Eric Nimmer

Charles Maddox, former chair and current emeritus member of the Election Supervisory Board, consults with ESB member Cody Permenter during the Gardner and Guevara appeal, Sunday afternoon.

Photo Credit: Zachary Strain | Daily Texan Staff

The Student Government Judicial Court is set to determine whether the Election Supervisory Board violated procedure in administering the disqualification of former SG candidates Madison Gardner and Antonio Guevara today.

The candidates appealed the Board’s ruling last Thursday and claimed the Election Supervisory Board violated procedure when evaluating a complaint against their campaign. In their appeal, Gardner and Guevara claim the Board violated their Fifth and Sixth Amendment rights under the U.S. Constitution and petitioned to have their disqualification be reassessed by the Board.

Gardner stated the Board infringed on his and Guevara’s constitutional rights because they tried them twice for procuring services from a professional web designer, a violation of the Fifth Amendment that protects people against double jeopardy. The Board ruled on Feb. 10 the candidates did not violate any rules because the designer in question, James Skidmore, is a student at Texas A&M and not a professional. The Election Code requires candidates report all professional services at fair market value even if they were granted said services at a discounted rate.

Gardner also claimed the Board violated their Sixth Amendment right, alleging Board chair Eric Nimmer filed a complaint against them during the hearing for not reporting an earlier campaign fine issued by the Board. Furthermore, Gardner claimed they were not given a hearing for this infraction. This violation, stated Gardner in the argument, denied them of the right to be informed, to be confronted of the witnesses against them and to have the assistance of a counsel for their defense.

Nimmer said he does not feel the Board’s decision violated the U.S. Constitution. He also said he did not file a complaint against the candidates but had discovered a violation during the hearing, which the rules allow. He said he received a blank financial statement from the candidates March 19 along with a message stating they had not incurred any expenses or received contributions since the disclosure they submitted on Feb. 15.

Aakash Kumar, who represented Gardner and Guevara to the Judicial Court, said the court must look toward the U.S. Constitution as a guideline for their decision.

“Think about this in term of intent,” Kumar said, claiming the candidates did not intend to falsify their documents to gain an advantage. “Apply a [Constitutional] higher standard when you’re making a decision, a standard we govern living by. Outside of this, we don’t live on what the ESB said.”

Kumar also said the punishments delivered by the court were too severe for the mistakes they had committed, which were not willful and blatant. To support this claim, Kumar cited the case of current SG president Natalie Butler and vice president Ashley Baker. Butler and Baker acquired approximately $405 in fines, more than 50 percent of their campaign budget, last semester and were tried for violating campaigning rules during moratorium multiple times but were not disqualified.

The Election Code has since changed since Butler and Baker ran. Last year, candidates were not penalized for the amount of fines they acquired. Today, candidates who exceed 20 percent of their total campaign budget in fines are
automatically disqualified.

At the hearing, candidate Guevara said he did not know he had sent Nimmer inaccurate financial documents and that they had accidentally sent the wrong file.

Nimmer said the hearing was the first time he had heard the wrong document had been sent, but he affirmed that the candidates had taken no prior action to rectify the mistake on their financials and would still be disqualified.

He said last year the Election Code required candidates actions to be proven blatant and willful to merit disqualification, a clause that does not exist in the code this year. He said the Board does not have to determine whether a candidate’s actions are willful and blatant because it does not matter anymore.

“Their only defense was not that they didn’t do it,” Nimmer said. “But that ‘it’s our bad and you guys were nicer last year.’ And I don’t care, because the Election Code says our Board has discretion and that’s nine people.”

Election Supervisory Board members listen to complaints against the Madison/Antonio campaign by SG law school representative Austin Carlson on March 20.

Photo Credit: Thomas Allison | Daily Texan Staff

The Student Government Judicial Court will decide on Sunday whether there was procedural error in the Election Supervisory Board’s decision to disqualify former presidential candidate Madison Gardner and running mate Antonio Guevara.

The Board disqualified Gardner and Guevara for a second time Wednesday night after finding the candidates had willingly falsified their financial documents, displayed negligence for disregarding a fine the Board gave them in February and violating the Election Code as a whole various times. Gardner and Guevara appealed the decision Thursday, claiming the Board committed five procedural errors resulting in an unjustified disqualification.

Alden Harris, Judicial Court chief justice, said Gardner and Guevara deserve to have an appeal because of the severity of the ruling.

“We ought to give them a hearing any time there’s this type of nuclear ruling that disqualifies them,” Harris said. “[Gardner] clearly raises some points that are worthy of our consideration and worthy of having a hearing.”

