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Nap Time!!!

Wednesday, December 24, 2008
Recall rules

The advisory opinion concerning the recall election came down. Results:

1) Physical polling locations are required, at least at the dining commons. (The opinion itself seems to argue that they are also required at the residence halls, but I think this was a misread of the requirement, which is that they are only required at the dining commons of the residence halls.) This is the most significant result, and gives the Elections Council a much harder job.

2) Since the Senate can, conceivably, pull an Elections Council out of its ass in the three weeks of prep time the ASUC has to put together an election, the current rules which allow the positions to be vacant are constitutional.

3) The Judicial Council decided to say that:
a recall election is a proposition in that it is presented as a petition to the Senate and is a yes or no question which is binding on the ASUC. Therefore all campaign rules which apply to propositions shall apply to recall elections.
The conclusion I draw from this, with the non-initiative petition process, is that the recall is not an initiative but is a proposition, and the ASUC should use the proposition rules. I think the legal basis of this conclusion is quite weak, which I may go into in a later post, but it's probably the best they could do with what they had.

The punchline is that campaign rules apply, as if the proponents of the recall are the proponents. That is, if the proponents get five censures, the recall is disqualified, and Moghtader keeps his seat. As I noted before, as far as I can tell, there is no analagous consequence for the opponents, so the opponents of the recall could probably violate campaign rules willy-nilly without meaningful consequence. (They can still be assessed censures, but I don't think anything happens if they get five)

4) The tabulation rules are the same, so we won't see the results until after the Tuesday after the election. The election ends on a Tuesday, so this means at least a week's delay.

5) Finally, I think the Judicial Council really drops the ball on the question of who's next in line, and someone may need to file an appeal:
Title IV, Article XV, Section 15.5.2 of the By-Laws states that "a candidate is elected to a seat if all votes have been transferred and s/he has accrued at least a quota of votes." As the votes are not considered final until all votes have been transferred and the required number of Senators have achieved the quota, the person who has the most votes after all votes have been transferred in order to have 20 candidates reach a quota is the "the person receiving the greatest number of votes."
Of course, it's never the case that 20 candidates reach quota. Many Senators become Senators because all but 20 candidates were eliminated, not because they reached quota. As a result, after all votes are transferred, no other candidate has any votes, and hence it's an all-way tie at 0.

Meaning? I'm not entirely sure. Everyone enters the Senate? No one does? In the election, if there are 21 Senators left, and the last two have tied votes, both are eliminated, and there are only 19 winners. There's also a vacancy, though, which raises exactly the same question as this does. As usual, this is something I've pointed out to the ASUC for two years in a row, so I guess I'll claim my "I told you so" rights.

That said, it isn't necessarily an "error with regard to a conclusion of law." Can it be appealed because their result doesn't actually resolve the issue? I suppose you can argue that since they inaccurately said that all 20 Senators need to reach quota, that's an error, but is it in regard to a conclusion of law?

I could file an appeal, if folks want me to. Since it's an advisory opinion, I suppose the ASUC could just ignore it, too, since it's nonbinding, though that would invite another hearing if someone felt they had something to gain from choosing a particular succession scheme.

posted by Beetle Aurora Drake 12/24/2008 07:36:00 PM #
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Monday, December 22, 2008
In other news

In the news departmnet, The Daily Cal is reporting that no charges are to be filed against the folks who went all brawly. This isn't particularly surprising, since the witnesses all had deep interests in seeing certain results, and so there'd be no way to resolve the different accounts and prove anything. Contrary to what the first commenter suggests, this doesn't mean anyone is innocent, it just means that the evidence is so poor that even if anyone were guilty, the DA wouldn't be able to get a conviction.

"A letter from Dean of Students Jonathan Poullard" is mentioned, though they don't mention who it was sent to or for what purpose.

posted by Beetle Aurora Drake 12/22/2008 05:58:00 AM #
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Tuesday, December 16, 2008
Paper beats Recall

I've mentioned how I feel that the at-large recall process perverts the proportional representation process, so what are some alternatives?

