KPFK recount violates court order
Casey Peters
Introduction
The issue at hand is not about who was or was not elected to the KPFK Local Station Board, nor about the conduct of the campaign. It is about the national management of the Pacifica Foundation firing the National Elections Supervisor in order to decertify the KPFK vote count in violation of the established procedures. NES Casey Peters was in fact longtime friends and acquaintances with some of the critics calling for a “recount” but stood his ground on the principle that the same rules should apply to all candidates equally. For this he was fired and replaced by a more compliant Election Supervisor. The integrity of future Pacifica elections now stands in question.
Background
At the January PNB meeting in Newark, a resolution was allegedly passed in executive session (though no written report was ever issued) commanding the National Elections Supervisor to reverse a ruling made upholding the certification of the KPFK Listener Sponsor vote count. Although the NES was present in the building, he was excluded from the secret session and never consulted as to the circumstances and reasons for the certification and ruling.
The newly seated PNB used extremely poor judgment in deciding to cast such a vote in ignorance when the primary party who could shed light on the situation was standing by. In fact, the new PNB met in secrecy so much that weekend that the NES never got to deliver his full report with question-and-answer session as scheduled.
Furthermore, neither the PNB nor Foundation management have the right to issue orders to the Election Supervisors in the independent conduct of Pacifica elections.
What follows here is some of the information regarding the KPFK Recount Ruling and possible consequences of violating election certification.
What a recount would bring:
(1) undermining of authority of future Election Supervisors
(2) possible new lawsuit(s) by unseated Delegates or by displaced Alternates
(3) probable calls for recount at KPFA where invalid ballots may have been counted and where several ballot-listed candidates were eliminated out of order before elimination of write-in candidates
Radford withdrawal and reversal
On December 13, 2007 (KPFK's Election Close Date), Listener Sponsor candidate Leslie Radford announced her withdrawal from consideration and asked that votes for her be counted for each voter's subsequent choice. On December 16, as ballots were still being verified, Ms. Radford again contacted the Election Supervisors to say that colleagues has persuaded her to stay in the race and to serve on the board if elected.
In response, the National Elections Supervisor notified Ms. Radford that if she were to change her mind again and withdraw after the vote count her votes would not be redistributed. If she had been declared elected, her seat would be declared vacant under Pacifica Bylaws Article 4 Section Ten and treated accordingly. If she had not been elected, her place among the Alternates would be filled by the next Alternate.
Part of the rationale for this ruling is that allowing a redistribution of ballots after the results of the vote count were announced would open the floodgates to slates attempting to manipulate the outcome of the election. Candidates would be able to drop out for the purpose of boosting the chances of electing slatemates to the board. This could be done either (as it turned out in Ms. Radford's case) by a candidate who was elected as Delegate to step aside with the prospect of elevating two slatemates to the board, or for two or more candidates with few votes to give a slatemate an early boost above other candidates so they would not be eliminated until a later round and thus benefit from redistribution of votes of candidates eliminated earlier than in the original vote count.
Ruling preventing recount
It turned out that another KPFK candidate withdrew after having been declared elected. After LSB members raised a challenge to write-in candidate Ahjamu Makalini's membership status, and it was determined that he had not been a member for at least a decade, he withdrew his candidacy. The NES announced that the same ruling that was made in regard to Leslie Radford also applied in the case of Delegate-elect Ahjamu Makalani.
Upon hearing about the demand for redistribution of the withdrawn candidate's votes, corporate counsel Dan Siegel asked the NES: “Why would you do a recount?” Subsequently, he bent to political pressure and convinced the PNB in secret session to pass a resolution to decertify the election without hearing the NES' viewpoint.
However, the lawsuit filed by Grace Aaron and others was not well received by Los Angeles Superior Court, and the judge upheld the authority of the Election Supervisor, citing California Corporation Code Section 5152.
