In re 9th Parliamentary Election 2021 SDSC 3

In re 9th Parliamentary Election 2021 SDSC 3

Date of judgment	17th March 2021
Justices	Chief Justice Ivy Cactus Justice Syndicality Justice Fermiboson
Held	The state did not meet the Clear and Convincing standard, and the votes were not fraudulent.
Ruling	3-0
Applicable precedent	The respondent is allowed to agree with the petitioner, 7 Votes must be removed using an official vote between qualified parties, 20 The Supreme Court may act on its own to remove votes, even if the executive fails to follow proper procedures to do so, 21 It is a conflict of interest for candidates to participate in vote removal discussion, 22 The Supreme Court doesn’t have the authority to determine if someone was acting corruptly, 23 A simple pattern of votes is not enough to provide clear and convincing evidence of voter fraud, 24

MAJORITY OPINION by Justice Fermiboson

(with Chief Justice Ivy Cactus and Justice Syndicality agreeing.)

Intro

[1]. The petitioner is seeking review into the removal of 3 votes during the 9th Parliamentary Election on the grounds that the votes were not removed on a Clear and Convincing standard, and therefore their removal violated Article 20, Section 1 of the Constitution.

[2]. For the record, the Court has received and accepted three amicus briefs submitted by Katy, candidate for Parliament; Kamray, statistician and banned member of SimDemocracy; as well as Turncoat, Electoral Commissioner.

[3]. For the record, the Court issued an injunction to temporarily suspend Parliament from forming until this case was properly adjudicated. This is proper to do in all cases of reviews before events, actions, or laws go into effect to avoid having to roll back what happened under them if they’re found unconstitutional.

Procedural Issues

[4]. In court, the respondent was accused of Contempt of Court because they had agreed with the petitioner and therefore gave the "bare minimum effort" required to comply with trial requirements. This was due to the fact that they viewed the petitioner’s argument as unarguably correct, and declined to argue to the contrary

[4.1]. This seemingly clashes with 5 of Ivy Cactus, ex parte Dickhead68 (Appellant) v State of SimDemocracy (Respondent) 2020 SDSC 9, in which the Attorney General at the time, Halfcat, was held in contempt due to a failure to argue against the Appellant.

[5]. However, the Court observes that there are many cases of the respondent agreeing with the petitioner, such as in In re Appendix s1.7 of the Constitution 2020 SDSC 3, 12; In re 38th Presidential and 38th Senatorial Elections 2020 SDSC 10, 10; and In re Article 10, s2 of the Trial and Pre-Trial Procedures Act 2020 SDSC 13, 7.1. All of these cases display the respondent partially agreeing with the petitioner, and the Court sees no reason why this could not be logically extended to full cases.

[6]. Moreover, the Supreme Court would like to note that it is not an adversarial court, but rather an inquisitorial one, as described in 16 of Nighteye (Appellant) v LordDeadlyOwl (Respondent) 2020 SDSC 5\. This means that the Court is perfectly capable of determining counter-arguments itself if there are any legally viable ones, combined with the people’s ability to file Amicus briefs there’s no reason to believe that just because the lawfully appointed respondent agrees with the petitioner, the Court wouldn’t see opposing opinions if any are viable.

[6.1]. There is plenty of examples of this throughout SDSC cases, such as Nighteye (Appellant) v LordDeadlyOwl (Respondent) 2020 SDSC 5, in which the defendant failed to appear to an appeal and the Court moved forward with it, and In re Trial and Pre-Trial Procedures Act 2020 SDSC 4, which indeed lacked any argumentation altogether.

[7]. There is no legal basis to force the respondent to argue against what they believe. While putting minimal effort in a court case may constitute Contempt of Court, agreeing with the petitioner does not fall under this condition, similar to how pleading guilty in criminal or civil cases does not constitute Contempt of Court.

[7.1]. It should be noted that in Ivy Cactus, ex parte Dickhead68 (Appellant) v State of SimDemocracy (Respondent) 2020 SDSC 9 the Acting Justice Kangawolf drew on a now-repealed section which required the Attorney General to actively participate, with the removal of this section no legal duty to do so exists as of current.

[8]. Despite this, the Court utilized the report given by the state as to why they removed votes as a response, given its hopes to sit opposite from the petitioner’s and its official paperwork on behalf of the state, it fits this void well.

[9]. The respondent also motioned for the petitioner to withdraw the arguments regarding the unconstitutionality of Article 6 of the Electoral Commission Act. The petitioner agreed to defer the arguments referring to the article’s constitutionality to a later date so that the issue can be argued without time pressure. A case addressing this was quickly added to the Court’s docket and will be pursued separately as agreed to by both parties.