Unfortunately, folks are going to conflate discussion of the recall process with the current recall election. Those who want a different process will probably line up pretty closely with those who disapprove of this recall, and the opposite will be true of those who think the current process is great.

But now that we have folks' attention, let's pretend like they care about process. There's really no way, through the recall election process, of ensuring that a successful recall represents a change in the views of voters. Taking that as a requirement, what can be done?

One approach is to simply make it impossible for voters to remove a Senator. Since terms are only one year long, requiring voters to deal with a Senator they don't want as one voice in twenty isn't a huge cost.

Another is to hold a whole new election for the Senate. If X voters sign a petition saying they disapprove of the current Senate makeup, a new election could be called for (along the lines of a vote of no confidence in many parliamentary bodies). This isn't an exact parallel, as a such a vote would typically be used to oust a suddenly unpopular party, but it could also perform the recall function. It would be a broader tool, but would also preserve proportional representation in a way that recalls do not. If a senator's supporters no longer support him, they can throw their weight behind someone else rather than simply losing their vote.

An immediately apparent drawback would seem to be cost, but it's not clear that such an election would actually cost any more than a recall election. With computerized voting, the cost of an election is pretty much independent of the size of the ballot. There would probably only be slightly increased advertising costs.

The other effect would be another campaign season, though probably a more muted one, due to the limited time scale and lack of executive races. While this would make things suck for the heavy campaign machines, most of campus would see that as a feature, not a bug.

While we're on the topic of replacing Senators, the current process of passing the Senate seat to whoever is next in line (whatever rule is used) also subverts the proportional representation process, as the votes for the resigning senator are lost, and not transferred. With computerized counting, it's not difficult to simply rerun the election with resigned senators removed to preserve the votes of their supporters. One consequence of this would be that a resigning senator can potentially remove other senators from the Senate, depending on how those votes transfer.

Neither of these change would ever actually happen, of course. The senators themselves suffer drawbacks for both of them, so the major parties would never approve them, regardless of what it means for student representation.

posted by Beetle Aurora Drake 12/16/2008 08:09:00 AM #
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Friday, December 12, 2008
Stuff I asked

There's a Judicial Council case floating around which I filed last Tuesday (and apparently being ruled on a week before the election). Despite rumors floating around, ASUC officials weren't the ones who asked the Judicial Council to rule on all-online elections. In retrospect, I probably should have requested an expedited hearing (there's not actually a hearing), but I wasn't expecting this timescale. Though I've noted to the ASUC two years in a row that they have no recall election procedures, the By-Laws remained silent on the issue, so I had to ask some questions:

1) Are physical polling places required by the Constitution for special elections? To me, the legal answer is easy. The Constitution describes requirements for polling places at dining halls, and makes no mention of such a requirement being specific to general elections. Given that the rule was written before online elections, when recall elections would have had to have physical polling locations, I don't think there's any legal basis to suggest that the requirements weren't meant to apply to special elections.

That said, I wouldn't be enormously surprised if the Judicial Council approved all-online elections. I think it would be legally wrong but politically expedient to do so. One could, perhaps, argue that since physical polling locations are logistically impossible, the only way to hold the recall is to put it all-online, putting the Constitution in violation of itself. Waiting until next semester to make the ruling may make this argument even more valid.

2) What if there were no Elections Council? For much of the Fall Semester, there is no Elections Council, but an election has to be run by an Elections Council. What if the recall had happened earlier? Even now, there's only part of an Elections Council. If the Constitution requires the ability to run elections through an Elections Council, does that mean the current practice, which leaves the Elections Council vacant for part of the year, is unconstitutional?

3) Are campaign rules applicable? I've argued that recalls aren't initiatives, and so the rules applying campaign regulations to the Primary Proponent/Opponent of an initiative don't really apply. If those roles are filled anyway, what happens if a campaign gets 5 censures? In propositions, if the Primary Proponent gets 5 censures, the proposition is disqualified. Opponents cannot be disqualified for getting 5 censures, which suggests that there are no meaningful campaign regulations on proposition opponents.

