Petition for Declarative Relief

[Miestrâ Schivâ, UrN]

PETITION FOR DECLARATIVE RELIEF in re: 47th COSÂ AND SENÄTS ELECTIONS
by Senator M. A. Schivâ, UrN

MAY IT PLEASE THE CORT:

1. The Organic Law of the Kingdom, Article 7, "Elections to the Cosâ", Section 6, reads as follows:

Votes for the Cosa may be submitted either publicly or privately. Votes submitted privately shall be submitted to and available only to an Electoral Commission, consisting of the Secretary of State and the three Justices of the Uppermost Court. Should any Justice be unavailable to serve on the Commission, the King shall name a Magistrate judge of a subordinate court to replace that Justice, but should no Magistrate such judge likewise be available, the Commission shall serve as otherwise constituted. It shall be a criminal act, punishable as determined by law, for the contents of any such vote to be revealed by any member of the Commission to any other person. The members of the said Electoral Commission shall independently confirm the final tally and together shall certify the election.

2. The Organic Law of the Kingdom, Article 4, "Election to the Senäts", Section 6, reads as follows:

Any Senatorial election conducted by the Chancery shall be conducted according to the provisions given in Section 6 of Article VII concerning election to the Cosa, and the candidate receiving a plurality of the vote shall be declared the winner. In case of a tie between two or more candidates, the executive officer of the province shall select one of those candidates to be the Senator.

3. The results of the election for the 47th Cosâ are available at this website: www.talossa.ca/files/election_result.php. As the Cort can see, all votes have been validated by all four members of the Electoral Commision, except the following:

a) Justice Litz Cjantscheir has marked vote 429, that of Cresti da Ion Newton, as invalid.
b) Justice Ián Tamorán has marked vote 211, that of Aspra Rösetâ Laira, as invalid.

4. The Secretary of State has not proceeded to assign Cosâ seats as mandated in OrgLaw 8.2. Nor have the votes for the concurrent Senäts elections in Benito, Maritiimi-Maxhèstic or Vuode been certified as provided in Orglaw 4.6

5. The issue at hand seems to be that because not all justices have agreed on the validity of all votes, the SoS is not proceeding to declare final results and distribute seats in either Cosâ or Senäts elections.

LEGAL ARGUMENT A: SENÄTS ELECTIONS

6. Only one of the disputed votes is relevant to the Senäts election - Cresti Newton's in Maritiimi-Maxhestic.

7. Cresti Newton voted PRESENT.

8. Therefore, the final result of the Senäts contest in Maritiimi-Maxhestic is undisputed by all four EC members - that Magniloqeu da Lhiun defeated Cpt. Mick Preston by a vote of 6-3 valid votes. The final result of the Vuode or Benito elections are not in dispute in any way.

9. This petition submits that, for the purposes of seating Senators, only valid votes for candidates standing in the election need be certified for the result to be declared official. The intent of the law is clearly not to delay seating Members of the Ziu until some arbitrary bureaucratic hurdle has been overcome, but until all four members of the EC agree what the substantive result of the election is. The question of PRESENT or invalid votes is irrelevant for such purposes - as are the vote tallies in other senatorial contests. Therefore it would be contrary for the intent of the law to prevent elected Senators from being duly seated while an irrelevant question continues to be discussed by the EC.


LEGAL ARGUMENT B: COSÂ ELECTIONS

10. As mentioned above, Cresti Newton's PRESENT vote is irrelevant to the result in the Cosâ election, and therefore should be overlooked in the question of declaring an official tally of votes for the purposes of Cosâ representation.

11. If there were some continuing question of validity to the vote of Aspra Laira - and thus, to the question of whether the RUMP received 40 or 41 votes in the election - this would be an appropriate reason to delay certification of the election.

12. HOWEVER: Justice Ián Tamoran, on September 12 2014/XXXV, noted in this post on Wittenberg: "http://talossa.proboards.com/post/123943"

There will be a very brief hiatus whilst I go back to revalidate the vote of citizen 211 Aspra Laira (which, by inspection, is now recorded correctly - but I can't push the right button just at the moment).

13. This appears to be a public declaration by the aforesaid justice that his invalidation of Laira's vote no longer stands and the continuing "invalid" status on the publicly available record is an administrative oversight and/or a technical problem.

