Opinion: Jbrase v. Atlasia (IMPORTANT)

[Sam Spade]

Chief Justice Sam Spade delivered the unanimous opinion of the Court.

Introduction

Today the Court tackles the question of whether the High Authority for Ethics in Voting Act (HAEV Act) violates Article V, Section 2, Clause 3 of the Constitution.  After describing the basic principles which this Court shall abide to in future cases concerning the right to vote, registered voter status and the extent to which the right to vote may be denied, we shall then hold:

1) The Senate has power to delegate its authority to “define these activity requirements” to the HAEV agency/executive office;
2) The Senate’s (or HAEV’s) power to “define these activity requirements” about whether a voter “remains an active member of the Forum at large” does not allow to individualized determinations which deny duly registered voters the right to vote; rather, the power to define activity requirements is limited to objective regulations that provide all registered voters public and prior notice of the boundaries and extent to which the phrase “active members of the Forum at large” is meant by the Senate.
3) Although many of the powers granted by the HAEV Act to the HAEV agency run afoul of the Constitution, the HAEV Act is constitutional because the questionable provisions of the statute can be narrowed in meaning to fit the rules so provided in this decision.
4) Any voters who were declared inactive by the HAEV agency prior to this decision based on unconstitutional individualized determinations shall have their voting rights restored by the Secretary of Forum Affairs unless they are deemed inactive by other provisions of the law.

As such, the Court issues the following rules to the HAEV agency and the Senate which hereby limit the statutory directive created by the HAEV Act:  

1) The HAEV agency shall only declare registered voters inactive under Section 2, Clauses 1 and 2 if they fail to meet objective regulations approved through guidelines properly enacted under Section 2, Clause 4.
2) The passage of objective regulations allowing the HAEV agency to declare registered voters inactive under Section 2, Clause 4 must be made by all three members of the HAEV agency acting in unison.
3) The appeals process available to the deactivated voter in Section 3 remains the same as in the HAEV Act except that (a) no time limit shall be placed on said voter’s opportunity to appeal the HAVE regulation which, when passed by a unanimous vote of the HAEV agency, deactivated him; (b) the Supreme Court can only annul a decision of the HAEV agency in passing a regulation if the regulation constitutes an individualized determination, directly conflicts with statute that defines activity requirements, or violates the Constitution.

The Court strongly suggests to both the Senate and the HAEV agency that they revisit both the language of the HAEV guidelines approved by the Senate and statutory dictate provided in the HAEV Act itself to reflect the mandates of this decision, so as to avoid future lawsuits and general confusion.
I. Principles Behind the Right to Vote and Denials of Said Right

First, the Court reminds politicians and citizens alike that, absent status as a “registered voter” under the law, a person at the Atlas Forum has no existence in Atlasia.  Moreover, we believe that the right to vote forms an inseparable part of this status as a registered voter  (See A5, S2, C6 – which removes registered voter status upon failure to exercise the right to vote.  See also A5, S2, C3 – implying that the key point behind registered voter status is the right to vote).  As such, we observe that Article V, Section 2, Clause 1, which states that “[a] person may become a registered voter if they have attained fifty (changed to twenty-five posts by the 6th Amendment and then repealed by the 27th Amendment) posts at the forum,” provides the method by which such status may be achieved.  

It is noteworthy that the original writers used the permissive word “may” in addressing the method.  This tells the Court that, even though a poster has fifty posts, he does not become a registered voter.  After all, the Constitution provides that “in registration, the person must state their name and State of fantasy residence”, thus limiting registered voter status to those persons who fulfill this simple task.  But, more importantly, the permissive nature of this clause suggests that the right to vote may be denied by restriction of the ability to become a registered voter so long as such limitations are valid under the Constitution. (see A5, S2, C6 – which explicitly tells us that this clause does not “deny a forum user the right to register anew”, thus implying that the right to register (and thus, the right to vote) may be denied)

So, if registered voter status entitles a person the right to vote, the Court must next examine when such a right to vote can be denied, either by removing registered voter status or by removing said registered voter’s right to vote.  

Five limitations are plainly defined in the text of Constitution itself.  First, Article V, Section 2, Clause 4 denies the right to vote to those who register less than ten (now seven days – through the 26th Amendment) days before an election.  Second, Article V, Section 2, Clause 5 removes registered voter status to persons who delete their user account.  Third, Article V, Section 2, Clause 6 removes registered voter status from registered voters who fails to vote in elections for four months, and any first-time registrant who fails to vote in the first scheduled Senate elections for which he is qualified to vote.  Fourth, the 27th Amendment tells us that “each account (meaning each person) must be at least 15 days old before registering to vote.”  This particular limitation again demonstrates that registered voter status may be denied by either the Constitution or statute before it is attained.

