In re Appendix s1.7 of the Constitution [2020] SDSC 3

Persuasive precedent
Judgment no longer binding following the 2021 Rebirth Amendment

Danyo Law Library Neutral Citation:
In re Appendix s1.7 of the Constitution [2020] SDSC 3

Original judgment:
https://docs.google.com/document/d/1q1U9nOQBd89F17GIruyiXHZUxUQ0yHlWIEjVCLHxFl0/edit#heading=h.lstsbv7s5q6p

MAJORITY OPINION by Chief Justice Danyo
(with Justice SlimmyJimmyGrimmy agreeing)

Introduction
[1] The petitioner is seeking judicial review of Appendix s1.7 of the Constitution (“Appendix s1.7”) on the grounds it is incompatible with Article 28 (right to suffrage).

[2] On the 19th and 20th January 2020, the verification program used by the Secretary of Elections to verify votes broke down. As the use of this program was constitutionally mandated, the votes could not legally be counted.

[3] At 00:05 GMT (19:05 ET), the petitioner filed a civil lawsuit against the Secretary of Elections and the President. In their lawsuit, they reported that at 21:14 GMT (16:14 ET), the election post was still stickied in the subreddit. The lawsuit was promptly retracted due to procedural reasons. At 00:36 GMT (19:36 ET), the petitioner filed a petition for judicial review on Appendix s1.7.

[4] At 00:51 GMT (19:51 ET), this court issued a preliminary injunction to temporarily suspend Appendix s1.7 on the grounds it had reasonable belief that it could unlawfully infringe on the right to suffrage.

[5] At 01:17 GMT (20:17 ET), kuilin, the maintainer of the verification program announced that the program had been fixed.

[6] As a result of this event, the results of the 24th Senate election was delayed, and by extension, its inauguration.

Summary of the petition
[7] The petitioner states that Senate elections (under Article 2 of the Constitution) must be held in compliance with Article 28 (the right to suffrage).

[8] The petitioner argues that when the verification program broke down, valid votes could not be counted as they couldn’t be verified. As such, this amounted to “the throwing out of valid votes”. As valid votes were being “thrown out”, this violated people’s right to suffrage.

[9] The petitioner further argues that “any required validation system that fails” would open the floodgates to election fraud. Moreover, the Secretary of Elections’ central role in determining the validity of ballots opens up further possibilities of fraud. Therefore, the petitioner put forward a proposal to use the legal standard of proof beyond a reasonable doubt when invalidating votes. They claim that any lower standard of proof would violate the right to suffrage.

[10] They then go onto argue that there are no grounds for permissible infringement of the right to suffrage. They argue that the protection of the rights of society as a whole and the protection of the public interest “explicitly does not apply” to the right to suffrage. They also allege that the existence of implied rights mean there is no valid reason for permissible infringement.

Summary of the response
[11] The respondent issued a counter-argument that a verification program is entirely consistent with Article 28. They point to examples in real life jurisdictions where states would use systems to prevent voter fraud. They also argue that verification programs are in fact needed to be in compliance with Article 28 as it is a method to ensure that fair elections can be properly held.

[12] The respondent concedes and sides with the petitioner that the actions that happened on the 19th and 20th January were unconstitutional and did indeed infringe on the petitioner’s right to suffrage. They believe that the actions that happened fall outside of the remit of this case and believe the petitioner should submit a different judicial review petition to review what happened. Their response also implied that they believe it was permissible infringement in this case in order to protect the rights of others to enjoy their rights to suffrage and the public interest.

The ambit of Article 28
[13] There is no real question as to whether Senate elections fall under the ambit of Article 28, because they do. Appendix s1.7, on the other hand, regulates the verification program used for elections. Citizens need to use the program in order to generate a code to validate their ballot and the Secretary of Elections needs to use the program in order to verify the legitimacy of ballots. Therefore Appendix s1.7 too falls under the ambit of Article 28.