This is sensible enough. A proposition has to have organized proponents, and their proposition can be punished for their actions. Opponents of the proposition need not exist or be organized, and automatically passing a proposition without it actually getting the votes needed to pass doesn't make sense, since they haven't proposed anything to be disqualified.

But in a recall, could a side be disqualified? I suppose proponents could be disqualified (making the recall automatically fail) for the same reason as with propositions. Could the opponents be disqualified? If, in defending himself from recall, a Senator breaks a bunch of rules, could he be thrown out without a vote? It seems at least slightly reasonable.

4) When do we hear the results? If this were a regular election, we'd have to wait a week to wait for the good faith deadline for filing Judicial Council cases to pass. This requirement doesn't specify itself as being specific to regular elections, so maybe it applies to the recall, too.

5) Who's next in line? I've talked about this here, though I hadn't yet considered the third approach by the time I sent in the charge sheet.

posted by Beetle Aurora Drake 12/12/2008 02:57:00 PM #
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Thursday, December 11, 2008
Recall Date

I'm vaguely hearing that the recall election is set for Jan. 26-27.

Update: Meghana points to the Daily Cal article which ends with:
The judicial council is expected to release its advisory opinion on how to conduct the recall election after the end of the semester on Jan. 19, senators said.

posted by Beetle Aurora Drake 12/11/2008 02:58:00 PM #
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Wednesday, December 10, 2008
Are recalls initiatives?

It has come to my attention that Attorney General Sinanian has been advising folks that the recall is an initiative, at least for the purposes of defining Primary Proponents and Opponents and for determining when the petition was turned in. While not bad policy, and perhaps the best we can salvage from election By-Laws which completely fail to consider recall elections, this interpretation isn't supported by anything right now. The Judicial Council may rule that such an interpretation is appropriate, as I have asked them about how these rules apply to recall elections, but it's premature right now to take it as decided.

Recalls are pretty clearly not initiatives. They are separately defined in the ASUC Constitution, and even have different voting dates (recalls within three meetings, initiatives at the next general election) and voting thresholds (2/3 for recalls, majority for initiatives). The recall petition was allowed to run online by the Judicial Council, which would be prohibited under the rules for initiative petitions. The election By-Laws conflate the initiative process (a set of rules for how petitions should be circulated) with initiatives (a constitutionally defined proposal), and suggest that the initiative process should also be used for Constitutional amendments (which are also separately defined from initiatives in the Constitution), but applying this process to recalls is a leap of faith already undermined by the Judicial Council's approval of online signature-gathering.

posted by Beetle Aurora Drake 12/10/2008 02:01:00 AM #
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Tuesday, December 09, 2008
Presentation to the Senate

A commenter named ambiguous cleared things up about what "technicality" Andrew Rittenburg was complaining about. Apparently, the proponents of the recall sent an e-mail to the Senate with the petition and (I assume) names before the Senate meeting. They argue that it was a "presentation to the Senate," which meant that the "next Senate meeting" was later that day. I suppose you could make that argument, but it doesn't strike me as particularly convincing. The Senate is public, so allowing people to "present" to the Senate in a nonpublic way seems to miss the point. Telling something to all Senators isn't telling the Senate as a whole anything. Arguing that getting the petition to the Senate a few hours before the Senate meeting makes that meeting the "next one" seems far more technical to me.

By the way, there's nothing stopping the Senate from scheduling the election for some time in December. The timing requirement is that it's scheduled for before January 28. If the date had been set last week, it would've had to be scheduled for before January 21. In both cases, the election would have to be "during the Spring or Fall semester." The Fall semester ends Dec. 20, and the Spring semester begins Jan. 13. If so inclined, the Senate could push the election back indefinitely by canceling regular Senate meeting, because the rule counts not in weeks but in regular Senate meetings.