The last restriction in Article V, Section 2, Clause 3, the subject of the instant litigation, removes registered voter status “if the voter remains an active member of the Forum at large.”  Recognizing the open-ended nature of such wording, the original writers thus gave the Senate the power to “define these activity requirements by appropriate legislation.”  Accordingly, Senate legislation which validly defines “activity requirements” may deny the right to vote.

Nevertheless, these simple observations do not end the story.  Since the Constitution does not explicitly forbid the Senate from denying the right to vote through legislation made under its Article I, Section 5 powers or other endowed powers and does not explicitly restrict the Regions from denying the right to vote under their extensive web of police powers, the power of the status of a registered voter would be a dead letter without other Constitutional guarantees.  As such, the Court believes that these rights are guarded from such invasion through the protections of Article VI of the Constitution.

Article VI provides safeguards to the right to vote in the form of equal protection and due process guarantees.  First, the specific language of Article VI, Section 14 states that “no person shall be denied their right to vote or candidacy on basis of nationality, race, religion, sex, sexuality, age or political affiliation.”  Likewise, Article VI, Section 2 adds that “no agency of government shall…deny to any person within its jurisdiction the equal protection of its laws.”  

These robust provisions imply, and the Court thusly holds, that all laws and regulations which create distinctions between individuals which deny the right to vote are subject to strict scrutiny, meaning that they must be narrowly tailored to a compelling governmental purpose and must be the least restrictive means for achieving that purpose.  We further note that we have, in our previous decisions, only found one governmental purpose outside of the power solely granted to the Senate to legislate activity requirements, as mentioned above, to be compelling, specifically, punishing the commission of crimes.  While we do not close the door to deeming other government purposes compelling, this is the only valid governmental purpose that exists at this moment.

Furthermore, as the Court has noted, registered voter status is tantamount to a person’s existence in Atlasia.  This means that any individualized determinations which denies the right to vote constitutes a deprivation of life and liberty under Article VI, Section 2 that can only be accomplished with proper due process protections.  Such protections on the procedural end mean that denying the vote mandates, at minimum, notice and a hearing for the individual whose right is being denied.

With criminal prosecutions, this requirement has been met in the laws the Court has reviewed so far.  These statutes appropriately describe the crimes punishable (notice) and compel trials for the crimes allegedly committed (hearing) before imposition of punishment.  

The Court notes that, in the realm of activity requirements as shall be discussed below in Part III, due process protections do not apply because the Senate is denied power under Article V, Section 2, Clause 3 to deny persons the right to vote through individualized determinations.

[Sam Spade]

II. Delegation of Senate Power to “Define These Activity Requirements”

With these principles in mind, the Court now turns to the interaction between the HAEV Act and Article V, Section 2, Clause 3.  The first question we must answer is whether the Senate can delegate power to “define these activity requirements” to a separate sub-office or executive office, in this case, the HAEV agency. (see Jas v. Inks.LWC; Ebowed v. Atlasia)  We answer this question in the affirmative.

Petitioner argues that this clause only allows “the senate the power to define what "active" is and not to delegate that role to another group created for that purpose.”  The Court disagrees.  Rather, we think that the ability for the Senate to delegate its powers to the Executive Departments, sub-offices within the Executive Departments or executive offices such as the HAEV agency, flows naturally from every clause that grants the Senate power to enact legislation within the Constitution. (see Ebowed v. Atlasia)

Accordingly, we hold that the Senate has the ability to delegate its power to “define these activity requirements” in Article V, Section 2, Clause 3 to the HAEV agency.  As a consequence, the HAEV agency may utilize this power to write regulations to define activity requirements.  These regulations function as statutory law unless they are in conflict with already-enacted Senate legislation.  Such regulations, moreover, can only be overturned by later statutory mandates.

A comparison with the United States is appropriate here.  The writers of the 14th Amendment utilized similar language in Section 5 to give Congress “the power to enforce, by appropriate legislation, the provisions of this article.”  As has been demonstrated in much legislation, such as the Civil Rights Act, the Congress in the United States clearly has ability to delegate its powers of enforcement to various governmental agencies, such as the Justice Department, the FBI, and so on and so forth.