Harris said it is unfortunate the hearing will be held two days before the election, but said Gardner made the decision because he could not get his counsel to a meeting on Thursday. Supply chain management senior Aakash Kumar will represent Gardner before the court.

Gardner is not allowed to campaign until the Court reviews his appeal. Gardner declined to comment prior to the hearing.

Among the complaints, the former candidates claimed Board chair Eric Nimmer filed a complaint against them during the hearing after he asked them if they had believed their financial statement to be accurate. Nimmer asked if they had included their earlier February fine in the statement, which they had not. Gardner charges this as a complaint because the Board failed to inform the affected parties of the complaint beforehand.

According to the Election Code, Board members are prohibited from filing complaints, and complaints must be provided in writing.

This is the second time Gardner and Guevara have claimed Nimmer played a direct role in their disqualification. They previously filed an appeal for their first disqualification, claiming Nimmer was biased, and submitted audio evidence of conversations with Nimmer.

The Judicial Court ruled Nimmer was not biased in the first Board disqualification decision. Harris said on Feb. 26 there was no way Nimmer could have influenced the vote of nine Board members, and his comments reflected thoughts on the candidate’s behavior, not their appeal.

Gardner and Guevara also claimed since the complaint was not formally filed, it violates procedure since the Board can only take action against a candidate after a hearing on the particular violation. They also claimed the Board did not consider precedents set by previous cases and delivered an inaccurate punishment based on the actions at hand.

Nimmer said the Board did not err in their decision and the procedures taken to disqualify the candidates were by the book. He said he did not submit a complaint against the parties because all the information taken into consideration was uncovered during a hearing, where the purpose is to collect information.

“I don’t understand how I could ever set this up in any case that’s rational,” Nimmer said. “I do write [the decisions], but that’s me tailoring what we all have said as a group.”

Nimmer said even if the Court decides there is error, it still would not change Gardner and Guevara’s disqualification because they have affirmed they did commit falsification by turning in the wrong receipt for their website and negligence by failing to cite the fine on their financial documents.

View the complete appeal by Madison and Antonio, as well as the brief by Nimmer below:

Gardner-Guevara AppealNimmer Brief

Printed on Friday, March 23, 2012 as: SG candidates await Court decision regarding appeal

Student Government candidates Antonio Guevara and Madison Gardner face the Election Supervisory Board again after being reinstated Monday. Gardner said his campaign made “an honest mistake” for turning in the wrong receipt for their website and failing to note an earlier fine.

Photo Credit: Thomas Allison | Daily Texan Staff

Updated on 03/22/12 at 12:23 p.m.

The Election Supervisory Board disqualified recently reinstated Student Government candidates Madison Gardner and running mate Antonio Guevara Wednesday for falsification of financial records, disregarding an election fine and failure to comply with the Election Code.

Austin Carlson, SG law school representative, brought up complaints against the candidates calling for their disqualification after UT reinstated them Monday. The Board heard the charges against Gardner and Guevara Tuesday night and charged Gardner with disqualification Wednesday night. The Board found the pair to be negligent when turning in receipts about their website, failing to acknowledge their earlier fines on their financial disclosure form and overall violating the Election Code multiple times.

The Board fined Gardner and Guevara a 10 percent fine of their campaign spending limit for turning in receipts for madisonandantonio.com instead of madisonantonio.com, the latter of which they currently use. The Board also counted this as falsification of a financial document. On Feb. 20, the Board charged the campaign a 10 percent fine of their total campaign budget for failing to list the wood they used for promotional reasons at fair market value, which they did not include in their new financial disclosure Monday.

In addition, the Board charged Gardner and Guevara to be in violation of early campaigning rules for taking a group picture in January for their promotional materials. They also fined Gardner a 5 percent campaign expense fine for failing to expense a free T-shirt he received at an event, writing his and Guevara’s name on it and posting it on Twitter.

Gardner said Tuesday he and Guevara made honest mistakes by turning in the wrong receipt and failing to note the Board’s previous fine on their financial statement. He said he hoped the Board takes all the facts into account when making a decision.

Gardner refused to comment on the Board’s second disqualification of him and Guevara.

Board chair Eric Nimmer said although Gardner and Guevara fought hard to get back on the ballot, it is irrelevant to Election Code law and the disqualification was by the book. “We never want to disqualify anyone, despite what this election shows,” Nimmer said. “We analyze the rules as we see them and the complaints as they are handed in front of us.”

Nimmer said he does not know if Gardner and Guevara plan to appeal but would not be surprised if they did. He said he and the Board empathize with Gardner and Guevara and what they have been through these past few weeks.

