9 C.C.

(2013/2014)

ASUO Constitution Court

APPEAL OF THOMAS TULLIS V. BEN BOWMAN, ET AL. (E.B. 1)
[Decided March 29, 2014]

OPINION by Associate Justice Huegel. Joined by Associate Justices Chaney and Hoffman. Joined by Chief Justice Apana and Associate Justice Bush in parts I through IV, dissenting in part V. I On March 17, 2014, ASUO Presidential Candidate Thomas Tullis (hereinafter Petitioner) submitted a grievance to the ASUO Elections Board alleging that ASUO Presidential Candidate Ben Bowman (hereinafter Respondent) and several individuals associated either directly with his campaign or with members of his campaign, including Alex Titus, Marshall Kosloff, Emily Wu, Evan Roth, and Kendall Cheever, had violated ASUO Election Rule 9.8 by engaging in harassment, intimidation, bribery or fraud with the intent of affecting the outcome of the election. On March 20, 2014, the Elections Board issued a ruling on Petitioners grievance which found that those individuals against whom Petitioner had made allegations not only violated Election Rule 9.8, but Election Rules 1.1, 1.2, 3.4, 6.4, and 7.13.1 as well. As a result of these findings, the Elections Board held that both Respondent and ASUO Senate Freshman Representative Emily Wu were to be disqualified from appearing on the ballot in the 2014 ASUO Elections. On March 22, 2014, Respondent submitted to the ASUO Constitution Court an appeal of the Elections Boards ruling in the matter of Thomas Tullis v. Ben Bowman,

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et al. (E.B. 1). In his appeal, Respondent asserts that, because of several alleged procedural issues and inaccurate factual findings by the Elections Board in deciding this case, the Constitution Court should reverse the Elections Board decision to remove Respondent [and Ms. Wu] from the ballot... On March 26, 2014, the Elections Board submitted their findings of fact to the Constitution Court and, on the same day, Petitioner submitted to the Court a response to Respondents appeal, in favor of affirming the ruling of the Elections Board in E.B. 1. On March 27, 2014, ASUO Elections Coordinator MacGregor Ehlen submitted an amicus brief to the Constitution Court, also in favor of affirming the ruling of the Elections Board in E.B. 1. II ASUO Constitution Court Rules and Procedures 15.8 states that, If a ruling by the ASUO Elections Board determines necessary the removal of a candidate or ballot measure from the ballot, the decision will be given to the Court for final determination. Election Rule 1.5 states that [t]he ASUO Constitution Court retains appellate jurisdiction over rulings of the Elections Board and Hearings Committees. In accordance with these provisions, as well as Article 11 2 of the ASUO Constitution, which stipulates that [t]he Constitution Court shall have supreme and final authority on all questions of interpretation of this Constitution and any rules promulgated under it, including elections rules and complaints, this Court has jurisdiction to rule on this matter. III In reviewing the Election Boards ruling, this Court looks for error by ascertaining whether the ruling or proceedings conducted by the Board are arbitrary or capricious in nature. In E.B. 1, the Elections Board was the finder of fact in its investigation of alleged elections violations by Respondents, Alex Titus, Marshall Kosloff, Emily Wu, Evan Roth, and Kendall Cheever. As the finder of fact, the Elections Board is entitled to considerable deference on appeal. So long as there is a sufficient factual basis to sustain the Elections Boards

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determinations, the Court will defer to the rulings of the finder of fact. IV After having reviewed the evidence submitted by the Elections Board, and as a result of the aforementioned deference, the Court finds that clear and convincing evidence exists that Respondent did in fact violate Election Rules 1.1, 1.2, 3.4, 6.4, 7.13.1, and 9.8. The Court is not persuaded by Respondents arguments that there is literally no evidence provided that incriminates Ben Bowman or Emily Wu in any campaign rules violation. Rather, the Court defers to the Elections Boards findings that not only did Petitioner allege, and a Mr. Schwoebel corroborate, what happened in the dormitory conversation, but that the Respondent and his associates later agreed that the quotations cited in E.B. 1 were in the spirit and language of the conversation that took place. Nor is the Court convinced that holding presidential candidates directly accountable for the actions of their volunteers, such as the phone conversation between Petitioner and Mr. Kosloff, by [s]ingling out Respondent is unfair or inappropriate, given Election Rule 6.1, or bizarre and unprecedented, given the Courts ruling in 34 C.C. (2011/2012). In this ruling, the Court disqualified presidential and vice-presidential candidates from appearing on the ballot because of actions carried out by their associates. Since that time, the Elections Rules have changed to require that the Elections Board consider the degree of affiliation between a campaign and its associates, allowing the Elections Board to sanction Respondent while sanctioning neither of his vice-presidential candidates, as neither were implicated in the case. It should be noted, however, that while the Court finds that Respondent violated Election Rule 9.8, it does not consider the Mighty Oregon campaigns offering that if [Petitioner] did drop out they would appoint him to a ASUO Finance Committee to be bribery. Such behavior, of offering to help an individual become appointed for their assistance on a campaign, is indeed one of the most common of campaigns volunteer recruitment efforts and should not be construed as bribery.

