The Arizona Desert Lamp

Cheerocracy Abroad: the ASU-West Elections Code

Posted in Campus, Politics by Evan Lisull on 23 April 2009

CheerocracyThis story sounds way too familiar:

Gary Galvan just barely made it on the Associated Students of Arizona State University West Campus ballot this semester.

After originally being accused of 10 class IV violations and more than 150 class I violations by competing ASU West presidential candidate Andrew Clark, the ASASU Supreme Court found Galvan not guilty. Then, just three days before the election, his name was put back on the ballot.

Now, after being defeated by Clark, Galvan said the disqualification, the publicity, an unfair trial and an unclear ASASU Elections Code, which regulates and provides rules for student government elections on all campuses, affected his chance of gaining votes.

Arizona Attorney Dan Barr of Perkins Cole Brown and Bain P.A., who consults specifically for First Amendment rights, recently reviewed the code.

Barr confirmed that some of the ASASU Elections Code rules are too broad or unclear, but he also sees much larger problems with the code. He said the code is unconstitutional and unenforceable in many aspects.

“I think ASASU has some major issues with [this] code,” Barr said.

You don’t say? What kind of issues might those be?

ASU political science professor Valerie Hoekstra, who has taught constitutional rights, agreed with Barr that many parts of the current code could be questioned.

The largest problem Hoekstra and Barr saw with the code were rules 5-1.9 and 5-1.10, which control content on social networking and personal Web sites outside of ASU’s Web server.

Rule 5-1.9 states, “all Web pages or Web ‘groups’ such as Facebook, Myspace, etc. utilized by a candidate shall be approved by the Elections Department before posting. Any change made to a Web page after initial approval is subject to the rules and regulations of the ASASU Elections Department.”

Hoekstra said this rule is problematic for two reasons. First, it regulates off-campus activity, and second, it is prior restraint on political speech, which courts normally view as unconstitutional.

“There is very little that ASU can do to regulate off-campus speech,” Hoekstra said. “[Prior restraint] has always been considered the most burdensome form of regulation, and thus would face the toughest scrutiny by a court.  The state would have to show an overwhelming justification for imposing such a burden on free speech.”

Hoekstra said she is surprised no one has challenged this rule.

“Even high schools have difficulty enforcing these kinds of rules, let alone a university,” she said.

Rule 5-1.10 goes on to state, “Any Web site utilized for the purpose of campaigning that is hosted on a server outside of Arizona State University is still subject to the rules and regulations of the ASASU elections code.”

Barr commented on the two rules in an e-mail.

“This pre-approval of political speech, especially for Web pages and social network sites that have no connection to ASU, violates the First Amendment.” Barr said.

Barr said later in a phone conversation that the rules insisting approval of posters, as well as the Web, created a “wild elections code.”

“What they have right now is unconstitutional and unenforceable,” Barr said. “The notion that they have the student government review the content of material is mind blowing.” [emphasis added – EML]

Mind-blowing is one way to put it, although those of us on the beat might also call it entirely unsurprising (perhaps because we’ve already had our minds blown to smithereens). Just as unsurprising is the administrative response delivered by Director of Student Engagement (ugh) Dan Ashlock:

Ashlock did not have comments about the constitutionality of the code.

He cited rule 7-4.1, in which candidates are required to sign a candidate accountability form that said the student has read the code thoroughly, understands the laws, regulations and penalties set forth and will follow the rules as instructed.

In other words: the Constitution has no sway here, because candidates signed a form voiding those rights. So what, pray tell, is the source of all this madness?

Galvan believes the code has not been revised since it was adapted from the Associated Students of University of Arizona Elections Code during the spring 2006 semester.

Trust us, ASU – you might want our party reputation or our commencement speaker, but you definitely want nothing to do with our elections code. (As a side note, this assertion can’t be right – the ASUA elections code didn’t regulate Facebook groups until Spring 2007.)

In spite of the lengthy excerpts, this article should be required reading for incoming ASUA officials, as well as anyone who wants to write off the last few years of election mishaps as “isolated incidents.” More than anything, this shows that elections code absurdity is not the doing of any one man, but rather a manifestation of the regulatory mindset.

Here’s an idea: next year, try making an elections code that doesn’t trample over all sorts of basic civil liberties. We don’t want to have to call the lawyers in.


4 Responses

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  1. Stephen Bieda III said, on 23 April 2009 at 2:58 pm

    Funny how these election’s code issues keep cropping up when it is related to the UA’s ASUA. Even ASUA didn’t follow those to the letter this year.

  2. Garrett P. O'Hara said, on 23 April 2009 at 8:53 pm

    Check to see if you can acquire an older copy of the Elections Code pre-2007. Facebook groups, as I recall, were regulated as “websites” in the 2006 election to the point that candidates couldn’t operate a group “wall” because wall postings were inherently edits to a page that the Elections Commission could not pre-screen. I don’t think the code specifically mentioned Facebook, but Jordan Miller I believe put out an email clarifying the wall policy as such.

  3. Bergan said, on 24 April 2009 at 9:37 pm

    In response to whether Facebook should be counted in the original 2006 code, current elections commissioner Kenny Ho says no, it doesn’t technically count, but when I spoke to the person who created the original modern code (Student Regent David Martinez), he said that when he put in the term “social networking sites”, he did mean such sites as myspace and facebook…so yes, facebook material does count as online campaign material, just as I have reported in the past few months (the Lamp even before that)

  4. […] a group’s name changing so essential. No one has ever asked how ASUA gets off so flagrantly violating the Constitution, or why ASUA has any business meddling in completely voluntary and private operations such as […]

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