The Court notes, in conclusion, that the power to delegate is still subject to two specific limitations, the latter of which is quite relevant in this case. 

First, the Senate may not delegate all of its powers under a Constitutional provision to a governmental agency or department.  This is described as the “non-delegation doctrine” and basically means, for example, that the Senate could not delegate its complete ability to “define these activity requirements” to the HAEV agency.  Since other Senate laws define activity requirements (see, e.g. Consolidated Electoral System Reform Act, Section 14) and the Senate continues to reserve to itself the power to define activity requirements, the Senate has, therefore, not delegated all of its powers under Article V, Section 2, Clause 3 in the HAEV agency in the HAEV Act.

Second, the Senate cannot delegate powers to a governmental agency or department that are not granted to it under the Constitution.  Since the Court will hold in Part III that Article V, Section 2, Clause 3 does not allow the Senate to define activity requirements through individualized determinations, it therefore follows that the Senate cannot delegate that power to the HAEV agency as well.

III. Extent of Senate Power to “Define These Activity Requirements”

The Court now turns to the second question, specifically, the extent to which the Senate is allowed to legislate pursuant to its power in Article V, Section 2, Clause 3 to “define these activity requirements by appropriate legislation.”

Initially, the Court looks first clause of Article V, Section 2, Clause 3 reads:  “A voter registration shall only remain valid if the voter remains an active member of the Forum at large.”  This language means what it says; registered voter status, and thusly, the right to vote, requires that the voter remain “an active member of the Forum at large.” 

As a consequence, the Senate’s ability to define activity requirements functionally means a power to define what an “active member” is exactly.  Furthermore, the power of the Senate to define activity requirements by appropriate legislation allows the Senate to add meaning to the vague phrase “active member” that would otherwise be within the province of the courts to define.  So, the Senate’s power under this Clause is perhaps best described as a right to determine who is or is not an “active member” through statutory law.

Accordingly, in examining the scope to which this power reaches, the Court thinks that the verb “define” is the key word.  Typically, “define” means “to set or state forth the meaning of a word or phrase” much as this present paragraph does.  However, this circular definition only gains weight when we examine other possible related meanings, such as “to explain or identify the nature or essential qualities of”; “to specify distinctly; or “to determine or fix the boundaries or extent of.”  Since the purpose of “activity requirements” is to explain the meaning of the term “active member”, we believe that the term “define”, in this context, is best labeled as the power “to explain or identify the nature or essential qualities of.” 

The Court therefore holds, that, in defining activity requirements under Article V, Section 2, Clause 3, the Senate, and consequently the HAEV agency through the principles described in Part II, is expressly denied the power to make individualized, subjective determinations in order to deny the right to vote or remove registered voter status.  Rather, we believe that defining “the nature or essential qualities of” an “active member” limits the Senate to enactment of objective laws and regulations only.

This limitation comes from the plain meaning of Article V, Section 2, Clause 3 itself.  The Court reasons that the Senate’s power to legislate “the nature or essential qualities” of an “active member” must be limited to objective determinations because these words create an implicit public and prior notice requirement.  In other words, we think that Senate legislation under this Clause requires that all registered voters must understand, at any given point, the boundaries and extent of the term “active member.”  To deny a voter the right to vote or to remove his registered voter status without providing him the meaning of “active member” does not constitute a definition at all; rather, it is a judgment against him predicated on facts and circumstances that cannot be objectively defined.

Furthermore, as noted in Part I of this opinion, since the Senate has appropriately utilized denials of the right to vote as criminal punishments, (see CCJA), the Court believes that any legislation by the Senate, or accordingly, decision by the HAEV agency, which made an individualized determination that a specific person should be denied the right to vote must be classified as a unconstitutional Bill of Attainder (see A1, S6, C1).  This we cannot allow.

[Sam Spade]

IV. Constitutionality of the HAEV Act

Although the Court found in Part II that the Senate can delegate its powers under Article V, Section 2, Clause 3 to the HAEV agency, we also determined that the Senate cannot delegate to the HAEV agency powers that are not granted to the Senate under the Constitution.   Furthermore, although we held in Part III that the Senate can delegate power to the HAEV agency under Article 2, Clause 3 to make objective laws and regulations, we also concluded that the Senate, and consequently the HAEV agency, is barred from making individualized determinations of who constitutes an “active member of the Forum.”

