Friday, May 12, 2006
Whing!
Calstuff has the ruling. No majority opinion was reached, so the "Marks" Rule was used. I guess.
The punchline is that each candidate got three censures, no candidate got disqualified, and we're stuck with SA executives for another year. For the most part, folks agreed, but the three opinions had differing positions on what "actively" meant, and relied somewhat on the fact that there is photo evidence of Vakil at two sites, but not the other four:
Sonya Banerjee, Alexander Olsson, Kate Feng: The three-censure opinion. This opinion had some of the most tortured logic, I think.
The Student Action Executive slate candidates chalked in areas near polling locations before they knew exactly where the polling stations were going to be set up, so when the tape went down they were not campaigning knowingly or actively within the poll boundary.
However, the Student Action Executive slate was campaigning knowingly when ECC Wren sent out an e-mail to the candidates telling them to remove chalk within 100 feet of the polling stations. It was the responsibility of all the candidates, including those at hand, to go to every polling location, find any chalking on their behalf, remove the chalking, and then report it to Attorney General Nathan Royer. It is because the Student Action candidates failed to take any action regarding their chalking, after they were informed to do so by ECC Wren's e-mail, that they were "actively" campaigning. In other words, they actively ignored ECC Wren's request and continued to campaign within 100 feet of the polls.
The implication here seems to be that, had the Elections Council not sent the e-mail, they would not be campaigning "actively." It's hard for me to understand the active/inactive campaigning distinction could be defined by an e-mail notification by an unrelated party, regardless of whether they're "actively" ignoring a request.
The censure schedule suggested in this opinion is:
First, it seems that if the candidates had waited until the blue lines were laid down to intentionally chalk within the 100 foot boundaries of the polling stations, then these candidates would deserve the maximum of three censures. Two censures would then be adequate for candidates who mistakenly chalk within 100 feet of the polling stations after the boundaries have been laid down and fail to correct their mistake once they become aware of it. Finally, one censure would be deserved for unintentionally chalking within 100 feet of the polling stations because the boundaries had not yet been clearly marked, which was not removed after the violator became aware of it.
The three censures come from:
Thus, because the Student Action Executive candidates unintentionally chalked in four of the six polling locations without ever knowing of the specific violations, they deserve one censure for this general negligence. The other two violations were committed when the candidates unintentionally chalked within 100 feet of the polling stations before the boundaries were defined, but then failed to remove the chalk after they discovered it to be within the boundaries. The candidates deserve one censure for each of these counts.
Again, I'm not clear on how "general negligence" is a meaningful distinction in the by-laws. Are they being censured for the existence of campaign chalk within boundaries? If so, wouldn't they be receiving double punishment for the two cases where an additional censure was given?
Amaris White, Marisa Cuevas, and Stephanie Lam: The five-censure opinion. This opinion is fairly straightforward. The chalk is considered active campaigning from the moment it's put down until it's removed, or the election ends. The censure count suggested here is:
Three censures should be applied to a candidate who deliberately violates this clause. Two censures should be given to the candidate who notices his violation, and proceeds to take no action. One censure should be applied to a candidate who unknowingly commits the violation, and once informed, takes action to remedy the mistake.
And, the five censures come from:
We agree that the remaining four offenses (Boalt Hall, Upper Sproul, Soda Hall, and the I-House) should be compiled into one remedy since there was no blatant knowledge of the violation. Thus, we believe the appropriate remedy to be one censure. Finally, the two instances at the RSF and Crossroads Dining Hall fall under the category of two censures, therefore making the total number of censures for each candidate five.
Again, there's no real declaration of how violations should be counted. I didn't find any justification from the by-laws for grouping the four violations into one, or keeping the two two-censure violations distinct.
Aurora Masum-Javed, Robert D. Gregg: The no-censure opinion. This one claims that the campaign wasn't active, but encourages the Senate to close the loophole that allows this. Good luck with that. Like the Senate is going to pass something that makes things harder for them. That would require principle.
The opinion makes a comparison to back when active campaigning was a disqualification:
Two years ago, campaign violations in Title IV Section 13.3 were punishable by disqualification, whereas violations under other sections of Article 13 simply mandated censures. We immediately see the extreme situations Section 13.3.8 would try to prevent, such as a candidate walking into a polling area and talking to voters or a candidate handing fliers to students at the polling stations. These egregious campaign violations are clearly different from the contested chalkings, so we must attempt to formalize a distinction.
I think this is the wrong approach. The Senate changed the by-laws to make this offense not disqualifiable. It's likely that they did this because they didn't want to overly punish those not-so-egregious violations that fall under this section. Anyway, the distinction is fairly reasonable:
Walking students to the polls is a physical action whereas there is no active component to chalk resting on a sidewalk. "Active" by this definition is putting additional energy into the environment that was not previously there. This encompasses movements and physical actions of candidates and their agents, which does include the act of chalking but not its mere existence on a sidewalk. Chalked slogans fall under the definition of campaign material, which is primarily regulated by Section 13.6. For example, Section 13.6.1 and 13.6.5 are restrictions on the placement of campaign material around campus. In contrast, the violations outlined in Section 13.3 all share the commonality of prohibiting actions.
Note that the distinction is being made between "campaigning" and "campaign material." This is a fair distinction, I think. It treads on dangerous grounds, though. Suppose one was to remove the chalk. Would this be campaigning? If another party removed the chalk, would it be campaigning? More importantly, if the Elections Council had removed the chalk, would this be campaigning? And if so, what about removing fliers? Asking "active" campaigners to leave?
Although we did not find a campaign violation in this case, it is only because of a loophole in the By-Laws. We certainly believe that the behavior was unethical, but it is not the job of the Judicial Council to close such loopholes or make judgments based on our own moral leanings. If the Senate wishes to avoid the consequences of this opinion, they must amend the By-Laws to prohibit the placement of campaign materials in polling areas.
Haha. Fat chance.
The thing that troubled me the most about both censure-causing opinions is that they neither set clear standards nor refer to the by-laws in determining how violations are to be counted. When should violations be globbed into one for censure? When should they be considered as distinct?
In close second, there is no consensus among the censure-causing opinions as to how many censures should be assessed. In the past, the by-laws clearly defined what standards had to be met for the different censure counts. The latest revision gutted these standards and essentially left everything to the Judicial Council, only setting a maximum (and completely neglecting to mention punishment for one set of campaign violations). I think the Senate would be better-advised to define this themselves rather than leave it up to the whims of the Judicial Council which may vary from case to case because of the details.
Finally, in consideration of this, as well as my case against the RSF Referendum campaign, I think the Senate needs to be far more clear in the extent of campaign violations, rather than leaving it up to the Judicial Council. The Judicial Council should be left with the job of determining whether a candidate has committed a campaign violation. It should not be given the job of fully defining the campaign violations from scratch every time a case comes up, which it currently has.
The questions for this case are above. The questions for my case are: What is the role of the University in elections? At what point does proponency (for the referenda) get established? Should proponents be able to set up their entire campaign before naming a primary proponent, thus completely avoiding campaign regulations (this is how the by-laws read now)? What use of university resources is allowed, and what use is restricted, particularly concerning electronic resources? How broadly should spam be defined?
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