In re 38th Presidential and 38th Senatorial Elections 2020 SDSC 10
In re 38th Presidential and 38th Senatorial Elections 2020 SDSC 10
| Date of judgment | 8th August 2020 |
|---|---|
| Justices | Chief Justice Danyo Justice Ivy Cactus Justice CreatingKing |
| Held | The 38th Presidential and 38th Senatorial elections were unlawfully conducted because they used a verification system already repealed by a Senate resolution |
| Ruling | 3-0 |
| Applicable precedent | Article 26, s3 of the Constitution guarantees a general right to judicial review, 15 Restrictions on the scope of judicial review unconstitutionally infringes on the right to judicial review, 16 There is a two part test to determine whether a judicial remedy is suitable: (1) the unlawful act/conduct has to be serious enough, and (2) the remedy has to be proportionate to the seriousness, 36 Likelihood is determined by the reasonable person test, not a mathematical or empirical approach, 39 Affirms SD v Kamray23 2020 Crim 5 9-10 |
MAJORITY OPINION by Chief Justice Danyo
(with Justices Ivy Cactus and CreatingKing agreeing)
Introduction
[1]. The petitioner is seeking judicial review of both the 38th Presidential and 38th Senatorial elections on the grounds that the voter verification system used was unconstitutional and unlawful. The petitioner argues that as the elections used an unlawful verification system, they should both be “rendered null and void”.
[2]. For the record, on the 7th August 2020 at 15:34 BST (10:34 ET), this court issued a preliminary injunction temporarily suspending the Citizenship ID Act prior to issuing this judgment. As such, under Part 2, Article 1, s1 of the Electoral Commission Act, Kuilin’s verification program was assigned to be used as the verification system for all elections and referendums while the preliminary injunction remained in effect by automatic operation of law.
Summary of the petition
[3]. The petitioner first argues that the Citizenship ID Act (“CID Act”), the law which created the Citizen ID verification system, is unlawful. The petitioner then offers three possible explanations as to why that is.
[4]. The first possible explanation offered by the petitioner is that the CID Act was repealed by the Senate. On the 25th July 2020 at 17:56 BST (12:56 ET), at the conclusion of the statutory 24 hour voting period, the resolution to repeal the CID Act was voted on with a 7-0 majority. The issue with this explanation, as the petitioner pointed out, is that Article 11, s2 of the Senate Voting Act states that all bills and resolutions, excluding internal Senate actions, must be promulgated by the Speaker of the Senate to take effect. The resolution to repeal the CID Act was not promulgated by the Speaker. The petitioner then pointed out that under Article 11, s1 of the Senate Voting Act, the Speaker is given a fixed period of time (which ends at the end of their term) to promulgate these bills and resolutions. The petitioner then offers two arguments to reconcile with these facts. The first is that Article 11, s1 implies that all bills and resolutions not promulgated by the Speaker automatically take effect upon the end of the Speaker’s term. The second is that Article 11, s2 is unconstitutional as it violates Article 1, s2 of the Constitution which states that the Senate has the power to pass legislation with a simple majority vote.
[5]. The second possible explanation is that the CID Act has not actually established the Citizen ID voting system. Article 2, s5 of the CID Act states that the bill “replaces the Kullin (sic)”. The petitioner argues that Kuilin is a person and not a verification system and therefore that section of the law is meaningless.
[6]. Finally, the petitioner’s third possible explanation is that the CID Act is unconstitutional. Article 16, s1.1 of the Constitution guarantees the right for people to cast anonymous votes during elections. The petitioner alleges that Citizen IDs allow for people to see who voted for who as the Citizen ID Keeper has the names of people tied to every voter ID and the Secretary of Elections has the votes tied to every ID.
[7]. The petitioner then concludes that as Citizen ID was used unlawfully, it follows that the 38th Presidential and 38th Senatorial elections were conducted unlawfully. The petitioner then appeals to the court to render the elections “null and void”.
Summary of the response
[8]. The respondent begins by countering the petitioner’s argument at 4 that the CID Act was repealed by the Senate. The respondent argues that Article 11, s1 of the Senate Voting Act does not imply the automatic enactment of bills and resolutions not promulgated by the Speaker. They argue that when the Speaker fails to promulgate bills and resolutions under Article 11, s1, they have merely committed dereliction of duty. They propose that Article 11, s1 actually implies that the obligation to promulgated bills and resolutions falls on to the next Speaker. They also argue that Article 11, s2 of the Senate Voting Act is consistent with Article 1, s2 of the Constitution.
