A Great Brief; Check It Out. Makes me wish I could fast-forward my life into law school so I too could write one. This was submitted anonymously. Also, my deepest apoogies for the internal error with the comments on the Voter Board post, I deleted and re-published so it seems good to go now.
Case No. 2007-S-0007
STATEMENT OF FACTS
On February 27, 2007, complainant John Clayton Brett (“complainant”) witnessed William Foster distributing “I voted” stickers in Turlington Plaza. At the time Mr. Foster wore a Pants Party t-shirt and held a banner advertising the stickers’ distribution. Upon the complainant filing complaint with the Elections Commission (“Commission”), the Chair of that body issued a cease and desist order to “the Pants Party, all of their candidates, volunteers, or representatives”. Supervisor of Elections distributed the cease and desist order to the Party, who protested the order as Mr. Foster continued handing out “I voted” stickers after removing his Pants Party t-shirt.
The Commission met on February 28, 2007 to hear evidence on the filed complaint. The Gator Party entered into evidence various photos and information culled from Facebook.com as proof of Mr. Foster’s membership in the Pants Party. The Commission ruled that the Pants Party violated U.F. Stat. 762.21 because the stickers gave students a benefit not authorized by student body law and also violated the cease and desist order issued by the Chair under U.F. Stat. 723.4.
I. The decision below that the Pants Party violated U.F. Stat. 762.21 should be reversed because the “I voted” stickers in question did not confer a benefit not authorized by statute upon any member of the student body in order to influence voting behavior.
The Commission’s ruling alleges three benefits received from the stickers. The first benefit alleged is that students who obtained the stickers would not be on the receiving end of campaigning from the opposing party, therefore limiting those students knowledge of the respective platforms and diminishing the chances that they would vote. Disheartingly enough, the Commission advocates that a diminution in the chances that a student would interact with a party member is a “benefit” to be conferred. Assuming but not deciding that this value judgment is correct, the record fails to show that any Gator Party member did in fact refrain from campaigning from those students who possessed stickers. Nor does the record show any proof that obtaining a sticker diminished the likelihood that an interested student could learn about the opposing party’s platform, given the hundreds of candidates and volunteers on campus on February 27th and the freely available media coverage of the respective campaigns in newspapers and on the campaign websites. Moreover, the contention that a lack of knowledge regarding a platform influences a student’s decision to vote is directly contradicted in the Commission’s second discussion of benefit.
The Commission’s ruling alleges that once a student obtains a sticker, that student no longer has any reason to vote, which undermines the electoral process. The basis for this ruling is allegations that student organizations on campus have voter boards which use the stickers to track who voted in their group. However, no factual evidence supports these allegations. As the Commission denied a motion under U.F. Stat. 727.01, neither party had the allowed 48 hours to subpoena students to support or deny this claim of voter boards. The complainant should have failed under the “preponderance of the evidence” test under U.F. Stat. 725.3.
Assuming that factual proof showed that students only voted to receive the stickers and place them on such voting boards, then the benefit conferred must be one authorized by the student body. As stated in U.F. Stat. 711.2 and 717.0, the Supervisor of Elections is in charge of conducting the elections (including instructing poll workers) within the parameters of the Student Government Election Code. If the only incentive to vote is to receive these stickers, then the poll workers, under the instructions of the Supervisor of Elections, must give the stickers out for just the reason stated in the Commission’s ruling, indicating that such a benefit must be authorized by student body law. (Note: the wording of U.F. Stat. 761.21 indicates that only the benefit itself must be authorized by student body law, not the manner in which the benefit is distributed or received).
The third justification for the Commission’s ruling is a reiteration of the first justification: that the stickers would keep opposing party members from campaigning to students who obtained the stickers and that campaigning may have occurred while the Pants Party distributed said stickers. Again, no factual proof was offered that either speculative event occurred. Assuming without deciding that factual evidence exists to support the claim, the ruling does not describe in any way how such a situation conferred a benefit to a student.
