Sunday, May 07, 2006
Oooh, nice
I have looked over the defense brief by SA for their campaign violation suit. I'll give them credit for its creativity, and I think they'll succeed at avoiding censures, which will doom us to another year of self-imposed fee increases and harmful projects.
As expected, they played the sabotage card. Boring. I hope that Nathan asks them point blank whether the chalking in question was done by sabotage or as part of their campaign, so that they're put in a position where they have to perjure themselves. It may not be provable, but disgruntled campaign workers may come forward later.
The creativity starts when the brief puts the responsibility for removing chalking within 100 feet of the polls on the Poll Coordinator on the Election Council, rather than the parties that chalked. This might be somewhat tenuous, as it would have to define "presence of chalk," rather than "chalking," as "conduct." One could conclude that, since its the responsibility of the Poll Coordinator, if a candidate were to campaign in person within 100 feet of the polls, it's the responsibility of the poll worker to physically remove the person. This is independent of whether the candidate is committing a violation, by the way. On the other hand, if poll workers prevent this campaigning merely by the threat of Judicial Council censures, they can maintain the polling location. If the Judicial Council sides with the defense on this argument, then poll workers lose that ability, and the violent approach is the only one left.
The brief also denies that the chalk counts as "active campaigning" when it's just sitting there. In the brief's own words:
However, after the chalk is placed (and especially several days after it is placed), the chalk on the ground no longer alters the state of the environment by force; there is no transfer of potential energy to kinetic energy occurring. Therefore, whatever action is occurring is happening independently of the chalk (i.e. a person could choose to look at it or not, the chalk does not actively draw attention to itself as does a person announcing his name, passing out flyers, holding a sign).
This, while creative, really pushes it when it comes to lameness. The "transfer of potential energy to kinetic energy" line sets a silly standard for what constitutes "active," and it should be noted that chalk does bring about that transfer just by sitting there. It would be a tough sell to say that throwing out auditory stimuli, like "announcing his name," constitutes active campaigning, but throwing out visual stimuli, like chalk on the ground, does not. A person could not choose to "not look at it" without knowing that it's there, and would have to simply avoid looking at the ground in general, putting herself in danger.
The general claim that the candidates lose their responsibility for their campaign literature once they put it in place is pretty prevalent, but also pretty silly. When you hand out a flier, you lose control of that flier, and you don't know where it will end up, so you could argue that you no longer have responsibility. But chalk on cement isn't going anywhere, and folks who put it in place know that it will remain in place and be visible for folks passing by (otherwise they wouldn't have bothered), essentially doing continuous campaigning.
The strongest argument made by the brief is that, since the polling locations weren't marked off until the location of the poll itself was set, the candidates aren't responsible for chalking before those markings are set, because the action would not be done "knowingly." While the general area of the polling locations are set in advance by the by-laws, (the suit falsely claims that the EC can decide whether to open the location or not) the exact location of the polling station is not, and the defense has a good case that, since the Elections Council has some discretion as to that exact location, the candidates cannot know in advance.
If the EC wanted to move a poll three feet in one direction they could clearly do so as long it was in the bounds of the bylaws. Those three feet could charge 8-15 more candidates with chalking violations. If the council rules that inanimate campaign literature placed before the polls were properly marked off is a violation of 13.3.8, the council is giving the power to easily disqualify any number of candidates to the EC, the poll coordinator, and anyone involved in determining where the poll is located.
This isn't a foolproof argument, though. Assuming that the Judicial Council rules that chalk on the ground is active campaigning after it's been placed, all the plaintiff needs to show is that no matter where the polls in the general area described by the by-laws ended up being placed (possibly using past elections as a guide, though this is questionable), the chalk would be within 100 feet of that location. This may be possible for some locations. This argument may, with luck, convince future Election Councils to mark off the polling locations well in advance of the actual placement of the polling stations. This requires advance planning though, which isn't a particularly strong suit of the ASUC when it comes to elections.
The brief also argues that despite EC Chair Jessica Chen's e-mailed warning to the candidates, their violation was not done "knowingly," because the chalking took place before then. 13.9 of the by-laws pretty much craps this out the window:
Candidates, parties, and all others cited shall be notified by the Attorney General, and are responsible for correcting all violations, if possible to correct, immediately upon notification.
Note that the candidates weren't notified by the Attorney General, as far as I know. The reason this craps their argument out the window, though, is that the correction of violations is expected of candidates even after the violation has occurred.
It's worth noting that the brief does not argue that, even if found guilty, they should only receive one violation's worth of censures.
Anyway, the official Beetle prediction is that the candidates will get no censures.
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