in public places after the close of open and obvious campaigning, despite noting them as removed on her Poster Location Form;

    2. submitting the Poster Location Form to the Chief Returning Officer after the deadline required by Procedural Handbook subsection 35;

    3. leaving one electronic post on the University of King’s College Class of 2017 Facebook group.

  1. Ms. Gardner was disqualified for the following violations of elections procedure:

    1. Leaving two posters in public spaces after the close of open and obvious campaigning;

    2. Not numbering her posters, as required by subsection 35;

    3. Leaving one electronic post on the University of King’s College Class of 2017 Facebook group.

  1. Later that same day, the Elections Committee convened and ratified the decision of the Chief Returning Officer. In their formal reasons for disqualification, the Committee noted “that article 40 was breached when the decisions to disqualify the candidate was made by the Chief Returning Officer without the consultation of Election Committee [sic].”

  1. On October 11, 2013, within 24 hours of the release of unofficial results, the appellants filed their appeal with the Chair, via e-mail. The appeal was officially received on October 12, 2013, and is attached to this ruling as Appendix B.

ISSUES

  1. The appellants submit that the Elections Committee violated elections procedures when they failed to communicate with the candidates at various times. In the appellants’ words, “the Committee’s lack of communication with its candidates, especially us first-years, was ultimately what caused our disqualifications.” (Letter of Appeal, para. 5)

  1. Before dealing with the various issues raised by the appellants, the Chair wishes to distinguish between what is required by the bylaws and what is advisable in the interest of transparency, respect, and common courtesy. It is not required, for example, to hold an all-candidates meeting, where the candidates can ask questions of the Chief Returning Officer and the Elections Committee might issue clarifications to avoid potential ambiguities in the rules. However, in light of the issues raised by this case, the salutary effects of such a meeting are clear. The Chair accepts the submission of the appellants that many of the problems in this case could have been avoided had there been a stronger dialogue between the Elections Committee and the candidates. While this is not required by the Procedural Handbook and therefore not an issue in this case, this appeal is proof that such a dialogue is strongly desirable.

  1. The appellants submit “that in running for a position, an understanding of the process should be discussed and clarified prior to the start of elections. Not only was this not the case, but even in attempts to do so, little effort was put in to ensuring that the candidates were fully aware of what this means” (Letter of Appeal, para. 3);

  1. The Chair concedes that an understanding of the electoral process is key to any democratic institution. However, there is no provision in the Union bylaws requiring the Elections Committee to initiate a “discussion” on the elections process. It is also important to consider the nomination package, which contains all electoral rules and a declaration form that must be signed by all candidates which states in part: “I have read the election rules in the KSU Procedural Handbook and all information provided by the Chief Returning Officer” (Nomination Package, p. 3). The appellants signed and submitted this declaration.  This is therefore not an issue in this case.

  1. The appellants also submit that “the members of the Election Committee [were] not made clear to us”, and “their decision to meet following our disqualification was kept quiet and again prevented us from voicing our concerns” (Letter of Appeal, para. 5);

  1. There is no provision in the bylaws requiring that the members of the Elections Committee identify themselves to candidates, although it is difficult to see how they could accomplish their various duties without doing so. The Elections Committee is furthermore not required to include the candidates in their disqualification process: like all committees, the meetings are restricted to members of the committee unless the committee itself decides otherwise. On the same principle, the Elections Committee is not required to inform the candidates specifically that they have been disqualified –though the rules of common courtesy suggest that they should – so long as the formal decision has been released publically. These are therefore not issues in this case.

  1. The appellants also submit that “the ambiguity in [Procedural Handbook subsection 35] further prevented us from ensuring proper adherence to this section at all,” which the Elections Committee should have “clarified or clearly outlined” (Letter of Appeal, para. 4). Subsection 35 states in part:

Open and obvious campaigning must cease by midnight the night before the first day of elections. This extends to online materials. Open and obvious campaigning includes, but is not limited to, the leaving of posters in public places and the existence of live websites and social media. Candidates are therefore required to number every poster put up during their campaign, and to compile a list of all locations of all campaign material, including online material… Any unaccounted for material found up after the deadline will be in material breach of this rule.

  1. The phrase “online materials” is a general term. However, both appellants also signed a declaration as part of their nomination package, in which they affirmed that “I understand that ALL electronic campaigning materials must be deleted and removed by October 8th, 11:59 PM [emphasis in original]” (Nomination Package, p. 3). The intricacies of Facebook may shift, but the definition of the word “all” remains constant.

  1. The Chair is sympathetic to the complex set of election rules and regulations that first-time candidates confront. However, as both the appellants have conceded that multiple print materials were left in public view after the close of open and obvious campaigning, the Chair finds insufficient reason to overturn the disqualifications on the grounds of subsection 35 alone.

  1. The appellants contend that the Elections Committee failed to abide by subsection 68, and “by allowing the election to continue without informing the voters prevented them from making fair decisions on how to vote.” It is my understanding that the appellants were disqualified before the start of balloting, and thus subsection 68 does not apply. Furthermore, informing voters that a candidate has been disqualified is not technically required by the bylaws, as long as the name has been clearly removed from the ballot.  As such, this issue also falls under the category of procedures which are not required by the bylaws but are strongly advisable.