In order for this claim to succeed, the complainant had to prove by a preponderance of the evidence that the stickers conferred a benefit upon the students and thereby influenced their vote. This burden was not met. The Commission’s ruling stated that the stickers give “a benefit by discouraging potential voters from voting”, yet fails to show that such an idea is factually true. Nor does it posit any theory on how discouraging voting confers a benefit upon a student. The ruling also alleges that the stickers violate 762.21 because it suppresses voter turnout and undermines the democratic process. However, no such standard is even contemplated by statute and is irrelevant in this particular matter. The Commission’s ruling regarding 762.21 should be reversed.
II. The decision below that the Pants Party violated a cease and desist order from the Chair under U.F. Stat. 723.4 should be reversed because the Chair’s order was invalid and therefore had no binding effect upon the parties.
Upon receiving the cease and desist order, the Pants Party noted their disagreement with the ruling with the Supervisor of Elections, specifically with regard to the stickers being considered campaign material. In order for 723.4 to apply, the Chair’s order must regard campaign material as defined by 700.4(d). The stickers are not campaign material because they were not used for the purpose of supporting a candidate or political party. If that were so, then the poll workers would not be handing them out. The complainant argued and the Commission agreed that the stickers constituted campaign material because they were handed out while campaigning. However, the judicial branch is bound by the intent of the legislative branch in enacting these codes; nowhere does 700.4(d) state that campaign material consists of all material handled while campaigning (even though the definition of campaigning is readily accessible in 700.4 ©).Having previously decided that the stickers in question violated 762.21 because they conferred a material benefit, the Commission then takes an illogical leap in stating that they are also campaign material. At no other point in recent electoral history has the Commission decided that a material in question could be both a campaign material and a violation of 762.21 simultaneously.
As the Supervisor of Elections correctly noted to the Pants Party at the time of issuing the cease and desist order, only the Elections Commission can decide what is and what is not campaign material. The Chair may not make that determination on her own and since there was doubt as to whether these stickers would be classified as campaign material, she improperly applied 723.4.723.4 may only be used when “a preponderance of available evidence leads to a conclusion that both: (a) There is a strong likelihood of a violation on a complaint brought by the offended party and (b) where the material is so offensive that it may irreparably harm the offended party or candidate.”As previously discussed in Section I, a preponderance of the evidence in this situation did not show that the complaint constituted a violation. There was no precedent for this scenario for any party or member of the Commission to rely upon. Although the complainants may argue that the Supervisor of Elections warned Mr. Foster about this issues prior to the complaint, the Supervisor of Elections has no interpretative or binding power regarding the election codes.
In addition, this material was not “so offensive” as to justify a cease and desist order. The purpose of this statute was to protect candidates and parties from engaging in libel or slander against other candidates or parties which could irreparably damage their reputations or electoral chances under the guise of having no reason to cease until a Commission hearing could take place. The “I voted” stickers were not damaging the reputations of the members of the other party; they do not contain any information or opinions of any kind. Nor were they irreparably damaging to the opposing party’s electoral chances; as previously discussed there is no proof that obtaining a sticker discouraged a student from voting or, more importantly, discouraging them from voting for the opposing party.
If the Commission’s ruling is not reversed, it will give the Chair unchecked power to influence the outcomes of future elections. Under their reasoning, the Chair has the discretion on a standard far below the preponderance of the evidence to decide what constitutes campaign material, if such campaign material will likely result in a violation, and if that material is “so offensive” that it would create irreparable harm. The Commission’s reasoning also implies that even if a Chair’s order is illegitimate, a party is bound to follow it no matter how outrageously incorrect. The Pants Party was under no obligation to follow a cease and desist order that they did not just disagree with, but that was blatantly outside the powers of the Chair. Not granting parties this independence would allow the Chair to exercise undue influence over electoral outcomes by suppressing legitimate campaign materials, especially on the days of voting.
The Commission’s decision that the Pants Party violated 723.4 should be reversed.