Central Student Judiciary
Michigan Student Assembly

Hamdan A. YOUSUF,
Appellant

v.

Matthew TALLEY,
Respondent

case number F-09-03

Respondent’s Brief on Appeal
Respondent's Answers to the Certified Questions


1. MSA Complied Code sections V.H.5.g and V.H.4.m are constitutional and work in conjunction with MSA Constitution sections II.E , IX.A.1, IX.A.2, and IX.A.15.

2. The Election Board does have jurisdiction to hear an election complaint filed against a party who has not been certified as an election candidate but seeks to obtain a seat via a write in election campaign in light of All Campus Constitution sections II.E and V.E as well as MSA Compiled Code sections V.A.2, V.F.1, V.F.3, and V.H.1.

3a. The action of sending an email to all members of a university graduate student listserv seeking write-in votes for office does constitute a violation of MSA Compiled Code section V.G.4.m.

3b. MSA Compiled Code section V.G.4.m was “fully and clearly formulated, published, and generally made known to everyone concerned.”

4. The action of sending an email to all members of a list may constitute multiple offenses under MSA Compiled Code section V.G.4.m.

5. The sending of email to a list of which the sender is a member can constitute “spam” as prohibited by MSA Compiled Code section V.G.4.m.


Background
On December 1, 2009, Matthew Talley and 18,905 other graduate and professional students received an unsolicited email communication from Hamdan Yousuf urging them to vote for him as a write-in candidate in the upcoming MSA election as well as providing instructions on how to vote. The full text of Mr. Yousuf’s email states:
Fellow students,
Please take two minutes and vote for me in the MSA elections which end tonight at midnight. Make sure you write my name as "Hamdan Yousuf" and you select "1" for Preference. The record for most write-in votes is only a few hundred, and we can easily beat that. Please forward to your friends as well!!

Thanks!
Hamdan

P.S. While I especially need Rackham votes, please vote for me even if you are in a different school. Following the instructions below, you will see an orange banner that you are casting an "exception ballot", but proceed anyways. Total vote counts will be released and it will send a powerful message if we can mobilize support from throughout the University.


---
What:
Write-in Hamdan Yousuf for Rackham representative to the Michigan Student Assembly -- set the all-time record for most successful write-in campaign in UM history!

When:
All day Monday and Tuesday (11/30 and 12/1)
(Mon 11/30 12:01am - Tues 12/1 11:59pm)

How:
1) Go to
www.vote.umich.edu
2) Login with your uniqname and password
3) Click on MSA-Rackham Fall 2009
[3a) For non-Rackham students, click [show] next to "Other Elections" and scroll down to MSA-Rackham Fall 2009]
4) Write in "Hamdan Yousuf" and select "1" under Preference

Why:
Hamdan Yousuf is a graduate student in Biostatistics. He has served on the Michigan Student Assembly as SPH Representative since November 2008. As one of the few graduate students on MSA, he has been a consistent advocate for empowering the student body in all aspects of the educational experience. He has built bridges with communities across campus and has stood against secretive government, skyrocketing tuition costs, and intolerance and bigotry. If elected, he will strive to implement open governance and accountability on MSA, socially responsible investing of endowment funds, and will make MSA a relevant and independent advocate for the interests of the students.

As a means of protesting against inequitable and arbitrary decisions of the MSA leadership, Hamdan is running as a write-in candidate for the position of Rackham representative. A write-in campaign is a fundamental tool in the democratic process to ensure that the voice of the people is not subdued. We want this to be the most successful write-in campaign in the history of Michigan student government. Please vote NOW -- it only takes two minutes, and please encourage all your friends to do so as well. Non-Rackham students are encouraged to vote as well as a symbolic means of support.

[Paid for by
yousufh@umich.edu]



--

Hamdan Yousuf
yousufh@umich.edu
Master's Candidate | Biostatistics
University of Michigan | School of Public Health
1420 Washington Heights, SPH-II | Ann Arbor, MI 48109


Mr. Yousuf’s email is clearly political as stipulated by the appellant and provides evidence that Mr. Yousuf was aware of the campaign rules as outlined in the MSA Compiled Code by his inclusion of a “paid for by” line. Appellant argues that the inclusion of this line indicates Mr. Yousuf’s attempt to comply with the campaign rules, thus in order to comply, Mr. Yousuf’s must have been aware of the existence of campaign rules, known where to find the published campaign rules and have read the rules to the point that he was able to determine that sending an email seeking support in a campaign fell under the prevue of said rules. Mr. Yousuf’s email was sent to a list containing 18,905 graduate and professional students enrolled at the Univeristy of Michigan’s Ann Arbor Campus.
Upon receipt of Mr. Yousuf’s email, Matthew Talley filed a complaint against Mr. Yousuf alleging violation of Compiled Code section V.G.4.m, which forbids the use of "spam" by candidates in an MSA election. The Election Board heard the case on December 3, 2009, and issued a ruling finding Mr. Yousuf guilty of violating the Compiled Code and accessed two demerits against him. Mr. Yousuf won his write-in campaign and was seated as a Rackham representative this past January.