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The Court also finds that, while clear and convincing evidence exists that Ms. Wu violated Election Rules 1.1, 1.2, 7.13.1, and 9.8, it does not exist for a violation of Election Rule 6.4. The Court does not feel as though there is sufficient factual basis to sustain the Elections Boards determination that Ms. Wus close personal relationship with Ms. Cheever influenced the latter to commit a rules violation by reaching out to Ms. Doyen as she did. Thus, the Court finds that Ms. Wus violation of the aforementioned rules lay only in her approaching and apparent intimidation of Mr. McCormick. V The Court affirms and upholds the Elections Boards ruling in E.B. 1 insofar as Respondent is disqualified from appearing on the ballot in the 2014 ASUO Elections, including stipulations for how the Mighty Oregon campaign may select new presidential and vicepresidential candidates. The Court would like to emphasize, however, that Respondent is still permitted both to run for a position in the ASUO as a write-in candidate and to be associated with the Mighty Oregon campaign. The Court does not find, however, that the egregiousness of Ms. Wus violations warrant the same sanction. Ms. Wu and the Mighty Oregon campaign are therefore prohibited from advertising her candidacy for the ASUO Spring 2014 Elections for 72 hours starting at 12:00 AM on March 31, 2014 and ending at 11:59 PM on April 2, 2014. In addition, her rules violations and sanction shall be cited in the voters guide and on the ballot. It is so ordered.

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ASUO Constitution Court

APPEAL OF THOMAS TULLIS V. BEN BOWMAN, ET AL. (E.B. 1)
[Decided March 29, 2014]

DISSENTING OPINION by Chief Justice Apana. Joined by Associate Justice Bush. We join the majority in parts I through IV. We further agree with part V to the extent that we feel Ms. Wus new sanctions imposed by this Court are more appropriate and proportional for the violations that she committed. However, we do not join the majority in affirming the Elections Boards disqualification of Ben Bowman from the Ballot. While we agree that Mr. Bowman is responsible for the violations, we do not think that the sanction of removal from the Ballot is proportional to the committed violations. We do not feel that there is sufficient evidence to conclude that Mr. Bowman himself had the intent of affecting the outcome of the Election. A person acts with intent when he/she acts with a conscious objective to cause a particular result or to engage in particular conduct. 34 C.C. (2011/2012) can be easily distinguished from the case at hand. In that ruling, the Court did disqualify the presidential and vice-presidential candidates from appearing on the ballot because of actions carried out by their associates. The actions taken were committed throughout the regular election with the clear intent to affect the outcome of that election. In that case, members of the Katie and Alex Campaign hacked the voter and contributor lists of the rival campaign with the intent of inhibiting the rival campaigns ability to communicate with their supporters and get out the vote. In this case, the regular election has not yet begun. Furthermore, we believe the evidence in this case lacks sufficiency as to the element of intent.

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We do not allege that the Elections Board abused their discretion in any way, as they have the complete authority pursuant to Rule 9.8.1 Consequences may include, but are not limited to, loss of all campaigning privileges including presence on the ballot, and, should sanctions be applied after election, removal from any office other than the ASUO Presidency to administer the removal sanction. However, we believe that other sanctions that were more proportional to the violations committed should have been utilized. For example, we feel a more proportional sanction would have been to prohibit Mr. Bowman from campaigning during the entire regular election, prohibit him from participating in the presidential debate, and to publish his rules violations and sanction in the voters guide and on the ballot. We do not take the violations committed lightly, nor do we condone this kind of behavior. We do believe though that the majority has overlooked the sufficiency of the evidence presented before us as to the element of intent in the violations. Though we agree that Mr. Bowman is responsible for the actions of his associates and that Mr. Bowman did take part himself in the committed violations, given the lack of proof of intent, we do not feel the evidence presented as a whole is sufficient as to warrant Mr. Bowmans disqualification from the Ballot. In 34 C.C., the damage from the violations was so severe and incalculable, that disqualification was the only suitable remedy. But in this case, the election has not yet started and perhaps the electorate should be able to decide what weight to give the committed violations by Mr. Bowman when deciding whom to vote for in the upcoming election. For the reasons discussed above, we dissent in part V from the majority as to Mr. Bowmans sanction.