Your Honors,

Article 3, Section 3b of the Elections Act states that:

b. Members of the South Pacific Special Forces who are on deployment for the whole duration of the regional poll are eligible to cast a vote. The Minister of Military Affairs shall provide a list of deployed personnel to the Election Commissioner. Members on the list who send the Commissioner their vote through a telegram and a public post on the Regional Message Board which tags the Election Commissioner and notes who their vote goes towards shall have it added to the final tally.

This is because, as required by Article 3, Section 2d of the Elections Act, gameside elections for Delegate have to be open to only World Assembly member, native residents. Because SPSF members on duty have their WA membership elsewhere, they have to vote in the way provided by Article 3, Section 3b. 
The Local Council Elections Act has no requirement of what poll elections have to be, only stating as follows:

(2) The election will be two game side polls, each lasting three days. The winner of the first poll will be elected onto the Local Council, and all remaining candidates will move on to the next poll, where the top two candidates will be elected.

The most recent Local Council election, which is currently ongoing, had the poll only open to WA member, native residents. As I am currently deployed for the SPSF, I could not vote. So I telegrammed Election Commisioner Tsunamy:

Hi there Tsunamy-In the Elections Act for Delegate Elections, there's a clause that makes it so active SPSF members can have their vote counted.
Because the LC election is open to WA member, native nations, I can't vote. So, could I have my vote counted for Volaworand?
If not, I understand.
Thanks,
Prarie.

He responded with this:

Hi NP —It's unfortunate the way the law is written, but I don't think I can count SPSF votes in this election.If you like, you're welcome to ask the High Court to decide the legality of it. I drafted a legal question, but in order to ask it, it would have to be with the court for 72 hour thus creating a cascade effect which would punt the LC elections into ... well ... who knows when. Between that effect, and what I think is the low likelihood of the question succeeding, I decided to forego it.But, you're more than welcome to if you (or any other SPSF members) like.Sorry for the disappointment, but let me know if you want to pursue it further.-tsu

Article III, Section 4 of the Charter states that:

(4) No member [of the South Pacific] may be denied the right to vote or hold office, unless prohibited by constitutional law.

The questions I pose before the Court are:
A, if Article 3, Section 3b of the Elections Act applies to Local Council elections that are open to WA Member, Native residents, and, if not,
B, Local Council elections that are only open to WA member, native residents infringe on the right to vote guaranteed by article III, Section 4 of the Charter.

Midwesterner. Political nerd. Chipotle enthusiast. 
Minister of Culture of the South Pacific // Former Prime Minister

(This post was last modified: 08-05-2020, 10:15 AM by Kris Kringle.)

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HIGH COURT OF THE SOUTH PACIFIC 2003.NR A QUESTION ON THE LEGALITY OF CLOSED LOCAL COUNCIL ELECTIONS [SUBMISSION 05 AUGUST 2020]

Notice is given that this question has been received by the High Court and has been assigned all the necessary identifying information as follows: DOCKET FILE NUMBER 2003 REFERENCE NAME Legality of Closed Local Council Elections QUESTION Does Article 3, Section 3b of the Elections Act apply to Local Council elections that are open to WA members, Native residents? If not, do Local Council elections that are only open to WA members, Native residents infringe on the right to vote guaranteed by Article III, Section 4 of the Charter? The petitioner and other interested parties are invited to explain the necessity of a decision on this matter over the next 24 hours. Briefs Amicus Curiae on the preferred eventual outcome of this case are not required at this time.

Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator.
I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum.

Legal Resources:
THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System

(This post was last modified: 08-05-2020, 10:12 AM by Kris Kringle.)

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Since this heavily involves my decision, I feel it's important to weigh in.

While I feel for the SPSF members, since the Article 3.3b of the Election Act stipulates precisely that SPSF members can vote in delegates elections, thus the unstated assumption is that they would not be able to vote without the article. And, since the Local Council election act doesn't make this stipulation, it stands to reason it would be not applicable. I would also note that when this issue was brought up to current local council members, they felt a change in the election law would be needed to make these votes count.

Finally, I'd simply note that SPSF membership is voluntary as is the minister's decision to engage in action during an election cycle. While SPSF service should be applauded, it still wouldn't constitute a violation of rights since all involved are choosing to be outside the region.