Judge David Yaffe's ruling in Aaron v. Pacifica (BC383600)
The written tentative ruling stated: “Said election is determined to be void and of no force or effect because the fairness of the election was fatally compromised when Plaintiffs demanded and were granted postponement of the election in order to enable them to engage in further campaigning for their slate of candidates.
“The unfairness of the election was then aggravated because the slate proposed by the Plaintiffs included a candidate who was ineligible to run for office because he was not a member in good standing of the corporation, and because he was permitted to run despite the fact that he had not been nominated by 15 members in direct violation of [Article 4] Section 2 of the corporate Bylaws.
“The Court will further order that a new election be held, or that the delegates that held office at the time of said election of delegates [will remain in office], after the parties have been given the opportunity to agree which of said alternatives will best protect the voting rights of the members of the corporation.”
In open court, Judge Yaffe read aloud from the NES's brief, stating it provided the basis for his ruling: “In October 2007, Grace Aaron and her attorney at the time, Carol Spooner, threatened to sue the Pacifica Foundation if the KPFK Local Station Board ballots were mailed on October 15 in keeping with the requirements of Pacifica's Bylaws. Ms. Aaron was putting together a slate mailer to be sent to the voting members of KPFK, and wanted it to have full impact by arriving at the same time as the ballots. Attorney Spooner's email communication states that if Pacifica does not meet her client's conditions, Grace (Aaron) will be seeking a court order invalidating any KPFK listener ballots.
“No slate mailer had ever been done in previous KPFK elections, and this would give Ms. Aaron's slate an undeniable unfair advantage over independent candidates. Despite the fact that no KFPK candidates other than her slate were sending mailers to the voters, Ms. Aaron indicated that she would sue Pacifica if an additional advantage were not granted by violating the Bylaws and delaying the mailing of KPFK ballots. Pacifica's counsel agreed to acquiesce in an effort to avoid the expense and delay of litigation.”
email reply to Grace Aaron on January 6
Re: Please let's avoid a lawsuit
From: Casey Peters
Date: 1/6/2008 4:19:34 PM
Cc: DanMS...@aol.com,danS...@siegelyee.com,wild...@pon.net,janj...@gmail.com,RoyUlr...@yahoo.com,kena...@ca.rr.com,jlaf...@kpfk.org
Hello Grace.
I wanted to clear some misconceptions that you seem to have about the KPFK Listener Sponsor election.
First, your assertion that it was my responsibility to make sure that Mr. Makalani was a member is not accurate. He did not qualify as a candidate on September 25 because he turned in only 12 signatures. Therefore, the Local Election Supervisor did not verify his membership because it was a moot point. When Mr. Makalani subsequently campaigned as a write-in candidate, the LES still did not check his name on the membership list, a fact that came to my attention just a week ago (December 30, 2007).
Your husband, Ken Aaron, who worked for Mr. Makalani’s slate, was present at the vote count and gave many suggestions as to procedure but he did not make any mention that Mr. Makalani’s membership may be in question and should be confirmed prior to the vote count.
After his status was challenged by a board member, I gave Mr. Makalani sufficient time to produce some proof of membership, and he was unable to do so. According to KPFK’s subscriptions department, Ahjamu Makalani last pledged in 1996 and did not pay that pledge. Similarly, you wanted permission for another nonmember to run for the board based on his having appeared as a guest on a radio program. How does electing non-members to the board strengthen KPFK? The real responsibility lies with the organizers of the slate to make sure that their candidates actually support the Pacifica Foundation.
Second, your assertion that I was prepared to “re-count” Leslie Radford’s votes if she dropped out as a candidate is patently false. How you arrived at such a conclusion is beyond my comprehension. As you may know, Ms. Radford announced prior to the vote count that she was withdrawing from the race. The following day, before any votes had been counted, she contacted me to say she had been persuaded to change her mind. I alerted Ms. Radford to the fact that once the votes were counted there would be no opportunity to redistribute her votes, and that were she to change her mind again and vacate her seat if elected as a Delegate, the First Alternate would fill the vacancy.