It seems the largest obstacle is logistics, not when the election gets set. I doubt the ASUC would have been able to assemble an election by Dec. 20 even if it had been set last week. I have my doubts they'll be able to put it together by Jan. 28, for that matter, and I don't see how they would have been able to do it on Jan. 20, the first day of instruction.

posted by Beetle Aurora Drake 12/09/2008 04:32:00 PM #
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Why $50,000?

A commenter asks where the $50,000 figure for the recall comes from. The figure comes from the amount typically budgeted for spring elections. The idea is that, since all the same polling places and poll workers and advertisements need to be paid for, the cost will be the same. It's not entirely convincing. If the election is less than 3 days, then that's fewer poll worker hours, and if there are fewer poll locations, it's even less. There aren't any rules to answer these questions for special elections, so I would assume that setting the length is up to the Senate, and choosing the number of polling places (beyond the constitutional requirements) will be up to the Elections Council. Depending on how these questions are answered, (and the Judicial Council may have an important ruling on this soon) the cost could be somewhat less than $50,000. I don't, however, know the line-by-line budget of elections, so I couldn't say how much less the cost might be. For example, is paying the Elections Council included in that budget? If so, that's another cost that won't be added (although finding an Elections Council on such short notice may require higher stipends than usual).

Update: Also note that the Elections Council already has a budget. They don't need to wait for the Senate to give them money to put the election together. Instead, they'll need to ask for additional money after the election to run the general election in April.

posted by Beetle Aurora Drake 12/09/2008 12:47:00 PM #
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And me

As for my part in this, I'm going to be trying my best to dodge broad judgments about who wants what and why and what's right and wrong about this and that. My interest is pretty much all procedural, and so far, everyone stating an opinion on procedure seems to be an idiot. I don't want folks to come to view me as a supporter of certain sides just because they haven't stated idiotic opinions about procedure.

That said, I'm fucking awesome, and know a shitload about these sorts of things. So if you have questions which haven't been adequately addressed by the idiots you surround yourselves with, feel free to shoot them my way, either in the comments here or through e-mail.

posted by Beetle Aurora Drake 12/09/2008 02:33:00 AM #
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Who's on First?

Not really.

So who's next in line for a Senate seat if John Moghtader does get recalled? The answer isn't entirely clear. The Constitution says:
In the event of a vacancy in the ASUC Senate, the person receiving the greatest number of votes for Senator, who did not become a Senator, shall assume the vacated office.
What counts as a vote a Senate candidate received? With a single transferable vote, Senate candidates receive and lose votes throughout the process. At the end of the process, those who didn't win don't have any votes.

One answer is to give it to the last candidate eliminated, which has been current process. This year, that's Brad Froehle, who has said he won't take the position. After him comes Marcus Caimi (of Student Action). This can be read consistently with the Constitution if you say that the last candidate eliminated had, at some point, held the greatest number of votes among those who didn't win.

Still, there are many other ways to read it. If you count first place votes, for instance, next up is still Froehle, but the next in line after him is now Yuna Shin (also of Student Action). If you count number of ballots on which a candidate received a vote in some position, I believe it's Andy Kelley (CalSERVE). The whole vote transfer system breaks anyway, now that there's a candidate who absorbed a lot of votes (which didn't transfer) who isn't in the Senate. Should those voters get a say?

posted by Beetle Aurora Drake 12/09/2008 02:07:00 AM #
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El Recall: A wrong process

Andrew Rittenburg does (perhaps accidentally) raise an important issue about the recall process itself:
I call on you, John Moghtader, to make the right decision. You admit that the recall election will happen, you claimed you would receive just as many votes as you did last spring, but at what cost?
If he does receive as many votes as he did last spring, he may very well be recalled. He appeared on 825 ballots, so if 1650 folks vote for the recall it would succeed, and that's not an implausible number. Many of those voters have since graduated, as well, so the number is even lower. Obviously, he'll probably get more votes against the recall than this, but the point I want to draw attention to is this:

If the numbers of both his supporters and opponents are identical to what they were during the election, the recall could succeed.

