============================  Appeal 1550b  ============================


Panelist:                               Murphy
Decision:                               SUSTAIN


Panelist:                               Maud
Decision:                               REVERSE


Panelist:                               G.
Decision:                               REVERSE

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History:

Appeal initiated:                       03 Jun 2005 20:29:08 GMT
Assigned to Murphy (panelist):          12 Jun 2005 22:25:42 GMT
Assigned to Maud (panelist):            12 Jun 2005 22:25:42 GMT
Assigned to G. (panelist):              12 Jun 2005 22:25:42 GMT
G. moves to REVERSE:                    17 Jun 2005 14:33:24 GMT
Maud moves to REVERSE:                  18 Jun 2005 00:17:42 GMT
Murphy moves to SUSTAIN:                19 Jun 2005 21:44:50 GMT
Final decision (REVERSE):               19 Jun 2005 21:44:50 GMT

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Panelist G.'s Arguments:

"Voted Upon", as a common phrase, can be defined by its context in two
distinct ways: individually and collectively.  Individually, one can say "I
voted upon the Proposal; I voted FOR."  Collectively, one can say "Congress
voted upon the Appropriations Bill, and it passed."

In the collective context, no individual vote constitutes "voting upon": a
proposal would be considered voted upon as long as long as the appropriate
voting procedure was followed.  The defined voting procedures may operate on
individual votes, or even on each and every vote, without violating the notion
that the proposal was voted upon.

So is the "voted upon" clause of R106 violated if a particular vote is
cancelled?
1.  If "voted upon" is interpreted in the individual sense, yes,
     cancelling would violate the clause, and Judge OscarMeyr's
     ruling would be correct.
2.  If "voted upon" is interpreted in the collective sense, no,
     cancelling a single vote would not violate the clause, and
     judge OscarMeyr's ruling would be incorrect.
3.  [Special case] What if "voted upon" is interpreted in the
     collective sense, but ALL votes (not just one) are cancelled?
     Does this then mean the proposal was not voted upon?  (I
     believe #3 is a paraphrase of Caller root's and Judge
     OscarMeyr's arguments).

Before dealing with #3, this Justice notes that it is clear that, in context,
R106 uses "voted upon" in the collective sense.

This is clear from the second sentence of R106, which adds the contention that
adoption is contingent on a collection of votes. This also arises from the
original Peter Suber version of Nomic, in which R104 reads "104. All
rule-changes proposed in the proper way shall be voted on. They will be
adopted if and only if they receive the required number of votes."  Suberian
Nomic does not define the voting procedure further, but one imagines, in
face-to-face play and in absense of other instructions, a meta-agreement on
voting would allow raising hands, or everyone shouting 'yay' or 'nay', but not
the proposer voting and then saying, "I voted, so this was voted upon in the
sense of that Rule."  So the original context of "voted upon" in Agora was
clearly collective.

So this Justice rejects case #1, above, as a possibility.

Back to cases #2 and #3.  In Agora, we are not using meta-agreement but a
defined voting procedure, that may in fact manipulate or deny votes.  What if
the proceedure attempts to cancel all votes?  If R106 refers to a collective
voting procedure, which is defined in other Rules, the procedure may cause a
single vote to be cancelled. But what if all votes by this procedure are
cancelled?  Can we say that this violates "voted upon"?

I don't think we can.  For one thing, if no one casts votes in the first
place, and the voting period ends "naturally", we still would say the proposal
was "voted upon" (and failed quorum). The lack of a valid vote cast in the
procedure does not mean the procedure was not followed.

Secondly, it would lead us to treat the first vote cast, or the last vote
cancelled, differently than the rest, which is an undesirabe outcome.

Finally and most importantly, if the Courts were to jump in now, the Court
would be saying "cancelling or ending a voting procedure violated the rights
of some people to vote, or violated the rights of some votes to be counted,
and therefore the proposal was not voted upon."  But why apply this merely to
cancelling?  Why not apply this to ending the voting period early?  Or to
ending the voting period at all before everyone has cast a vote?  Or to
unequal voting power (how can you say something was voted upon if most people
had a voting power of 0?)  The Courts would have to examine the voting system
for a long way back in time, to when unequal voting powers were first
implemented, which is a legislative matter beyond the scope of the Courts to
pursue.

The fact is, even democratic societies can procedurally limit "pure democracy"
and still be considered to be voting bodies, "voting upon" matters of
interest, even if procedural quirks sometimes prevent individual votes, or
even all individual votes, from being part of the final accounting.  This
provides strong support for case #2 rather than #3 above, and so this Justice
believes Judge OscarMeyr's ruling was incorrect.