“The Election Code was not ever written to be legally perfect, because there are no legal scholars that write it,” Nimmer said. “It was written to regulate a student organization [Student Government] that wanted to stop certain behaviors.”

Carlson said he supports the Board’s decision and thinks it was fair. Carlson said he does not care about their previous disqualification, only the current violations at hand. He said there were many violations of the Election Code and at the hearing the candidates admitted to failure to turn in appropriate Web receipts and disregarding the Board fine on their financial disclosure.

“The Election Code was voted on by the candidate that was disqualified,” Carlson said. “Now Student Government will actually follow its Election Code. I think that is the precedent that will follow from here.”

He said Gardner should appeal the decision if he believes it to be unjust, but he agrees with the Board’s decision.

Janette Martinez, SG liberal arts representative, said she supports Gardner as an individual student not on behalf of SG. She said she was shocked when she heard about the second disqualification. She said she does not know if the SG Judicial Court will hear an appeal if the candidates file one because the court only hears cases if they believe they was a parliamentary error done by the Election Supervisory Board.

“I don’t think anyone knew they were going to be reinstated Monday and we were all very excited,” Martinez said. “But there was definitely a likelihood of error happening [in such a quick turnaround] and I hope if there are grounds for appeal they can get an appeal, turn in what they were supposed to turn in. They’re human, they made a mistake.”

View the complete Election Supervisory Board opinion below:

Printed on Thursday, March 22, 2012 as: Violations axe Madison/Antonio for second time

Former presidential candidate Madison Gardner and running mate Antonio Guevara said they may file a lawsuit against UT as a last resort to get back on the campus-wide elections ballot.

They claim the Election Code rules the Election Supervisory Board and Student Government Judicial Court used to disqualify them violated their constitutional rights.

Campaign manager Alexander Jones said Gardner and Guevara will explore various plans of action within the Office of the Dean of Students and other entities this week before the elections to try and get Gardner and Guevara back on the ballot. The Judicial Court denied Gardner and Guevara’s second appeal of the Election Supervisory Board’s disqualification Sunday and issued a separate disqualification punishment to signify their agreement with the Board’s decision. The Board disqualified the Gardner campaign on Feb. 22 for associating itself with Student Events Center presidential candidate Carissa Kelley via promotional materials for their campaign.

Jones said they may file a case with the Travis County Court because the Election Code provision banning any association between candidates violates their first amendment right to associate with anyone they choose. He said Travis County has intervened in SG elections in the past, citing the 1997 case of vice presidential candidate Marc Levin. Levin took the charges up with Travis County and the judge ordered UT to postpone the elections and after review put Levin back on the ballot.

Jones also said in the 2008 changes to the Election Code there was specific language that classified an association between candidates as any official campaign title, banner or acronym to classify two or more candidates to run as a “ticket.” SG ratified the Election Code in 2008 to ban the ticket system, in which candidates could endorse one another and run together under one name.

“We believe that there needs to be a review of the decision and that precedent needs to be followed,” Jones said. “Based on the precedents, there is no reason they should have ever been disqualified.”

Jones said the Gardner campaign understood it could not associate with other SG candidates, but Kelley is a candidate for a position with University Unions. He said that was never made clear to them in any meeting with SG officials or the Board. He said the campaign did have the right to appeal because the Board did not interpret the Election Code as the original authors intended.

Rachel Meyerson, former College of Liberal Arts representative and educational psychology graduate student, co-authored the legislation defining candidate associations in 2008 and said she felt Gardner and Guevara did have the right to appeal and the Election Code was not interpreted as they originally intended.

“Our intent was to make sure candidates were not running under one large banner,” she said. “[Madison and Antonio] were not running under one large banner. I am confused as to why the Board would disqualify them because it does not seem to be in violation of what we wrote.”

In their second appeal to the court, the Gardner campaign affirmed chair Eric Nimmer allegedly consulted with College of Liberal Arts representative Philip Wiseman on the Board’s decision. They also claimed the Board failed to maintain objectivity because of Nimmer’s personal bias and that he has an improper influence on the Board because he helped author the current Election Code and serves on the Board as well as the Judicial Court.

The Gardner campaign submitted audio evidence of Nimmer talking to Wiseman and discussing the decision after it had been made. When Wiseman asked if there was going to be any more disqualifications, Nimmer said, “Well, let someone piss me off.”

Nimmer did not deny that he said that, but said it was taken out of context. He said he never spoke to Wiseman or anyone before the decision was made and gave the Board official opinion to people who asked for it afterwards because it was public information.

