In re 39th Presidential Election 2020 SDSC 11
In re 39th Presidential Election 2020 SDSC 11
| Date of judgment | 21st August 2020 |
|---|---|
| Justices | Chief Justice Danyo Justice Ivy Cactus Justice CreatingKing |
| Held | The rigged votes cast during the 39th Presidential elections were to be struck out as they violated the petitioner’s right to suffrage (Article 20 of the Constitution). The election results were to be recalculated accordingly. |
| Ruling | 3-0 |
| Applicable precedent | Illegitimate ballots can only be invalidated on the balance of probabilities (more likely than not that they are rigged), 12 Overturned in In re 4th Parliamentary Election 2020 SDSC 23, 13 |
MAJORITY OPINION by Chief Justice Danyo
(with Justice Ivy Cactus agreeing and Justice CreatingKing agreeing except for 12-13)
Introduction
[1]. The petitioner is seeking judicial review of the 39th Presidential elections on the grounds that the results were likely to be rigged, violating their right to suffrage under Article 20 of the Constitution. The petitioner is seeking judicial remedy in the form of invalidating the allegedly rigged votes and recalculating the election results accordingly.
[2]. This judicial review reviews the 39th Presidential elections, which happened prior to the passage of the Election Rigging Amendment of the Electoral Commission Act. That amendment would’ve allowed the Attorney General, Secretary of State, and the Election Commissioner to vote to strike down what they deem to be illegitimate votes. As such, the petitioner is seeking remedy from this court instead to invalidate the allegedly rigged votes.
Summary of the petition
[3]. The petitioner cites the Department of Justice’s (“DoJ”) report on the 39th Presidential elections. In the report, the DoJ concludes that election rigging took place. The report states that certain votes were deemed to be illegitimate because they (1) gave similarly high scores to specific candidates while giving similarly low scores to other specific candidates and (2) were cast in quick succession. The DoJ claims that similar votes in quick succession is indicative of rigging with alternative Reddit accounts. The report also found no evidence of improper conduct by the candidates involved.
[4]. The petitioner therefore proposes a remedy to invalidate the allegedly illegitimate votes as highlighted in the DoJ report and to recalculate the election results accordingly. As a recalculation would lead to a new President being elected, the petitioner proposes that the actions and decisions made by the current President be left untouched to prevent a disproportionate response by this court.
Summary of the response
[5]. The respondent admittedly makes a rather convoluted counter-argument, but in general, argues that determining which votes are legitimate and which votes are illegitimate violates the state’s constitutional duty to ensure elections are fair, as established under In re Appendix s1.7 of the Constitution 2020 SDSC 3 20.
[6]. The respondent also makes a counter-argument questioning the amenability of elections. They argue that this court has no legal authority to “review or change votes cast by individuals — or the outcome of the lawfully cast ballots”.
Reviewing the case in hand
[7]. The most obvious starting point for this case is to examine In re 38th Presidential and 38th Senatorial Elections 2020 SDSC 10, which provides us with the latest case law for how this court deals with elections.
[8]. The objections by the respondent in 6 regarding the amenability of elections do not hold water. In paragraphs 16-19 of that judgment, this court found that restrictions on the scope of judicial review unconstitutionally infringed on the petitioner’s general right to judicial review and are therefore unenforceable. Article 26, s3 of the Constitution likewise guarantees the petitioner the right to effective judicial remedy. The review of election results and the power to remove an unlawfully or improperly elected officeholder is therefore well within this court’s authority. This was already implicitly established in paragraphs 42, 43, and 47 of that judgment which saw discussions of whether it was proportionate to overturn the election results by this court.
[9]. Now that we have reiterated this court’s position on the amenability of elections, the next thing we should focus on is the two part test under In re 38th Presidential and 38th Senatorial Elections 2020 SDSC 10 37 to help us determine what judicial remedies are appropriate. Once it has been established that something unlawful was done, we need to determine (1) how serious the unlawful act or conduct was, and (2) whether the proposed remedy is proportionate to the seriousness of the unlawful act or conduct.