Third, your assertion that I intend to “throw out” ten percent of the votes shows a lack of understanding of the Pacifica Bylaws and of the Single Transferable Vote (STV). The Bylaws establish a method of filling vacancies that does not involve redistribution of votes. Rather, Article Four Section 10 provides for any vacancy to be filled by “the highest-ranked candidate from the last election of Delegates.” If you disagree with this provision, you should work to adopt a Bylaws amendment for a redistribution method. STV is designed to minimize, not eliminate, the phenomenon of wasted votes. When nine seats are to be filled, the threshold for election is 10% plus one vote. Multiply that threshold times nine seats, and you see that nearly ten percent of ballots may not help elect a candidate. In the case of Mr. Makalani, over 20% of the value of his votes were already redistributed as a fractional value of each of his ballots after he was declared elected. The remainder of less than 79% value is nearly compensated for in the support shown in the final round of the vote count for the First Alternate, Israel Feuer.
Fourth, your assertion that the rule counting write-ins as first place votes has disenfranchised voters is not the case. Our volunteers went painstakingly through all of Mr. Makalani’s votes to ferret out those that indicated they did not wish to choose him as their first place preference, and those ballots were distributed to the first preference indicated by each voter.
Fifth, your assertion that you would win a lawsuit forcing a recount is based on your presumption that you will find a judge willing to disregard the foundation Bylaws. A threatened lawsuit by you earlier in the election process forced an unwarranted delay in the mailing of the ballots. I acquiesced under the advisement of our foundation counsel. That decision led to the delay of the KPFK vote count and to an injunction against the WBAI vote count. In this instance, foundation counsel sees no need for a recount, and it is highly unlikely that a court would intervene.
The ruling on this matter is posted at http://www.pacificafoundation.org/elections/general-election-news/
Note that it is written in a discrete manner, not publicly airing some of the unpleasantries mentioned above.
Please be gracious enough to recognize your slate’s errors, to comply with Pacifica Bylaws, to accept your slate’s victory in a majority of the seats, and to implement the platform on which you campaigned.
Casey Peters
National Elections Supervisor
Pacifica Foundation
<-----Original Message----->
>From: Grace Aaron [grace...@ca.rr.com]
>Sent: 1/5/2008 6:14:11 PM
>To: paci...@mail2casey.com
>Cc:
>DanMS...@aol.com;danS...@siegelyee.com;wild...@pon.net;janj...@gmail.com;RoyUlr...@yahoo.com;kena...@ca.rr.com
>Subject: Re: Please let's avoid a lawsuit
>
>Dear Casey,
>
>We have already started drafting a letter to you threatening to file suit in
>L.A. County if you do not redistribute and recount the ballots. Please save us
>the time and trouble this would cause by doing the right thing to ensure that
>KPFK voters are not disenfranchised.
>
>We're not asking for anything unusual -- just that the will of the voters be
>given the highest priority.
>
>You will recall that I never (nor anyone from our Committee) protested your
>intent to recount Leslie Radford's ballots after she resigned. We have been
>fair and not placed our personal interests above the will of the voters. We
>also did not challenge Leslie's re-entrance to the election. We expect the same
>spirit of fair play from you.
>
>The outcome will be the same. The ball is in your court. No pun intended.
>
>Do you want to have to do the recount before or AFTER a court challenge?
>
>Trying to feel peaceful,
>
>Grace Aaron
Brief response to Ken Aaron's email of March 2, 2008
The husband of Grace Aaron sent an email on March 2 that was rife with disinformation.
The National Elections Supervisor was too busy preparing for the WBAI vote count to respond.
Now for the record, here is a cursory reply to some of the charges:
(1)“KPFK Local Election Supervisor Liliana Sanchez was fired just prior to the counting of the ballots.” This is a total lie by Ken Aaron. Ms. Sanchez in fact had an extension of her contract after the vote count in order to complete her final report.
