Protest Decisions

              May 3, 1999

VIA FACSIMILE

Paul Alan Levy, Esq.             

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, D.C. XXX-XX-XXXX

Re:              SR-16-EOH

Dear Mr. Levy: 

The Election Office has received your letter of April 28, 1999 requesting, on behalf of Doug Mims, that the April 27, 1999 lottery for position placement in the Southern Region Rerun Election campaign literature mailing be annulled in favor of either: 1) a new lottery; or 2) using the results of the ballot position lottery to set the order of the campaign literature.  For the following reasons, your request is denied. 

I.              Facts

On April 15, 1999, the Election Officer issued a memorandum to candidates on the subject of “observers for the supplemental nomination count, ballot position lottery and inspection of proposed rerun ballot.”  That memorandum informed the candidates of their right to have observers present at the supplemental nomination count, and further stated that:

[f]ollowing the completion of the count, a lottery will be held for ballot position of duly nominated candidates.  After the lottery, candidates will have the opportunity to inspect, but not copy, the proposed rerun election ballot. 

On April 19, 1999 the Election Office issued a memorandum informing the candidates about the opportunity to have one page of campaign literature published and distributed at IBT expense.  That memorandum set April 27, 1999 at 4:00 p.m. as the deadline for submitting material for publication.  The April 19 memorandum also stated:

The page order of the literature in this mailing will be determined by lots drawn at the Election Office in Washington, D.C. at 4:15 p.m. on April 27, 1999.  Candidates, or an observer for each candidate, may be present at the lot drawing.

Doug Mims

May 3, 1999

Page 1

On April 23, 1999 the Election Officer conducted the supplemental nomination ballot count.  After the count, the Election Officer held the ballot position lottery as had been described in the April 15 memorandum.  Cf. Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”), Art. IV, § 5(f) (position of candidates on nomination ballot to be determined by lot).  No candidate representatives came to observe either the count or the lottery.  The result of that drawing put Doug Mims in the first ballot position, Aaron Belk in the second position, and Charlie Gardner in the third position.  On April 23, 1999 the Election Officer issued a memorandum to the candidates with these results.  The memorandum also stated that “[t]his order will also be used in the campaign literature mailing to be sent to all IBT members in the Southern Region.”

A representative of one candidate called the Election Office after receiving the April 23, 1999 memorandum and, after pointing out the discrepancy between that memorandum and the April 19 memorandum specifically addressing campaign literature, asked if the campaign literature placement lottery would go ahead as originally scheduled.  The Election Office responded that the April 23 memorandum’s reference to campaign literature placement was an error, and that the lottery would take place on April 27, 1999 as originally stated.  The Election Officer did not, however, re-notify other candidates that the campaign literature placement lottery would take place as originally scheduled.

The Southern Region Rerun Plan set April 26, 1999 as the deadline for candidate acceptances and withdrawals.  Mr. Gardner, the newly nominated candidate, timely accepted and neither Mr. Mims nor Mr. Belk withdrew.  On April 27, 1999 Mr. Mims and Mr. Gardner had their campaign literature hand-delivered to the Election Office (Mr. Belk had submitted his literature on April 23) in accordance with the deadlines and requirements of the April 19, 1999 memorandum on campaign literature.  The campaign literature placement lottery was held by the Election Officer’s representative at about 4:15 p.m. that day: a representative of Mr. Gardner was present as an observer.  The result of the drawing put Charlie Gardner in the first publication position, Doug Mims in the second position, and Aaron Belk in the third position.  After the candidates were informed of the results of that lottery, Mr. Mims filed this protest. 

II.               Analysis and Conclusion

The Election Officer regrets the confusion caused to Mr. Mims by the April 23, 1999 memorandum stating that the ballot placement lottery would also control the order of campaign literature.  Notwithstanding that, the results of the April 27, 1999, campaign literature lottery, which was held as scheduled, will stand and will be used to determine the placement of campaign literature.

Doug Mims

May 3, 1999

Page 1

No candidate has a right to have campaign literature published in a particular position in the materials distributed under the Election Officer’s authority.  At most, Mr. Mims had a right to have the positions determined by lot.  See Rules, Art. VIII, § 10(b).[1]  That was done.  Mr. Mims, however, has no right to a particular result in the lottery and no right to make the Election Officer adhere to an insubstantial mistake.  The erroneous statement in the April 23 memorandum did not give Mr. Mims a vested right to have the Election Officer enforce that mistake to the detriment of the other two candidates; nor did it estop the Election Officer from conducting the candidate literature position lottery.

Candidates were informed in advance of their right to have observers present at the April 23 Supplemental Nomination Ballot Count, the ballot position lottery, and the April 27 campaign literature lottery.  No observers came to the count and ballot position lottery on April 23, and only one came to the lottery on April 27.  Mr. Mims’ argument that the literature position lottery was held in a way that deprived him of a right to be present and observe the drawing is undercut by two facts.  First, there was absolutely no obstacle to his sending an observer to the Election Office on April 27.  Second, he was entirely content with the lottery process conducted on April 23 without an observer present even though no candidate was advised in advance that the result would purportedly apply to campaign literature positioning.  The Election Officer notes that the protester’s argument contains a significant, erroneous assumption.  The protester states that the opposition candidates were “presumably present at the April 23 lottery, and thus were on notice that it was being conducted for literature position as well as ballot position.”  In fact, no candidate had an observer present or advance notice that the result would apply to literature positioning.  All candidates were informed of the ballot position lottery results and their purported application to candidate literature positioning in the same way: by a memorandum telecopied after the event.[2]  Obviously, one could only complain about the erroneous statement in the April 23, 1999 memorandum concerning the application of the ballot lottery results after having received that memorandum. 

Doug Mims

May 3, 1999

Page 1

The protester claims prejudice from the change in publication position and argues that the change may affect the outcome of the election.  These contentions are not rooted in any rule or cognizable right.  Because candidates do not have a right to a particular publication position, the Rules provide no remedy for a candidate who would prefer to have his campaign literature published in a slot other than the one determined by lot.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 444 N. Capitol Street NW, Suite 445, Washington, D.C. 20001, facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Michael G. Cherkasky

Election Officer

cc:              Kenneth Conboy, Esq.

Patrick J. Szymanski, Esq.

James Hicks, Esq.

Charlie Gardner Campaign

Aaron Belk

Paul Alan Levy, Esq.