[10]. Unlike in In re 38th Presidential and 38th Senatorial Elections 2020 SDSC 10, the unlawful acts in this case are not as clear cut. In that case, a voting verification system repealed by the Senate was still in use. That was very clearly unlawful. In this case, the unlawful acts are only allegations - things that were alleged to have happened in the DoJ report. If this were a criminal case where the evidential burden of proof was beyond a reasonable doubt, it is improbable that the report alone would suffice to secure a criminal conviction.
[11]. In In re Appendix s1.7 of the Constitution 2020 SDSC 3 20, this court affirmed that the state had a constitutional duty to ensure election integrity. Not only that, tackling voter fraud was explicitly stated in that judgment to be part of that duty, “... To meet this constitutional obligation, the state must have adequate apprateus in place to ensure that elections aren’t a complete joke where people can stuff ballots.” As such, the respondent’s argument in 5 that determining which votes are legitimate and which are illegitimate violate the state’s duty to ensure election integrity is patently false; the opposite is true.
[12]. There must be an evidential burden of proof to decide how much evidence is needed to take the allegation of an unlawful act or conduct as true. Proof beyond a reasonable doubt to invalidate allegedly rigged votes was actually proposed by the petitioner in In re Appendix s1.7 of the Constitution 2020 SDSC 3 9. The court however disagrees with that proposal. Such a high evidential burden of proof would be unduly restrictive and would prevent the state from effectively upholding its constitutional duty of preventing voter fraud to ensure election integrity. Therefore, we must use a lower burden of proof. This court believes that the balance of probabilities suffices. In other words, it must be proven that it is more likely than not that the vote is invalid. The issue with a lower evidential burden of proof like the balance of probabilities is, of course, that legitimate votes are more likely to be invalidated by accident. My colleague, Justice CreatingKing, in his concurring opinion in 27, argues that such a possibility makes the balance of probabilities too low of an evidential burden of proof, and instead gives a counter-proposal of “clear and convincing evidence”. To my knowledge, however, clear and convincing evidence is not an evidential burden of proof used in SimDemocracy and I am reluctant to introduce a new evidential standard by way of judicial precedent, and so I respectfully disagree with his concurrence.
[13]. Using the evidential burden of proof required as stipulated under 12, this court can assess that the DoJ report has shown, on the balance of probabilities, that the votes highlighted were rigged and improperly cast.
[14]. Now that an unlawful act is established, we can begin to use the two part test to determine remedies. The first question is how serious was the unlawful act? Election rigging is fundamentally an attack on not just the petitioner’s, but everyone’s right to suffrage. Article 21, s1 of the Constitution explicitly states that “every citizen shall have the right to vote in fair and free elections, and have the right to equal suffrage”. When someone rigs the election, not only do they deprive everyone of a fair and free election, they unlawfully give themselves a greater share of the vote, depriving equal suffrage too. There is no doubt that the unlawful act in this case is extremely serious.
[15]. So the second part of the test is determining whether the invalidation of these rigged votes and the recalculation of the election results is proportionate to the unlawful act. To that end, this court agrees that such a response is proportionate due to the gross infringements of the petitioner’s and everyone else’s constitutional right to suffrage under Article 21 of the Constitution.
[16]. On the contrary, striking down all of the current President’s actions and decisions as null and void on the basis they were not lawfully elected President is a disproportionate response to 14 as it would have too much of a domino effect. When a President’s actions and decisions have been invalidated, all of their appointments, executive orders, etc. are invalidated too which can easily lead to a cascade of unintended consequences unforeseen by this court. We should never rule out this option though. If it is proven that someone was to have rigged or conspired to rig the elections in their favour or that the improperly elected President acted with malice, all their actions and decisions must be voided to prevent them from benefiting from their unlawful actions.
Verdict
[17]. The illegitimate votes as highlighted in the DoJ report are to be rendered null and void. The votes of the 39th Presidential election are to be recalculated and the lawful President is to be appointed to serve the rest of their term in accordance with law.
Postscript
[18]. The biggest problem this court has with the DoJ’s report is that it primarily relied on the fact that the election riggers did a poor job. The main pieces of evidence supporting the DoJ’s assessment is the fact that the ballots were all cast in a relatively short timeframe and consistently gave 5/5 votes to some candidates, and 0/5 votes to other candidates. The publication of this judgment will inevitably be used by prospective vote riggers to be more smart about their conduct, such as spacing out when they cast their ballots and varying the scores given to targeted candidates. The Attorney General himself has privately testified to this court that not much can be done to prevent such events from taking place in future elections.
