A lawsuit filed by a former member of the George Mason University Student Senate over the legality of the use of secret ballots in voting for senate appointments was shot down by a Fairfax County judge Jan. 30 due to an error in whom the lawsuit was filed against.
The lawsuit was filed by Michael Jordan, whose appointment to the senate was rejected Oct. 18, 2011, in a secret ballot vote by the Government and Academic Affairs Committee in the first step of the interview process. The lawsuit named as the defendant Matthew Short, the individual, rather than Matthew Short, the chair of the G&A Committee, Short said. To be valid, the lawsuit should have been filed against Short in his capacity as committee chairman.
In the lawsuit, a “petition and affidavit for good cause/for injunction of mandamus – freedom of information act,” according to a court document, Jordan asked for a writ of mandamus that would require Short to “declare all ballot votes since October 18th, 2011 null and void and require the committee to re-do the interviews in a fairer process. I [Jordan] am also asking to recover reasonable costs,” according to the document.
A writ — or formal written order issued by a body — of mandamus calls for the court to force someone to act in a certain manner.
A request to Fairfax County General District Court by Broadside for the transcript of the hearing was not fulfilled, as the document was not ready by the time of this article’s printing.
The court ruled on Jan. 30 in favor of the defendant, Short, according to online Fairfax County General District Court records.
The issue at the heart of the lawsuit — the legality of using secret ballots within a group that is likely a public body — first came up during the Oct. 18 meeting of the G&A Committee.
The meeting opened with Short introducing the “ballot voting procedure,” at which point, Senator Donald Garrett said, “Point of information, it is illegal in Virginia to have secret ballot voting,” according to the minutes of the Oct. 18 meeting.
“Voting is going to be closed ballot, that is how it is going to be,” replied Student Government Advisor and assistant director Melissa Masone, according to the minutes.
“I want to again make it clear that this is illegal,” Garrett said, according to the minutes.
“This is how it is going to be done, end of discussion,” Short said, according to the minutes.
Three members of the committee voted aye, three nay and three abstained when it came time to vote on Jordan, according to the minutes.
Following the Oct. 18 meeting, there were several conversations within Student Government about the correct course of action.
“Post that meeting, there was significant amount of due diligence paid to researching and trying to find out the right [voting procedure to use],” said Director of Student Involvement Lauren Long.
The issue was taken to university counsel for advice in the days after the meeting.
“In the days following [the Oct. 18 meeting], I worked with university counsel and university lawyers to make sure. ‘Hey, explain this [laws concerning public bodies] to me so I can understand,’” Masone said. “That’s when we moved forward. Before we change the process, I wanted to make sure that it [Garrett’s point of information] was true.”
Following Garrett’s point of information at the Oct. 18 meeting, the committee continued to use ballots, though they were not secret — voters were required to write their names on the ballots, which are available for anyone to see, Short said.
Long said university counsel instructed Student Government to make sure everything was public. “If you put your name on the ballot, that means you are owning your vote. If all the votes are placed online, then the transparency is there and it’s public information,” Long said.
The ballots with names written on them served as a buffer between the anonymous ballots and the current open roll call system, Long said.
Long said there was an effort between the Oct. 18 meeting and the Dec. 1 passing of a bill to amend the code to insist on open roll call votes to make sure votes were done in a legal manner.
“My staff and the students were trying their best to figure out the best way to make changes so that they could be doing it the right way because nobody had any idea that they weren’t doing it the right way. They had a genuine desire to do it the right way,” Long said.
On Dec. 1, Jordan filed the lawsuit with the hope of changing the Student Government policies that allowed for secret ballots to be used, Jordan said.
“The ultimate motivation in filing this lawsuit is that the rules of Student Government would be changed,” Jordan said.
On the same day, the Student Senate passed the Dec. 1 bill submitted by Short to modify voting procedures. The bill alters several sections of the code to insist that roll call voting be used, according to the bill.
“I went through the code and [found] any place where we had done paper ballots before or [where] paper ballots could be used and just made it very clear that it had to be a hand vote,” Short said. “I called it roll call vote. Now, in committee we just have all those in favor say aye, and their names are written down.”
Though the lawsuit was decided in favor of the defendant, leaving Jordan in a position where he could re-file, he has elected not to since the code of Student Government has been revised to prohibit secret votes from happening again, Jordan said.
The decision to use secret ballots in the first place was made to protect members of Student Government from being put in a position where they would have to openly vote against their peers.
“Members of the [G&A] Committee came to me and were worried they could face retribution [because of their vote],” Short said. “If we were friends and you were coming through, I wouldn’t want to ruin our friendship if I thought ‘yeah, you’re a friend, but I don’t think you’ll be great in this organization. I don’t think it’s the right fit for you.’ You could be hurt by that, and I don’t want to hurt you, so I would feel guilty and I would vote a certain way even though I don’t think that’s the best way. So [with] secret ballots, the most democratic form of voting, you vote how you feel.”
Short said the Oct. 18 meeting was the first meeting of the semester to deal with appointments.
“We only used secret ballots for appointments because that was a lot more personal than a bill,” Short said. “If it’s someone on the outside, they’re also our constituent and they’re sitting in front of us, so we want to keep that respect.”
When Garrett raised his point of information at the Oct. 18 meeting, Student Government President Ally Bowers said she began researching Virginia law that ties to open meetings and then shared the information she found with Masone after the Committee meeting.
“I was surprised that I wasn’t given fair consideration to my claims and that they decided to go on with it — and that they didn’t care what they are doing could be illegal,” Garrett said.
Past opinions by both the Virginia Office of the Attorney General and the Virginia Freedom of Information Advisory Council considered Student Governments to be public bodies. As such, there could have been a chance that the secret ballot vote in the Student Senate could have been ruled illegal by a court, though the question is still up in the air following the lawsuit.
While Virginia’s Freedom of Information Act doesn’t specify that Student Government organizations constitute public bodies, a 1984 opinion from the Virginia Office of the Attorney General said Old Dominion University’s Student Senate is a public body since they are tasked with allocating student tuition, much like Mason’s Student Senate.
The issue arose again in 2007 when Broadside asked for an opinion from the Virginia Freedom of Information Advisory Council as to whether or not Mason’s Student Government should be considered a public body.
According to the May 7, 2007, opinion on the matter, “following prior opinions of the Attorney General and this office, the Student Government [of Mason] is considered a public body subject to FOIA because it is an organization … in the Commonwealth supported wholly or principally by public funds.”
While this isn’t legally binding, it would have influence if it were to be brought up in a courtroom.
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