[R4R] When is an Election Commissioner no longer a Candidate for the Purpose of Section 4.3.15

1. What law, government policy, or action (taken by a government official) do you request that the Court review?

The exsclusion of myself in the review of votes for the May 2022 General election after declaring candidacy and withdrawing from the race by the Election Commission Supervisors.


2. What portions of the Constitution, Bill of Rights, Legal Code, or other legal document do you believe has been violated by the above? How so?

Section 4.2.7 "Candidates" are those citizens who, during the period of the election designated for candidacy declarations, declare themselves or accept a nomination by another citizen as a candidate for an office to be chosen at that election.

Section 4.2. 10. An "absence" in an office means that the holder of the office is by law temporarily prevented from exercising the duties of their office. An absent officer may be replaced for the duration of their absence as provided by the Constitution, this Legal Code, or a rule adopted by the appropriate body.

Section 4.3.15. An Election Commissioner will be considered absent during any election in which they are a candidate, or during which their term started or is scheduled to end. Absent Election Commissioners may not supervise an election or participate in any decisions made by the Election Commission as a whole.


From the above laws, two interpretations are presented. The first is that I am no longer a candidate because I withdrew from the race. The law reads "An Election Commissioner will be considered absent during any election in which they are a candidate, or during which their term started or is scheduled to end." It doesn't say "are or were". Thus I am not Absent because I am not Actively a candidate in the race.

The second is that 4.3.15 incorporates the definition of Candidate that does not consider withdrawals. Thus under 4.2.10 and 4.2.15 I am considered absent from the duties as Election Commissioner for the entire period of the May General election and cannot be suddenly available due to my withdrawal. Specifically, 4.2.15 states that an Election Commissioner is absent during any election in which they are a candidate. A Candidate is defined as any citizen who declares or accepts a nomination during the period for candidate nominations. It does not account for withdrawals in the definition of candidate. Thus a strict interpretation of the Candidate definition would preclude my participation in the verification of the race I participated in.



3. Are there any prior rulings of the Court that support your request for review? Which ones, and how?

N/A

4. Please establish your standing by detailing how you, personally, have been adversely affected. If you are requesting a review of a governmental action, you must include how any rights or freedoms of yours have been violated.

I am a candidate and Election Commissioner. As an Election Commissioner, improper use of my position opens me to criminal charges and/or recall by the Regional Assembly. With the question of interpretation of my ability to execute my duties as Election Commissioner, places both the Election Commission Supervisors for the March 2022 Election and myself in a position where a misstep can call into question the entirety of the Election and open us up to Criminal Charges.

5. Is there a compelling regional interest in resolving your request? If so, explain why it is in the interest of the region as whole for your request to be decided now.

The proper supervision of elections is vital to the regional interest in fair and impartial elections for members of government. Confusion on when an Election Commissioner is considered present for an election can lead to further issues and compromise regional security.

6. Do you have any further information you wish to submit to the Court with your request?

Since the matter at hand is a matter of interpretation and not facts, I ask for an abbreviated briefing period if accepted.

As an Election Commissioner that was in consultation with Dreadton about this issue, I will be recusing myself from the bench on this one.

This request for review is accepted. I will be taking up the position of Moderating Justice over this review.
The period for submitting briefs is now open and shall remain open for one day. The respondent will be notified as per Court Procedures Chapter 2.3-4.
With Justice Sil recused from the bench, the Court appoints @TlomzKrano as a Temporary Hearing Officer.

As there are no facts in dispute and this matter is one of how the law should be interpreted, I will offer no brief outside of my application for this R4R. I remain availble for any questions the court may have.

Brief

May it please the court,
I will keep this short.

On Standing

The petitioner's standing on this matter is sound, as they would have been the subject of one of two potential outcomes: As the owner of the counting spreadsheet, either I temporarily permitted them potential access to information that they were not entitled to, (although there was no ballot data in the spreadsheet, as all of this occurred two hours before voting opened,) or I am presently denying them access to information that they are entitled to as part of their role as Election Commissioner.

My original decision was to not recognize Dreadton as absent from the Election Commission and to permit them Commenter access to the counting spreadsheet for the general election, since they withdrew from the ballot. After Dreadton consulted with me concerning the issue, I reversed the decision and blocked them from the sheet.

Either way, one of these two actions, taken in my capacity as a government official, was incorrect, and Dreadton was affected by it. We do not even need to address regional interest.