[19]. In In re Appendix s1.7 of the Constitution 2020 SDSC 3 27, this court affirmed the validity of the Kuilin verification system to enforce election integrity and “prevent ballot-stuffing”. The events in both the 39th Presidential election, the one reviewed by this court, and the 39th Senatorial election, which was held recently, have shown that such a view no longer holds water.
[20]. Kuilin merely checks that each vote is accompanied with a Reddit username. There are no adequate safeguards in place to prevent people from operating multiple Reddit usernames to vote multiple times in elections.
[21]. The prevention of voter fraud and ballot-stuffing is a constitutional duty of the state to uphold the petitioner’s right to suffrage under Article 21 of the Constitution. The continued use of a verification system which allows for undetectable voter fraud, which can be prevented through the use of other systems as contemplated by this and previous Senates, represents a gross violation of the state’s constitutional duty and is an unacceptable infringement to both the petitioner’s and everyone else’s right to suffrage.
[22]. It is therefore the increasing belief of this court that the continued use of the Kuilin verification system is no longer constitutional. This court requests that the Senate proceed with replacing Kuilin as soon as possible to prevent further possible unnecessary infringement of the petitioner’s and everyone else’s right to suffrage.
CONCURRING OPINION by Justice Ivy Cactus
[23]. While I concur with the Chief Justice on 12 and the use of balance of probabilities, I feel the court should explain in closer detail beyond just “Therefore, we must use a lower burden of proof. This court believes that the balance of probabilities suffices.”, which explains why we can’t use one system, but never explains why SimDemocracy should instead use a balance of probabilities.
[24]. The rights of both being able to vote, and that election you’re voting in being fair, stem from the same line of the Constitution, Article 21 Section 1 “Every citizen shall have the right to vote in fair and free elections, and have the right to equal suffrage.”. I interpret this as meaning that the rights go hand in hand, you can not have one without the other. Removing a single valid vote would violate the right to suffrage, but keeping one fake one would make it so that the election wasn’t fair, also making the election unconstitutional. So, with each vote you must decide if removing it would uphold the right to a fair election, or violate someone's right to vote. To do this you must look at each vote and see whether or not it’s more likely to be real or fake, because putting the burden too high risks letting in fake votes violating the right to a fair election, and setting it too low risks violating the right to suffrage. Hence I settled on the middle ground of balance of probabilities, which makes removing votes most likely to not violate either right.
[25]. Although I say this, making it sound like this is a good method to uphold both rights, Kuilin has shown that it has insurmountable flaws, making the use of balance of probabilities even necessary, Which is why I agree with the majority opinion that Kuilin can no longer uphold the right to a fair election.
CONCURRING OPINION by Justice CreatingKing
[26]. Though I agree with the ruling and most of the suggested remedies, my main issue lies with the “Balance of Probabilities” aspect of determining whether or not votes should be removed. This mainly stems from my belief that in a free and fair election, one legitimate vote being removed is far worse than one rigged vote making it through. As was stated in the above opinion, it can be assumed that those who wish to rig the election will get better in their methods. I worry that, working under this assumption, those in charge of removing rigged votes may remove legitimate votes that have even the smallest bit of suspicious behavior.
[27]. However this does not change my agreement with the rest of the court and the verdict that was reached, as I believe the accused votes were suspicious enough for removal, and I have no doubt that the people in charge of the election process do their best to give a fair result. That said, even though I believe that some measure more around “clear and convincing evidence” is the proper burden to use, I agree with the court that the best way to proceed is for the Senate to replace Kuilin with a better verification system at the soonest possible convenience.
[28]. For the record, “clear and convincing evidence” is a medium level of burden of proof which is a more rigorous standard to meet than the preponderance of the evidence standard, but a less rigorous standard to meet than proving evidence beyond a reasonable doubt. In order to meet the standard and prove something by clear and convincing evidence, the party alleging the contention must prove that the contention is substantially more likely than not that it is true (law.cornell.edu/wex/clearandconvincingevidence).