With these findings in mind, the Court now examines the constitutionality of the HAEV Act.  First, we think that Section 1, which details the nomination and office-holding process for members of the HAEV agency, does not violate the precedent the Court has already established for the creation of executive offices such as the HAEV agency and the appointment and removal process of the HAEV officers (see Jas v. Inks.LWC; Ebowed v. Atlasia).  Accordingly, we hold this section constitutional based on these rules.

Section 2 of the HAEV Act details the HAEV agency’s Role and Powers.  The Court believes that Clause 3, which states that the deliberations of the HAEV agency must be made in public, is constitutional and a necessary requirement for the continued viability of the HAEV Act as legitimate under Article V, Section 2, Clause 3.  Moreover, Clause 5, which requires the HAEV agency to choose a presiding officer and create binding guidelines approved by 2/3rd of the Senate before taking actions that deny the right to vote, certainly fall under the guise of procedural rules for the agency and are thus constitutional.

However, Clauses 1, 2 and 4 present potential issues.  In particular, Clauses 1 and 2 allows the HAEV agency to declare registered voters inactive, effective seven days after the decision, even if other laws do not remove them from the registered voter lists.  Moreover, Clause 4 provides that declaring registered voters inactive can only be made by all three members of the HAEV agency acting in unison.

Finally, Section 3 of the HAEV Act gives the deactivated voter the opportunity of appeal to the Supreme Court because of the potential for abuse in HAEV decision-making.  Clause 1 gives the deactivated voter the right to appeal “said declaration in the week following the HAEV’s decision.”  In addition, Clause 2 gives the Supreme Court plenary power to annul decisions of the HAEV on any ground.

The Court believes that the sum total of the powers delegated to the HAEV agency in Section 2 and the appeals process outlined in Section 3 hint that its rulings will be made individually.  Furthermore, we think that the actual practice of the HAEV agency in carrying out its decisions thus far has solely rested upon individualized determinations.  This, however, does not mean that the HAEV Act is unconstitutional. 

Rather, the Court holds that if the meaning of the questionable provisions is narrowed to fit the principles of this decision, the HAEV Act can be saved from being found repugnant to the Constitution.  As noted above, we think that the purpose behind creation of the HAEV agency is a valid one.  Furthermore, we observe that the Senate, in its wisdom, has determined that a separate regulatory agency may better anticipate and react to devious attempts to circumvent activity requirements.  We believe that the goal of preventing such mischief is certainly a noble one and should be furthered to the extent it does not violate the Constitution.

As such, the Court issues the following rules to the HAEV agency and the Senate which hereby limit the statutory directive created by the HAEV Act: 

1) The HAEV agency shall only declare registered voters inactive under Section 2, Clauses 1 and 2 if they fail to meet objective regulations approved through guidelines properly enacted under Section 2, Clause 4.
2) The passage of objective regulations allowing the HAEV agency to declare registered voters inactive under Section 2, Clause 4 must be made by all three members of the HAEV agency acting in unison.
3) The appeals process available to the deactivated voter in Section 3 remains the same as in the HAEV Act except that (a) no time limit shall be placed on said voter’s opportunity to appeal the HAVE regulation which, when passed by a unanimous vote of the HAEV agency, deactivated him; (b) the Supreme Court can only annul a decision of the HAEV agency in passing a regulation if the regulation constitutes an individualized determination, directly conflicts with statute that defines activity requirements, or violates the Constitution.

The Court strongly suggests to both the Senate and the HAEV agency that they revisit both the language of the HAEV guidelines approved by the Senate and statutory dictate provided in the HAEV Act itself to reflect the mandates of this decision, so as to avoid future lawsuits and general confusion.

V. Effect of Decision on Voters Already Deactivated by HAEV Agency

Lastly, although not raised as an issue at bar, the Court thinks that it is only appropriate and fair to examine the past actions of the HAEV agency in removing voters from the registered voter rolls to determine whether unconstitutional individualized determinations have been made or whether said voters have been removed because of objective regulations.

The approved guidelines for the HAEV agency are as follows:

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The Court notes that even though the language of these guidelines sounds in objectivity, in actuality they function as mere launching points for a subjective, individualized determination of each poster as an “active member.” 

For example, under Section 2, Clause 1, if the HAEV stated that a person would be deactivated if he only made 25 posts in the Atlas Forum in the previous two months, this would be an objective regulation.  It would need to be made under Section 2, Clause 4 to be viable under the tenets of this decision, but this minor procedural issue could be dealt with quickly. 