REMEDIES REQUESTED

Therefore, we ask the Cort to declare that

A. the Senäts elections held at the 47th Cosâ election have been certified by all four members of the Electoral Commision and that the Secretary of State shall without delay declare Magniloqeu da Lhiun, Lüc da Schir and Eðo Grischün to be elected in their respective Senäts races.

B. Aspra Laira's vote has been certified as valid by all four members of the EC, and that therefore;

C. The current provisional results on the Chancery website (in particular, the final tally of RUMP votes at 41), are therefore independently and collectively certified by all four members of the Electoral Commission, as required by OrgLaw 7.6; and that the Secretary of State should therefore without delay proceed to the allocation of Cosâ seats to the parties concerned, as provided in OrgLaw 8.2

[Owen Edwards]

Given the precedent of a Justice taking a pressing injunction without recourse to the Clerk (in the ESB Affair), and seeing no requirement for the above to be judged on by an UC Justice, I assign the above request to Txec Nordselva for prompt resolution.

-Chief Magistrate

[Dr. Txec dal Nordselvă]

The vote of Cresti Newton is invalid no matter how he voted as citizens who have not reached the age of 14 cannot legally cast a vote. Justice Cjantscheir was correct in marking the vote as she did. All other members of the Electoral Commission should also have marked the vote as invalid and the Secretary of State should not have enabled the minor to cast a vote.

Nevertheless, even if the vote had been valid, a vote of "present" makes no significant changes to the outcome of the General Election and beside that one issue, all members of the Electoral Commission have declared either through direct notification or via the process set forth by the Chancery that the votes cast are valid.

Therefore, this Cort issues a preliminary injunction requiring the Secretary of State, Marti-Pair Furxheir S.H. to allocate the elected seats in the Cosa and allow the newly elected Senators to take their seats in the Senate. The Cort will schedule a hearing on this matter to further consider the issues if any party to this action so wishes. This preliminary order will become final on Wednesday, October 1, 2014 if no party to this action has filed a motion with the Cort.

[Sir Alexandreu Davinescu]

Your Honour, the Chancery continues to retain me as counsel. I am communicating with my client now about his options.

I would like to take this opportunity to register my strong objection, however, that the plaintiff did not bother to notify my client when this suit was brought. It is both the law and common courtesy, and yet this is the second time recently that someone has filed suit against the Chancery without notifying the Chancery, as they are obligated to do so. An email is most appropriate and polite, but even a Wittenberg message would suffice - the Chancery reports receiving neither. While we realize that this was probably just an accident, the Chancery has made it clear to its counsel that it would appreciate if those people bringing actions against it would please be cognizant of this legally-required courtesy.

[Sir Alexandreu Davinescu]

Your Honour, the Chancery had so far felt that the ballot that remains solely in question is valid, but feels uncomfortable in certifying the results without the actual conclusions of the Election Commission. It would impeach the integrity of the process and do irreparable harm to it if the Chancery were to allocate seats officially, despite the fact that the Organic process required to certify their validity is not yet concluded. The Chancery would like to ask your Honour to reconsider his order, in light of the fact that there is no pressing harm. Everyone in the country is fully aware that the outcome of the disputed ballot will not change the results, and a Government has already been appointed. We also note that not even the plaintiff has alleged irreparable harm or immediate danger to the results if another day or two elapses while we resolve this issue. In a situation where there is a danger on one hand and no danger on the other, we respectfully ask that a slight delay be countenanced and that this order be reconsidered. The Chancery has a proposed solution, as I will lay out.

The Chancery has reconsidered its position on the disputed ballot's validity after discussing the matter with Justice Litz. However, though we now feel that the ballot should be marked invalid and discarded, we do not feel as though we can do so without the agreement of the other two members of the Commission, which may require a court order.

The Chancery, then, asks for a reconsideration of the order, and suggests that this court calls into consultation the two Justices on the Commission who marked the ballot invalid. If they agree that they also reconsider, then the entire situation will be easily and swiftly resolved - without either rendering the Commission irrelevant or having the election results half-official with a legal proceeding clouding their validity. We feel this would be by far the most amiable and quick way to resolve the issue right now, without dragging things out to a later series of hearings.

[Dr. Txec dal Nordselvă]

The Cort invites the complainant, Miestrâ Schivâ, UrN, to file a response. At that time, the Cort will make a ruling. As of now, the injunction stands until such time as the Cort determines otherwise.