Certified Question 1 Are Sections V.H.5g and V.H.4.m of the MSA Compiled Code unconstitutional in light of MSA Constitution Sections IX.A.15, IX.A.1, and IX.A.2?

No, Sections V.H.5g and V.H.4m of the MSA Compiled Code are not unconstitutional. The All Campus Constitution (ACC) expressly grants the Michigan Student Assembly (MSA) in section II.H the power “to conduct its own election and referenda among the student body, to provide for the manner of nominating candidates in its elections and to enact campus-wide regulations governing the conduct of its elections, campaigns, and elated activity.” This power does not conflict with sections 1,2, or 15 of the bill of rights. All students are guaranteed the rights to “express their views on any subject without penalty except where the form of that expression endangers life, property, or the equal rights of others” as well as to “publish and disseminate their views on and off campus free from censorship” among others. The ACC’s freedom of speech grant is significant in that it provides a context by which a limitation can be applied to free and uncensored speech. In this case, the rules contained in Article V of the MSA Compiled Code (Election Code) constitute a set of campus-wide regulations concerning the administration of MSA’s elections. These rules have been published on the MSA website since at least September 2007 and as such should be considered reasonably available to any interested party. The sending of an unsolicited campaign email clearly falls under the prevue of the Election Code and infringes on the rights of the student body in two ways. First, recipients of the email are guaranteed the right to a democratic government by ACC IX.A.15 which includes the right to “regulate those affairs primarily concerning students” which an MSA election most certainly is. The MSA has published rules concerning spam email and other similar forms of restrictions on campaign speech. These restrictions serve to ensure a fair election (ACC II.H) and to ensure that the rights of all candidates are protected equally. Were these restrictions lifted, candidates with inferior computer skills would be at a significant disadvantage when compared to their computer literate peers in lacking an ability to email their constituency. Similar arguments can be made for other campaign rules found in the Election Code. For example, MSA Compiled Code V.G.d prohibits positing campaign materials within university buildings. Students with access to a larger number of buildings would be advantaged over their peers with lesser access credentials and thus create a disparity which endangers the equal rights of the group with a lesser access. The same is true for the electronic case. In the Witner 2010 election, multiple candidates sought election to the 7 available MSA-Rackham seats. Only the appellant, Mr. Yousuf choose to disregard the spam prohibition and contact over 18,000 students. IT should be noted that at the time of Mr. Yousuf’s email, there were approximately 7,000 enrolled Rackham students eligible to vote in Mr. Yousuf’s election. Thus nearly 11,000 other students received the email. Had this spam prohibition been non-existent, it is reasonable to assume that other candidates would have sought to email their constituents en mass and directly deliver their message.
Students are continuously afforded the rights guaranteed in the Bill of Rights (ACC Section IX) however, when a student makes the conscience decision to seek an office in the central student government, the provisions of ACC II.H take effect and work in collaboration with the student’s rights. In order to ensure a democratically constituted government the government has put in place a set of policies and procedures designed to ensure a fair election procedure to all students; both as candidates and students at large. In this case, the content of Mr. Yousuf’s speech played no part in his assessment of election demerits but only in the determination that his action, sending the email itself, not the contents thereof, fell under the prevue of the election rules. By using a mechanism to contact thousands of students, one that was not reasonably available to the other candidates in his election, Mr. Yousuf knowingly took advantage of an email list to further his activities related to his pursuit of office in the central student government.
The freedom from censorship offered in ACC IX.A.2 was similarly not violated as Mr. Yousuf was able to send his email. At least one recipient, Mr. Talley, received his message and as a result felt harassed and submitted a grievance to the election apparatus at the time. As such, no speech was censored and the only ramifications come from the content of the transmitted speech. Just as a state or federal government can (and has) prohibited an individual from yelling “fire” in a movie theater, the government of the students has put in place a rule prohibiting harassment via email for campaign purposes.
It should be noted that MSA and its various branches have exercised this power, under the provisions of ACC II.H, II.K, and 5.E and have routinely enforced the procedures under MSA Compiled Code V.H and have assessed demerits to candidates and parties. In the 2000 winter MSA Elections, the Central Student Judiciary utilized this grant of authority to enforce the “campus-wide regulations governing the conduct of its [MSA’s] elections” when the court found that the Wolverine Party engaged in voter fraud, which was expressly prohibited by the election code of the time, and removed the party’s candidates for MSA President, MSA Executive Vice President, and MSA Representative (LSA and Kinesiology) from the elections. More recently, in the Winter 2009 MSA Elections, all members of the reMichigan campaign (sic) were awarded 1/8 of a demerit for violations of MSA Compiled Code V.G.4.d (Bribery Prohibited). These actions, in concert with others through the years have served to create and uphold a well formulated and published (see the Michigan Daily’s online digital archive) precedent that a student’s rights as guaranteed under the ACC’s article IX coexist with the Assembly’s ability to create rules governing the conduct and execution of its elections.
As such, sections V.H.5.g and V.H.4.m are not unconstitutional in light of the All Campus Constitution’s sections IX.A.1, IX.A.2, and IX.A.15

Certified Question 2: Does the Election Board have jurisdiction to hear an election complaint filed against a party who has not been certified as an election candidate but who seeks to obtain write-in votes for office in an MSA election?

