Undergraduates will have to wait a little bit longer to find out who their next Duke Student Government president is.
After hearing DSG presidential candidate Kristina Smith's appeal at a hearing Tuesday night, the Judiciary decided that the election rule that penalized Smith by 200 votes was unconstitutional.
The rule in question was Section 6 of the Election Rules and Procedures 2017-2018, which states that students cannot solicit votes "while possessing any laptop, tablet, or similar electronic device that can access the ballot." Based on this rule, the Board of Elections and Attorney General Shreya Bhatia, a sophomore, decided to dock Smith 200 votes from the tally of voters who ranked her first because campaign members were playing music on an iPad outside Marketplace.
The petitioners—Smith and junior Luke Farrell, Smith's advocate and co-campaign manager—contested this decision in front of the Judiciary.
Chief Justice Dev Dabke, a senior, said that the Judiciary found the election rule to be unconstitutional because it is "overly broad." However, it remanded the matter to Bhatia who has 168 hours to decide if Smith violated any other rules. The Judiciary also decided that the 200 vote penalty was "arbitrary and capricious," violating the due process and cruel and unusual punishment clauses of the DSG Bill of Rights.
Farrell presented four claims in his opening argument, claiming that there was a violation of due process, that Section 6 was misinterpreted and also unconstitutional and that the 200 vote calculation was baselessly severe. In his closing statement, he later dropped his claim that Section 6 was misinterpreted.
“Before this punishment was voted on and decided by the Board of Elections, the Smith campaign was given no opportunity to have a hearing, violating Section 8, Number 5 of the Election Rules and Procedures, that an in-person hearing shall be automatic for a possible deduction of 50 votes or more,” Farrell said.
Bhatia stated that in one phone call to Smith the night of the violation, she informed the presidential candidate of the Board of Elections’ decision to dock her 200 docked votes and give her a guaranteed hearing.
“After informing her that we agreed upon 200 votes, I began to tell her that she had the right to a guaranteed in-person hearing, but she surprisingly hung up the phone abruptly,” Bhatia claimed in her opening statement.
Smith later clarified Bhatia's account with Dabke.
“I absolutely did not hang up,” Smith said. “The phone call ended.”
Later, Farrell called upon a witness to this phone call, junior Maggie Haas, who was part of Smith’s campaign. Haas noted that Smith did not hang up abruptly.
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Bhatia also raised the concern that Smith was aware of the rules, as candidates were clearly made aware of Section 6 during a meeting with all presidential candidates. In her opening argument, Bhatia also said that Smith informed her that “she is very familiar with the rules.”
“This statement in itself is concerning,” Bhatia said. “Because this violation did not take place due to ignorance or not realizing that Section 6 was a rule in place, but rather by someone who had heard this exact rule discussed in the candidates’ meeting, and who also claims to be very familiar with the rules and procedures.”
But Farrell claimed that the rule itself was unconstitutional on the grounds that any rules which might restrict free speech should be narrow. He cited precedent and practice set forth by the U.S. Supreme Court.
“Well, that’s the U.S. Supreme Court interpreting the U.S. Constitution,” Dabke said. “Right, so where in the DSG Constitution should we interpret it?”
Justice Alex Murphy, a junior, advised that they look in the Bill of Rights of the DSG Constitution.
At one point, Farrell presented another claim that Section 6 was misinterpreted and taken to an illogical extreme. He said that the framers’ intent was to prevent voter coercion.
“No,” Dabke said in response to this claim.
Dabke elaborated, noting that there are no elements of voter coercion in Section 6. He asked Farrell to elaborate on what he is missing from the text of the document.
Earlier, Dabke asked Farrell rhetorical questions of whether he had the framers there, or whether he had the framers’ intent recorded somewhere, concluding that the framers’ intent was speculation.
Farrell dropped the misinterpretation argument in the closing speech.
Later on, Dabke noted that since Smith was a senator last year, she voted on the Election Rules and Procedures. He asked Smith why she had changed her mind on the constitutionality of Section 6.
Smith responded that she agrees with the general rule. But she added that it's now being enforced too broadly.
His final claim was that the 200 vote docking was baselessly severe. In his opening argument, Farrell said that in the span of 45 minutes that the iPad was present, there was not even a possibility of soliciting 200 votes with the device.
The decision was based on the number of contacts made during the time that the iPad was present. The Board decided on 200 contacts made—2 per person for 100 people.
Bhatia called on a witness from the Board of Elections, first-year Turner Jordan, to elaborate on the decision to dock 200 votes.
“We actually talked a lot about how many people would be going to Marketplace—there’s obviously no way to have access to specific numbers, although I believe it would be possible to subpoena records from Marketplace…we decided on 100," Jordan said. "Actually that was one of the more generous suggestions—it was one of the lower suggestions made for numbers of people.”
“So you made it up?” Dabke said.
“Essentially,” Jordan responded.
Likhitha Butchireddygari contributed reporting.