[Sir Alexandreu Davinescu]

Will the cort permit a delay in fulfilling the injunction, until such a time as the plaintiff responds? If she answers in the affirmative and we can solve this all now, I think we can all agree it would be preferable.

[Dr. Txec dal Nordselvă]

Sept 26, 2014 9:57:35 GMT -6 Sir Alexandreu Davinescu said:

Will the cort permit a delay in fulfilling the injunction, until such a time as the plaintiff responds? If she answers in the affirmative and we can solve this all now, I think we can all agree it would be preferable.

The Cort will stay its injunction until it hears from the plaintiff.

[Miestrâ Schivâ, UrN]

Your Honour, I would reject the contention of counsel for the Chancery that "there is no pressing harm" if the Ziu of Talossa is prevented from meeting to discuss legislative business or to question the Government for days while the Electoral Commission continues to debate among itself whether a vote which does not affect the election results cast by someone too young to vote is "valid" or not. This is a scholastic and legalistic exercise with absolutely no ramifications for either the election or Talossan jurisprudence.

Counsel for the Chancery argues that "it would impeach the integrity of the process and do irreparable harm to it if the Chancery were to allocate seats officially, despite the fact that the Organic process required to certify their validity is not yet concluded". But, firstly: other legal analysts have argued convincingly that there is no requirement under OrgLaw 8.2 for the Secretary of State to wait for official "certification" of the election before allocating seats, and I would be interested to hear an argument about where such a requirement might exist. Secondly, the more important fact is that all the votes which have any material bearing on the election result, and thus the allocation of seats, have been agreed by all 4 EC members to be valid.

Since all parties agree on how many seats will be allocated to which party, there is no "pressing harm" in having them allocated right now; and plenty of pressing harm - in the sense of a log-jam in the legislative branch of government - by holding them up over an irrelevant technical point without issue. I suggest that this pressing harm will be added to by setting a precedent that the democratic will of the people can be held up from being put into action by legal technicalities with no bearing on the outcome being discussed. Thus, I request that the injunction be reinstated.

[Dr. Txec dal Nordselvă]

The Cort thanks both the Chancery and the Plaintiff for its prompt response.

The issue of the currently uncertified election does present great harm to the legislative process of Talossa as a new Cosa, under Organic circumstances, should by now be seated and conducting business. Additionally, the General Election ended nearly 25 days ago and the Electoral Commission has not been diligent in its duty to act in a timely fashion. A new Clark is scheduled to begin in five days and there is as of yet no seated Ziu. There is no Organic or statutory requirement as written into the law that prevents the Secretary of State from moving forward. His ambivalence is understandable and the Chancery itself has stated that a Cort Order may be required to move things along.

Therefore, it is the ruling of this Cort that the injunction be enforced forthwith.

[Marti-Pair Furxheir S.H.]

Sept 26, 2014 21:41:09 GMT -6 Dr. Txec dal Nordselvă said:

The Cort thanks both the Chancery and the Plaintiff for its prompt response.

The issue of the currently uncertified election does present great harm to the legislative process of Talossa as a new Cosa, under Organic circumstances, should by now be seated and conducting business. Additionally, the General Election ended nearly 25 days ago and the Electoral Commission has not been diligent in its duty to act in a timely fashion. A new Clark is scheduled to begin in five days and there is as of yet no seated Ziu. There is no Organic or statutory requirement as written into the law that prevents the Secretary of State from moving forward. His ambivalence is understandable and the Chancery itself has stated that a Cort Order may be required to move things along.

Therefore, it is the ruling of this Cort that the injunction be enforced forthwith.

Thank you your honor, you have greatly helped the Chancery in its duty by resolving the issue!

[Sir Alexandreu Davinescu]

Your Honour, the Chancery has complied with the order and has posted official results as the injunction required, seating the Ziu irrespective of the lack of Election Commission certification. Will there be further proceedings here to resolve the issue of the contested ballot?

[Owen Edwards]

I am happy to change my validation on Newton's vote, though I had also been happy to follow the SoS' lead on accepting it.

[Ián Tamorán S.H.]

With, I trust, the Cort's permission in my passing it possibly relevant information:

Sept 27, 2014 14:58:59 GMT -6 Owen Edwards said:

I am happy to change my validation on Newton's vote, though I had also been happy to follow the SoS' lead on accepting it.

I also am in this position.

Ián Tamorán

[Sir Alexandreu Davinescu]

If both of you were to do so - or indeed, had already done so - this would be entirely resolved, as far as I can see.