“The idea of me being out to get people and me having the power to do so is completely comical,” Nimmer said. “I am on the record as not wanting to disqualify people because I want students to be able to vote.”

Nimmer said he still believes the board’s ruling is sound.

Printed on Monday, February 27, 2012 as: Campaign may file lawsuit, cites first amendment

Madison Gardner listens to his running mate Antonio Guevara speak at Monday night’s SG debate. Gardner and Guevara were disqualified by the Election Supervisory Board for associating their campaign with Student Events Center presidential candidate Carissa Kelley, but will be appealing the ESB’s decision.

Photo Credit: Andrea Macias-Jimenez | Daily Texan Staff

Update on Feb. 23 at 11:37 p.m. - The SG Judicial Court has declined Gardner and Guevara's appeal of the ESB decision. The ESB decision stands and Gardner and Guevara are officially disqualified from the SG presidential race. As of now, John Lawler and Thor Lund are the only remaining presidential candidates.

Update at 1:30 a.m. - Gardner said his campaign plans to appeal the decision. "Our friends and supporters agree that this is the right thing to do and that the next student body president and vice president should be decided by the students," he said. "I will be the first to recognize that we made a mistake but I strongly feel that the resulting disqualification was excessive."

Gardner said his campaign took the picture for his promotional materials on Jan. 21, at which time Kelley told them she did not have the intent to run. Gardner said he does not know when the hearing will take place yet.

Update at 11:45 p.m.- Jasmine Kyles, who filed the complaint against Gardner and Guevara, released a statement on her website reading she did not act with malice when she submitted the complaint. SEC presidential candidate Carissa Kelley declined to comment. ESB vice-chair Truc Nguyen said it was not clear whether Kelley would be disqualified as that case has not reached the ESB.

Student Government presidential candidate Madison Gardner and running mate Antonio Guevara were disqualified by the Election Supervisory Board for associating their campaign with a candidate in another race.

The campaign came under fire for including Student Events Center presidential candidate Carissa Kelley in their promotional materials and online website. Only the presidential and vice presidential candidates are allowed to campaign together, according to the Election Code. All candidates in the campus-wide elections must campaign separately and any violation of this can be subject to immediate disqualification.

Broadcast journalism junior Jasmine Kyles filed the complaint against Gardner and Guevara, and the Election Supervisory Board heard the case Wednesday afternoon. The ESB said the Election Code did not mandate an immediate disqualification, but under the circumstances the action was appropriate.

In the official opinion delivered by ESB chair Eric Nimmer, the ESB stated the complaint was filed in a reasonable amount of time and Gardner and Guevara had been in violation since their campaign materials began distribution.

The ESB also stated the Gardner campaign did not demonstrate an effort to remove the incriminating promotional materials and media after being made aware of the violation. Gardner and Guevara allegedly knew about the violation before the complaint had been filed, according to the ESB.

Gardner and Guevara claimed it would have been difficult to remove the promotional materials already distributed on their flyers and website. However, the ESB declared the lack of any substantial action taken to remove the item as justifying the disqualification.

Gardner and Guevara have not responded to requests by The Daily Texan for a statement.

“Its unfortunate that the campaign was disqualified. However our campaign will continue forward with a positive message - changing Student Government and producing results next year,” said presidential candidate John Lawler.

Lawler and candidate Thor Lund are the only presidential candidates left if the SG Judicial Court does not overturn the ESB’s decision as candidate Ryan Shingledecker withdrew Tuesday. Lund said it was unfortunate that Gardner and Guevarra were disqualified, but rules are rules and he wishes the pair the best in the future.

Nimmer said Kyles was part of the Yaman Desai and Whitney Langston campaign before that campaign was disqualified Monday. Nimmer said Gardner and Guevara were planning to appeal the decision.

“It’s one of the simplest interpretations of the rules. If you read the language it is very strong,” Nimmer said. “No association between candidates will be tolerated. I do not believe the decision will be overturned.”

Printed on Thursday, February 23, 2012 as: Madison, Antonio under fire

Student Government presidential candidates Yaman Desai and Whitney Langston.

Photo Credit: Elisabeth Dillon | Daily Texan Staff

Update 11:40 p.m.: The Yaman Desai and Whitney Langston campaign withdrew from the Student Government election after emails obtained by The Daily Texan revealed Desai encouraged the agent to lie to Gardner's webmaster.

Update at 6:50 p.m.: Desai said he questions whether his campaign has misrepresented itself and whether the agent was actually a part of the campaign at the time she misrepresented herself. However, Election Supervisory Board chair Eric Nimmer maintains the campaign is still disqualified until the Judicial Court determines whether they are allowed back into the election.