(2)“There was no log of events.” Every round of the vote count was carefully recorded, in keeping with prior practice at Pacifica vote counts.
(3)“Verification of votes was based on a secret process.” The Election Supervisors protect the privacy of our members and do not disclose the Personal Identification Numbers assigned to any individual.
(4)“Inadequate security of ballots.” Responsible persons were present with the ballot box at all times, and no tampering was reported.
(5)“Hand counting is not appropriate with a large STV election.” Cambridge, Massachusetts used a hand count of the Single Transferable Vote to elect its City Council for six decades. At KPFK it proved considerably faster than and just as accurate as the computer count. The transparency of a hand count makes it easier to understand than the opaque mystery of a computer count. A hand count of the first round of the Listener-Sponsor count and of the entire Staff election should always be done to assure the voters that the computer count is not crooked.
(6)NES Casey Peters “stalled the completion of the count, taking off time for personal activities, leaving in the middle to handle a flap in Berkeley.” The KPFK computer count was stalled due to technical difficulties the KPFK Elections Work Group (EWG) had with scanning ballots for verification. Peters took one day off for oral surgery and a second day to recover. Otherwise, Peters seldom had a whole day off during 11 months of service to Pacifica. The KPFA Staff election was counted as scheduled one week after the KPFK count began, then Peters returned to Los Angeles to complete the vote count. The EWG was still experiencing problems, so a hand count was undertaken and completed in 2 days (December 24 & 26). The EWG finished the computer count with the same result on January 6.
(7)Aaron claims the Staff election was flawed although he did not attend the well-noticed count. More ballots were received in the re-vote than in the first election, and there were only two invalid ballots compared with 22 invalid in the first vote. The hand count took only an hour, and the results were beyond reproach.
(8)Ken Aaron submitted a declaration to the court that consisted of perjury, but his attempt to mislead the judge failed and his wife's case against the Pacifica Foundation and Casey Peters was dismissed.
ADD: fractional values
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Terry Goodman
ruling is not a court order and a recount is not a violation or a
de-certification. If the parties in litigation at KPFK eventually
agree to the initial count certification or agree to request recount
certification and no additional parties in interest register objection
with the Court, they might achieve Court permission to either abandon
the suit or to certify the new tally and its consequent election
results. If the Court does issue a final ruling voiding the election
and Pacifica does not intend to comply with that ruling, then Pacifica
will have to promptly appeal or it will then be in violation.
On 26 Jun, 2008, Casey Peters wrote:
>Recount Ruling at KPFK
>
>Introduction
>The issue at hand is not about who was or was not elected to the KPFK
>Local Station Board, nor about the conduct of the campaign. It is about
>the national management of the Pacifica Foundation firing the National
>Elections Supervisor in order to decertify the KPFK vote count in violation
>of the established procedures.
<snip>
Firing an elections supervisor does not decertify an election.
Accomplishing decertification normally would requires a court order.
>At the January PNB meeting in Newark, a resolution was allegedly passed
>in executive session (though no written report was ever issued)
>commanding the National Elections Supervisor to reverse a ruling ...
<snip>
If such a resolution was offered, it was out of order as it conflicts
with the Foundation Bylaws. The NES is required to be independent of
PNB and Foundation manipulation or control. If such a resolution was
approved by the PNB, it is and was null and void.
>Furthermore, neither the PNB nor Foundation management have the
>right to issue orders to the Election Supervisors in the independent
>conduct of Pacifica elections.
<snip>
Exactly so. The Elections Supervisor may be dismissed, but his or her
rulings and certifications remain in effect unless and until
overturned by a properly chosen and suitably independent successor or
by a court.
>It turned out that another KPFK candidate withdrew after having been
>declared elected. After LSB members raised a challenge to write-in
>candidate Ahjamu Makalini's membership status, and it was determined
>that he had not been a member for at least a decade, he withdrew his
>candidacy.
