[Guest Column] The Elections Commission *Would’ve* Allowed Endorsements…If It Had A Sensible Elections Code

Disclaimer: This is not the official opinion of the UPUA Elections Commission. It is the opinion of one former Elections Commissioner, who is speaking in his personal and individual capacity.

I just completed my third University Park Undergraduate Association (UPUA) Election as an Elections Commissioner. It was by far my least favorite for two reasons. One reason outside anyone’s control at Penn State was the online nature of the campaign which diminished campaign effectiveness and decreased voter turnout. Another reason within control of the Assembly of UPUA was the Elections Code.

The Assembly of UPUA consists of elected Representatives, and only the Assembly can write and pass the Elections Code. Though the Judicial Board reviews the Elections Code for “fairness and equity,” it can not review it against the United States Constitution, against its own logic, or against its common sense. When it can, the unelected Judicial Board must yield to the will of the elected Assembly. And as we’ve seen, an elected Assembly can fairly and equally produce a broken Elections Code.

In years past, the Assembly empowered Registered Student Organizations (RSOs) and University affiliates to endorse candidates for UPUA elections. This allowed RSOs to involve themselves in the elections; to request platforms that would benefit their organization and its members; and to invest in the policies and initiatives of their student government. But this year, the 14th Assembly said goodbye to all that. It gutted the clause which read “Any Recognized Student Organization (RSO) may endorse candidates” (see UPUA Elections Code 2018-2019 §9.6), and it removed any mention of RSOs from its Elections Code.

The Elections Commission must “fulfill the provision of [the Elections] Code” and is obliged to “the will of the Assembly” (see UPUA Elections Code 2019-2020 §3.1). The will of the Assembly was to empower only one entity to endorse: “Individuals who are not running for Office during the year in question may officially file endorsements of candidates by submitting the necessary form(s) to the Commission” (see UPUA Elections Code 2019-2020 §9.6). By fundamentally changing the Elections Code, the Assembly fundamentally changed what the Elections Commission had to enfored—whether the Elections Commission wanted to enforce it or not.

I disagree with the idea that RSOs, University affiliates, and non-Penn State entities should not be empowered to endorse, and I disagree with the fact that we must punish a candidate for not working to ensure that those entities do not endorse. But my responsibility, as a member of the Elections Commission, is to follow the provisions of the Elections Code and the will of the Assembly. I have tried to do this in a consistent, fair, and sensible manner. Many candidates have asked us to interpret the Election Code as if it were a coherent document which we wrote and approved. It’s not. A coherent document would not mention “Executive boards of organizations…who have endorsed a candidate” (see UPUA Elections Code 2019-2020 §9.7) and then not empower any organization to endorse a candidate.

We did not interpret Onward State as a RSO. Rather, we interpreted the Elections Code as it was written. Since the Elections Code only empowers individual students to endorse (see UPUA Elections Code 2019-2020 §9.6), it excludes every other entity from endorsing. This includes Onward State. Anthony Colucci, Managing Edtior of Onward State, wrote Tuesday that he believes this “infringes on [Onward State’s] own autonomy and freedom of press” (see “Onward State *Would’ve* Endorsed McKay-Pathickal For 2020 UPUA Election…If It Were Allowed”). I agree. A better Elections Code would have allowed more entities to endorse. A better Elections Code would have recognized that the candidate who will benefit Onward State as an entity may not be the candidate who will benefit its Managing Editor as an individual. A better Elections Code would have involved individuals, RSOs, University affiliates, and the wide breath of the Penn State community in the decisions that ultimately impact them the most. The Assembly did not write a better Elections Code.

When I first interviewed to become a Judicial Board Justice in 2017, the members of the Steering Committee asked if I felt outside entities should be able to participate in UPUA Elections. The previous election had been wrought with allegations of Turning Point USA financing one of the executive tickets, as the group had done at other universities (see “Inside a Stealth Plan for Political Influence”). Those in UPUA wanted to make sure that such events did not become a perennial occurrence.

I answered then as I would answer now: the Assembly should not try to curtail free speech through its Election Code. By prohibiting non-Penn State students from endorsing candidates, donating money, and/or soliciting votes, the Assembly would lay, and now has laid, claim to power it does not have. The Assembly would prohibit, and now has prohibited, entities and people from freely expressing themselves and their opinions.

In Colucci’s previously mentioned article, he writes that the intervention of the “Elections Commission into an election and an independent news outlet’s coverage of it is dangerous. It sets uncomfortable precedents that defy the very principles of democracy and infringe on our responsibilities as an independent organization focused on providing fair, honest, and thorough coverage of the university.” I partially agree. This year has set an uncomfortable precedent where the Elections Commission has been asked to monitor organizations over which we have no power. But this is not the fault of the Elections Commission. It will not change if the Elections Commission changes. It is the fault of an Assembly which wrote a Code empowering only individuals . It will only change if the Assembly changes the Elections Code or if the Assembly has a third party, personally not impacted by the Elections Code, to create it. At other universities, the Elections Commission creates and enforces the Elections Code. The UPUA Elections Commission does not have this authority.

Colucci alluded to “ill-conceived censorship, for example, by an arm of the student government.” The arms of the student government in which I’m involved, the Judicial Branch and the Elections Commission, have roundly rejected prior restraint. Head Elections Commissioner Rachel Schuchman even told Colucci that “Onward State as an organization is free to endorse a candidate if they wish, but that candidate would be subject to violation points if a claim is filed and we deem that candidate to be responsible for the violation,” as the Assembly’s Elections Code outlines. She even stated that “The Elections Commission didn’t write the code, and there are many sections that [it does] not agree with. However, it is the Elections Commission’s job to interpret the code whether we like it or not.” The arm of the student government responsible for this odd election cycle, confusing provision, and “ill-conceived censorship” is the arm which wrote an odd, confusing, and ill-conceived Elections Code—the Assembly.

Whatever the 14th Assembly tried to fix with the 2019-2020 Elections Code, it didn’t work. Hopefully, the 15th Assembly will get it right.

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