[9]. The respondent addresses the petitioner’s point at 5 by arguing that “there is no possible doubt what the CID Act seeks to do”. While the legislation is vague, there is no other reasonable alternative interpretation of the section, and therefore a declaration that the section is legally meaningless is unreasonable.
[10]. The respondent concurs with the petitioner at 6, conceding that Citizen ID “does not uphold a citizen’s right to an anonymous vote”. They allege that Citizen ID has “glaring security flaws” as there is a potential for the Secretary of Elections to determine a person’s voter ID by analysing a person's voting patterns and time of voting. However, they then argue that overturning elections on the basis of infringement of the right to cast an anonymous vote would be nothing more than a time wasting exercise.
Issue 1: Are elections amenable to judicial review?
[11]. One of the issues not contemplated by either the petitioner or the respondent is the actual powers this court has in regards to judicial review. For this judicial review to proceed any further, we need to ask whether elections are amenable to judicial review. In other words, does this court have the authority to conduct judicial review on elections? Two main articles in the Constitution concern us when answering this question.
[12]. Article 6, s2 of the Constitution defines and restricts the scope of judicial review, stating “the Supreme Court shall possess the power of judicial review, that is a process under which executive or legislative actions are subject to review by the judiciary, and may therefore invalidate laws, acts and governmental actions that are incompatible with a higher authority; an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of the Constitution”. This poses a problem for the court, as elections are neither an executive or a legislative action. This is further supported by Part 1, Article 1, s1.1 of the Electoral Commission Act, which states that the Electoral Commission, the body that conducts elections, is an independent body outside of the “executive structure”.
[13]. Assuming the statute establishing an independent body is consistent with the Constitution, the actions done by this independent body are not amenable to judicial review according to Article 6, s2 of the Constitution, as the actions done by them are neither executive or legislative. What this also means is that the Senate could, through statutory law, theoretically classify governmental bodies as independent bodies to shield their actions from judicial review.
[14]. As there is nothing inherently unconstitutional about Part 1, Article 1, s1.1 of the Electoral Commission Act, the logic behind 13 applies. Under Article 6, s2 of the Constitution, elections, which are an action conducted by the Electoral Commission, are not amenable to judicial review because they are actions done by an independent body that is neither executive or legislative. However, there is one other main article of the Constitution that concerns us regarding the remit of judicial review.
[15]. Article 26, s3 of the Constitution provides for the right to judicial review and the right to judicial remedy when a person’s rights have been unlawfully infringed, stating that “every person shall have the right to petition a competent court for judicial review if their rights have been unlawfully infringed and the right to seek effective judicial remedy”. Along with Article 19, s1 of the Constitution, which provides for the right to a fair hearing by a competent court, and Article 25, s1 of the Constitution, which states that lack of enumeration can not be construed to deny implied rights, it is a fair assessment to interpret Article 26, s3 of the Constitution as providing the general right to judicial review.
[16]. This poses another legal question. Is Article 6, s2 of the Constitution, which defines and restricts the scope of judicial review, consistent with the petitioner’s Article 26, s3 right to judicial review? The answer is no. By restricting the amenability of judicial review to executive and legislative actions only, Article 6, s2 allows for the possibility of statutory law to shield the actions of independent bodies from judicial review by this court. There is also no plausible argument to be made that such an infringement on the petitioner’s right to judicial review, and the rights of many others in the future, can be permissibly infringed to protect the rights of others under Article 26, s1 of the Constitution.
[17]. As the right to judicial review is a right under the Bill of Rights under Article 26, s3 of the Constitution, it supersedes Article 6, s2, a regular article of the Constitution. Therefore, under the authority of Article 26, s2 of the Constitution, this court declares that Article 6, s2 of the Constitution is unconstitutional, void, and of no effect.
[18]. The Supreme Court still possesses the power of judicial review despite the voiding of Article 6, s2, as its authority of judicial review is derived from Article 26, s3 of the Constitution. Long established precedent dating back to December 2019 in In re Restraining Order Act 2019 SDSC 1 has shown that the Supreme Court is the competent court for judicial review for the purposes of Article 26, s3.