[10]. Early at the beginning of the review, the petitioner asked for a subpoena into Operation Freedom chats. This was promptly accepted by the Court, and the Subpoena levied against the Minister for Justice was fulfilled quickly, these documents would be used throughout the review.

Petitioner

[11]. The petitioner's argument follows three main lines: that of the procedural errors involved, the inadequacy of the evidence provided to meet the clear and convincing standard, and the conflict of interest of the persons involved.

[12]. Using the chat logs provided by the subpoena of Operation Freedom, the ongoing operation of the Ministry for Justice in which it examines votes for Election Fraud, the petitioner showed that no vote had taken place between the Deputy Attorney General and Deputy Director of Investigation, which means that the votes weren’t legally removed as described in Sections 1 & 2 of the Electoral Commission Act’s 6th Article.

[13] The petitioner then points to the government’s explanation for vote removal, which stated that because there was a similarity between the candidates given 5s and 0s by the three concerned votes, and therefore are similar enough to be plausibly fraudulent on a Clear and Convincing Standard.

[13.1] In response to this, the petitioner states that mere probability is not significant enough to meet the clear and convincing standard of proof as required by then Chief Justice SeaOtter in In re 4th Parliamentary Election [2020] SDSC 23

[14] The petitioner further argues that conflict of interest exists in the members deciding the votes to be removed. For example, the main character in the Operation Freedom chat log, u/BelugaWhaleMan9, was in fact a candidate in the election himself, and moreover had noted that the three rigged votes voted 0 for him.

[14.1] The petitioner also alleges that decisions were made on partisan interests, such as that the Civil Liberties Party was seen as "couldn't have rigged it".

Respondent's Arguments

[15] The respondent agreed with the petitioner that there was insufficient evidence to remove the votes, they declined to respond to the petitioner’s other arguments.

Amicus Briefs

[16] As noted in the Introduction, the Court received a series of Amicus Briefs, all of which hoped to inform the Court that the Clear and Convincing standard was not met, or otherwise dissuading the Court from the state’s given reason for vote removal.

[17] The first brief the Court received was from Kamray, a statistician, who hoped to display to the Court that the statistics in the state’s report were faulty, they did this by pointing out that the math assumed things such as random choice of candidates, and similar miscalculations. They conclude by stating the State’s number was at least four orders of magnitude off.

[18] The second brief received by the Court was from Katy, a candidate in the election who lost her seat due to the removal of the votes. She points out how the small, 1 hour and 7 minutes timeframe between votes were not all that unreasonable, especially when it’s noted that the timestamps go back in time, and are therefore faulty. She then addresses the fact that the report failed to consider ideological consistency, similar to Kamray.

[19] The final brief received by the Court came from our esteemed Electoral Commissioner, Turncoat. He argues that the State’s report fails to meet the standard of proof for removal of votes due to voter fraud, Clear and Convincing. He explains that this is due to a major issue underpinning the report, the State’s assumption that suspicious votes are illegitimate. He continues by stating no voter fraud has been found since the dedicated voting website was introduced last summer, and the state assumed that one very improbable explanation for the similarity between ballots and took it as a matter of fact. He concludes by stating that due to “The wealth of potential alternative explanations for why ballots might look similar, it is my firm conviction that we need other compelling evidence that a vote rigger has circumvented our voter identification protections before turning to the drastic conclusion that an election was rigged.”

Were the votes held legally?

[20] The Court agrees with the petitioner on their point that votes were not legally removed due to violating procedures laid out by Article 6, Section 1 7 2, of the Electoral Commission Act. It is clear that the procedure as laid out was not followed at all by a simple perusal of the chat log of the Operation Freedom, in which you can see that the Attorney General, Director of Investigations, and Electoral Commissioner or their subordinates did not hold a vote on the removal of the fraudulent votes. Therefore, the votes were removed illegally

[21] However, the Court, in the interest of upholding Article 20 of the Constitution, will order the removal of fraudulent votes itself if it finds clear and convincing evidence of the rigging of the votes, regardless of the procedural slight on the part of the Electoral Commission.

Conflict of Interest

[22] The Court agrees with the petitioner on the point that there was a conflict of interest. Undeniably, conflict of interests exists in a running candidate deciding which votes to remove. Similar to how the president isn’t allowed to directly feed the Court suggestions in Supreme Court internal chats due to conflict of interest, candidates should not do so in the Operation Freedom channels.

[22.1] Upon review of the Electoral Commissions Act, the limit given by the Act on which persons have a conflict of interest are too broad to be of much use either practically or to the Court. The Court strongly advises the upcoming Parliament to rectify this issue through legislation.

