Legally speaking, the fact that a retroactive counting of El Fiji Grande's ballot would not change the winners of the election is irrelevant to whether or not we are empowered to change the results. The law makes no distinction in that regard. All it means is that by voting to correct it, we do not call the legitimacy of any of the Court Justices into question, which does make it far more expedient. The Rules of the Election Commission regarding this matter (section 6) seem to presume that any citizen petition would be submitted and processed during the voting period, as all the options are written so as to account for the Commission deliberating and choosing a course of action while voting is ongoing:
2. When [a citizen] petition is submitted, the Election Commission at large will promptly vote between the following options:
a. Uphold the decision of the Election Supervisors
b. Overrule the decision and continue the election
c. Overrule the decision and restart the voting period
d. Overrule the decision and restart the election
However, it is not necessarily incorrect to simply read those provisions as simply accounting for contingencies and not as presuming that petitions must be submitted before voting is over. The rules do not specifically state that citizen petitions must be considered during voting at all; it seems as though it was simply assumed that they would be by the creator of the rule. Unhelpfully for determining intent in that regard, the issue is never discussed in the thread where the EC
adopted the current ruleset.
As for the Legal Code, it is also written in a way where it seems to presume that all citizen petitions would be submitted during voting, but like the EC rules that does not really mean that they may only be considered then, because it does not actually specify that (or any other time) as a time period during which petitions may be considered. This may be because the language in both the Code and the EC rules was created by the same person. The relevant provisions are:
18. Any citizen may petition the full Election Commission to review a decision made by the Election Commissioners supervising a given election. If necessary, the election may be halted while the Election Commission decides how to proceed.
19. If the full Election Commission determines that the actions under review are not in compliance with the law or their adopted rules, they will have the power, by majority vote, to overrule them. If deemed necessary, they will also have the power, by majority vote, to restart the election, or designate different commissioners to supervise the election.
Unfortunately, the thread in which the current EC system, as well as the citizen petition system, is adoptive, is
equally uninstructive as to the legislature's intent as the EC rules adoption discussion is. Again, though, neither the Legal Code nor the EC rules expressly limit the time during which the results can be changed to before they are certified, which seems to be the view that has motivated the opening of this vote and that was pointed out by Fregerson on Discord.
The question of whether already-certified results can be amended has more thorny implications with outcomes which are very consequential for citizen petitions where the true winners of the election are at stake. The process behind choosing office-holders by election is that there is the election itself, and then the winners of the election are declared and take their oaths of office. This process is defined in section 4.1 clause 2 of the Legal Code:
2. All elected government officials will be required to take the Oath of Office within one week of their election, as certified by the Election Commission.
If we were to assert that we can amend the results after they are passed (which seems to be what is happening), we would be essentially asserting that for any election we have the power to alter who was elected, and that we have the power to do so at any time. Then, in accordance with the provisions of this clause, the individual who we newly declared to be elected would be required to assume their office (that they initially were certified to have lost), and the oath of the previous officeholder would be declared invalid. The problem is that the oath would have been entirely valid at the time it was taken, because it was based on the electoral results as certified by the EC. They may not have been the rightful winner of the election, but the law is very clear that the person who takes the oath and assumes the office is the winner
as certified by the Election Commission.
So the question becomes: do we have the power to retroactively declare a valid oath to be invalid because we miscounted the results of an election or not? I have previously doubted that this is the case, but right now I am inclined to say that it is possible. This would not be not the removal of a government official from office by recall or disqualification (i.e. abandoning office, losing citizenship, removal by criminal sentence), this would be a declaration that an officeholder is not legitimately in place, and that they were only legitimately in place because the Election Commission made a
legal error in counting the votes. The oath would have been legal because it was based on the certified results, but the certified results were wrong and required correction. Additionally, if we fail to properly respond to a citizen petition, the petitioner has every right to request judicial review to make that correction for us, ending up with the same result (and possibly invalidating someone's oath of office.)
Obviously, El Fiji Grande's ballot ought to have been counted. As I also believe that we are empowered to retroactively alter the results of an election, I vote for option (b), to overrule the decision of the election supervisors and continue the election (although there is none to continue
.)