[19]. As Article 6, s2 of the Constitution has been voided, the restrictions on the scope of judicial review are now also voided and are not legally enforceable. As such, elections are amenable to judicial review by this court under the authority of Article 26, s3.
Issue 2: Is the Citizenship ID Act still in legal force?
[20]. The main question of this judicial review is whether or not the Citizenship ID Act (“CID Act”) is still in legal force. If it can be determined that the CID Act is not in legal force, it follows that the verification system used as prescribed by it was unlawful, and hence the elections which used Citizen ID were unlawfully conducted. While the petitioner has offered three possible explanations as to why they believe the CID Act is no longer in legal force, this court only has to accept one of the explanations for this fact to be true.
[21]. The most convincing explanation offered by the petitioner was at 4, where the petitioner argued that the Senate has already repealed the CID Act through a resolution. However, this explanation also poses many questions regarding the Senate Voting Act which this court will now address.
[22]. As stated before, Article 11, s2 of the Senate Voting Act requires the promulgation of bills and resolutions by the Speaker before they can take effect. Article 11, s1, on the other hand, states that the Speaker only has a window of time at their discretion to promulgate these bills and resolutions. The Act does not specify what happens if the Speaker does not promulgate these bills and resolutions after the statutory time frame has expired.
[23]. The petitioner and the respondent have both offered different interpretations of what they think is inferred by Article 11, s1. The petitioner argues that bills and resolutions not promulgated by the Speaker during the statutory time frame (i.e. during a Speaker’s term) automatically take effect as if they were promulgated. The respondent, on the other hand, argues that Article 11, s1 merely imposes a duty on the Speaker to promulgate these bills and resolutions. When a Speaker does not do so, they commit dereliction of duty. However, the bills and resolutions not promulgated do not automatically take effect as if they were promulgated. Instead, the obligation falls onto the next Speaker to promulgate them.
[24]. The actual wording of Article 11, s2 of the Senate Voting Act is rather unambiguous. It states that “any bills or resolutions will only upon the Speaker’s announcement that they have passed be enacted ...”. The section uses the word “only” and that leaves no room to infer that any bill or resolution not promulgated can take legal effect under automatic operation of law. As such, the respondent’s inference that the duty to promulgate falls on the next Speaker is more convincing. Article 11, s1, which specifies a statutory time frame, is not a section which automatically enacts bills and resolutions as if they were promulgated, as the petitioner suggests. Instead it is a section that is designed to impose a duty on the Speaker to promulgate bills and resolutions that have passed. Failing to do that, the Speaker could be potentially held criminally liable.
[25]. The petitioner, however, also raises a constitutional question. Under Article 1, s2 of the Constitution, the Senate is explicitly given the authority to “pass all legislation ... with a simple majority vote”. The petitioner argues that Article 11, s2 of the Senate Voting Act allows the lack of promulgation to essentially give the Speaker a de facto veto and is therefore inconsistent with Article 1, s2 of the Constitution.
[26]. The respondent has admittedly given a rather confusing and obfuscated response to this constitutional question. As I understand it, the respondent issues a counter-argument by arguing that the Speaker already has de facto veto power over legislation by simply delaying to hold a vote indefinitely. They also argue that the Constitution is inconsistent with itself. They argue that the existence of discharge petitions under Article 3, s3.2 of the Constitution are essentially a double vote, violating Article 1, s2. As double votes exist, the respondent argues that the “a simple majority vote” clause does not automatically make legislation take effect, and that statutory law can regulate as necessary the procedure of the Senate, including the de facto veto from lack of promulgation.
[27]. Unless (1) two articles or sections literally contradict each other, create a paradox, or create an infinite loop, or (2) one of the articles has supremacy over the other, such as the Bill of Rights superseding regular articles of the Constitution, it is a general rule of thumb that the Constitution can not be inconsistent with itself. When there is a technical discrepancy between articles, where one article provides a rule, and one article seemingly breaks that rule, the “rule-breaking” article can be inferred to be an exception to the rule.