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Presidential candidate Yaman Desai and running mate Whitney Langston face disqualification by the Election Supervisory Board for allegedly seeking information about another campaign and misrepresenting themselves as an official University entity. The Judicial court placed an injunction on their disqualification and will hear their case at 9 p.m.

Desai and Langston filed complaints against candidates Madison Gardner and Antonio Guevara over the weekend for failing to report campaign purchases at fair market value and failing to report design and consulting fees for their website. Gardner and Guevara filed a counterclaim of misrepresentation that resulted in a subsequent investigation by the Election Supervisory Board.

In the investigation, the Election Supervisory Board found that an agent of Desai and Langston portrayed herself as an official University entity by creating a false title on a social media site and subsequently emailing the third party web consultant for Gardner and Guevara seeking information.

The opinion of the Board was released in a written statement to The Daily Texan by Election Supervisory Board chair Eric Nimmer. The document stated that Desai and Langston have been disqualified for three reasons: for having a campaign agent claiming to be an agent employed by the University and identifying herself as a “Election Supervisory Representative,” for previous attempts to contact the third party web designer resulting in the invention of a fraudulent title and for offering little or no objection to the authenticity of the evidence during their hearing with the Board.

An “agent” refers to any candidate appointed worker who is authorized to speak and act on behalf of the candidate, according to the Student Government Election Code.

“While the above holds true the board has no choice to consider the previously stated behavior as a misdeed by the entire campaign and not the individual,” the statement read. “Therefore what has been interpreted by the board as a fraudulent action applies to entire party as a single entity.”

Desai said he and Langston have appealed the decision and will stand before the Election Supervisory Board later tonight. Desai said they are still plan on appearing at the Candidates Debate tonight hosted by The Daily Texan in the Student Activity Center at 7 p.m.

Alexander Jones, an agent for Gardner and Guevara’s campaign, declined to comment on the disqualification.

Sunday, Gardner and Guevara were found to be in violation of the code for failing to accurately price their purchases and fined ten percent of their total campaign spending limit.

Moments after campaigning opened for the 2011 Student Government elections Wednesday morning, Student Government hopefuls flooded campus hot spots with candidate logos and banners.

Because the Student Government Elections Code prohibited campaigning before Feb. 16, candidates were up until the wee hours of the morning preparing their campaigns, with some forfeiting sleep completely.

Vice-presidential candidate Sameer Desai, presidential candidate Abel Mulugheta’s running mate, said the executive alliance and their campaign members spent the entire night setting up.

“Literally at 12:01 when campaigning started, we swarmed Jester to hang banners and signs so when people woke up in the morning, they’d see ‘Abel and Sameer,’” he said. “We all lost sleep but we felt it was worth it because our campaign became a part of campus this morning.“

The pair’s logo, “One Texas,” was plastered all over Jester Center as early as 3 a.m. The team spent the rest of the night establishing their presence online, tagging more than 600 students on Facebook and inviting them to view their website.

Vice-presidential candidate Ashley Baker, who is running with Natalie Butler, said the most effective way they got students on board with their campaign was by calling on friends to help display the logo. Both Butler and Baker are currently University-wide representatives in SG.

“We reached out to friends about helping us campaign and we had an overwhelming response,” she said. “Our team has committed to tabling, wearing T-shirts and getting out as much information about our campaign as possible.”

Baker and Butler’s team passed out almost 5,000 fliers and more than 90 T-shirts on campus and have signs posted in West Campus.

Voting for the general elections begins at 8 a.m. March 3 and runs until 5 p.m. March 4. Polling stations will be available in Jester Center, the Flawn Academic Center and the Student Activities Center.

The Election Supervisory Board holds all of the candidates accountable, said the board’s chair, Eric Nimmer. He said the board will strictly enforce restrictions on all campaign spending.

“If any candidate spends a dime in regards to their campaign, they have to report it, and it has to be open knowledge to the public,” he said.

The spending limitations range from $350 for college representatives to $900 for an executive alliance.

Nimmer said the spending caps are to keep election races fair for every candidate.

“We don’t want one team spending $45,000 on campaign and being more visible simply because they can afford it,” he said. “The limit levels the playing field and puts everyone on the same page.”

Each student may cast one vote for president and vice president, one vote for each available seat for their college and eight votes for University-wide representatives at a campus location or online on the SG website. Students can also vote for representatives on the Texas Student Media board, the University Co-op Board of Directors, the Union Board and Graduate Student Assembly.