Rather, this example, as stated in Section 2, Clause 1, provides that the fact a person only made 25 posts in the Atlas Forum in the previous two months is a mere consideration that the HAEV agency will use in making a future decision as to that person’s right to vote.  This implies that the decisions of the HAEV agency will be individualized determinations, based on some objective factors with subjective input.  The Court finds this method repugnant to the Constitution.

[Sam Spade]

At this moment, the Court counts six voters who have been deactivated by the HAEV agency at present.  Listed below are their names and the publicly-stated reasons given:

1) ElvisRepublican

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2) yoman82

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3) KyleGordon

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4) Mart

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5) Vane

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6) biggzcorey

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Each of these deactivations clearly arises from an individualized determination.  While an argument could be made that Vane was removed due to his use of proxies and not because the members of the HAEV agency felt that his activity was insufficient, the procedure clearly indicates that only he was targeted by such a rule.  In contrast, if the HAEV agency had passed a regulation under Section 2, Clause 4 which denied the right to vote for any member who uses a proxy to make at least than 75% of his posts, the Court would find it a valid objective regulation.  That is not the case here.

Moreover, with regards to the subject of Vane’s registration, the Court notes that the Senate recently passed Legitimize the Voting Act of 2010 which addresses the subject of voters who vote or register from proxies or from cell phones instead of legitimate IP addresses.  While we do not judge the constitutionality of such legislation at this time, we think that the Act will limit persons like Vane, who wish to skirt the rules, from influencing elections illegally.

Accordingly, the Court holds that those six persons whose registrations have been deactivated by the HAEV agency shall be reinstated to the registered voter rolls of this forum unless they are deemed inactive by other provisions of the law.

Conclusion

The Court repeats its holdings, as stated in the Introduction to this decision.

1) The Senate has power to delegate its authority to “define these activity requirements” to the HAEV agency/executive office;
2) The Senate’s (or HAEV’s) power to “define these activity requirements” about whether a voter “remains an active member of the Forum at large” does not allow to individualized determinations which deny duly registered voters the right to vote; rather, the power to define activity requirements is limited to objective regulations that provide all registered voters public and prior notice of the boundaries and extent to which the phrase “active members of the Forum at large” is meant by the Senate.
3) Although many of the powers granted by the HAEV Act to the HAEV agency run afoul of the Constitution, the HAEV Act is constitutional because the questionable provisions of the statute can be narrowed in meaning to fit the rules so provided in this decision.
4) Any voters who were declared inactive by the HAEV agency prior to this decision based on unconstitutional individualized determinations shall have their voting rights restored by the Secretary of Forum Affairs unless they are deemed inactive by other provisions of the law.

Furthermore, we repeat the following rules issued to the HAEV agency and the Senate which hereby limit the statutory directive created by the HAEV Act: 

1) The HAEV agency shall only declare registered voters inactive under Section 2, Clauses 1 and 2 if they fail to meet objective regulations approved through guidelines properly enacted under Section 2, Clause 4.
2) The passage of objective regulations allowing the HAEV agency to declare registered voters inactive under Section 2, Clause 4 must be made by all three members of the HAEV agency acting in unison.
3) The appeals process available to the deactivated voter in Section 3 remains the same as in the HAEV Act except that (a) no time limit shall be placed on said voter’s opportunity to appeal the HAVE regulation which, when passed by a unanimous vote of the HAEV agency, deactivated him; (b) the Supreme Court can only annul a decision of the HAEV agency in passing a regulation if the regulation constitutes an individualized determination, directly conflicts with statute that defines activity requirements, or violates the Constitution.

The Court strongly suggests to both the Senate and the HAEV agency that they revisit both the language of the HAEV guidelines approved by the Senate and statutory dictate provided in the HAEV Act itself to reflect the mandates of this decision, so as to avoid future lawsuits and general confusion.

So ordered.

[Purple State]

I heard it was long. I'll read through and then edit this post with some sort of reaction.

[The Artist Formerly Known As and Now Again Known As Ogis]

I heard it was long. I'll read through and then edit this post with some sort of reaction.

5 Days later and he's still reading.

[Purple State]

I heard it was long. I'll read through and then edit this post with some sort of reaction.

5 Days later and he's still reading.

I've commented elsewhere regarding this. Basically, I won the battle and lost the war. The Senate may delegate the power to define activity requirements (as I argued), but the guidelines established by the HAEV were unconstitutional.

An understandable and fair decision and one that does not require further argumentation. The Court put a lot of thought into this and the Senate is prepared to repeal the HAEV forthright. As the great Kurt Vonnegut wrote, "So it goes."