Issue 1: Did the incident infringe on Article 28?
[14] As this review is being done on multiple grounds, we must consider each of these issues individually. For the purposes of brevity, I will be referring to the incident on the 19th and 20th January 2020 simply as “the incident”. The first question we must ask is whether the incident infringed on the petitioner’s Article 28 rights. As we believe the incident was inextricably linked to this judicial review, we felt it would be inappropriate to request the petitioner to make a second petition solely to review the actions that have taken place, and as such we respectfully disagree with the respondent’s request at [12] to hear it in a separate case.

[15] As stated before in [8], the petitioner argued that as the verification program broke down, valid votes could not be counted, and this was tantamount to “throwing out valid votes”. This court rejects this interpretation of events. When the program broke down, the Secretary of Elections simply didn’t count the votes. The Secretary of Elections did not delete any votes. All of the votes still had their verification codes affixed to them. When the program was restored, the Secretary of Elections was able to then verify the validity of the votes. Delaying the counting of votes is not the same as throwing them away.

[16] Furthermore, the time between when the case was first brought up to this court’s attention (00:05 GMT) and the time when the program was announced to be fixed (01:17 GMT) was just 1 hour and 12 minutes. This was an entirely reasonable delay to allow the program to be fixed and the votes to be properly counted and verified. What would be unreasonable is if we characterised this incredibly short delay of counting results as equal to throwing out votes and completely violating people’s right to suffrage.

[17] As such, this court finds that the incident on the 19th and 20th January 2020 did not infringe on the petitioner’s Article 28 rights.

Issue 2: Does the use of a verification program infringe on Article 28?
[18] The next question we must therefore ask is whether the use of a verification program infringe on the petitioner’s Article 28 rights.

[19] The petitioner has already implied in their petition that they believe a verification program itself is consistent with Article 28. They wrote that they welcome “verification as an attempt to reduce fraud and prevent ballot-stuffing”. The respondent, on the other hand, also states that the existence of Article 28 and the use of a verification program “do not go against each other”. This point is not in dispute.

[20] Article 28 gives every citizen the right to vote in “fair and free elections”. In order to ensure elections are fair, there must be some form of enforcement to ensure electoral integrity. This means that Article 28 imposes a positive obligation (a duty) on the state to ensure elections are fair. To meet this constitutional obligation, the state must have adequate apprateus in place to ensure that elections aren’t a complete joke where people can just stuff ballots. Therefore, not only is a verification program consistent with Article 28, it can be argued that the state must use a verification program of some sort in order to meet their constitutional obligation of ensuring fair elections. To this end, we concur with the respondent’s interpretation of this Article at [11].

[21] The court therefore finds that the use of a verification program itself does not infringe on the petitioner’s Article 28 rights.

Issue 3: Does the use of Kuilin’s verification program infringe on Article 28?
[22] The next question we therefore need to ask is whether the use of this specific verification program, Kuilin’s one, infringes on the petitioner’s Article 28 rights.

[23] The petitioner cites the incident as proof that Kuilin’s verification program “has clearly and unavoidably shown its flaws”. And as previously noted in [9], the petitioner argues that a broken verification program such as Kuilin’s will lead to the floodgates of election fraud bursting open. We respectfully disagree with this interpretation.

[24] A program (which has been used reliably in the past) breaking down in one incident is not indicative that it has inherent flaws. Even if the role the program plays is “critical”, it can not be reasonably considered that simply because the program breaks down once, it has failed its constitutional duties and therefore we should never use it again as it is unusable. To demonstrate this point, imagine Google Forms breaking down during an election. Does that mean Google Forms is a failed program and must be declared unusable henceforth?

