[registrars] Re: Ballot Results Explanation

[Louis Touton <touton@icann.org>]

Michael Palage:

Thanks for your hard work on promoting the work of the registrar 
constituency.  I believe the whole constituency recognizes that 
the secretiariat's job is often thankless, and appreciates your 
efforts.  As Ken Stubbs said in his recent note, it is important now 
for others to contribute their efforts and resources to helping share 
the workload that you have so far been bearing disproportionately.

On the question you raised about how the various requirements should
be met in moving forward with the constituency's election:  As I 
understand it, you have received an objection that one constituency
member was not appropriately informed of the election, because that
member was not timely added to the constituency mailing list.  That
member therefore did not submit its vote in time.

In cases of election challenges in these circumstances, the established 
procedure is first to determine whether counting or not counting the 
ballot affected the results of the election.  In the case of Erica, I 
understand that she would have been elected whether or not the contested
ballot was counted.  Accordingly, in my opinion she should be treated 
as elected to one of the vacant seats, and as Secretariat it would be 
appropriate for you to so advise the DNSO secretariat (Elisabeth 
Porteneuve) and Names Council chair (Caroline Chicoine).

As to the second vacant seat, it appears that the contested ballot would
have affected the election results.  Counting the ballot, one person 
would have been elected; not counting the ballot, there would have been
a 
tie.  This then requires that the challenge be analyzed further.
It appears that there was an irregularity (the failure of notice), so
that the election results (i.e. the tie vote when only timely-received
votes are counted) should not be certified.

On the other hand, it would also appear inappropriate to simply "adjust"
the results to count the late-received ballot.  Since that ballot was
not received by the previously established deadline, counting that 
vote would not be according to regular procedures.  A certification
of "adjusted" results would not be appropriate because the election 
officer has no express authority to waive the deadline and the
"adjusted"
result would not have been according to a regularly conducted election.
In these circumstances, the **usual** remedy is to rerun the election
for 
the portion affected by the error.

Therefore, it is my opinion that an appropriate course for you as 
secretariat with respect to the second seat would be to invalidate 
and rerun that portion of the election.

Best regards,

Louis Touton
ICANN General Counsel


"Michael D. Palage" wrote:
> 
> I would like to thank Bob Connelly for his diligence in this matter. In
> order for the democratic process to work it must be open and transparent,
> but most of all there must be accountability.
> 
> Prior to the election I was only one of only two elected representatives
> from the Registrar Constituency.  The original ballot was delayed because I
> was tasked with finalizing the SLA. Although the SLA Task Force did an
> excellent job, the were some loose ends that I had to clear up and this took
> much longer than anticipated.  To say that I am over burdened with the flood
> of registrar issues would be an understatement. That is one of the reasons
> that the official recognition of Task Forces was but forth on the last
> ballot. It is in the best interest of this constituency to segregate the
> work that needs to be done among the members in this constituency.  Either
> we can collectively work together to strengthen this industry or perish
> individually.
> 
> I delayed the original posting of the ballot while I resolved a *contested*
> issue about one of the candidate's bio. This delay was so that there would
> be no perceived unfair competitive advantage. The ballot was finalized and
> posted on Monday evening at 15:21.  Although you are correct about the 108
> hours and 39 minutes allotted for voting, there is nothing in the by-laws
> that mandate a specified minimum voting period. I believe that this incident
> mandates the necessity of amending the by-laws to specify a default period
> of time that can be amended when necessity requires. Bob, I call upon your
> past experiences to suggest a suitable time frame.
> 
> With regard to PSI-Japan joining the constituency, I do not recall you
> mentioning it to me, but I do not deny that this conversation may have taken
> place.  LA was a whirl wind period of time for everyone in attendance.
> However, I would like to point out that the registrar constituency
> application is available online at:
> http://www.dnso.org/constituency/registrars/Registrars.Application.html.
> 
> After informing you of PSI-Japan's failure to complete the application, I
> promptly forwarded them an application which they properly completed in a
> timely manner. After receiving PSI-Japan's completed application, I added
> Bill Connelly's name to the list of authorized voters.  HOWEVER, there was
> an oversight on MY part in NOT immediately adding Bill's email to the
> Registrar mailing list. As secretariat that is one of my other duties. As a
> result Bill never received a ballot. The ballot that he did submit after the
> Friday voting deadline was bounced from the list as an unauthorized voter.
> 
> As secretariat I must now address this situation in consultation with the
> other elected Registrar representative (Ken Stubbs) and ICANN general
> counsel (Louie Tuton). However, I propose that the most prudent course of
> action, as previous stated, is to hold an election run-over and NOT an
> entire revote.  Because PSI-Japan's vote would not have had a substantive
> impact on the other issues, I do not believe it is prudent to hold the
> entire election all over again. Moreover, because Erica had received at
> least one vote, under the by-laws requiring geographic diversity, she is
> GURANTEED to win. Therefore, I see no reason to deny her the opportunity to
> take her place as a duly elected Names Counsel representative for the
> Registrar Constituency in tomorrow's Names Counsel teleconference.  I
> understand the basis of your objection to Richard Lindsey's being required
> to step down as a Names Counsel representative. I voted for Richard in the
> past and I believe he was an excellent representative for the Asia/Pacific
> region. However, I do not make the ICANN by-laws rules I just follow them. I
> applaud your lawyer like analysis of the situation, but I was informed that
> Richard could not run on the ballot as a candidate of the Asian/Pacific
> region.
> 
> In conclusion, I will await confirmation from Ken Stubbs and Louie Tuton as
> to the course of my action. However, if it is agreed that Erica should take
> her seat now and that there should be a run-off of the two remaining
> candidates I await from you Bob a suggested suitable time frame for the
> balloting to be held.
> 
> Since we have met in Berlin I believe that I have shown you to be a man of
> integrity. I respect that you may have a difference of opinion in how I
> handled this matter but I do believe it comports with the traditional
> notions of a democratic election.
> 
> Best regards,
> 
> Your much maligned, overworked, underpaid, humble secretariat
> 
> Mike :)