The original Appeals Board did not consider the procedural question
thoroughly, especially as they did not consider why cancelling votes changed
whether a proposal was "voted upon" but ending the voting period before
eligible voters had a reasonable chance to vote (CFJ 1449) did not.  Taken
over the series of linked (CFJs 1549-1553), Judge OscarMeyr's results show
inconsistancies.  Rather than appealing all of these cases, or
remanding/reassigning one case but not the others, it falls on the current
Appeals Board to provide some clarity, if possible.

At this point, this justice believes that a strong precedent is needed,
specifically that a Judge may not nullify one specific "undemocratic" part of
the voting procedure due to conflict with R106 while leaving other
"undemocratic portions (e.g., voting powers of 0, unreasonably short voting
periods) intact.  Every limit we have placed on democratic votes was voting in
with the procedure preceeding it, so we have gotten to this state
"democratically", which makes this a matter for legislative not judicial
review.

This leads this Justice to conclude the best option, rather than remanding,
reassigning, or deferring to the original Board of Appeals, is to OVERTURN and
REVERSE CFJ 1550.

This Apellate Judgement is hereby delivered.

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Panelist Maud's Arguments:

The correctness of CFJ 1550 turns on the interpretation of the first
sentence of rule 106.  It requires that any proposal made and
distributed in the proper way be "voted upon".  The question is, what
does this mean?

Terms can be interpreted in many ways, and rule 754 was written to
provide general guidelines for selecting interpretations.  To apply
rule 754, we check first whether the rules explicitly define the term,
next whether the term has an unequivocal meaning in mathematical or
legal contexts, and only then turn to ordinary-language
considerations.

The rules refer in various places to casting a vote on a proposal, to
voting on a referendum, or voting in an election.  Nowhere in the
rules is the phrase "voted upon" explicitly defined.  It is possible,
however, that there is a phrase explicitly defined in the ruleset
which is an ordinary-language synonym of "voted upon".  For example,
rule 683 does define what a "vote upon" a proposal is, and it might be
thought that "cast a vote upon" is synonymous with "vote [as a verb]
upon".  Indeed, the common construction "I vote FOR proposal foo"
seems to give this interpretation some support.  There does not appear
to be another phrase explicitly defined in the rules which has "vote
upon" as a synonym.

Let us suppose for the moment that "cast a vote upon" is not a synonym
of "vote upon".  Then we must pass to mathematical and legal contexts.
However, the phrase cannot be said to have an unequivocal meaning in
general mathematical contexts.  This Justice is not a lawyer, but
believes that if "vote upon" has an unequivocal meaning in legal
contexts at all, it is something like this: a proposal is "voted upon"
when a formally defined procedure for eligible voters to submit
ballots on an issue (from some discrete set of choices, such as FOR,
AGAINST or perhaps a number of names of persons) is followed.  Such a
procedure would prescribe conditions on the validity of ballots,
whether they can be changed, how they can be counted, and so on.

If we add the supposition that "vote upon" has no common meaning in
mathematical or legal contexts to our assumptions, then we must
consider the meaning of "vote upon" in ordinary language.  Justice
Goethe has suggested that an ordinary-language interpretation of "the
proposal was voted upon" is "voters were given an opportunity to cast
votes on the proposal".  This is a reasonable interpretation.  It is
worth noting that there is little practical difference between this
interpretation and the suggested interpretation in legal contexts.

Now that we have set out a number of possible interpretations of the
phrase, let us consider the consequences of each one.  First, if "vote
upon" is indeed synonymous with "cast a vote upon", then the statement
of CFJ 1550 is TRUE, because rule 683 explicitly permits cast votes to
be cancelled and thus the cancellation of votes does not nullify the
fact that they were cast.

Second, if "vote upon" means "subject to a formal voting procedure",
then if that voting procedure includes the potential for cancellation
of votes, then cancelling votes due to abortion is by definition
following the formal voting procedure, and so CFJ 1550 is again TRUE.
We can apply similar reasoning in the third case.

Hence, CFJ 1550 should have been judged TRUE, and the judgement of the
original trial judge was incorrect.  I therefore move to OVERTURN and
REVERSE the judgement of the trial judge.

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Panelist Murphy's Arguments:

Not that it matters much, as this Board out-votes me 2 to 1 in favor of
reversal, but I once again move to SUSTAIN the original decision on CFJ 1550.

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