punditry.ca — uncovering DSU elections

With two candidates disqualified – and the results of both races changed as a result – now would be a good time to review the process of disqualification.  Some of these points came up in notes at the end of the results post; this is a more detailed treatment.  It’s tough to comment specifically on Arron and Beale because the exact nature of their disqualification has not yet been announced (this is entirely reasonable; in addition to such delays being permitted, on a day when the EC is busy trying to actually run the polls, it’s entirely reasonable for them to ask for a little time to assemble the details of their decision.)  Where possible I have marked such comments in italics.

The short version is this: disqualifications could not be announced or even discussed publicly until polls closed by rule. Disqualifications can be appealed to the Elections Committee within the next 3-4 days, as up to this point they could not include much of the candidate’s side of the story in their deliberations because of the ban on discussing the charges outside the Committee.  If the candidate is not satisfied with their decision on appeal, they can take it to the Judicial Board within 5 days of receiving the appeal decision.  The JB is essentially the final word on the matter.  The CRO will likely be invited to submit to the JB.  They will hold a hearing of some form (within 2 weeks), and within one month of the hearing will produce a written decision (possibly with dissenting opinions).  Maximum time is almost 8 weeks, though in practice it will likely be less.

For the longer version, read on!

First, to understand the process we must share a common assumption: the rules are in place to ensure a fair playing field for candidates.  While not perfect, the goal is unambiguous: they are not there to be a technicality that interferes with a fair and open election, but rather are there to protect fair and open elections.  The Elections committee is charged with protecting democracy, not stifling it.  The rules do things like prohibit “insiders” from using resources they uniquely have access to to support their campaigns.  They prohibit candidates from using the society mailing lists they have access to that others do not.  They bar candidates from “buying” the elections by spending large amounts of money on campaign materials.  When the candidate you supported is disqualified it’s never easy to handle, but as someone with no horse in this race, believe me when I say the goal is always to protect the legitimacy of the elections.  An election without rules could not be legitimate.  An election where rules are not enforced could not be legitimate.  We can bicker all we want about individual rules, and whether or not they were correctly applied, but if you can’t bring yourself to believe the system is designed to be fair, I cannot help you.

The Elections Committee enforces the rules written in the Constitution, and is empowered to establish and enforce additional rules, particularly those that govern online campaigning.  (This allows the rules to update in response to new online media without requiring Constitutional amendments). Candidates are responsible for knowing and following the rules, and are also responsible for the actions of anyone they ask to help them. Violations of the rules result in a fine; some fine amounts are written in the Constitution.  Things like pre- or post-campaigning are $20 per incident, illegal posters are $5 per incident, and so forth.  For other offences, the committee can levy a fine of up to $50 at their discretion.  Accruing too many fines – $100 worth – results in automatic disqualification, essentially meaning they broke too many rules for there to be a fair election.  This allows the election committee to deal with incidents on a case-by-case basis and not have to make a judgment call on how much is too much: the limit is clearly established.  A final class of offences result in automatic disqualification, like violating campaign finance rules or tampering with official posters.    The fines and threat of disqualification are mostly there to act as a deterrent.  At this they are mostly effective: since the current set of rules was put in place, very few candidates have been disqualified, and no disqualifications have changed the outcome of an election.

In the case of Arron, fines of $80 had been posted as of yesterday.

Once a fine is assessed, the Committee must make available the details of the violation, they must notify the candidate, and the fine must be posted to the door of the Elections Office.   A candidate is considered “informed” of the fine 6 hours after notice is posted.  The exception is if that fine would lead to an automatic disqualification.  In that case, the charges, the discussion, and the fine must not become public until polls close.  This allows the election to continue without being influenced by the disqualification of a candidate, in case of a later appeal.  The disqualification can be announced any time after polls closed (indeed, candidates have been disqualified the next day).

In the case of Arron/Beale, it’s not entirely clear if the 6 hours starts from when it was announced at the results announcement, or from when they receive written notice.  I imagine they would be given the benefit of the doubt and the clock would start when they receive(d) written notice.

Any decision or sanction can be appealed.  A candidate must first appeal to the Elections Committee within 72 hours of when they are “informed”, which is 6 hours after the notice is posted.  It may seem strange to appeal to the same body that has already ruled against you; this process is designed to allow the candidate to submit additional information that may exonerate them.  Because disqualification decisions are not public and must be discussed in camera, the candidate likely hasn’t had much of a chance to respond to the allegations.

It should be noted that an automatic disqualification due to exceeding the fine limit can only be appealed by appealing the individual fines and having enough overturned so that the $100 limit is not breached.

In the case of Arron/Beale,  the clock is already ticking on the appeal period for some of those fines; if their problem really is exceeding the maximum fine amount, some of the earlier fines may be easier to appeal.  In this case the 78-ish hour window would be substantially shorter.  Edit (thanks Tim for the question): Even if the Elections Committee rules it is not appropriate to consider the appeal of earlier fines as the time period has expired, the Judicial Board has broad discretion to revisit earlier decisions to ensure procedural fairness, and can revisit whatever they damn well please (Edelstein v. Elections Committee [2005]).  The fines are not unappealable, the only question is to whom can they appeal.

If they are not satisfied with the outcome of the appeal to the Elections Committee, the candidate has 5 days to file an appeal with the Judicial Board.  The JB was selected months ago in a hopefully apolitical process and exists to be both a resource and an arbiter of disputes regarding interpretation of the various governing documents of the DSU.  The Judicial board is a three-person team, including one law student in their third year of study who chairs the Board, plus two other law students (preferably 2nd or 3rd year students). They are required to not be involved with the DSU (not a councillor, not a Board member, not on a committee, not employed by the DSU, etc.); the goal is for them to operate as a almost entirely independent body.  [thanks Ben for the question].

They will conduct a hearing ”in accordance with the principles of administrative law”; in the past, this has involved written submissions from the candidate, the Elections Committee, and potentially other parties (witnesses or other candidates, for instance).  The JB has also given the candidate and the EC a chance to review the other submissions and file a response.  The hearing must be conducted within 2 weeks of the formal filing of the appeal; there is no requirement that it be in person.  Within one month from the hearing, written decisions must be provided to the DSU president (possibly with dissenting opinions).

It should be noted that a past JB decision dictates that the Elections Committee is practically compelled to actively defend their decision to the J.B., and makes it clear that this is not unfair or prejudicial to a single candidate.  For the JB to render an informed and fair discussion, the EC must offer evidence to support their original decision.  They will do this not to persecute either candidate, but rather to protect due process.

Timeline: For these cases, assuming written notice goes out tomorrow at noon, there remains: 78 hours to file an appeal + unspecified Elections Committee deliberation time + 5 days to file an appeal + 2 weeks to convene a hearing + one month to produce a written decision.  This means the matter will be resolved at the latest in the better part of 8 weeks, somewhere in the middle of April.  By rule and tradition, the current executives should be transitioning their successors as declared by the Elections Committee until the decision is overturned, or May 1st, whichever comes first.

Of course that’s the maximum amount of time; in practice, many of those steps can be completed sooner.  In the 2005 case, the results were announced on March 10, the candidate disqualified on March 11, the JB appeal was filed on March 16, the CRO was asked to file by March 21st, each party was asked to respond to the other’s filing by March 28th, and a written decision was released on April 4th: 25 days or so.  That is a reasonable timeline to expect.  It will be even faster if the candidates/EC/JB can focus on the appeals because their professors are on strike, so… silver lining there, I guess.

May calm and reasonable discussions and heads prevail in the days to come.