[25] We must also consider the incredibly fast response time in fixing the program. Even if we use the most generous interpretation and count from the timestamp the petitioner uses at 21:14 GMT (16:14 ET) to the announcement that the program was fixed at 01:17 GMT (20:17 ET), the program was fixed in just 4 hours and 3 minutes. Would Google Forms breaking down once for 4 hours and 3 minutes be reasonable justification to stop ever using it ever again for elections? The reasonable person would answer no.

[26] This court therefore finds that the use of Kuilin’s verification program for elections does not infringe on the petitioner’s Article 28 rights.

Verdict
[27] Appendix s1.7 is constitutional. The preliminary injunction temporarily suspending it shall cease to have effect. The petition has been dismissed.

Postscript
[28] As there was no infringement of rights in the first place, there was no need to discuss the point the petitioner made described at [10], which discusses permissible infringement. However, I feel that permissible infringement as a concept plays a major role in how rights work in SimDemocracy and therefore felt compelled to set the record straight in my postscript of this judgment.

[29] Fundamentally, every right prescribed in the Bill of Rights is subject to the permissible infringement clause (Article 33, s1). There are of course exceptions, which will be discussed later. But the main point to drive home is that any right can be infringed if there is a compelling enough case that the rights of others, the rights of society, or the public interest.

[30] The reason why we allow permissible infringement is because rights can’t be viewed in isolation. You’re not the only person with rights. Every person in SimDemocracy has rights. And sometimes these rights will enter into conflict. For example, suppose that doxxing is a form of free expres​sion(according to judicial precedent it isn’t, see In re Restraining Order Act [15]; but take the statement as true for the purposes of this thought experiment). People have a right to data protection (Article 24), and specifically a right to enjoy protection from the state when their right to data protection is unlawfully violated (Article 23, s3). It is impossible to uphold both rights at once. We therefore would argue that in this case, the state prohibiting the dissemination of the doxxing material to be a permissible infringement of their rights because it is to protect the rights of others. Permissible infringement can also be done on the grounds of public interest. An example would be defamation laws which arguably infringe on free expression, but we would agree it would be a permissible infringement because it is done in the public interest. Individuals, overall, benefit from having defamation laws to protect their reputation and businesses.

[31] The main exceptions to the permissible infringement clause are other additional clauses in rights which prohibit the state from infringing a right in a certain manner. For example, the right to liberty and security of the person (Article 27). Section 2 states explicitly that no one is to be deprived of their liberty without due process of law which itself is defined. The state can’t use the permissible infringement clause to justify deprivation of liberty outside of explicitly defined due process. Another example would be freedom of faith and conscience (Article 22). While the state can infringe on freedom of faith and conscience if it makes a compelling and strong enough case to do so to protect the rights of others, the rights of society as a whole, or the public interest, the state can’t use the permissible infringement clause to justify passing a law respecting an establishment of religion which is explicitly prohibited in Section 2.

[32] The other main exception to the permissible infringement clause are quasi-absolute rights. I describe them as “quasi-absolute” because technically no right is exempt from the clause and thus there is no absolute right. The methods in which the state infringes those rights may be exempt, but no right as a whole is exempt. However, rights are not created equal. We view some rights are more important than others. In my opinion, no right is more important than the right to data protection (Article 23) which protects our personal information. I personally regard it as so important, it seems inconceivable that there would be any convincing argument for permissible infringement. In that sense, the right to data protection (in my opinion anyways) is a quasi-absolute right.

[33] The right to suffrage has neither an additional clause to prohibit certain forms of infringement, nor possesses the sacrosanctity of the right to data protection to warrant a quasi-absolute status. As such, this court roundly rejects the interpretation offered by the petitioner in [10]. There are valid reasons for why someone’s right to suffrage could be infringed. For example, if someone was convicted by a competent court of electoral fraud, and there was a law in which those convicted of electoral fraud offences are prohibited from voting in elections, there is a case to be had that infringing on that person’s right to suffrage is permissible on grounds of public interest, or, if we are being bold, on the grounds of protecting everyone else’s right to suffrage (in order to preserve fairness of the election).