[23] However, the Court would also like to note that the existence of Conflict of Interest does not immediately confer the crime of Corruption upon the person. The Supreme Court is not a court of first instance and therefore does not have the duty, ability, nor time to determine if a person committed Abuse of Power.

[23.1] Given that it is not absolutely necessary due to other procedural errors on the part of the Ministry for Justice, the Court will not be examining whether the conflict of interest, in this case, affected the removal of votes.

Removal of Votes

[24] The Court also agrees with the petitioner that a simple pattern in the votes does not meet the clear and Convincing standard, as laid out by In re 4th Parliamentary Election [2020] SDSC 23 due to the fact that a simple pattern of votes is not enough to prove the burden, notwithstanding absurd cases of multiple votes rating each candidate exactly the same.

[25] However, the official report also raises the point that the three votes were within an hour, increasing the suspicion of the votes. The Court rejects this argument. There is a multitude of reasons three votes could be within an hour and from the same ideological bloc. For example, people from the same timezone may wake up within the same hour, or a party ping or other event might have led to a spike in voting. Such an argument was also rejected in In re 4th Parliamentary

[26] The Court also notes that, independently from precedent, the calculations presented by u/BelugaWhaleMan9 in the report are statistically incorrect. As has been stated and discussed multiple times, there are ideological factors in a voter's decision to vote, and hence there is a correlation between the votes given by a voter to two different candidates that are severely misrepresented by treating the voter as a random number generator. For example, it would hardly be surprising that two voters give 5s to all candidates in the same party, even if there were tens of candidates belonging to that party. The arguments presented in the document completely disregard this correlation.

[26.1] Further, independent from even any intuitively assigned correlation between candidates, a simple analysis of votes will provide ample evidence that these votes were in fact not that out of the ordinary. Comparing all pairs of votes in the elections, each time both votes in a paired vote the same score for the same candidate is counted as a "repeat", as a quantitative measure of the similarity of two votes.

The number of repeats between "rigged" votes 8735da05f87b8b6eb68b7b3738e610dcb954514b26e5e97fb1e3d743d0b076cc and 09dceb90c8acffc75533b7440335420e3632d7d43b3b3158fdaab3002f906461 is 8; 8735da05f87b8b6eb68b7b3738e610dcb954514b26e5e97fb1e3d743d0b076cc and 24f366953e08fa5debbdeb1a52962e0bf1b9ff904bfbeda25262cd79b1af1832 is 18; and that for 09dceb90c8acffc75533b7440335420e3632d7d43b3b3158fdaab3002f906461 and 24f366953e08fa5debbdeb1a52962e0bf1b9ff904bfbeda25262cd79b1af1832 is 7. The proportion of votes with a number of "repeats" > either of those values constitute 64%, 23% and 69% of the total votes respectively. As one can see, all three votes fail the significance test with significance level p=5% with a wide margin, showing that there is no clear and convincing evidence that any of the three "rigged" votes were any more similar to each other than the general pool of votes. Votes would need to have more than 27 "repeats" in order to pass the significance test.

Conclusion

[27] The Court agrees with the petitioner's statement that the process to remove the allegedly rigged votes was riddled with procedural errors and conflicts of interest. However, the presence of these two elements would not prevent the Court from upholding the removal of votes if the Court does indeed find them to be rigged, in the interests of upholding Article 20 of the Constitution.

[27.1] It should be noted that one of these procedural errors was in relation to a major conflict of interest. However, as this Court is not a court of first instance, it will not comment on whether Corruption and Abuse of Power have been involved, especially as whether Abuse of Power has been committed is, in this case, irrelevant to whether the removal of votes was justified.

[28] Additionally, as all three amicus briefs as well as the petitioner and the respondent have stated, the votes are clearly not proven to be rigged in a clear and convincing way. The state's statistical calculations are riddled with errors and based on completely fictional assumptions, with existing Supreme Court precedent against using vote patterns in determining whether a vote was rigged. In fact, further statistical analysis finds that the votes completely fail a significance test, indicating that the similarity of the votes had at minimum a one in four chance of being nowhere out of the ordinary, clearly nowhere near clear and convincing.

[29] In addition, the Court would like to note that it does not constitute Contempt of Court for the respondent to agree with the petitioner, similar to how a guilty plea in criminal trials or a responsible plea in civil hearings does not constitute Contempt of Court.

Verdict

[30] The Court rules that the removal of all three votes in the 9th Parliamentary Election is unconstitutional, and orders the Election Commissioner or other competent person to restore the three removed votes as soon as possible, with a post of the updated results of the election as needed.

[31] The injunction is lifted, and Parliament shall resume its normal operations once seats are assigned as the vote was originally calculated.

[32] The Court urges the Parliament to pass an amendment to further legislate restrictions to parties with a conflict of interest participating in vote removal discussions.