Comments on the "Proposed Rules for Self-Nomination"Jonathan
Weinberg
Professor of Law, Wayne State University
http://www.threecats.net
June
5, 2000
The "Proposed Rules for Self-Nomination"reflect careful thought about
the election process for ICANN at-large directors. They are a strong first
step. The proposed rules, though, seem egregiously inappropriate in at least
three respects.
1. The term "self-nomination" seems to me to be gratuitously belittling
and dismissive. The class of people it describes are those, who in the context
of the ordinary political process, we refer to as "candidates." Other terms, such
as "nomination by petition," could adequately distinguish these candidates from those
nominated by the NomCom, and would be less tendentious.
2. The 10% threshold is
much too high. The proposed rules would require that a candidate, before being
admitted to the ballot, secure the endorsement of 10% of the at-large members in
the relevant geographic region. The accompanying commentary states that this
condition "is drawn from analogous self-nomination procedures in other election contexts,
which typically require the support of 5-15% of the relevant electorate." This
reasoning is ill-taken for several reasons.
First, the statement in the commentary
is grossly incorrect, at least insofar as the United States is concerned. In
Williams v. Rhodes, 393 U.S. 23, 47 n.10 (1968), Justice Harlan summarized the various
states' requirements for getting an independent candidate on the ballot: Sixteen
states required signatures of less than 0.1% of the electorate. Twenty-six
required the signatures of 0.1% to 1% of the electorate. Three required the
signatures of 1.1% to 3%, and four required the signatures of 3.1% to 5%. For
nearly twenty years until 1968, a single state did require the signatures of 15%
— but the Supreme Court struck down that requirement as unconstitutional. In
short, to my knowledge, *no* U.S. state today requires the signatures of more than
5% of the electorate in an analogous context. The median among U.S. states
is 0.1% to 1%.
Second, the signature requirements for real-world political candidacies
are in any event inappropriately high for the sort of campaign described in ICANN's
proposed rules. In real- world political candidacies in the United States,
would-be candidates have easy access to the electorate, and commonly use paid petition
circulators. In this election, by contrast, persons seeking candidacy by petition
have no way to approach the electorate directly. They cannot — as do candidates
in political elections — buttonhole voters on the street and seek to make their case.
Rather, they can gain support only to the extent that at-large members, during a
two-week period in the middle of August, take the initiative to go to the ICANN web
site to browse candidate's credentials. Although political candidates with
months in which to collect signatures, paid petition circulators, and easy access
to the electorate may be able to surmount a 5% threshold, it is unrealistic to think
that a person seeking nomination as an ICANN at-large director, with a short time
window and no way to seek signatures other than a web site, would be able to surmount
a similar barrier. The effect of ICANN's proposed rules, rather, will likely
be that *no* candidates can be nominated by petition.
Indeed, for this reason,
the proposed rules are likely illegal. Section 5520 of the California Corporation
Code, applicable to nonprofit California corporations such as ICANN, requires that
if members elect directors, they must have a reasonable opportunity to *nominate*
candidates for election. What is a "reasonable" opportunity? Section
5521 sets out the touchstone. Candidates may be nominated by petition, in a
nonprofit corporation with fewer than 5000 members, if they are supported by 2% of
the electorate. Candidates may be nominated by petition, in a nonprofit corporation
with more than 5000 members, if they are supported by "one-twentieth of 1 percent
of voting power but not less than 100, nor more than 500." Under the section
5521 benchmark, in other words, the signature requirement in each ICANN region would
be 100 votes or less. This criterion is not binding on ICANN; it does not apply
of its own terms to geographically segmented elections, and in any event nonprofit
corporations can deviate from the criterion as their nature, size and operations
dictate. The section, though, sets out the benchmark for reasonableness in
the first instance.
Again, under the California Code, ICANN can tailor its procedures
to suit its nature, size and operations. But where members participate in elections
for directors, section 5520 requires that they have a meaningful opportunity to nominate
and elect the directors of their choice. Section 5521 underscores that requirement,
by providing a 100-vote benchmark. ICANN's proposed rules, which deviate drastically
from that benchmark, and as a result seem likely to guarantee that *nobody* will
be able to win nomination by petition, fail section 5520's standard.
3. The requirement
that "[e]ach At Large Member will be able to indicate support for one candidate for
self-nomination" should be dropped. The reasoning behind this rule appears
to be that an at-large member should not be able to support for nomination more candidates
than he will be able to vote for in the ultimate election. Rather, at this
pre-nomination stage, the at-large member should choose the single candidate he likes
best, endorsing the nomination of that candidate and no other.
This is ill-taken.
At the pre-nomination stage, the at-large member doesn't know which candidates will
surmount the signature threshold and which will not. If the at-large member
approves of two potential candidates; it is unreasonable to expect him at this point
to handicap the race, figuring out not only which he likes best, but which candidate
is more likely to gain the necessary signatures. Rather, it is entirely reasonable
for an at-large member to endorse more than one person, on the understanding that
some or all of them may fail to get the necessary signatures. Moreover,
all this is happening *before* the campaign period. This is exactly the wrong
time to be asking at-large members to decide who they like best. The point
of this nomination process is to select the candidates who will have the opportunity
to campaign, and thus to *convince* at-large members to like them best. Again,
there is nothing odd about an at- large member who likes more than one potential
candidate deciding to endorse both, in the hope that at least one will make the ballot.
The
one-endorsement-only requirement seems motivated in part by the fear that without
it, too many candidates will flood the ballot. It seems to me likely that the
opposite will happen: The proposed rules are so restrictive that *no* candidates
will be on the ballot other than those named by the NonCom. Whichever happens,
it will be possible to adjust the rules in the future. But it seems to me appropriate,
in this first election, to err on the side of lowering barriers. If the barriers
are too low, the worst that will happen is that there will be a wide range of candidates.
If they are too high, by contrast, ICANN will be vulnerable to the charge that it
has constructed a Soviet-style election, in which all members are free to choose
among the candidates pre- approved by the Party. This would be an unfortunate,
and a completely avoidable, result.