Amicus Curiae for Lee vs. Undergraduate Senate Constitutionality of the By-Laws: Article II, Section 9 of the Constitution gives the Association legislative bodies the right to regulate the conduct of elections: "Each Association legislative body shall have sole power to make rules governing elections involving only members of the population it represents, in accordance with this Constitution. For elections involving the Association population, the Association legislative bodies shall have the joint power to make rules, in accordance with this Constitution." The petitioner contends that Article V, Section 9 of the Joint By-Laws of the Association are unconstitutional "because the Association legislative bodies (i.e. Graduate Student Council and Undergraduate Senate) can use it in an unconstituitional [sic] manner to prevent the legally elected president of the Association from taking office." The potential for abuse does not render a section unconstitutional. This argument of potential for abuse is tantamount to saying that Article I, Section 8, Subsection B, Clause 2 ("A joint Association entity shall have the power to adopt, amend, or repeal Rules of Order for its respective operation. These modifications shall be done by a 2/3 vote, provided that previous notice has been given.") of the Joint By-Laws is unconstitutional because the joint Association entity could adopt a Rule of Order preventing Association legislators from voting, so the Rules of Order would be in violation of Article II, Section 3, Subsection B, Clause 2 (prohibition of the disenfranchisement of an Undergraduate Senator) and Article II, Section 4, Subsection B, Clause 3 (prohibition of the disenfranchisement of a member of the GSC). Even allowing for the argument that Section 9 has been used as an excuse to make unconstitutional decisions does not make the section itself unconstitutional. Article V, Section 9, Subsection B, Clause 1 of the Joint By-Laws states: "The relevant Association legislative bodies shall not certify an election which was conducted in a partisan manner by the elections officers, or which was not in accordance with the Constitution, these By- Laws, the US By-Laws, the GSC By-Laws, the Special Charge of the Commission, the Association Elections Policies, or the Elections Policies of the relevant Association legislative bodies. Grounds for not certifying an election shall include, but need not be limited to, deviations that were avoidable and could possibly have affected the outcome of any issue in the election." This second sentence of this clause exists to enable the legislative bodies to refuse to certify in the event an election is affected by an outside force that is not covered by any of the above documents. For example, the campus could suffer widespread problems with Internet access during the voting period, an earthquake could occur during the election, or there could be some sort of attempt by a candidate to sabotage another candidate (hacking a campaign web site, tearing down banners/flyers, or fraudulent emails impersonating a candidate, etc.). While its vagueness may leave open to potential for abuse, again this does not render it unconstitutional. Article V, Section 9, Subsection A, Clause 3 states, "An election may only be certified at a regular meeting of an Association legislative body at least 1, but no more than 5, weeks after the end of the election." The petitioner argues that this allows for the Senate or the GSC to ignore an election,, thereby blocking duly-elected officials from taking office. The petitioner stated there was discussion by some Senators regarding tabling the certification decision to allow the certification window to pass and render the results null and void. This is a misinterpretation on both the petitioner's part and the Senate's part. Indeed, I myself had believed this window limiting the certification time period. Upon careful examination of the actual clause, it is my conclusion that this clause was intended to prevent the legislative bodies from ignoring an election. The 5-week limitation exists to prevent a legislative body from trying to ignore an election beyond that period. The clause is rather vague, and potentially it could mean that an election that is not voted upon within 5 weeks would be automatically certified due to lack of legislative action. On the other hand, the 1-week waiting period exists to ensure that there is adequate time for people to file complaints to the Election Commission regarding electoral improprieties. The fact that the clause requires that the election be certified only at regular meeting is to ensure that a legislative body does not attempt to hold a special meeting to expedite certification in efforts to hide electoral improprieties. In this particular instance, the 5-week window has actually not yet expired because the Senate voted on April 20, 2004 against certification (12 days after the election). This halted the timetable because the Senate was unable to vote regarding certification after this because Article V, Section 9, Subsection A, Clause 1 states that "...Certifications may not be rescinded or reconsidered." Then, on May 8, the Constitutional