-tsunamy
[forum admin]

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HIGH COURT OF THE SOUTH PACIFIC 2003.DJ A QUESTION ON THE LEGALITY OF CLOSED LOCAL COUNCIL ELECTIONS [SUBMISSION 05 AUGUST 2020 | JUSTICIABILITY 06 AUGUST 2020]

Whereas this Court has been asked to clarify and interpret provisions of law, a power vested in it by Article VIII of the Charter of the South Pacific, and an answer to such a question has been found warranted and necessary. DETERMINATION OF JUSTICIABILITY This case is found justiciable and shall be duly considered under case number HCLQ2003 and all other designations assigned by document 2003.NR. SUBMISSION OF BRIEFS AMICUS CURIAE Interested parties may submit briefs amicus curiae to argue their views on the whole or a part of this case no later than 7 calendar days from now, and shall thereafter be liable to answer any questions that the Court may pose in relation to their brief. SUBMISSION OF REQUESTS FOR RECUSAL Interested parties may request the recusal of the Chief Justice or any Associate Justice no later than 3 calendar days from now. Any such request should provide clear reasons to support the requested recusal and explain the possible negative impact of a failure to recuse. RETENTION OF RIGHTS The Court retains the right to consult with, and request further testimony and evidence from, government institutions and other third parties as necessary to adequately exercise its sole right to issue an opinion on this case. It is so ordered.

Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator.
I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum.

Legal Resources:
THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System

(This post was last modified: 08-06-2020, 10:52 AM by Kris Kringle.)

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HIGH COURT OF THE SOUTH PACIFIC 2003.SO1 A SUMMARY ORDER ISSUED IN RELATION TO THE CASE ON A QUESTION ON THE LEGALITY OF CLOSED LOCAL COUNCIL ELECTIONS [SUBMISSION 05 AUGUST 2020 | JUSTICIABILITY 06 AUGUST 2020 | SUMMARY ORDER 07 AUGUST 2020]

JUSTICE NAT DELIVERED THE ORDER, SIGNED ALSO BY CHIEF JUSTICE KRINGLE Part I: Background and Consideration An election for the Local Council is currently ongoing. The poll only permits native WA nations to vote. There is a question before the Court as to whether or not this is legal. As such, there is a reasonable possibility that the Court will find that some people were deprived of their lawful right to vote. The Judicial Act (9.1) permits the Court to issue a temporary injunction if it is 'in the interest of public peace and order.' Ensuring that elections comply with the law is very much in the interest of public order. As such, the results of the election should not be certified until it is determined whether it complies with the law.   Part II: Temporary Injunction The Election Commissioner is hereby ordered to not certify the results of the ongoing Local Council elections. This injunction remains in force for until a ruling is delivered (or no longer than one week), but may be extended in accordance with the Judicial Act. Part III: Expedited Treatment The Court has determined to expedite this case within the meaning of the Standards for Case Management. As such, briefs amicus curiae may only be submitted within 72 hours of this notice being posted. It is so ordered.

Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)

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While this legal question presents an interesting test on admissibility of military votes by mail in the absence of legal procedures, I argue that the decision of the Election Commissioner to reject the telegrammed ballot of North Prarie was correct and that the Court’s response to both included questions should be no. 

Does Article 3, Section 3b of the Elections Act apply to Local Council elections that are open to WA members, Native residents? 

Clearly Article 3 of the Election Act outlines procedures for the conduct of the onsite round of Delegate elections and does not govern onsite Local Council elections.  The Local Council Election Act is the governing law.  In fact the court has already ruled on this matter in HCRR1804 - REVIEW OF THE CERTIFICATION OF THE NOVEMBER 2018 LOCAL COUNCIL ELECTION:  The election of Local Councillors decidedly is a local issue. Prior to the passage of the Self-Administration Clause, Local Council elections were regulated by the Elections Act, a constitutional law duly passed by the Assembly. However, on June 12, 2017, the Assembly repealed these regulations, leaving the determination of time, manner, and term lengths to the Local Council itself. Subsequently, the Local Council passed its own Elections Law.” 

There have been no developments since that would change the application of the LC Election Act to substitute the provisions governing Delegate elections to now govern Local Council Elections.   If, for some reason, the Court did find merit in application Article 3’s provisions to this case then it must rule that Election Commissioner’s decision to reject this ballot was correct, since the clause lays out unmet conditions required for acceptance, namely that the members of the SPSF must be on deployment for the whole duration of the regional poll.  Based on my own observation of ballots as they were cast, North Prarie voted in the poll, and then subsequently resigned the World Assembly in order to move this world assembly membership to a deployed nation, which removed his vote from the poll.  If Article 3 Section 3b applied, the member would still not be able to cast a ballot by telegram, since they removed their World Assembly status during the election as opposed to prior to the opening of the poll. 