[28]. So while it can be argued that discharge petitions require a double vote for legislation, it’s codification in Article 3, s3.2 of the Constitution implies it is a deliberately crafted exception to the rule. However, discharge petitions don’t actually conflict with Article 1, s2 in the first place. The vote for a discharge petition is not a vote for the legislation, it is a vote to force a vote on the floor. These are two different things and therefore there is no double voting in regards to discharge petitions.
[29]. In regards to the indefinite delay of legislation, the respondent argues that such a power possessed by the Speaker amounts to the de facto power of veto. What the respondent fails to note is Article 3, s3 of the Constitution gives the Speaker broad powers to control the legislative calendar and timing of votes. When a Speaker denies, or delays indefinitely, a vote for a bill or resolution on the floor, they are exercising their constitutional scheduling powers.
[30]. When a bill or resolution has been voted on by the Senate and has been passed with a simple majority vote, that bill or resolution takes legal effect by automatic of law under Article 1, s2 of the Constitution. Unlike the power to deny or delay a bill from vote in the first place, denying to promulgate a bill or resolution, i.e. denying it from taking legal effect, after a bill or resolution which has already attained a simple majority is not within the Speaker’s scheduling powers under Article 3, s3 of the Constitution. And unlike the President, the Speaker has no constitutional authority to veto legislation passed by the Senate. Hence, there is no constitutional authority for the Speaker’s powers under Article 11, s2 of the Senate Voting Act.
[31]. Therefore Article 11, s2 of the Senate Voting Act is inconsistent with Article 1, s2 of the Constitution. Article 11, s2 of the Senate Voting Act is unconstitutional, void, and of no effect.
[32]. All bills and resolutions which have been passed by a simple majority vote take, or have taken, legal effect immediately at the end of the statutory voting period under Article 4, s2 of the Senate Voting Act by automatic operation of law.
[33]. This also means that the Citizenship ID Act (“CID Act”) was legally repealed by the Senate through resolution on 25th July 2020 at 17:56 BST (12:56 ET) at the conclusion of the statutory voting period. The Citizenship ID Act is therefore not in legal force. What this also means is that the use of Citizen ID in the 38th Presidential and 38th Senatorial elections was unlawful, and therefore the elections were unlawfully conducted.
[34]. As we’ve established the CID Act is not in legal force, the petitioner’s other explanations in 5 and 6 do not need to be explored. Although briefly, for everyone’s benefit, the court rejects the argument at 5 that Article 2, s5 of the CID Act’s wording, which stated that “this bill replaces the Kullin (sic)” is legally meaningless. While the section was very poorly worded, it is very clear what the Act was trying to achieve when viewing context - replacing the Kuilin verification system. It is rather disingenuous to pretend something is ambiguous and meaningless when it clearly isn’t given context. A declaration that a section is null on the basis it is unintelligible should only be offered when meaning can’t be parsed even with context. We will explore 6, the constitutional questions of the CID Act later in the judgment.
Issue 3: Are there enough grounds to overturn the elections?
[35]. Now that we’ve established that the elections were unlawfully conducted, the next question this court has to ask is whether there are enough grounds to overturn the elections as a result. The petitioner requests that, as a judicial remedy, the “elections conducted should be rendered null and void”. The respondent, on the other hand, argues that the overturn of the 38th Presidential and 38th Senatorial elections would be nothing more than a symbolic time-wasting exercise. It should be noted that this court has already offered a judicial remedy for the unlawful enforcement of the CID Act by directing that Kuilin’s verification program be used instead for elections and referendums henceforth under automatic operation of law.
[36]. Previous Supreme Court precedent aids with this question. In Ivy Cactus, ex parte Dickhead68 (Appellant) v State of SimDemocracy (Respondent) 2020 SDSC 9 3, this court denied an appeal for a retrial despite a procedural error (the judge not giving a sentence after conviction of a crime) on the basis that it would be “unjust and unduly costly”. The case has shown that once it has been established that something unlawful was done, the next question this court should ask is what remedies are appropriate. In this case, we are examining the grounds for overturning the elections.
[37]. To determine whether a judicial remedy has sufficient grounds, two questions were implicitly asked in Ivy Cactus, ex parte Dickhead68. Firstly, how serious was the unlawful act or conduct? Secondly, how proportionate is the proposed judicial remedy? Generally, the more egregious the unlawful act or conduct is, the more appropriate remedies with large consequences are. Conversely, a proposed remedy with large consequences could only be justified as proportionate if the unlawful act or conduct was so serious it warrants it to sufficiently rectify the situation.
