According to an e-mail from Judicial Board Chair Shouvik Bhattacharya ’11 sent via Vassar Student Association President Mat Leonard ’11 at 12:46 a.m., the four members of the Judicial Board hearing the complaint against the constitutionality of the recent referendum regarding amendments to the VSA Constitution unanimously voted in favor of upholding the complaint.
Leonard has confirmed that he has received an appeal to the Judicial Board’s decision. Therefore, filing for spring elections will be postponed until Wednesday, April 13.
“Just to give an update, as of this evening, I have recieved an appeal for tonight’s judicial board ruling. Therefore, filing will be further delayed until after the appeal can be heard,” he wrote in an email at 1:47 a.m. “Updates will be given as soon as information is available.”
In the email, Bhattacharya listed the reasoning behind the Board’s decision. Because the VSA Constitutional language applicable to referenda not supported by the VSA Council—Council voted down the amendments—did not specify a simple majority of voters or a voter threshold, the Judicial Board had to turn to language in the VSA Bylaws on referendum votes. The bylaws suggested that a simple majority of the VSA is required to pass a referendum, leaving out abstentions. The Judicial Board found that if the act of not voting could be counted as an abstention then the referendum would have been Constitutional, however, they found language to contradict this interpretation in the Bylaws applicable to general elections, which require “abstention” to be a choice on the ballot:
“All General Elections ballots shall allow voters to vote in the order of their preferences for up to and including the number of candidates running for any given position. These ballots shall include the names of each candidate in random order and a space or instructions for abstention. An unopposed race shall include the name of the candidate, a space for “no,” and a space or instruction for abstention.”
Overall, the decision was consistent with the Judicial Board’s earlier recommendation that 51 percent of the entire VSA (the whole student body) would be required to pass the referendum rather than a simple majority of voters. Citing concerns of practicality and lacking a published precedent for establishing a voter participation threshold, the Board of Elections (BOE) had then decided that the amendments could be ratified by a simple majority of voters.
While there was no active precedent for a voter threshold, in the spring of 2009, the VSA Council did pass legislation requiring 50 participation in a referendum vote. However, this language was lost last year and never officially published within the VSA’s governing documents. Because the language had not been public to the student body, despite being passed in Council, the Judicial Board deemed early in the referendum process that it could not be used. 30.5 percent of the student body voted in the recent referendum between Thursday, April 7 and Saturday, April 9.
The full text of the e-mail is below:
On Monday April 11th 2011, the Judicial Board heard a case where a member of the class of 2013 brought the following charge against the VSA Board of Elections:
“The VSA Board of Elections’ decision to require a simple majority of participating voters and not a majority of all members of the VSA is a violation of the VSA Constitution.”
In a unanimous vote, the four sitting Judicial Board members have upheld the charge and declared the decision of the Board of Elections to consider a simple majority of participating voters to be not in compliance with the VSA Constitution and the Bylaws. In reaching this decision the Judicial Board used the following reasoning:
- Per Article VI.1.B of the bylaws: “[The Board of Elections] Shall conduct and oversee all elections and referendums through reasonable interpretations of the VSA Constitution and VSA Bylaws.” Reasonable interpretation was the guiding principle in the Board’s decision.
- Explicit language concerning referenda on constitutional amendments is found in Article XIV of the VSA constitution:
Section 1: Amendments to the Constitution
A. Any member of the VSA may propose amendments to the VSA Constitution to the VSA Council. The VSA member proposing an amendment must submit it to the VSA Vice President for Operations prior to bringing it before the Council.
B. A two-thirds majority vote of the VSA Council is sufficient initially to amend the Constitution. A vote may take place at the meeting following that in which the revision is introduced.
C. Following an amendment, the VSA Vice President for Operations must notify the entire student body of the change, and the number of signatures necessary for a referendum, via posting, as well as providing one to any student upon request. The amendment stands if a period of two weeks passes, and a written objection is not presented to the VSA Executive Board.
D. If there is an objection(s) signed by at least 5% of the VSA membership, then the VSA Council must call for a referendum vote to be conducted by the Board of Elections. A simple majority of those casting ballots, regardless of abstentions, shall be required to either pass or defeat the amendment.
E. Any proposed amendment not supported by the VSA Council may be brought to a referendum with a petition signed by 15% of the VSA.
- The complainant stressed that the present decision of the board of Elections should be in relation to subsection E. Subsections C and D, which also contain language pertaining to referenda, do not apply here. He contended that section D relates to referenda based on an objection to an amendment passed by the VSA Council. The Judicial Board found that the distinction between C and D operating as a unit, and E operating on its own was a reasonable interpretation. The language of referenda in D applies specifically for the case in which there is an objection to an amendment passed by the VSA Council. In this case the referendum did not pass the VSA council, so the question of objection does not arise. Thus, we are dealing exclusively with subsection E.
- A consideration of subsection E leads us to the bylaw found in Article VI.8.F of the VSA Bylaws:
In a referendum vote, the article shall be deemed to have passed if a simple majority of the VSA has voted in favor of the article, not including abstentions.
- The decision in this case hinged on the interpretation of “abstention.” If the governing documents define “abstention” as “not voting,” the Board of Elections would be in compliance with the VSA governing documents.
- However, per Article VI.6.A of the VSA Bylaws:
All General Elections ballots shall allow voters to vote in the order of their preferences for up to and including the number of candidates running for any given position. These ballots shall include the names of each candidate in random order and a space or instructions for abstention. An unopposed race shall include the name of the candidate, a space for “no,” and a space or instruction for abstention.
- This subsection clearly provides for language on abstentions. While the dominant sense of the subsection might appear to be related to candidate elections, there is a clear provision for “including a space or instruction for abstention” in Voting Forms in general.
- To be clear, this subsection does not preclude the Board of Elections from declaring that “not voting” is an “abstention.” However, in this instance, the Board of Elections disregarded this provision on abstentions entirely, and in so doing, they did not fulfill their mandate of a comprehensive, reasonable interpretation of the governing documents as set out in Article IV.1.B of the Bylaws.
The Judicial Board wishes to clarify that in this finding the merits of the amendments themselves were deemed irrelevant. Additionally, the Board is not making a determination about a single interpretation of Article VI.8.F of the VSA Bylaws. Rather, in reaching this decision, it wishes to open up the possibilities of Article VI.6.A of the bylaws in informing Article VI.8.F.
Per Article IX.5.A of the Constitution:
The Judicial Board shall have the authority to retry cases on appeal from the original Judicial Board decision in the case that substantial new evidence exists and/or the procedural rights of the respondent or complainant were violated.
If either the complainant or respondent believes there is substantial new evidence or that procedural rights were violated, (s)he can submit a petition for a rehearing to the VSA President.
Sincerely,
Shouvik Bhattacharya
Judicial Board Chair
