While voting was open for the 2020 presidential election, Ann Gehan, Head of Strategy and Platform for Thomas (Tommy) Hessel’s presidential campaign, displayed a pro-Hessel message on her smartphone at the West Campus bus stop for a picture. Presidential candidate Valeria Silombria filed a report of election irregularity to Attorney General John Markis asserting that Gehan’s actions violated §6 and subsequently §2 clause 1 of the 2020 Election Statute. After Attorney General Markis ruled that no election violation occurred, presidential candidate Silombria appealed the decision to the Judiciary arguing the Attorney General did not conduct a thorough investigation and thus violated §11 clause 3.
The Attorney General is not held to explicit standards when they conduct investigations into voter irregularity other than the duties prescribed by the Election Statute and Election By-Law. The burden of proof at no point shifts from the petitioner to the Attorney General to prove the petitioner’s claim. §4 of the 2020 Election Statute uses the terms flyer, banner and poster interchangeably. §9 clause 1 of the 2020 Election Statute delineates penalties for offending flyers versus offending posters and banners. These three terms are distinctly separated from electronic devices, which are addressed in §6 of the 2020 Election Statute. The separation indicates electronic devices, even those displaying campaign graphics, do not fall under §9 clause 1 of the 2020 Election Statute. The Judiciary holds the graphic displayed on Gehan’s phone does not constitute a banner under §4 of the 2020 Election Statute and thus is not subject to penalty under §9 clause 1 of the 2020 Election Statute. In accordance with the precedent set by Smith v. Bhatia (2017), the possession of an electronic device is not equivalent to the proffering of one. No evidence was presented that Gehan offered her phone to any individual to provide them direct access to the ballot in order to solicit a vote.
On March 5th, 2020 at approximately 12:00pm voting for the 2020 Duke Student Government presidential election opened. The next morning, Devin Mahoney took a picture of Ann Gehan, the Head of Strategy and Platform for presidential candidate Tommy Hessel which showed her displaying a graphic stating “tommy 4 DSG” on her phone at the West Campus bus stop. Devin Mahoney posted the photo to her Instagram account story. The same night, presidential candidate Valeria Silombria filed a report of election irregularity with Attorney General John Markis. Candidate Silombria asserted Gehan violated §6 and subsequently §2 clause 1 of the 2020 Election Statute. She requested that the Hessel Campaign be docked 459 votes in accordance with §9 clause 5 of the 2020 Election Statute.
On March 7th, 2020, Attorney General Markis ruled the Hessel Campaign violated §6 of the 2020 Election Statute when Gehan proffered her phone to Mahoney, docking 1 vote per §9 clause 5 of the 2020 Election Statute. Attorney General Markis further ruled the phone graphic was a ‘banner’ for the purpose of §9 clause 2 the 2020 Election Statute, docking a further 30 votes per the same clause. Attorney General Markis docked a total of 31 votes from the Hessel Campaign.
Candidate Silombria appealed the decision to the Judiciary, and she argued the Attorney General’s decision was not in accordance with the law, as the Attorney General violated §11 clause 3 of the Election By-Law by failing to conduct a thorough investigation.
1.How should the Attorney General conduct investigations into voter irregularity?
2.What constitutes a banner for the purposes of §9 clause 3 of the 2020 Election Statute?
3.What constitutes proffering for the purposes of §6 of the 2020 Election Statute?
The Attorney General did not violate §11 clause 3 of the Election By-Law in the process of hearing, investigating, and responding to Silombria’s petition. However, the Attorney General violated §8 clause 10 of the 2020 Election Statute as his reasoning for docking 31 votes from the Hessel Campaign was not in accordance with the law. The Judiciary overrules the Attorney General’s decision to dock 31 votes from the Hessel Campaign.