While the Assembly may have shown the foresight to specifically include a vote by mail process to accommodate deployed members of SPSF in Delegate elections, this does not impose the same accommodation requirement on Local Council Elections. 

This leaves the court facing question 2:   

If not, do Local Council elections that are only open to WA members, Native residents infringe on the right to vote guaranteed by Article III, Section 4 of the Charter? 

Article III section 4 of the charter reads that “No member may be denied the right to vote or hold office, unless prohibited by constitutional law.” presents an interesting question as it relates to onsite polling.  While the Local Council Election Act makes provision for deployed SPSF member to maintain measure on confidentially as candidates in Conflict of Interest Disclosures it is silent on a procedure for voting by deployed members, meaning no provision was made for military votes by mail.   

The Native, WA requirements are standard eligibility requirements needed to maintain the security and fairness of onsite voting.  The WA restriction on voting is required to ensure that there can only be one vote per person, so it is merely an identification requirement.  The Native requirement exists to prevent foreign interference in onsite elections by blocking foreign nations from moving to the region in bad faith simply to cast a ballot.  It is a citizenship requirement.  Some similar requirements on forum voting rights were found reasonable by the court in HCRR1802 - Review of the Revocation of Legislator Status of Griffindor13 to the extent that they are fair, lawful and non-abusive.  The Native, WA restrictions are necessary to confirm a member’s right to vote, and not applied with the intent to exclude military votes.

These restrictions are a reasonable and fair requirement given the technology available for onsite voting.  To strike down the WA  restrictions would compromise democratic principles by allow one member multiple votes, and the removing the native restriction would leave the electoral process open to foreign interference.  The law governing the poll should not be the issue but instead question rests on the Election Commissioner’s interpretation of the applicable laws and decision to reject the admissibility of a ballot delivered by telegram by a deployed SPSF member, given the law’s silence on the matter. 

The right to vote has not been infringed by the oversight of the Local Council to create a vote by mail process for eligible voters who have admirably chosen to participate in the raiding/defending aspect of the game on behalf of the region.  In removing their World Assembly from their regional nation the member voluntarily chose to withdraw their vote.  As Election Commissioner Tsunamy stated to the court “… that SPSF membership is voluntary as is the minister's decision to engage in action during an election cycle. While SPSF service should be applauded, it still wouldn't constitute a violation of rights since all involved are choosing to be outside the region.” The Election Commissioner ruled that the right to vote had not been denied but had been voluntarily withdrawn by the voter.  If the Court agrees with the Election Commissioner’s determination then this  question is moot. 

If however the court determines that the EC’s decision to reject this ballot was in violation of the Charter’s guarantee of the voting rights of members, then the remedy would be to exercise the Courts power under Article VIII point 4 and overturn the Election Commissioner’s official act of rejecting of the ballot of North Prarie and direct that it be included in the tally when certifying the election.  This remedy would maintain the least amount of disruption to the intended purposes of both the Charter and the LC Election Act.   Additionally this would leave the legislative question of absentee military ballots in the hands of the Local Council, as opposed to forcing the court into the uncomfortable position of creating laws where none exist.

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Legislator | Local Councilor | Aspiring TSP Curmudgeon
Messages archived by the Ministry Of the Regal Executive - Bureaucratic Services

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(This post was last modified: 08-07-2020, 12:44 PM by Volaworand.)

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ADDENDUM:  onsite timestamps confirm North Prarie's departure from the WA occurred during the election, and not prior to the commencement of the election:   

8/3/2020, 9:57:36 AM CST: North Prarie resigned from the World Assembly.
https://www.nationstates.net/page=activi...ter=member (click the "4 days ago" for exact timestamp)
 
2020/08/04 08:01:35 AM CST Round 1's three day poll ended - so the poll began 2020/08/01 08:01:35AM CST
https://www.nationstates.net/page=polls/...th_pacific (hover over the end date for exact timestamp)

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Legislator | Local Councilor | Aspiring TSP Curmudgeon
Messages archived by the Ministry Of the Regal Executive - Bureaucratic Services

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(This post was last modified: 08-07-2020, 03:31 PM by Volaworand.)

