In re Removal of Votes in the 2nd Parliamentary Election 2020 SDSC 18
In re Removal of Votes in the 2nd Parliamentary Election [2020] SDSC 18
| Date of judgment | 20th October 2020 |
| Justices |
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| Held | The Electoral Commission did not meet the burden required to remove votes. |
| Ruling | 3-0 |
| Applicable precedent |
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MAJORITY OPINION by Chief Justice SeaOtter
(with Justices TheMainCharacter and LordDeadlyOwl agreeing)
Introduction
[1] In the second parliamentary election, seven votes were removed from consideration in accordance with In re 39th Presidential Election [2020] SDSC 11, as well as the Electoral Commission Act.
[2] The petitioner is seeking judicial review on the grounds that removing the votes without adequate reasoning violates citizen’s right to suffrage under Article 20 of the Constitution.
Summary of Petition
[3] The petitioner argues that the Electoral Commission did not provide sufficient evidence to remove the seven votes. It is noted that the Supreme Court has ruled on this issue previously in 39th Presidential, in which it was determined that votes be deemed illegitimate on the balance of probabilities.
[4] Furthermore, the petitioner argues that the votes varied sufficiently to not follow the patterns previously known to show signs of election fraud. In addition, the petitioner provides evidence to show that a removed vote was the vote of a citizen.
Summary of Response
[5] In their response, the respondent provides evidence to show that the Acting Director of Investigation and Acting Attorney General voting to remove several votes, to show reasoning for the removals. The respondent that this shows proper reasoning for the removals, mandated by the Electoral Commission Act.
[6] In addition, they attempt to discredit an example given by the petitioner.
Conflict of Articles 15 and 20 of the Constitution
[7] My colleague, Judge Kangawolf, has prepared an Amicus Brief for the court on the matter of a conflict between the Right to Personal Privacy and the Right to Suffrage.
[8] In the brief, it is noted that, in Article 15, “every person has the right to cast an anonymous vote during elections,” and in Article 20 it is stated that “Every citizen shall have the right to vote in fair and free elections, and have the right to equal suffrage.”
- [8.1] There is a clear conflict here. While Article 20 grants all citizens the right to vote, Article 15 may be construed to grant all persons the right to vote.
- [8.2] The court will clear up this matter. Article 20 stipulates that only citizens have the right to vote, to which the court agrees. Therefore, Article 15 shall be interpreted as all persons eligible to vote have the right to cast an anonymous ballot.
[9] The brief also notes that Article 15 only grants the right of an anonymous ballot “during elections.” However, when considered together with the right to “vote in free and fair elections”, the court finds an implied right of voter anonymity not only during, but after elections.
Arguments on Voter Anonymity as Examples
[10] Both the petitioner and respondent referenced user u/EnvironmentalShelter’s vote in their arguments. The petitioner argues that EnvironmentalShelter’s vote was removed, despite him being a citizen and eligible to vote. It was also noted that EnvironmentalShelter chose to share his voting information with the parties, and was not forced to do so.
[11] Judge Wolf argues that EnvironmentalShelter’s right to personal privacy was violated when information about his vote was shared. The court disagrees. As EnvironmentalShelter shared the information with both parties himself, he did not violate his own right to personal privacy. The court believes a person may choose to waive their constitutionally protected rights if they wish, but can not be coerced into doing so.
Reviewing the Guidelines of Precedent
[12] In 39th Presidential, it is ruled that, to determine if votes were rigged, it should be more likely than not that the votes were rigged. Therefore, the Electoral Commission and similar bodies must prove so.
- [12.1] Given that the Commission must prove that the votes are not legitimate, it can be determined that votes are legitimate until proven otherwise.
[13] 39th Presidential [14] also gives the court a guideline in determining potential remedies. It is determined that as election fraud affects citizens' right to suffrage, it is a very serious unlawful act, and therefore merits a serious remedy. In addition, it is the obligation of the State to ensure that all citizen’s right to suffrage is not infringed.
- [13.1] The remedy used in 39th Presidential was the recalculation of votes, even if it switched the sitting president between two users, but did not render the actions of the illegitimate president null and void.
Was the burden placed upon the Electoral Commission met?
[14] The question the court must now ponder is if the Electoral Commissions burden to remove votes was met. As stated in [7], this shall be done on the balance of probabilities.
[15] In the election results post, the Electoral Commissioner stated that 7 votes were removed and provided screenshots to show the votes cast by the officers empowered to remove the votes. However, the post did not show reasoning behind these votes, simply stating that the votes were indeed removed for allegedly being fraudulent and “voting for a suspicious person.” This does not tip the balance of probabilities required.
Conclusion
[16] As the Commission’s burden was not met, the court rules that there was not sufficient evidence or reasoning to remove the votes.
[17] However, the court believes that the Commission shall be given the opportunity to provide sufficient evidence to show that the votes were indeed fraudulent.
Verdict
[18] The court rules that the Electoral Commission shall have 48 hours to show that the votes were rigged and satisfy the court.
[19] If it cannot be proven on the balance of probabilities, the removed votes shall be assumed to be legitimate, as established in [11.1], and the removed votes shall be reinstated.
[20] At the end of the 48 hour period, the court shall issue an addendum to this ruling, issuing further guidelines for the prevention of situations like these in the future.
Addendum Dated 10/21/2020
[21] Given the Electoral Commission and its empowered officers have not demonstrated that the votes were indeed fraudulent to the standard required, the court rules that the votes be reinstated and the results recalculated.
[22] The Acting Attorney General attempted to give reasoning for the removal, saying “The patterns in votes that are highly in favour of one or two individuals in a short time span is either a massive coincidence or a rig, and we should assume the worst in important matters.” None of these arguments sway the court.
- [22.1] The patterns referred to were giving 5s to a fairly new member of SimDemocracy, which is admittedly unusual but does not tip the balance of probabilities in and of itself. While this may be part of a rigging attempt, it is usually accompanied by voting 0s for all other candidates.
- [22.2] The court rules that more sufficient evidence is needed in the future, especially when violating one’s right to suffrage. Such evidence should be announced to the public at earliest convenience, but within 24 hours of the results post.
[23] In addition, the court believes this mistake lies mostly in human error. Had the Acting Attorney General and Acting Director of Investigation had some training in fraudulent vote patterns, they may not have been so quick to remove the votes. As such, the court recommends that the Ministry of Justice provide some training to members called to decide such important matters. In addition, the Attorney General and Director of Investigation should make all reasonable attempts to check the results themselves, barring IRL commitments. The combination of these would likely prevent incidents like this in the future.
Citations
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