  1. The appellants allege that the Elections Committee violated subsection 40 of the Procedural Handbook by ratifying the disqualification made by the Chief Returning Officer. The Elections Committee, in its formal decision of disqualification, acknowledged the violation. The Chair must review whether this represents a violation of elections procedures, and if this breach is serious enough to warrant overturning the disqualifications.

REASONING

  1. Section III, subsection 40 of the Procedural Handbook provides: “If a candidate breaks any of the above rules (articles 33 through 37), the Elections Committee will hold an immediate vote on whether to disqualify him or her.”

  1. It is uncontested fact that the appellants were initially disqualified not by the Elections Committee, but by the Chief Returning Officer. Can the Committee ratify a decision they did not make initially?

  1. Robert’s Rules of Order, Newly Revised, 11th edition (hereinafter, RONR) is the de facto parliamentary authority of the Union. It may be cited as binding in Council and General meetings, and as persuasive in most other matters unless directly contradicted by the bylaws or other special rules of order. On the matter of ratification, RONR notes:

The motion to ratify…is used to confirm or make valid an action already taken that cannot become valid until approved by the assembly. Cases where the procedure of ratification is applicable include: […]

  • Action taken by officers, committees, delegates, or subordinate bodies in excess of their instructions or authority;

[…] An assembly can ratify only such actions of its officers, committees, delegates, or subordinate bodies as it would have had the right to authorize in advance. (RONR p. 124-125)

  1. As the Elections Committee ordinarily has the authority to disqualify candidates (pursuant to subsection 40), the sections of RONR cited above would suggest that the Committee therefore may ratify a disqualification decision made initially by one of its officers (the Chief Returning Officer). However, RONR also notes that a body through the motion to ratify:

…cannot make valid a voice-vote election when the bylaws require elections to be by ballot; nor can it ratify anything done in violation of procedural rules prescribed by national, state, or local law, or in violation of its own bylaws. (RONR p. 125)

  1. Subsection 40, authorizes the Elections Committee to make an “immediate” decision on disqualification, but not to make it after the fact. It is also a well-settled rule of interpretation that “if the bylaws authorize certain things specifically, other things of the same class are thereby prohibited.” (RONR, p. 589). Therefore, if the bylaws authorize immediate disqualification votes, they must prohibit ex post facto disqualification votes. To allow otherwise would also draw into question the “established process for electoral policy rulings” required by the Constitution, Section X, subsection 69 d).

  1. The Chair finds, therefore, that the Chief Returning Officer erred in disqualifying the appellants without previously securing an affirmative vote from the Elections Committee, and furthermore that the Elections Committee erred by attempting to ratify a decision made in violation of the Procedural Handbook.

  1. Section X, subsection 69 of the Constitution states in part:

The [KSU] Elections Procedure is based on the following principles that:

a) there is respect for the democratic process;

b) the Candidates, Returning Officers, and Elections Committee members treat each other with fairness and respect;

c) candidates have the right to participate in a fair and just election and to expect that their campaign material and their person be treated with respect and dignity by fellow candidates;

d) there is an established process for electoral policy rulings;

e) there are transparent rules for discipline and disqualification. (Constitution, §X.69)

It is my belief that the custodians entrusted with the democratic process ought to be held to a higher standard than those participating in it. The onus is on the elections officials to enforce the rules, and to do everything in their power to ensure that those rules are understood. The disqualification of a candidate does not inherently undermine the respect we hold for our democratic institutions. However, when the democratic process itself is compromised through compounded errors, as has been demonstrated here, the situation cannot be dismissed.

DISPOSITION

  1. The appeal is allowed.

REMEDY

  1. I would overturn the disqualification of the appellants, and declare the elections for Arts Representative and First Year Representative held on October 9 & 10 to be null and void.

  1. Pursuant to Procedural Handbook Section III subsection 49, I would also order the elections for Arts Representative and First Year Representative to be rescheduled, without re-opening nominations, for Thursday October 17 and Friday October 18. Furthermore, open & obvious campaigning shall be re-opened prior to the rescheduled voting days, except as otherwise provided by the Procedural Handbook.

  1. I would also encourage – though I will not order – the Elections Committee to release an official interpretation of Procedural Handbook subsection 35 prior to the close of open and obvious campaigning, so that the ambiguities noted by the appellants are avoided to the furthest extent possible.

  1. I would finally encourage all candidates who feel any uncertainty about the rules governing elections to contact the Chief Returning Officer as soon as possible. Asking questions is never to be discouraged, and can only help build a stronger democratic union.

Pursuant to Procedural Handbook Section III, subsection 67 d), no appeal from this ruling is permitted.

JAKE EIDINGER

CHAIR OF THE UNION

Blue Line
Dear Members of the Union:

Some of you may have already seen the results from our recent Councillor elections. You will therefore also know that the elections for Journalism Representative, Member-at-Large, and Arts Representative received less votes than the required quorum, which is 25% of eligible voters (pursuant to Procedural Handbook subsection 50).

The results for these elections (including those mentioned above) are still unofficial and subject to appeal for the next 24 hours, pursuant to Procedural Handbook subsections 66 and 67. The full text of those sections may be found online.

Following the appeal period, I shall reschedule the elections for Journalism Representative, Member-at-Large, and Arts Representative, pursuant to Procedural Handbook subsection 49, at a time and date that will be fair to all candidates and electors.

As always, do not hesitate to contact me if you have any questions or concerns. You can e-mail me at chair@ksu.ca.

Yours truly,

Jake Eidinger
Chair of the Union

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