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Acknowledging Volaworand's amicus curiae brief, I would appreciate it if the Election Commissioner and the Local Council (collectively or individually) could voluntarily answer the following questions through a post below at their earliest convenience:

1. Who made the decision to limit voting in the Local Council elections to native WA residents? On what basis did they make this decision?
   
2. Is having a native WA nation in the region a requirement to be considered a member of the Coalition under Article III of the Charter? (cf. HCLQ 1708 Members of the Coalition)
   
3. If not, how does limiting the vote accord with Article III, Section 4 of the Charter? (i.e. 'No member may be denied the right to vote or hold office, unless prohibited by constitutional law.')
   

While the deadline for filing amicus curiae briefs remains the same (i.e. there are approximately 24 hours to do so), answers to the above questions by Local Councillors or the Election Commissioner may be accepted outside this window. This is in acknowledgement of the fact that these questions have been posted late in the window for the filing of briefs.

Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)

(This post was last modified: 08-09-2020, 01:05 AM by Nat.)

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Acknowledging Volaworand's amicus curiae brief, I would appreciate it if the Election Commissioner and the Local Council (collectively or individually) could voluntarily answer the following questions through a post below at their earliest convenience:

1. Who made the decision to limit voting in the Local Council elections to native WA residents? On what basis did they make this decision?
   
2. Is having a native WA nation in the region a requirement to be considered a member of the Coalition under Article III of the Charter? (cf. HCLQ 1708 Members of the Coalition)
   
3. If not, how does limiting the vote accord with Article III, Section 4 of the Charter? (i.e. 'No member may be denied the right to vote or hold office, unless prohibited by constitutional law.')
   

While the deadline for filing amicus curiae briefs remains the same (i.e. there are approximately 24 hours to do so), answers to the above questions by Local Councillors or the Election Commissioner may be accepted outside this window. This is in acknowledgement of the fact that these questions have been posted late in the window for the filing of briefs.

1. This has been standard operating procedure for all gameside elections since they have began.

2/3. While I don't believe this is my place to respond here, having a "native World Assembly nation" is quiet irrelevant to the questions at hand. The question is whether or not anyone is denied the opportunity to having a native, World Assembly nation — which is needed in order to participate. This is for practical security reasons since there is no other way to prevent vote stacking.

Regardless, prohibiting people from participating and them choosing not to are totally different issues. If someone chooses to have their WA nation in Balder, but 35 puppets in TSP, must we allow all 35 puppets to vote? The person isn't being denied the right to participate — they could freely move their WA nation to TSP for the duration of the election — but they are choosing not to.

-tsunamy
[forum admin]

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Acknowledging Volaworand's amicus curiae brief, I would appreciate it if the Election Commissioner and the Local Council (collectively or individually) could voluntarily answer the following questions through a post below at their earliest convenience:

1. Who made the decision to limit voting in the Local Council elections to native WA residents? On what basis did they make this decision?
   
2. Is having a native WA nation in the region a requirement to be considered a member of the Coalition under Article III of the Charter? (cf. HCLQ 1708 Members of the Coalition)
   
3. If not, how does limiting the vote accord with Article III, Section 4 of the Charter? (i.e. 'No member may be denied the right to vote or hold office, unless prohibited by constitutional law.')
   

 

Hello, you lovelies.  I will be answering this question as an individual, informed by the opinions of the others.  I would like to stress my dearth of knowledge and experience in interacting with the courts of TSP, as well as my lack of knowledge about TSP law in general as it pertains to this case.  

1. I personally did not know, but it has apparently been standard for quite some time and it is likely for the purpose of ensuring elections are not meddled with by puppets and the like.

2. I do not believe so.  It does not take a WA nation in the region to interact in the region in good faith, now does it?  

3. Here is where I see the main problem arising.  No one is denying a member from having a World Assembly nation in our region.  Especially considering the cause of this complaint was because a nation in the SPSF was on a mission during our election period, I find it important to note that our military is voluntary.  No nation is forced to join, and no nation is forced to go on every mission.  Further, considering the ease of access to the World Assembly, this can hardly be considered an insurmountable obstacle to voting rights.  Nations and the users behind them make the conscious choice to not have their native nation possess a World Assembly membership, and their lack of a vote is no different than that of a user who does have a World Assembly nation and chooses not to vote, or a nation who doesn't log in for a week and doesn't get the chance to vote.  

We have no obligation to provide no barriers to voting, but rather no excessive or insurmountable barriers.

Having a native WA nation in the region for a week or less is hardly excessive.

Local Councillor
Queen of the RMB
Reluctant Forum User

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