2006 SJ Ord. 15, p.1

ON PETITION FOR REVIEW

Cite As: 2006 SJ Ord. 15

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

On Petition for Review.

JUSTICE THOMSON, with whom JUSTICES LEONARD,BRUSDA, and TYACK join in full, announces the Order of the Court.

VICE-CHIEF JUSTICE HODGSON, with whom JUSTICES MOEand THOMSON join in full, filed a concurring opinion.

CHIEF JUSTICE FOXconcurs in the Judgment only without Opinion.

MARK THOMSON, Student Justice. ¶1. The Spring 2006 Elections were plagued by numerous technical difficulties, prompting their cancellation and rescheduling on multiple occasions. Early on in this process, the Student Judiciary affirmed the Student Election Commission’s (SEC) decision to run separate ballots for initiatives and candidates. This Court further affirmed the SEC’s decision to continue running the referenda regarding the initiatives following its decision to re-run elections for ASM political offices (2006 SJ Ord. 14.). ASM Members Frey, Hetzel, Varney, and Wise filed a Petition to Review an Act of the Student Election Commission, pursuant to Rules 16-19 of the Student Election Commission Rules of Procedure. The Petition alleges that, since 436 cast votes went uncounted during the referenda, the initiative portions of the ballot ought to be re-run. While the 436 could not possibly have altered the outcome of the referenda, the Petition asserts that the constitutional violations, in and of themselves, are enough to require a new election.

¶2. The right to vote, and to have one’s vote counted, necessarily comprises the foundation of all democratic governmental systems. Within ASM, for example, absent the student body’s unrestricted access to the ballot, few (if any) of the Objectives listed under Article III of the ASM Constitution would be realizable. It seems unnecessary to elaborate further upon the significance of the right itself, or to elaborate upon the considerable implications of the issues before this Court.

¶3. The textual sources of an ASM member’s right to vote are the explicit guarantees in Article XII, section two and Article XIII, section three of the ASM Constitution, and the similar guarantee contained in Section VI, subsection 6.05, clause A of the ASM Bylaws, in addition to the obvious, implicit guarantees of the right elsewhere in ASM’s governing documents (in Article III of the ASM Constitution, for example). An ASM member’s right to vote is not determined by the potential effect his/her vote might have in shaping the outcome of a particular election (to say otherwise would be to endorse exactly the sort of effect-oriented, substantive Due Process which this Court has repeatedly declined to incorporate into its jurisprudence). All of this is to say that the right of qualified ASM members to vote in ASM elections is unconditionally guaranteed by both the ASM Constitution and the ASM Bylaws. Therefore, any denial or abridgement of an ASM member’s right to vote constitutes a direct violation of that member’s constitutionally and statutorily protected rights. It is the affirmative obligation of this Court to remedy any and all violations of this sort (ASM Constitution, Article IV, section two; ASM Bylaws, Section V, subsection 5.02, clause A).

¶4. Proceeding from these textual bases, we find that the only legitimate solution to the problem before us is the re-running of elections for all initiatives that appeared on the first and second ballots during the 2006 Spring Elections. 436 ASM members were, through no fault of their own, denied their legally secured right to an effective vote in these matters. Disenfranchisement of this sort constitutes precisely the type of Due Process violation which the ASM Constitution charges this Court with upholding (ASM Constitution, Article IV, section two). The importance of the right infringed upon makes remedying the situation all the more imperative. Consistent with the absolute primacy of the right to vote within ASM’s established democracy, each member’s right to vote must be safeguarded absolutely, irrespective of the effect that member’s vote may have had in any of the elections.

¶5. Practical difficulties may result from this ruling. The several thousand votes which were accurately processed during the initial phase of the election will be nullified. The harm brought about through this negation, however, is easily remediable by means of re-running the election (thus allowing the individuals whose votes were nullified to vote again). Significantly, such a remedy in no way infringes upon any rights to which those who voted in the initial phase of the election were legally guaranteed. By contrast, to let the results of the election stand “as is” would be to disregard the definite constitutional harm done to the 436 ASM members whose votes for various initiatives went uncounted. As between these options—either imposing a legally permissible burden on one group of people or condoning a serious violation of the rights explicitly guaranteed another group—we are constitutionally obliged to re-run the elections, thereby ensuring that all individuals receive the process guaranteed them by the ASM Constitution and Bylaws.

ORDERS OF THE COURT

1. IT IS ORDERED that the Spring 2006 Election regarding initiatives be INVALIDATED due to constitutional violations;

2. IT IS FURTHER ORDERED that the two initiatives on the ballot for the Spring 2006 Election be CERTIFIED for the Fall 2006 Elections. No additional work on the part of the initiative sponsors need be done. The initiatives shall be placed on the Fall 2006 ballot.

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

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AMBER HODGSON, Vice-Chief Justice, with whom Justice MOE joins in full, concurring. ¶6. The SEC held an emergency meeting once it was made aware of errors that were occurring with the first elections. At this meeting, the SJ and SEC were told of errors with the candidate portion of the election, but were assured the initiative votes were salvageable and able to be counted. With this information the SEC and the SJ decided to split up the ballot, with the initiatives to continue the next day and the candidate elections to be held the following week. The second round of candidate elections was forced to be canceled due to more errors. At this time, the SEC and the SJ were made aware that there were indeed errors in the initiative elections. We cannot ignore this fact. While I cannot speak for the entire Court, it is hard to fathom that had they had this information (that both elections were indeed flawed), the outcome would have been the same. It seems absurd to say that they would have decided to split up the ballot, run a new flawless candidate election, but continue on with a flawed initiative election. It just does not seem plausible. It is with this new information and the proof that the initiative election was flawed, that I believe the initiative election be re-run. I think it would be safe to say that had the SEC and the SJ had this information at the very first meeting, this more than likely would have been the outcome.

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Nicholas J. Fox, Chief Justice, concurs in the Judgment only without Opinion.

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Published: 9 April 2006, 9.30PM

Attest: /s/ NJF