The Election Board is empowered by the ACC’s section II.H and through the MSA Compiled Code’s Article V. Section V.A.2 defines a candidate as “a person seeking office in an election…” Based on this definition, and the appellant’s email, reproduced above, it is clear that Mr. Yousuf was attempting to solicit support for his campaign as a write-in candidate for the Fall 2009 MSA election. The MSA Compiled Code further ensures equality for all campaigns to serve on the Assembly by providing in section V.F.1 that “all campaigns to serve on the Michigan Student Assembly shall be subject to the rules and regulations found in this article of the Compiled Code.” Under this authority and noting that the definition of a candidate only includes a person’s intent to serve on the Assembly intentionally neglecting to include official certification as a condition for the application of the provisions of the Election Code. Further, the MSA Compiled Code’s section V.H.1 bases the Election Board’s jurisdictional boundaries on the definition of a candidate: “Jurisdiction. The Election Board shall hear cases involving the alleged violation of any campaign rule, and shall meet to determine whether demerits should be assessed against any candidate(s) or party(ies).”
Based on the above, the Election Board does have jurisdiction to hear an election complaint against a party that has not been certified as an election candidate.




Certified Questions 3: Does the action of sending an email to all members of a university graduate student listserv seeking write-in votes for office constitute a violation of the MSA compiled Code Section V.G.4.m, and was that rule “fully and clearly formulated, published, and generally made known to everyone concerned” such that it may create liability under MSA Constitution Section IX.A.11 as of November 2009?

The action of emailing a graduate student listserv does not in and of itself constitute spamming. However, based on the definition of spam, as a “disruptive message … posted on a computer network or sent as email,” electronic communication can be construed as spam based on the interpretation of the message’s recipient(s). For example, if a user commonly send email messages to a group that s/he is a member regarding group operations, the other members will be accustomed to receiving email messages concerning the group’s operations. If individual send a message so off topic to surprise or jolt the other members reading it than that message should be construed as spam.
In this case, Mr. Yousuf sent an email to an email list containing over 18,000 students many of whom were unable and ineligible to participate in his write-in campaign for an MSA Rackham seat. Mr. Yousuf conceded during his hearing before the election board that he had never sent a message to this group previously nor had he received an email through the group previously. In fact, during that proceeding Mr. Yousuf offered that he was attempting to test the security of the list and that it should have been moderated given the number of members. Based on the sheer number of recipients unable to cast a vote for Mr. Yousuf that received the email, the election board correctly found that Mr. Yousuf “clearly violated the Code … disallowing inappropriate and irresponsible use of email and disallowing a candidate from knowingly sending a spam email…”
The Election Code is an article of the MSA Compiled Code which is a public document and published on the MSA website, http://msa.umich.edu The pertinent campaign rule was added by the Assembly in March of 2008, prior to Mr. Yousuf’s matriculation at the University by Assembly Resolution W-08-072. Since that time, the published version of the compiled code has contained this rule as have all candidate application packets as published by successive MSA Election Directors and as required by the Election Code.
Based on the above, the regulations contained in the election code were fully and clearly formulated, published, and made known to everyone concerned as of November 2009 such that no liability was created in this regard.



Certified Question 4: Does the action of sending an email to all members of a university graduate student listserv seeking write-in votes for office constitutes a single offense under MSA Compiled Code section V.G..m and not a series of offenses corresponding to the number of email recipients?

Mr. Yousuf was assessed two demerits by the Election Board for sending a spam email to Mr. Talley. No other demerits were assessed based on Mr. Yousuf’s spam email and as such this question is not germane to appellant’s requested relief, the removal of the assessed two demerits. As such, and as this is an appeal of the Election Board’s action, we choose not to respond to this question.

Certified Question 5: Can the sending of email to a list of which the sender is a member constitute “spam” as prohibited by MSA Compiled Code Section V.G.4.m

Yes, based on the sender’s intent as well as that of the recipient(s) as explained previously.

Conclusion and Relief Sought

By reason of each of the grounds stated above, Mr. Talley requests that the Central Student Judiciary uphold the decision of the Election Board.




Michael Lee Benson
mlbenson@umich.edu
University of Michigan
PhD. expected May 2012
2450 Stone Road
Ann Arbor, MI 48104

on behalf of

_

Matthew Talley, Respondent
talleymj@umich.edu
University of Michigan School of Law
Ann Arbor, MI 48109-2029