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***Kris Kringle*** · 06-09-2022, 10:39 PM

HIGH COURT OF THE SOUTH PACIFIC
[2207.HQ] IN RE ASSEMBLY VOTE CLOSURES
SUBMISSION 27 MAY 2022 | JUSTICIABILITY 28 MAY 2022 | OPINION 09 JUN 2022

QUESTION
Is the determinant for Assembly vote closure times the stated deadline provided by the Chair (or their duly appointed deputy), or the auto-closure settings set by forum software?

SUMMARY OF THE OPINION
It is the opinion of the Court that votes in the Assembly should open the moment that the voting thread is posted and that they should close the moment that the poll automatically closes or when the time stated in the written deadline is reached, whichever is second, but nothing in this ruling should be interpreted as giving license to the Chair to engage in a pattern of discrepancies or to cause a discrepancy so significant that a reasonable person would deem it an attempt to circumvent the Legislative Procedure Act.

CHIEF JUSTICE KRINGLE DELIVERED THE OPINION, SIGNED ALSO BY JUSTICE GRIFFINDOR.

The High Court has been asked to determine what is the deciding factor when it comes to knowing the time at which votes in the Assembly should to be closed; in particular, whether one ought to consider the deadline that was stated in the voting thread or the time when the poll within the thread closes. In order to address this case the Court considers the provisions of the Legislative Procedure Act and weigh them against the principle of predictability, and the rights conferred to members under Article III of the Charter.

The natural starting point is Article 1, Section 3 of the Legislative Procedure Act, which says that "general laws (...) will remain at vote for three days [and] matters of constitutional law (...) will remain at vote for five days"¹. This provides valuable guidance but it does not provide clarity on when exactly votes open or close, an issue for which differing views have been offered. Sandaoguo suggests that the point of reference ought to be the deadline provided by the Chair, which would be the 'legal deadline' mentioned in the Times Act². Domais suggests in turn that a vote should end exactly three or five days after it opened, presumably complying with the Legislative Procedure Act, which they remind is a constitutional law with supremacy over the Times Act³.

In an ideal scenario voting would open at the exact time stated in the written deadline and the two propositions above would yield the same result, but an ideal scenario cannot always be guaranteed. There may be situations where the poll opens and closes before the time state in the written deadline. There may also be situations where the Chair does not set a close date for the poll and legislators will have to rely only on the written deadline. Yet both the poll and the written deadline could be valid for their own particular reasons: a legislator noting that the poll has closed has clear and reasonable evidence that voting itself has closed, while a legislator noting that voting has closed but the written deadline has not been reached also have clear and reasonable evidence that voting remains open and that a vote could be cast or changed via a thread reply. This would led to a significant degree of confusion and error.

There is also a risk that otherwise valid votes may be rendered invalid without recourse. If the Court were to find solely in favour of the written deadline then votes cast via poll before voting formally opened could potentially be invalid, yet there would be no sensible way to determine with ease which votes were cast during that critical period. If the Court were to find solely in favour of the poll then votes cast via a thread reply could potentially be invalid even though there was a written deadline pointing to the contrary.

This diversity in possible open and closure times runs contrary to the principle of predictability -the idea that government should operate in a predictable and non-absurd way-, and requires an appeal to higher authority. The Court therefore refers to Article III, Section 4 of the Charter, which says that "no member may be denied the right to vote or hold office, unless prohibited by constitutional law"⁴. If this provision has supremacy over all laws, including the Legislative Procedure Act, then it stands to reason that the factor that determines when a vote in the Assembly opens and closes must be which deadline ensures that legislators have the greatest opportunity, within reason, to exercise their right to vote. This is an idea reclaimed by Pronoun, who suggests that "a legislator who is participating in good faith should not be barred from continued participation without a formal, predictable, and understandable notice to refrain from such participation"⁵.

The Court therefore finds that votes in the Assembly should open the moment that the voting thread is posted and that they should close the moment that the poll automatically closes or when the time stated in the written deadline is reached, whichever is second, and instructs the Chair of the Assembly to consider the certification of the result of A2205.02 - Assembly Resolution to Call a Great Council (Modified) and to make any adjustments that may be necessary to bring it into compliance with this ruling. In so finding, the Court also clarifies that the aim is to account for the discrepancy that can be reasonably expected between the timestamp of a poll and the written deadline due to the realities of vote administration, but nothing in this ruling should be interpreted as giving license to the Chair to engage in a pattern of discrepancies or to cause a discrepancy so significant that a reasonable person would deem it an attempt to circumvent the length of the voting periods set out in the Legislative Procedure Act.

It is so ordered.

FOOTNOTES AND REFERENCES

[1] Legislative Procedure Act; Article 1, Section 3 (2022). The MATT-DUCK Law Archive.

[2] Sandaoguo (2022). [2207.HQ] In re Assembly Vote Closures. Retrieved from https://tspforums.xyz/thread-10486-post-...#pid231440

[3] Domais (2022). RE: [2207.HQ] In re Assembly Vote Closures. Retrieved from https://tspforums.xyz/thread-10486-post-...#pid231472

[4] Charter of the Coalition of the South Pacific; Article III, Section 4 (2022). The MATT-DUCK Law Archive.

[5] Pronoun (2022). RE: [2207.HQ] In re Assembly Vote Closures. Retrieved from https://tspforums.xyz/thread-10486-post-...#pid231481

2207.HQ.O | Issued 09 Jun 2022

Former Delegate of the South Pacific
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