This is an aspect of the proportional representation system. The whole point of a proportional representation system, and what differentiates it from winner-take-all systems, is that minorities can get representation. The point of a recall is so that an electorate can change its mind.

In a winner-take-all system, this works fine. A candidate needed a majority of votes to win, and if in a recall election, he no longer has that majority, maybe he should be removed. But that idea shatters in a proportional representation system. Even if no one changes their mind, recalls voted on at large can entirely remove minority representatives. If 2/3 of the electorate wanted, they could deny the other 1/3 any representation at all. This is why Moghtader's defense has focused on the fact that many of the recall supporters are those who disagree with him politically. Attempting a purge of political opponents through the recall process is entirely feasible in the ASUC's current system.

It would never happen, but perhaps the ASUC should reconsider whether the recall process is appropriate for the Senate.

posted by Beetle Aurora Drake 12/09/2008 01:53:00 AM #
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El Recall: Self-serving idiocy

Andrew Rittenburg wins the award for most self-servingly idiotic op-ed. It starts with a bang:
To what ends will we allow the ASUC to pick and choose what parts of their constitution they adhere to?
Normally, you would expect some examples of the ASUC refusing to adhere to some part of the Constitution. Instead, you get this:
With the 1,000 signatures necessary to obtain a recall vote on independent ASUC Senator John Moghtader, ASUC Attorney General Michael Sinanian discovered a technicality that allowed the senate to push the discussion of the recall to the next senate meeting, thus setting the election to January.
My interactions with Sinanian have suggested to me that he is utterly incompetent and plays it fast and loose with the truth, and I don't know what he said in that Senate meeting. What I do know, though, is that the requirement for the election to be set at the next meeting comes directly from the Constitution:
Any Senator may be subject to recall by presentation to the Senate of a petition signed by at least one thousand (1,000) students represented by that Senator and containing a specific statement of the reasons for the proposed removal.

At the next regular meeting of the Senate, the date(s) of the recall election shall be set in accordance with Article VII. At that meeting, the Senator shall be allowed to speak in his/her own defense.
(emphasis mine) The only people asking for picking and choosing which parts of the Constitution to follow seem to be the proponents of the recall.
We as a student body cannot allow the ASUC to protect John Moghtader behind trivialities and loopholes. In putting off the recall election until next year, the senate is postponing what is a pressing issue.
The ASUC should be worshipping the ground the time monsters walk on for the recall election being put off until next year. They are currently in the position of assembling a recall election, and as far as I know, they have no Elections Council, aside from the Chair and Attorney General. Did they really want the tiny fragment of the Elections Council to conjure an election out of their ass in a week or two right before/during finals?
The student body chooses its senators, not the UCPD. We vote for our representatives, and we have voted to remove one of them from power.
I'll have more to say about what is conceptually wrong with the recall process later, but, as Rittenburg was just complaining about, the election is next year. The student body hasn't voted to remove anyone.
Michael Sinanian claims that the recall election could cost as much as $50,000. If this is true, and the ASUC performs its duty in holding a recall election, then John Moghtader needs to choose whether his seat on the senate is worth that cost to the student body. The same student body that has already accrued over 1,000 signatures calling for his removal from the senate.
Well, if the student body wanted it, I don't see the problem with them carrying the cost. All of those signers needed to choose whether removing him from the Senate was worth that cost to the student body. But, of course, the recall petition and its publicity arm made no real mention of the fact that students were signing a form that could cost the ASUC $50,000. Are they really going to try to avoid taking any blame themselves for this cost?

posted by Beetle Aurora Drake 12/09/2008 01:41:00 AM #
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El Recall: The Daily Cal editorial concept

The Daily Cal isn't known for having deeply compelling and insightful editorials. Their comments on the recall have been even more mind-numbingly dumb than usual.