<snip>
The interpretation that Mr. Makalini withdrew subsequent to his
election rather than withdrew or was disqualified during that election
is an essential distinction in understanding appropriate application
of the bylaws to this situation. That Delegate vacancies are filled
other than by redistribution of the votes that elected the vacating
Delegate is a flaw in Pacifica's implementation of proportional
representation that requires bylaws amendment to repair. Although the
tally results had been published, I do not believe that they had been
certified when Makalini withdrew, so the NES could have exercised an
option to re-tally and thereby avoid the bylaws flaw; but the decision
to re-tally or not was clearly one that the NES and only the NES had
authority to make in this circumstance, and allowing candidate
withdrawals or candidate challenges after tally results have been
published opens the door to strategic election manipulation if this is
sort of event is determined to always prompt an automatic re-tally. I
am confident that the NES ruled without an interest in the outcome,
though his specific decision-making on the question may have been
forced or manipulated by the actions of a non-slate candidate who
announced withdrawal and then rescinded.
NES rulings (or successor NES rulings) can be wrong or inconsistent
and these or certified election results may be challenged, but the
burden of proof is always on the challengers, so their arguments must
be convincing. The Court's unsatisfactory attempt at equity in this
case suggests that the arguments presented by both sides were
inadequate.
>Upon hearing about the demand for redistribution of the withdrawn
>candidate's votes, corporate counsel Dan Siegel asked the NES:
>"Why would you do a recount?" Subsequently, he bent to political
>pressure and convinced the PNB in secret session to pass a
>resolution to decertify the election without hearing the NES' viewpoint.
Since Mr. Peters was not present at the meeting in question and
according to him there was no report out, his description of who
convinced who of what and especially why at that meeting, if it
occured, would appear to be speculation and/or second-hand. The
Pacifica National Board has no authority to "decertify" an election of
Delegates by the membership or an election of Directors by these
delegates, though it is not at all difficult to believe that the PNB
participated in some such attempt. A court, however, does have the
required authority.
>However, the lawsuit filed by Grace Aaron and others was not well
>received by Los Angeles Superior Court, and the judge upheld the
>authority of the Election Supervisor, citing California Corporation
>Code Section 5152.
If the judge was simply upholding the authority of the Election
Supervisor he would not threaten to void what the Election Supervisor
has certified.
>Judge David Yaffe's ruling in Aaron v. Pacifica (BC383600)
>The written tentative ruling stated: "Said election is determined
>to be void and of no force or effect because the fairness of the
>election was fatally compromised when Plaintiffs demanded and
>were granted postponement of the election in order to enable
>them to engage in further campaigning for their slate of candidates.
If made final, this ruling will nullify the last KPFK Listener-Sponsor
category Delegate election, the certified results of which appear to
have been basically accepted by the candidates as fairly approximating
the expressed will of the local membership. Judge Yaffe by ommission
significantly misrepresents the facts here, however. My understanding
is that the Plaintiffs' initial demand, presented well in advance of
any ballot mailing, was for the mailing of their election materials in
accordance with the rights of candidates under law, that any demand
for delay in the mailing of ballots did not include a demand for
postponement of the close of elections, and that the demand to delay
ballot mailing (which does conflict with the bylaws) was subsequent to
Pacifica's violation of membership rights in impeding and delaying the
Plaintiffs' candidate mailing. Delaying the candidate mailing itself
threatened to fatally compromise the elections, since slate members
had invested most of their jointly accumulated campaign contributions
towards this well-established campaign strategy and were thus unfairly
disadvantaged by the illegal Foundation-engineered delay, which
negatively impacted the Plaintiffs' campaigns while leaving the
campaigns of independents unimpeded. Because of typical postcard
handling procedures, the candidate-funded mailing in many or most
cases arrived after ballots rather than before, which would not have
occurred if the mailing had not been initially impeded by the
Foundation's failure to meet the 10-day response deadline established
by statute for offering suitable alternative to membership list
inspection demands.
