Judicial Board rejects appeal

The amendments to the Vassar Student Association (VSA) Constitution that would create a senatorial Council structure will not be included in the VSA Consitution, following a final ruling by the Judicial Board on Tuesday, April 12.

Though the amendment failed to gain a two-thirds majority vote in a Council meeting on March 27, a petition with over 400 student signatures was filed, enough to send the amendment to a student referendum. The Judicial Board, after reviewing some conflicting language in the VSA Constitution and the VSA Bylaws, recommended that Council institute a vote in which a positive vote from a majority of the entire VSA—that is, the student body—would be required to pass the amendment. The Board of Elections (BOE) met to review the recommendation, but ruled that a majority of cast ballots in favor of the article would be sufficient to pass the amendment.

The referendum voting took place from 5:03 p.m. on Thursday, April 7 to 5:03 p.m. on Saturday, April 9. 521 students voted in support of the amendments, while 270 students voted against. 30.5 percent of the student body participated in the vote, and because the BOE had determined that a simple majority of ballots cast would be considered sufficient to pass the amendment in a referendum, the amendments at that time were ratified.

However, Alex Koren '13 filed a complaint with the Judicial Board against the Board of Elections' decision, making the charge: "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."

The Judicial Board held an open hearing on Monday, April 11 in which Koren acted as complainant and VSA Vice President for Operations and co-Chair of the BOE Ruby Cramer '12 acted as respondent on behalf of the BOE. Chair of the Judicial Board Shouvik Bhattacharya '11 and four additional members of the Judicial Board presided over the hearing.

Koren argued that the bylaw used as precedent for the vote, which states, "The winning candidate must receive more than 50 percent of the votes cast by the relevant constituency, not including abstentions," was not applicable to a constitutional amendment, as a candidate specifically refers to a person. Instead, he believed the BOE should have used as precedent the bylaw stating, "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." Koren noted that to abstain is to "to refrain deliberately and often with an effort of self-denial from an action or practice." Not voting, he argued, was not a deliberate act, and so should not have been considered an abstention. Although he acknowledged that it would have been difficult to achieve a majority of the VSA's support, or over 1,250 "yes" votes, Koren said, "Constitutional modifications are serious, and should be difficult to pass."

Cramer responded to Koren's statements by pointing to a clause in the VSA Constitution, which refers to amendments passed by Council: "A simple majority of those casting ballots, regardless of abstentions, shall be required to either pass or defeat the amendment." She argued that this process for referendum should be extended to the immediately following clause of the Constitution, which states, "Any proposed amendment not supported by the VSA Council may be brought to a referendum with a petition signed by 15 percent of the VSA," but does not state how the results of the referendum should be determined. Although language establishing a 50-percent participation threshold for referenda had been adopted into the VSA Bylaws in 2009, that language had never been added to publicly available copies of the document due to error of the previous Council. At the recommendation of the Judicial Board in an April 10 meeting, that language had been ignored, and so the BOE was only able to rule based on the bylaw, the constitutional clause, and the precedents set by past VSA actions.

The presiding members of the Judicial Board, after deliberating in a closed session, unanimously decided to uphold the charge against the BOE. In a memorandum sent out to all students, Bhattacharya wrote, "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, the Judicial Board ruled that this was not the case, as Bhattacharya cited a bylaw that states, "Ballots shall include the names of each candidate in random order and a space or instructions for abstention." While the BOE could have declared that not voting was an abstention, it did not provide instructions to this effect, but instead "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," wrote Bhattacharya.

The BOE filed an appeal shortly after the Judicial Board's ruling was made public on the basis of a violation of procedural rights and new evidence. The appeal stated, "Procedural rights were violated with regards to the decision being founded on evidence that was not mentioned by either party during the trial." It also claimed a dialogue from an April 4 Operations Committee meeting as new evidence.

Both bases for the appeal were in response to the Judicial Board's use of the bylaw stating that a space or instructions for abstention must be included on ballots, which was not brought into evidence during the hearing.

The appeal states, "The Operations Committee came to the consensus that ‘not voting' has always been declared an abstention by the Board of Elections. This consensus was based on the precedent established by every VSA election in the past three years. There has never been wording on a VSA ballot that states that a non-vote is an abstention. Furthermore, there has never been an option to abstain on any VSA general body vote … Under the court's ruling, the entire VSA Council, along with the Judicial Board and all other elected officials, have not been legitimately elected."

Cramer clarified in an appeal hearing held on Tuesday, April 12, that she believes abstentions were dropped from VSA elections following the transition from paper ballots to an electronic voting system. The VSA Bylaws state, "In tabulating votes, any blank ballot or ballot indicating an ineligible or disqualified candidate shall be considered an abstention." However, entirely blank ballots are impossible to submit using the current voting software; at the very least, a voter must make a choice in one of the polls. Though an abstention choice can be added to a "yes or no" question, such as a referendum, options for candidate elections can only be submitted with a corresponding Vassar identification number. Past and current Boards of Elections have therefore adopted the practice of considering non-votes as abstentions.

Bhattacharya acted as the respondent in the appeal hearing on behalf of the members of the Judicial Board who made the ruling. At the hearing, he stated that there was "no basis for an appeal." He claimed that abstentions were given a great deal of attention during the hearing and so Cramer was given adequate time to defend the BOE's interpretation of abstentions.

Koren, in an emailed statement, confirmed, "I discussed the concept of the abstention at length in my written complaint and the Board of Elections had access to this document in advance of the hearing. In my oral presentation, I explicitly stated, ‘I believe the issue of abstention is what this case really comes down to.'" Though the bylaw requiring an explicit option for abstention was not actually mentioned during the hearing, Bhattacharya cited the constitutional power of the Judicial Board to "have access to every VSA resource, file or any other material deemed necessary to the effective execution of the case."

Though he acknowledged a discrepancy between the Bylaws and actual practice, he concluded, "It is not our fault that the documents are not up to date. Our mandate is to look at the documents and make sure the VSA is in compliance with that."

The members of the Judicial Board that voted on the appeal met in a closed session following the appeal and unanimously voted to uphold the ruling of the initial hearing. The referendum is thus considered to be not in compliance with the VSA's governing documents, and the amendment to the VSA Constitution has failed. Filing began on Wednesday, April 13 for spring elections, which will be held for the positions of class president and house president as they are defined by the current VSA Constitution.