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[council] Formal request to the ICANN board regarding election of GNSO

Dear Board Chair and ICANN President

I have reviewed the information presented in the email communication (attached 
below) to the Council and have significant concerns which cause me to advise 
the Board that, at this time, until I hear what the outcome of the challenge 
is, I am lodging a formal complaint with the Board regarding the GNSO 
elections. I may withdraw that complaint, should the investigation leave the 
non commercial constituency's seats in place and find there is no problem with 
their votes. Should the investigation lead to a vacancy of one or all of the 
seats, then I will maintain my challenge and complaint.

I believe that the intent of the Board by-laws was to provide for a "balance of 
votes" between the provider and user constituencies by allocating double votes 
to the provider constituencies [registrar and registry] and single votes to 
each member of the remaining 4 constituencies. With all seats filled, the vote 
count would be 12:12. Had these seats been vacant, I do not believe that the 
vote would have taken place. 

The vote took place based on the assumption that all seats were filled and 
valid voters. IF the investigation determines that this "balance" was not in 
fact ensured in the end vote because voter are disqualified for other reasons, 
yet to be determined, then I maintain that the underlying assumptions of the 
validity of the vote are invalid. There is no balance of voters [regardless of 
the outcome of the vote] and therefore there can be no valid vote.

Two remedies come to mind: IF any user constituency voters are not valid, then 
the "algorithm" of  how the provider constituency votes "count" has to be 
modified. Or the entire vote can be set aside, and we can wait for the 
non-commercial constituency to hold new elections, and then rehold the 
election, with the balance of 12:12.

This will be a board decision, and I realize that.

However, I do not believe that the candidates, the Board, the constituencies 
themselves, their members, or the wide community of ICANN stakeholders would 
want an election where the underlying premises are not valid, and have turned 
upon themselves to unfair advantages for either providers or users.  After all, 
we must all work together, trust each other, and respect that the elected 
representatives, whether they are at Council level, or on the board, are indeed 
"valid" and supported by the broad majority required. To achieve agreement on 
policy in difficult situations, this "validity" of support will be essential.

Our goal is to achieve a widely supported ICANN. A contested election, with 
questions, isn't in anyone's interest. 

Therefore, my public and formal request to the board is on record. IF the 
investigation finds no problem, and this is accepted by the Council, then the 
election, assuming that all have verified their personal vote, will stand.  If 
the constituency's votes are dropped out [whether one, or two, or three], then 
I request the Board to notify the staff and the Council that there must be a 
balance between providers and users, so that neither group has an advantage. 
This can be accomplished by 1) changing the algorithm of the vote so that 6X 
factor = 9:9, for instance.
OR, the vote can be put on hold; and the non-commercials allowed to denominate 
and reelect new reps to Council which will return the balance of 12:12 voters 
in this election.

We need to focus more on achieving a valid and trusted process and less on the 
urgency of any decision. We will live with the results of our handling of this 
situation for years to come. To all candidates, my personal regrets that we are 
in this situation and my appreciation for your personal patience and commitment 
to ICANN's success.  

To the ICANN board, my formal request is presented.

Marilyn Cade
elected officer of the Commercial and Business User Constituency


-----Original Message-----
From: Cade,Marilyn S - LGCRP 
Sent: Thursday, March 13, 2003 8:56 PM
To: Bruce Tonkin; Council (E-mail)
Cc: Louis Touton
Subject: RE: [council] GNSO election results

I object to the interpretation that the Chair has conveyed that "if a whole 
constituency" is removed,
then the election stands. I cannot agree. If the constituency challenge is not 
validated, then my challenge/objection can be withdrawn.

The "balance" of votes --giving 6 votes to the Registries and 6 votes to the 
Registrars was predicated on a "balance".
SHOULD the balance be disrupted, then the voting algorithm must be changed.

I hereby register a protest, pending the outcome of the determination of the 
constituency challenge. After that determination, I will consider whether to 
withdraw my challenge.

Marilyn Cade
BC officer
-----Original Message-----
From: Bruce Tonkin [mailto:Bruce.Tonkin@xxxxxxxxxxxxxxxxxx]
Sent: Thursday, March 13, 2003 8:31 PM
To: council@xxxxxxxx
Cc: Louis Touton
Subject: [council] GNSO election results

Hello All,

The tally of the votes cast in the first round of voting are:

Michael Palage    14 votes
Alejandro Pisanty  6 votes
Philip Sheppard    4 votes
Barbara Simons     0 votes
Total             24 votes

Note Charles Shaban was appointed by the Business Users Constituency to
vote in place of Philip Sheppard, who is a candidate in the election.