[38]. In determining how serious the unlawful use of Citizen ID was in the 38th Presidential and 38th Senatorial elections, we need to examine two further questions. Was the unlawful use of Citizen ID likely to have caused a substantial effect on the final outcome? And was the erroneous use of Citizen ID constitutional in respect to the right to cast an anonymous vote under Article 16, s1.1 of the Constitution.
[39]. For the first question, it is very important that we emphasise that likelihood is determined by the reasonable person test, and not through a mathematical process which is practically infeasible, as it would be difficult and unduly costly to empirically calculate whether the use of one verification system over the other had a substantial effect on the outcome. The reasonable person test for calculating likelihood as established under SD v Kamray23 2020 Crim 5 9-10 is therefore affirmed by this court. I recommend observers of this case to read that judgment if they want to have a more in depth look into the reasonable person test. In that regard, this court concurs with the respondent. The reasonable person would’ve concluded that the use of Citizen ID as a verification system was unlikely to have caused a substantial effect on the final outcomes of the 38th Presidential and Senatorial elections.
[40]. The second question is whether the use of Citizen ID was constitutional in respect to Article 16, s1.1 of the Constitution. The petitioner argues in 6 that as the Citizen ID Keeper has names tied to every ID and the Secretary of Elections has the votes tied to every ID, it is possible to see who voted for who, and therefore the use of Citizen ID infringes on their Article 16, s1.1 rights. The respondent actually concurs with the petitioner at 10, stating that Citizen ID “does not uphold a citizen’s right to an anonymous vote”.
[41]. With respect to both parties, the court disagrees with the assessment shared by the petitioner and respondent. The Citizenship ID Act (“CID Act”) has multiple provisions to uphold the petitioner’s Article 16, s1.1 rights. Most notably, Article 1, s3 of the CID Act prohibits the Citizen ID Keeper from sharing the list of usernames associated with the IDs with the Secretary of Elections. Article 1, s4 of the CID Act expressly criminalises unlawful sharing of IDs with a maximum sentence of a six (6) month ban. While Article 1, s4 of the CID Act does allows for the sharing of the IDs when subpoenaed by a judge for an investigation, which is indeed an infringement of Article 16, s1.1 this is constitutionally permissible as such investigations help uphold and protect the constitutional right of suffrage (Article 21, s1) of others by upholding election integrity. As an additional note, upholding election integrity has previously been affirmed by this court to be a constitutional duty of the state in In re Appendix s1.7 of the Constitution 2020 SDSC 3 20. The respondent’s concerns that the Secretary of Elections could theoretically work out a person’s ID by analysing voting patterns and time of voting has some grain of truth to it, but such a problem is equally present under the Kuilin verification system. What the respondent’s concerns actually show is that there is no perfect verification system and every system used carries, and will always carry, a degree of risk. As such, Citizen ID is consistent with Article 16, s1.1 of the Constitution.
[42]. From asking these two questions, we can determine that the unlawful use of Citizen ID in the 38th Presidential and 38th Senatorial elections was not a serious error. This leads to one final question. Is the overturning of election results proportionate to the seriousness of the unlawful act or conduct?
[43]. The court gives a negative response. For such a relatively minor error which was likely to not have a substantial effect on the final outcome of the election results and one that was consistent with the petitioner’s constitutional rights, the overturning of election results, which could have far reaching consequences, would be incredibly disproportionate.
Verdict
[44]. The use of Citizen ID for the 38th Presidential and 38th Senatorial elections was unlawful. The statutory basis for the use of Citizen ID, the Citizenship ID Act, was legally repealed by the Senate and has no legal force.
[45]. Article 6, s2 of the Constitution unconstitutionally infringes on the petitioner’s general right to judicial review. It is void and of no effect.
[46]. Article 11, s2 of the Senate Voting Act unconstitutionally gives the Speaker de facto veto power over passed legislation. It is void and of no effect.
[47]. The results of the 38th Presidential and 38th Senatorial elections are not overturned as there are insufficient grounds to do so.
[48]. The preliminary injunction temporarily suspending the Citizenship ID Act is no longer in effect as this judicial review has concluded.
