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.

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. 

Except I'm not choosing to have my WA elsewhere due to opposite loyalties - I'm doing it because I'm on a military operation to liberate embassy allies. 
Currently, the civilian militia is 40 or so strong from TSP - had the civilian militia organizing happened a week earlier, that would be 40 or so people who couldn't vote.

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

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HIGH COURT OF THE SOUTH PACIFIC

HCLQ 2003 Legality of Closed Local Council Elections

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  A question on the constitutionality of restricting Local Council elections to native World Assembly nations.

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Found Justiciable: 06 August 2020 | Opinion Delivered: 12 August 2020

 

Legal Questions (link):

1. Does Article 3, Section 3b of the Elections Act apply to Local Council elections that are open to WA member, native residents? (Petitioner: North Prarie, 05 August 2020)
   
2. Do 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? (Petitioner: North Prarie, 05 August 2020)
   

 

Amicus Curiae Briefs:

1. Volaworand (08 August 2020; link with addendum); Candidate
   
2. Tsunamy (09 August 2020; link); Election Commissioner
   
3. Auphelia (10 August 2020; link); Local Councilor and Candidate
   
4. North Prarie (10 August 2020; link); Petitioner
   

 

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SUMMARY OF THE RULING:

It is the opinion of the Court that the current Local Council elections unconstitutionally restrict voting to World Assembly natives. This is because the aforementioned voting restriction is not required or authorised by a constitutional law, meaning it falls foul of the Charter requirement that only a constitutional law may restrict the right to vote amongst those who are members of the Coalition (Article III, Section 4). Indeed, the Court has previously held in HCLQ 1708 Members of the Coalition that a person residing in the region or forums in good faith is a member of the Coalition. This does not require a person to be a World Assembly native. Thus, the right to vote in Local Council elections is not restricted to World Assembly natives and, as such, the Election Commissioner was incorrect to make such a restriction. Consequently, the Election Commissioner must act to ensure all members of the Coalition may vote in the current Local Council elections.

 

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JUSTICE NAT delivered the opinion, signed also by CHIEF JUSTICE KRINGLE.

As is usual practice, the most recent Local Council election was conducted by regional poll only open to those who possess a World Assembly member native to the South Pacific. A question arose, however, as to whether restricting the electors to those meeting that requirement accords with the voting rights provided in the Charter. Additionally, there was a specific question as to whether absentee voting provisions for those on military service extended to Local Council elections. The Court has considered both questions below, beginning with the second one.


Part I: Absentee military ballot statute only for Delegate elections

Article 3, Section 3(b) of the Elections Act (link) provides that '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.' This subsection then goes on to discuss the practicalities of how this may occur. The context of this passage is Article 3, Section 3 of the Elections Act, which provides for the regional poll component of the Delegate election. As such, the context implies that this provision for military absentee voting is specific to Delegate elections.

Even if the provision for absentee military voting on regional polls applied to other elections under the Elections Act (which it does not), this would not affect Local Council elections. This is because Local Council elections are regulated under the Local Council Elections Act (link). As such, the Court determines that the provisions of Article 3, Section 3(b) of the Elections Act do not apply to Local Council elections.


Part II: Possession and lawful restriction of voting rights

Article III of the Charter (link) enumerates the rights and freedoms that members of the Coalition are entitled to. Section 4 states that 'No member may be denied the right to vote or hold office, unless prohibited by constitutional law.' For example, the Delegate elections discussed in Part I are regulated under the constitutional Elections Act. Thus, as a constitutional law, the Act is able to lawfully restrict voting in Delegate elections. However, can the same be said for the law which limits Local Council elections to World Assembly natives?

The Local Council Elections Act is silent as to who may vote in Local Council elections. It only states in Article 7 that polls on amending the Act itself are to be conducted 'with the electorate limited to native World Assembly residents of The South Pacific.' This, however, does not provide authorisation to limit who can vote in Local Council elections themselves. Since there is no law (let alone a constitutional one) authorising the limitation of voting in Local Council elections, the action of limiting the vote would seem to violate the aforementioned Charter passage on restricting voting rights. However, an astute reader would notice that the law says 'No member may be denied the right to vote [...]' (emphasis added), which begs the question: who is a member of the Coalition?

The Court considered who a member of the Coalition is in the aptly-named HCLQ 1708 Members of the Coalition (link). In the summary, it provided that:

It would be reasonable then to interpret the status of membership as that wherein a nation that resides in the region or a user registered on the forum either resides or participates in the same without reasonable displays of bad faith or intent to upset the legitimate order of the Coalition.

Indeed, then-Permanent Justice Kringle wrote rather poetically in Part IV of the ruling:

A member of this region is a constituent piece of a complex structure, part of a fourteen year old region with its own government, culture, practices and membership. To be a member of the South Pacific is to partake in more than a decade of history and to help create more of it each day, for present and future generations to enjoy.