Council held that vote null and void, which resumed the timetable because the Senate was once again permitted to vote upon the matter. The Senate voted against certification 2 days later on May 10, 2004, again halting the timetable. Therefore, only 2 weeks have passed in this timetable. Should the Constitutional Council render the May 10 vote null and void, then the timetable shall resume at that point, but 3 more weeks remain in the timetable. This 5-week window serves a similar purpose as the statute of limitations. For example, a criminal robs a bank in Boston on May 5, 2007 and then flees to Philadelphia on May 7, 2007. Then he is captured and extradited to Massachusetts on June 20, 2020. Even if the statute of limitations is only 5 years, it was "tolled" (legal term for paused) during the 13-year period that he was outside the jurisdiction of Massachusetts. Upon his return to Massachusetts, the authorities of that state have until June 18, 2025 to file charges. Another example is federal law tolling the statute of limitations for soldiers on active duty. Tom breaks the terms of a contract on January 1, 2009, and then he gets called to active duty on July 1, 2009. Tom returns to civilian life on July 1, 2011. Even if the statute of limitations is 1 year, Mary can still sue Tom up to January 1, 2012. The statute of limitations is also tolled for minors. While parents can sue on behalf of minors, if the parents do not sue, then the statute of limitations is tolled until the minor reaches the age of 18. For example, 50-year-old John causes a car accident with 16-year-old Zack. The statute of limitations is 1 year. Zack can file a lawsuit against John up until his 19th birthday because the clock on the statute of limitations begins running on his 18th birthday. Constitutionality of Senate Reasoning Against Certification: The Senate decision to vote against certification was based primarily upon the argument that Class Presidents had committed an "abuse of power" by using the class email lists to endorse Lee/Mefford for ASSU Executive. Therefore, Article I, Section 3, Clause 2 is irrelevant. Abuse of power is not covered by freedom of religion, freedom of speech, freedom of the press, the right to peaceably assemble, nor the right to petition. However, the abuse of power argument is still unconstitutional. The Constitution is a supposed to be a flexible document, but there are limits to that flexibility. Though a prohibition against abuse of power is certainly desirable, it is not in the Constitution. By using "abuse of power" as the grounds to vote against certification, the Senate essentially created an ex post facto law. Some argue that abuse of power is implicit in the Association Constitution, much like Social Security and federal involvement in public education are permissible under the United States Constitution due to the general welfare clause and the necessary and proper clause. However, the Association Constitution possesses no clause of this nature. The closest clause to this idea is Article II, Section 9, but even that mandates that the Senate and GSC can only make rules that follow the Constitution. Even the most generous interpretation of this clause cannot justify the abuse of power argument in this case because abuse of power was not prohibited by the Joint By-Laws, the Association Elections Policies, nor the Campaign Practice Code. Therefore, even if the concept of overturning an election due to an abuse of power is constitutional, it cannot be applied to the 2004 Spring Quarter Executive Election since it would require the enactment of ex post facto legislation. Indeed, there is actually a precedent of an election being certified after an allegation of abuse of power by an elected official. In the 2000 executive election, the top 2 slates were separated by a margin of 8 votes. During the period between the general election and the runoff election, outgoing ASSU President Mike Levin allegedly attempted to blackmail incoming members of the Second Undergraduate Senate into joining the "Platform for Accountability and Change," which was an organization similar to a political party set up by executive candidates Seth Newton and Malia Villegas. Newton/Villegas went on to win the runoff election by 836 votes. Despite these allegations, the First Undergraduate Senate voted to certify the election, including the Newton/Villegas victory. http://daily.stanford.edu/tempo? page=content&id=1536&repository=0001_article Conclusion: I propose that the Constitutional Council dismiss the arguments against the constitutionality of the Association By-Laws as frivolous. I would also propose that the Constitutional Council clarify the definition of the 5-week window in the Association By-Laws and explain that due to the two votes on certification and the two Constitutional Council cases that there remains 3 weeks in that 5-week window. I further propose that the Constitutional Council declare the May 10 vote against certification null and void as it was based upon the abuse of power concept, which does not exist in the Association Constitution, the Association By-Laws, the Association Elections Policies, nor the Campaign Practice Code.