The Letter of the Law

In my original assessment of the situation, I was so laser focused on interpreting LC 4.3.15 that I completely forgot about LC 4.2.7 until Dreadton submitted this request for review. After seeing that, I believe Dreadton accurately describes a situation caused by what ultimately amounts to imperfect wordsmithing. The definition of a Candidate, as per LC 4.2.7 and if we took it at the strictest interpretation possible, would suggest that a candidate with withdraws from the ballot is still a candidate, just that they won't be on the ballot. Therefore, Dreadton would continue to be absent from the Election Commission.

The Spirit of the Law

However, back to my original assessment, I believe the purpose of LC 4.3.15 to be two-fold. First, it is to ensure that no one who is actively seeking an elected position in the election has the capability to influence the result of the election through their role as Election Commissioner, whether that be through matters such as responding to a citizen petition or certification of the election. The point is to not let a commissioner tip the scales in their favor.

Secondly, and although this may be an after-the-fact reasoning, the law keeps commissioners running in the election from seeing sensitive private ballot data. As was implemented in an Election Commission Rules change in August of 2018 (https://forum.thenorthpacific.org/topic/9188224/), commissioners who are not absent are able to view who submitted a private ballot and what those votes were, so that they can contribute to verification and certification efforts. Maintaining the anonymity of a private ballot protects the concerned voter from future retaliation by a jilted candidate, but with Dreadton off the ballot, for what reason would they retaliate? For not voting for their other preferred candidate? That would be no worse than what every other commissioner has the capability to do, and so there is no extra level of security gained.

Since Dreadton withdrew from the ballot, no further conflict of interest, for which the law was intended to protect against, exists. Therefore, common sense would dictate that it is permissible for a commissioner that withdrew from the ballot to resume their original duties.

Should the court, however, choose to strictly follow the letter of the law, a legislative fix for the definition of a candidate would be hilariously simple, and one that I will likely submit regardless unless Dreadton beats me to it.

Brief

If it pleases the Court, I offer my assistance in resolving this matter through this brief.

The Issues

Two issues are raised in the request. The first concerns the Legal Code’s requirement that “An Election Commissioner will be considered absent during any election in which they are a candidate” (Legal Code of The North Pacific, Section 4.3, clause 15).

The second raised concerns the meaning of “candidates” as defined by the Legal Code: “citizens who, during the period of the election designated for candidacy declarations, declare themselves […] as a candidate for an office to be chosen at that election” (Legal Code of The North Pacific, Section 4.2, clause 7).

This brief will be structured to address those issues in the reverse order to that in the request, as the resolution of the second could determine the first.

It will be submitted that, having regard to the language of clause 15 and the purpose it serves, the Petitioner’s argument that the effect of this provision is that they are no longer considered absent, having withdrawn their candidacy, is correct. Conversely, it will be submitted that the alternative argument raised in relation to clause 7, effectively that withdrawal does not affect candidacy per se, does not reflect the true position. Given those arguments, it will be submitted that the Court should grant relief in the form of a declaration that the Petitioner is not to be considered absent in relation to the present general election.

“Candidates”

The resolution of the meaning of “candidates” could determine this review. If it is the case that it does not account for the possibility of withdrawal, there would be no need to consider the question of whether or not the provision deeming the Petitioner to be absent only applies while they are still a candidate or continues upon withdrawal, as they would still be a candidate.

While it is true that the definition of “candidates”, on first inspection, does not appear to account for withdrawal, it is submitted that this interpretation would not adequately reflect the provisions of the Legal Code concerning candidacy and withdrawal when taken as a whole.

Two particular provisions are useful to demonstrate this. First, Section 4.4, clause 25, which provides:

Legal Code of The North Pacific - Section 4.4: Overall Election Law:

Candidates for that race whose names appeared on the first ballot will retain their candidacy unless they choose to withdraw.

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By virtue of this clause, candidates in re-opened nominations remain candidates. However, this is conditioned on them not choosing to withdraw. Thus, if they do choose to withdraw, it is submitted, they no longer retain candidacy and so cease to be candidates. It would be anomalous for some withdrawals to maintain candidacy and others to not. It is submitted that, in truth, the effect of withdrawal is the same whether at re-opened nominations or another point and that clause 25 reflects the general position when candidates withdraw.

Second, section 4.4, clause 21, which provides:

Legal Code of The North Pacific - Section 4.4: Overall Election Law:

21. Candidates may withdraw from the ballot anytime during an election.

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This clause allows withdrawal at any time. While it is accepted that it does not say in terms that a candidate ceases to be a candidate on withdrawal, it is submitted that that is the effect of this clause when considered in the light of previous decisions of the Court. In a number of decisions the Court has held that it is the right of a candidate to be included on the ballot (extracts below). It is apparent from these decisions that a fundamental feature of candidacy is inclusion of the ballot and, it is submitted, it can be properly inferred that withdrawn candidates (who do not appear on the ballot) are, in truth, no longer candidates. This, it is submitted, also fits best with clause 25.