>"The unfairness of the election was then aggravated because
>the slate proposed by the Plaintiffs included a candidate who was
>ineligible to run for office because he was not a member in good
>standing of the corporation, and because he was permitted to run
>despite the fact that he had not been nominated by 15 members
>in direct violation of [Article 4] Section 2 of the corporate Bylaws."
Judge Yaffe here misinterprets a section of the Pacifica Bylaws. Our
bylaws require current membership for nomination and require
nomination for qualification as a candidate, but require neither
membership nor nomination to run for delegate office or to be elected
to such office by vote of the membership. The Foundation's
parliamentary authority (as recognized by the NES in this election and
in prior elections) allows write-in votes and requires that they be
counted. The primary purpose of counting write-in votes is to allow
for the election of an individual never nominated.
If Judge Yaffe has determined that only a member in good standing of
the corporation may be elected to serve as a member representative,
which interpretation is not unreasonable on its face and is likely
consistent with general election law, then he should provide a valid
precedent for this ruling, even if the issue is moot in this
particular case by the candidate's withdrawal. In Pacifica's Bylaws,
lack of membership status is not identified as a disqualifying
condition for member Delegates in Article Four, Section 9, and the
issue is bound to come up again, eventually.
>"The Court will further order that a new election be held, or that
>the delegates that held office at the time of said election of delegates
>[will remain in office], after the parties have been given the opportunity
>to agree which of said alternatives will best protect the voting rights
>of the members of the corporation."
<snip>
I suspect that all parties in this suit would prefer that the
certified KPFK Delegate election results stand rather than that either
of the Court's proposed solutions be imposed. Neither affirming the
previous certification nor allowing certification of the results of
any recount, however, are offered alternatives in the Court's
preliminary ruling as reported by Mr. Peters.
>"No slate mailer had ever been done in previous KPFK elections,
>and this would give Ms. Aaron's slate an undeniable unfair
>advantage over independent candidates....
<snip>
The advantage of slate mailers is not unfair, since all candidates
have equal opportunity to form slates, to solicit campaign
contributions, to advertise, to create news, to stage events, and to
mail election materials to the membership. This last is a right
protected in the California Corporations Code and improperly denied
for a period of time to the Plaintiffs in this case. Fair elections
do not require that those who expertly plan and adequately fund a
campaign limit themselves to the techniques and methods adopted in the
election by any less-expert opponents with inferior planning and
inadequate funding, unless such limits are legally established as
campaign rules equally applied to all candidates. Fairness in an
election does not require that every candidate's campaign be equally
bland, conventional, and uninspired. Candidates who can employ or
finesse the rules to obtain an advantage over their opponents are
doing what they are supposed to do.
--Terry Goodman
Casey Peters
As a party to this case, I do not agree to voiding the certified election.
Neither did Judge Yaffe.
Had you been present in court, you would know that the Plaintiffs were in the wrong.
You should have heard the judge YELLING at them and their counsel.
This ill-considered action will cost Pacifica tens of thousands of dollars in further legal costs
and the expense of running a new election as Judge Yaffe's tentative ruling intended.
The Court allowed the Plaintiffs to withdraw their suit if they accepted the certified results.
A recount is in direct violation of Pacifica By-Laws and the result of BC383600.
I will be available to testify in opposition to the proposed illegal recount of the KPFK election.
In the name of Don White, I so swear.
-- Casey Peters
Jan Goodman
After the hearing, the case was settled via an agreement between Counsel for the Plaintiffs (those asking for a recount) and Counsel for the Defendant (Pacifica) that there would be a recount, which was what the Plaintiff's had requested in the law suit.
The recount is finally taking place.
End of that particular law suit.
Jan Goodman