Judicial Court

Court upholds Gardner and Guevara disqualification

 

The Student Government Judicial Court upheld the disqualification of former SG presidential candidates Madison Gardner and Antonio Guevara and denied their appeal of the Election Supervisory Board’s disqualification today.

 

Gardner and Guevara petitioned the court for a rehearing of the complaints that disqualified them last week, claiming the Board had committed procedural error and subsequently violated their Fifth and Sixth Amendment rights under the U.S. Constitution. The court stated they agreed with the Board’s judgment to disqualify the candidates because they failed to file accurate financial disclosure statements.

 

At the hearing, Alden Harris, Judicial Court chief justice, said while the court should look to the U.S. Constitution for guidance, the document applies specifically to Congress and state actors.

 

Gardner stated the decision disqualifying him and Guevara violated procedure for several reasons. Regarding their disregard of an earlier fine issued by the Board, he stated the Board failed to give him and Guevara 24-hour notice of a complaint filed against them and build a council for their defense. He also said the complaint was filed by Board chair Eric Nimmer, who is prohibited from making complaints under the Election Code.

 

The court affirmed Nimmer did not file a complaint against Gardner and Guevara, although he did address concerns not filed in the original complaint filed by SG law school representative Austin Carlson.

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Gardner also stated Sunday this was a violation of his Sixth Amendment right under the U.S. Constitution, which grants him the right to be informed of any complaint against him to build a council for his defense.

 

Aakash Kumar represented Gardner at the hearing and said the court should judge their decision by a document that governs the United States, not by the judgment of the Election Supervisory Board.

 

"The ESB is not a court of law," the court said in a statement issued today. "And though certain procedural safeguards do exist to protect the candidates from prejudice or insufficient process, the code is designed to permit the ESB enough procedural leeway to hear and decide complaints in a timely and efficient manner."

 

John Lawler and Thor Lund are the only presidential candidates that remain. Elections will be held March 28 and 29.

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

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