March 19, 2010

To the Central Student Judiciary:

As the chair of the Defend Affirmative Action Party I file this appeal on behalf of Margaret McKinney, requesting that CSJ overturn the decision of the Election Board to deny Ms. McKinney candidacy status as an LS&A candidate in the March 2010 MSA election.

Statement of Facts:

1. On March 8, Margaret McKinney’s completed candidacy application was turned into to the MSA office staff.
2. On March 15, I received an email from the Election Board stating that Margaret’s candidacy would not be granted unless she could verify she was an enrolled student by the 3rd week of this semester.
3. Ms. McKinney is not currently enrolled, but was enrolled in the previous full term, Fall 2009 and is eligible and plans to be enrolled in the subsequent full term, Fall 2010 and is therefore eligible for candidacy in accordance with the All-Campus Constitution.
4. On March 16, I petitioned the Election Board to grant Margaret candidacy status.
5. On March 17, I received an email from the Election Director notifying me that the petition was denied, but have still not received a full opinion on the decision.

Summary of Argument:

The Constitution and the Compiled Code both state that the definition of a Student and therefore an eligible candidate is “a person enrolled at the University, or a person enrolled in the University during the previous full term who is eligible to be enrolled in the subsequent full term.”

Article V of the MSA Compiled Code, the Election Code, stands in conflict with this definition, stating that:

“Every candidate-elect will sign a statement attesting to the fact that all information provided by the candidate-elect is truthful to the best of her knowledge and that she was an enrolled student at the University of Michigan’s Ann Arbor campus by the end of the third week of the semester containing the election in question.”

I would argue that since the Constitution is a higher authority than the election code, Margaret McKinney should be granted candidacy status.
See further arguments below:

  1. Ex post facto rule violates the U.S. Constitution

It is a well-established principle in law that no legislative body may punish or restrict individuals for actions (or lack of action) after the fact. The legal term for such rules is ex post facto legislation. This is invariably a violation of the Due Process Clause of the Fourteenth Amendment, because this means that individuals can be punished or restricted for actions that occurred before those actions were illegal.

The present Compiled Code was adopted on February 22, 2010, after Ms. McKinney could not possibly comply with it. (The third week of this term occurred in late January.)

The reason for the prohibition of ex post facto legislation is obvious: it punishes individuals for actions they cannot change. It permits legislatures to craft laws that target individuals they want to target, for they can find arbitrary characteristics of individuals they seek to victimize and make those the basis for new rules.

Add to this the fact that there is no reasonable basis for this arbitrary restriction (see below), this further smacks of political targeting and against Ms. McKinney and DAAP. If Ms. McKinney is not granted candidacy status, any incumbent government could find ostensible reasons to bar its political opponents from running for office. In the context of an election, this is clearly also a violation of democracy.
As evidence of how hastily and arbitrarily this rule was cobbled together, even the Candidate Oath which the Compiled Code refers to doesn't contain the "required" language of being enrolled during the third week of this term. Applying this rule ex post facto to Ms. McKinney also puts the Election Board and the MSA itself in violation of their own Code—the only difference is that the Election Board and MSA had the chance but failed to act after February 22 to conform their actions to the new rule, while Ms. McKinney had no such chance.

Barring Ms. McKinney from the ballot would not only be an act in violation of the law, but would sully the reputation of the MSA, for it would be an obviously corrupt, undemocratic and unfair prohibition of members of an opposing political party, by members of other parties. Law and fairness demand otherwise.

  1. Conflict with the MSA Constitution

For years, U-M students, as defined in the Constitution and Code, have had the right—and have come to expect the right—to vote or run in elections for MSA. The right to choose the students' representatives has belonged to the students—not to any other body. In this democratic spirit, the Constitution and Code have a definition of "student" that does not require that a student be currently enrolled: the Constitution states that MSA is comprised of students in the current or previous term. There are no arbitrary or artificial restrictions on when a student can vote or run in the MSA elections. MSA Constitution, Article IV ("Assembly Composition") states: "The Assembly shall consist of currently enrolled students or students who were enrolled in the previous term."

The MSA Constitution is the highest authority and resolves any conflicts between itself and the Code. Even the Code has this same broad definition of a student: "'Student' shall mean a person enrolled at the University, or a person enrolled in the University during the previous full term who is eligible to be enrolled in the subsequent full term." Compiled Code, Article I, Section B (8) ("Definitions"). As a result, all students enrolled in current or previous term can vote and can run in the MSA elections. This has been the democratic norm in MSA for years.

The primary, overriding duty and concern of the MSA student government and its officials is to represent the democratic will of students. Therefore, it reeks of unfairness and partisan politics to use an arbitrary distinction (whether one was a student at a point in time several weeks before the elections) to prevent candidates from running. People may not be enrolled during the third week of a term for a whole variety of reasons: having unique academic schedules such as independent studies and mini courses, lacking sufficient funds, or temporary withdrawal from the University. Students should not be punished for having financial troubles, designing their own schedules, or having challenges in their lives that cause them to withdraw temporarily. An overly strict, unthinking interpretation of the language in question would mean that a student who drops out in the middle of the term could run for MSA, while a student who begins her term later cannot. This distinction is so arbitrary and politically targeted against one party alone, DAAP, that the Candidate Oath which every candidate for MSA has signed did not mention this requirement.

The Constitution and the Code are designed to express the democratic will of students. Thus, it rightly puts the main question of who will be MSA's representatives in the hands of students. Furthermore, the Constitution states that elections shouldn't be hampered by pre-election disputes. ("It is the intention of this Constitution that the administration of these elections not be hampered by pre-election disputes, and that disputes which arise be settled promptly." MSA Constitution, Article V, Section E (1)) Together, these provisions express the expectation that students should not be prevented from voting for a candidate because of pre-election maneuvers to eliminate political opponents or by divisive partisan wrangling. This Board should not act in place of the student body. Such maneuvers would reflect poorly upon the members of this student government, which should abide by standards of democracy and fairness.


Kate Stenvig