The votes were cast as follows (the codes below match those on the
ballots you received; each member can ascertain that his or her vote was
counted correctly):

K13b4Z:[x] Alejandro Pisanty
K21c2Z:[x] Alejandro Pisanty
K32a6Z:[x] Michael Palage
K4f9fZ:[x] Philip Sheppard
K547aZ:[x] Alejandro Pisanty
K6872Z:[x] Michael Palage
K7068Z:[x] Alejandro Pisanty
K8713Z:[x] Philip Sheppard
K887bZ:[x] Michael Palage
K909aZ:[x] Michael Palage
K9471Z:[x] Michael Palage
Ka470Z:[x] Michael Palage
Kab9fZ:[x] Michael Palage
Kac13Z:[x] Philip Sheppard
Kc323Z:[x] Alejandro Pisanty
Ke63cZ:[x] Alejandro Pisanty
Kt9a7Z:[x] Michael Palage
Kz52dZ:[x] Philip Sheppard

Please note that the ICANN Secretary has received a challenge concerning
the voting process in the recent elections within the Non-Commercial
Users Constituency for their three positions on the GNSO Council.  The
vote within the non-commercial constituency must be carried out
consistent with the by-laws for that constituency.

No determination has been made yet as regarding this challenge and the
matter will be investigated.  However, based on the allegations made in
the challenge it appears that, if the challenge is sustained, either one
or all three of the Non-Commercial Users Constituency's seats on the
GNSO Council would become vacant.  In either case, the results of the
vote for Seat 14 on the Board would not be affected, as follows:

If the result of the challenge is that only one of the Non-Commercial
Users Constituency seats becomes vacant, then the vote would be:

Michael Palage    14 votes
Alejandro Pisanty  5 votes
Philip Sheppard    4 votes
Barbara Simons     0 votes
Total             23 votes

The 14 votes cast for Mr. Palage are a majority of the total number of
the votes of all GNSO Council members (23).

If the result of the challenge is that all three of the Non-Commercial
Users Constituency seats become vacant, then the vote would be:

Michael Palage    12 votes
Alejandro Pisanty  5 votes
Philip Sheppard    4 votes
Barbara Simons     0 votes
Total             21 votes

The 12 votes cast for Mr. Palage are a majority of the total number of
the votes of all Council members (21).

If the challenge is rejected, of course, the votes will continue to be
as noted at the top of this e-mail.  In view of this, no outcome of the
challenge would affect the result of the vote for Seat 14.

I propose therefore the following steps:

(1) We will publicly announce the results of the first round of voting
to be:

Michael Palage    14 votes
Alejandro Pisanty  6 votes
Philip Sheppard    4 votes
Barbara Simons     0 votes
Total             24 votes

Thus there is no need for a further round of voting as Michael Palage
has a majority of the votes of all GNSO Council members.  It will be
noted that these results are preliminary until ratified in the council
meeting in Rio.

(2) At the ICANN meeting in Rio, the GNSO council will vote to ratify
these results. Council members should check the information on how the
votes were cast and confirm that their vote was recorded correctly.  The
GNSO Council will be confirming in Rio that the election results are a
true record of how the votes were cast.

(3) The ICANN Secretary will publicly announce that a challenge has been
received regarding the recent elections within the Non-Commercial Users
Constituency, and the election process will be investigated to ensure
that it was consistent with the by-laws for that constituency.
The ICANN Secretary will note that the result of this process does not
affect the majority held by Michael Palage, in the GNSO Council election.

At this stage I don't see the need for a teleconference, as the
challenge regarding the Non-Commercial Users Constituency does not
affect the election result, and it is not for the Council to investigate
the processes within the Non-Commercial Users Constituency.  We should
proceed with Council business assuming that the non-commercial elections
were correct until told by the ICANN Secretary otherwise.

Council members please let me know if you disagree with the proposed
steps above, and let me know if you feel the need for a council
teleconference on the subject.  Please note it is not appropriate for
the Council to discuss the challenge to the Non-Commercial Users
Constituency procedures.

Bruce Tonkin