On Leaving a Candidate’s Name off the Ballot:

It is the belief of the Court that the accidental omittance of a Candidate from the Ballot does in fact violate that Candidates Rights under Section 9 of the Bill of Rights.

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On Restarting Voting Periods:

The omission of a valid candidate's name from the ballot, the Court found previously, is in violation of Article 9.

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On the Need for Further Clarification on Restarting Voting Periods:

The exclusion of a candidate's name on an election ballot infringes upon their rights as defined in Section 9 of the Bill of Rights, as seen in the Court ruling on the powers of Election Commissioners.

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Further, it is submitted that other provisions in law go to demonstrate that the definition in clause 7 does not represent a full picture of who is a “candidate”. One is the Constitution’s requirement that candidates must maintain citizenship during the election and the fifteen days prior to it (Constitution of The North Pacific, Article 6, clause 14). Is it the case that a citizen who declares candidacy but who only became a citizen on the last day of candidacy declarations is a “candidate” within the meaning of clause 7, despite the Constitution’s requirement? It is submitted that they, in truth, never become candidates. Another arises from restriction on standing as a candidate arising as criminal punishment (Legal Code of The North Pacific, Chapter 2, clauses 4 and 5). Again, is a citizen sentenced with such a restriction but who declares candidacy considered a “candidate” within the meaning of clause 7, despite their sentence? Again, it is submitted that the true position is that they never become a candidate.

Taking these provisions together, it can be readily seen that the definition in clause 7 does not on its face account for other provisions concerning withdrawal or invalid candidacies. However, those provisions and the definition must be taken together to create a wholistic and workable law for elections. The proper approach to that is to recognise that a candidate who withdraws ceases to be a candidate. It is submitted also that the brief filed by Sil Dorsett goes to demonstrate that the policy and purpose of these provisions supports such an approach.

“Are a candidate”

If the Court agrees with the submitted approach to the definition of “candidates”, the Court must then consider the effect of the requirement to consider absent Election Commissioners who “are” candidates.

This is a straightforward issue to resolve. The requirement is framed in the present tense as a applying to a Commissioner during an election where they “are a candidate”. The law could, as the Petitioner rightly notes, apply to elections where they “are or were” a candidate or some similar form of words but it does not. Consequently, where a candidate withdraws and so ceases to be a candidate, they also cease to be consider absent. Moreover, it is submitted that the policy and purpose of the provision, again for the reasons set out by Sil Dorsett, does not require the Court to depart from the plain wording of the law.

Conclusion

It is submitted that, for those reasons, the Court should find that the Petitioner ceased to be a candidate when they withdrew from the election and, therefore, ceased to be considered absent as an Election Commissioner. The Court should, therefore, grant relief in the form of a declaration that the Petitioner is not to be considered absent in relation to the present general election.

Unless I can be of further assistance, those are my submissions.

The time for briefs is over. The Court will now deliberate.

The Court took into consideration the inquiry filed here by Dreadton

The Court took into consideration the legal brief filed here by Sil Dorsett

The Court took into consideration the legal brief filed here by Zyvetskistaahn

The Court took into consideration the relevant portion of the Legal Code of The North Pacific.

Chapter 4: Election and Appointment Procedure

Section 4.2: Election Law Definitions

7. “Candidates” are those citizens who, during the period of the election designated for candidacy declarations, declare themselves or accept a nomination by another citizen as a candidate for an office to be chosen at that election.

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10. An “absence” in an office means that the holder of the office is by law temporarily prevented from exercising the duties of their office. An absent officer may be replaced for the duration of their absence as provided by the Constitution, this Legal Code, or a rule adopted by the appropriate body.

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Section 4.3: The Election Commission

15. An Election Commissioner will be considered absent during any election in which they are a candidate, or during which their term started or is scheduled to end. Absent Election Commissioners may not supervise an election or participate in any decisions made by the Election Commission as a whole.

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Section 4.4: Overall Election Law

21. Candidates may withdraw from the ballot anytime during an election.

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24. Should a majority vote to reopen nominations for a given race, a further two days will be provided for candidacy declarations.

25. Candidates for that race whose names appeared on the first ballot will retain their candidacy unless they choose to withdraw.

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The Court took into consideration the Rules of the Election Commission.

The Court took into consideration prior rulings by the Court here, here, and here.