Nothing within the aforementioned ruling provides that being a World Assembly native is necessary or sufficient for one to be a member of the Coalition. Indeed, World Assembly member status was not discussed at all in that ruling. As such, the Court finds it hard to believe that not having a World Assembly member in the region disqualifies one from being a member of the Coalition.

While this finding applies irrespective of military service, it is especially evident when it concerns a member of the regional military on deployment. Those in the South Pacific Special Forces should rightly expect to be considered a member of the Coalition even if they were on deployment and did not have another nation in the South Pacific region. This is because they are away from the physical region solely due to serving the Coalition in the military. Undoubtedly, this fits the more poetic definition of membership provided above. 

Bearing all of this in mind, the Court determines it is not just World Assembly natives who can expect the freedoms extolled by the Charter. These protections apply to all members of the Coalition, not just those who are World Assembly natives or who are actively serving in the regional military. As such, they all have the right to vote unless prohibited by constitutional law. Since it was established earlier that the restriction of voting in Local Council elections is not authorised by any law (let alone a constitutional one), limiting the Local Council vote to World Assembly natives falls foul of Article III, Section 4 of the Charter.


Part III: No lawful excuse for restricting Local Council elections

While it has been demonstrated that restricting Local Council elections to World Assembly natives falls foul of the right to vote in the Charter, multiple amicus curiae briefs have proposed this restriction is merely a technical requirement for voting to occur (similar to that of a polling booth). This argument is fatally flawed as it proposes something can be legal even though it contradicts the Charter. Thus, such claims need not be addressed. Nonetheless, it shall be demonstrated below that restricting gameside elections to World Assembly natives is not an inherent requirement of holding a vote.

As discussed in Part I, the Delegate election already has a mechanism whereby military members on active duty can vote without having a World Assembly native in the South Pacific. This demonstrates it is possible for a vote to be conducted without solely relying on a regional poll restricted to World Assembly natives. Thus, the restriction of voting to World Assembly natives is not an inherent requirement to allow voting to occur.

However, one may object that the regional poll in the Delegate election remains restricted to World Assembly natives and that a secondary mechanism is used for absentee military ballots. This poses no issue, as the requirement discussed in Part II is that all members of the Coalition ought to be able to vote, not that they must all be able to vote using the same system. Provided other members of the Coalition may vote using some alternative method and this fact is publicised, the Election Commissioner can restrict the regional poll itself however desired.

Another core concern in the amicus curiae briefs was that of vote stacking. This mainly arose out of the belief that the regional poll itself would have to be open to all nations residing in the South Pacific, not just World Assembly natives. However, the paragraph above demonstrates that this need not occur; the Election Commissioner simply must provide an alternative for those who are not World Assembly natives. Regarding dual voting itself, the Election Commissioner need not accept multiple votes from a single user who has multiple nations. This is because it is the user, and not the individual nation, who is accorded rights as a member of the Coalition. Then-Permanent Justice Kringle wrote in Part IV of the aforementioned ruling HCLQ 1708 Members of the Coalition (emphasis added):

There are few privileges greater in the region than being a member [of the Coalition]. [...] As one, the user can participate in the affairs of the region, contact and petition their government officials, receive all the protections of due process, and have a legitimate claim to their participation in regional life.

Through addressing the concerns levelled in amicus curiae briefs, it has been demonstrated that conducting the Local Council election exclusively through a regional poll only open to World Assembly natives is not an inherent requirement of voting; rather it is a restriction of it. Since this restriction has occurred without the authorisation of a constitutional law, it violates the right to vote found in Article III, Section 4 of the Charter. As such, the Court hereby orders the Election Commissioner to ensure all members of the Coalition (not just World Assembly natives or members of the regional military on deployment) can have their vote counted for both rounds of the current Local Council elections. Provided a reasonable opportunity to vote is granted, the Election Commissioner is empowered to undertake this however desired. Once done, the Election Commissioner may then certify the results of the election.

 

It is so ordered.

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

Reply

In my official capacity as Election Commissioner, I am notifying the High Court of the Election Commission's intent to appeal this ruling. Particularly, the Election Commission intends to appeal the legality of the order the Court delivered as follows:

As such, the Court hereby orders the Election Commissioner to ensure all members of the Coalition (not just World Assembly natives or members of the regional military on deployment) can have their vote counted for both rounds of the current Local Council elections.

Additionally, it has been described to the Election Commission by the Chief Justice as follows:

All concerns about election security are, however legitimate, political and technical rather than legal. The fact of the matter is that the EC has to either do a new poll or allow members to cast a vote in some way.

Not only is the EC legally allowed to complete the election, they’re legally compelled to do so. (image)

The notice is being given in advance, so that the Court may organize and schedule a Justice available who meets the legal eligibility to hear an appeal per the Judicial Act.

(This post was last modified: 08-18-2020, 04:30 PM by sandaoguo.)

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