Last Friday, The Daily Cal wrote an editorial encouraging folks to reconsider the recall. Last Wednesday, the signatures for the recall were turned in (or so I'm told), provoking the recall election. You may notice that Wednesday comes before Friday. So it's great and all that the Daily Cal encouraged folks to reconsider the recall petition, but it might have helped if they had done so before it was already done.

Today, they continue a similar theme, complaining about that $50,000 bill. A real news organization would have been crawling over that fact and publishing it in the same news articles that announced the petition, so that folks could know about it when deciding whether or not to sign. Crying about it now, though, is just as strange as crying about it last Friday was. What other routes are they calling for?
For now, we can only hope Moghtader and the ASUC senate will thoroughly weigh their options before continuing.
Well, the Senate doesn't have any options. They have to set the election. Moghtader could, I suppose, resign, but why would he want to? The ASUC sort of fucked him over. How generous do you think he's going to be to the ASUC? Other than that, there isn't any flexibility.

posted by Beetle Aurora Drake 12/09/2008 01:29:00 AM #
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El Recall: Graduate Dinero

An issue that people should be talking about right now is how the Graduate Assembly fits in with all of this. In particular, how much of the cost of the recall election are they responsible for? The relevant parts of the current Memorandum of Understanding are:
For future academic years, the Graduate Assembly will pay either 12% of total election costs or a percentage of election costs equal to the percentage of voters in the Spring ASUC election who are registered graduate students, whichever of the two is greater.

Each year, the Graduate Assembly shall budget a sum sufficient to cover the base elections costs of the Graduate Assembly for that year based on the base election cost for the prior year. The Graduate Assembly shall be responsible for paying its share of the elections costs for an overall ASUC Election budget of up to $75,000.

If additional funding is required for ASUC Elections beyond $75,000, then a committee composed of the ASUC President, the GA President, the Chair of the GA Finance Committee, and the Chair of the ASUC Finance Committee shall convene. Any agreement coming out of these meetings shall pend approval of the ASUC Senate.
No one has been particularly careful about actually obeying most of the MOU, and my opinion is that anyone who doesn't like a result can just ignore it, but let's pretend like people care.

First, what percentage of the costs is the GA responsible for? The maximum of 12% and the percentage of votes in the Spring election, according to the text, but which one? Last year's? The one coming up this Spring?

The ASUC budgeted $48,000 for the Elections Council. If that has to be doubled (for example), this will shoot the total above $75,000, which will require meetings to come to some kind of agreement. This is complicated (or perhaps simplified) in the political arena by the fact that the people who ran the petition were law students, and thus their ASUC fees went to the Graduate Assembly. It would be the kind of joke we've come to expect from the ASUC if the GA still managed to get undergraduates to pay more of the bill than they would under the base terms of the MOU.

Anyway, if you happen to be one of the folks named there in the MOU concerning these meetings, you ought to be working on that.

posted by Beetle Aurora Drake 12/09/2008 01:21:00 AM #
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El Recall: Dinero

Why does it cost so much to run the recall election? Folks have been pretty generous about throwing around the $50,000 figure to get other folks to hate even more folks for not doing what the first folks want.

The Constitution sets rules for elections. For the most part, these rules don't specify anything about being specific to the general election in spring. This probably means that things like publicity and setting up polling places are required for special elections as well. Such things cost money, and the size and complexity of the ballot doesn't really add much in the way of costs. Thus, the cost of a special election isn't going to be much less than a regular election.

I've asked the Judicial Council to issue a specific ruling on this. I think the text makes it clear that the special election needs to be held in the painfully expensive way the Constitution requires, but they may make a politically expedient decision.

posted by Beetle Aurora Drake 12/09/2008 01:17:00 AM #
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You fucking idiots

Unbelievably, I'm forced to yet again start blogging. I'll keep it light and temporary, but the people who are talking about the ASUC are so unbelievably idiotic that I can't help but step in.

posted by Beetle Aurora Drake 12/09/2008 01:14:00 AM #
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