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The Court opines the following:

On Standing

The petitioner is a member of the Election Commission and was a candidate in the May 2022 General Election, until he withdrew from the race. He was then temporarily given access to the commission’s counting spreadsheet before the Chief Election Commissioner revoked that access and treated him as absent from the Election Commission after the petitioner expressed his concern with the legality of allowing him to continue to serve. There is no question of proper standing in this case.

On the Definition of a Candidate
The Legal Code defines candidates in elections as citizens who declare themselves candidates or accept a nomination for office during the candidacy declaration process. The petitioner was a citizen who declared himself a candidate for Delegate in the May 2022 General Election. According to the Legal Code’s definition, he was a candidate. Clearly, in both the logical and legal sense, he was a candidate for office. Because the petitioner also served on the Election Commission, he was considered absent from the commission by virtue of being a candidate for office. The following day, he withdrew his candidacy while the declaration process was still ongoing. Initially he was permitted access to the commission’s spreadsheet, as he was no longer a candidate, but the petitioner felt that his candidacy status was in doubt as a strict reading of the Legal Code’s definition for candidate could be construed to still consider himself one despite his decision to withdraw. The Court is therefore asked to confirm whether or not a candidate who at first declared his candidacy for Delegate but then withdrew from the race is nonetheless still legally a candidate for office. We find that a candidate who withdraws from an election is no longer a candidate for office.

The Court has previously ruled on questions concerning the proper administration of elections. It has always held that to leave a candidate’s name off the ballot would be a violation of the candidate’s rights under the Bill of Rights. Elections have been restarted for missing a candidate’s name, even when that error was caught early and the ballot was amended to add the missing name, as happened in our ruling On Leaving a Candidate’s Name off the Ballot. For us to rule that someone is still legally a candidate despite their having withdrawn from the race would create a bizarre scenario: either the candidate would need to be added to the ballot, despite a clear preference not to be on it, in which case we would need to restart an election to have it added; or we would allow the election to continue and create a type of candidate that can be left off a ballot, but can still affect other portions of the Legal Code that have to do with candidates.

On Implicit Provisions

The question before the Court is an example of reading too much into explicit provisions in the Legal Code without consideration to its implicit ones. While it is important to be careful when attempting to assume what the law actually means when such meaning may conflict with a plain reading of the law, we must also recognize when what is written in the law involves implicit impacts that need not be explicitly stated. As was argued in the brief filed by Zyvetskistaahn, the definition of candidate in the Legal Code does not need to explicitly carve out individuals who have not been citizens long enough to qualify for office, or who are judicially barred from being citizens. Other provisions in the law make it clear that such citizens would not qualify as candidates, despite the definition of citizen making no mention of these scenarios. Similarly, everyone would agree that despite no formal process being laid out for the resignation of government officials, they may nevertheless resign from their offices, and would not continue to be considered occupants of their office just because the provisions establishing their powers and parameters do not mention the possibility of resignation.

The Legal Code contains explicit provisions about withdrawing candidacy: one that permits withdrawal to happen at any point in an election; and one that excludes candidates from being included on the ballot when a majority votes to reopen nominations if they withdraw from the race. The first provision, as can be seen when reading back the RA’s debate of the Legal Code amendment that led to this wording, was designed to eliminate situations where withdrawal led to restarted elections, and avoided specific periods where withdrawal was allowed and others where it was not. Clarity in language helped facilitate the goal of avoiding unnecessary disruptions in elections. The second provision eliminated the confusion candidates may have as to whether or not they should re-declare their candidacy if a majority voted to reopen nomination. Requiring this, or automatically including the same candidates on the re-opened ballot, are both reasonable ways to handle the situation, so one solution was chosen to avoid any doubt.

The fact that these provisions are explicit should not be construed as signifying something is missing from the definition of candidate. In both cases, an implicit feature of elections, the ability of candidates to withdraw, was made explicit to help citizens better understand how to navigate potentially tricky situations, not because there is an assumption that withdrawal must be directly addressed and spelled out in great detail as a general rule. A candidate can obviously withdraw their name from a ballot, and therefore cease to be a candidate.

On Absences from the Election Commission

Election Commissioners who are candidates for an office are considered absent from the commission. Since the petitioner withdrew his candidacy, he was no longer a candidate when he was permitted access to the commission spreadsheet. Therefore, we find that the Chief Election Commissioner’s revocation of the petitioner’s access to the commission’s tools was made in error, as the petitioner should not have been considered absent from the Election Commission. As a current member of the Election Commission, and one who is not barred from service in any other way, the petitioner should have his access to the commission’s spreadsheet restored and continue his service on the Election Commission.

I am grateful to the Court for its wise and timely ruling.

Thanks for a prompt ruling.

Dreadton's access to the counting spreadsheet has been restored. I thank the court for its time.