Dear Stephen, All,
Thank you, Stephen, for sharing your concerns. Before going into substance, I wish I had a possibility to see the list of people (email addresses) that received your letter. I also do not understand why you did not use the regular ccNSO Council mailing list.
I am not sure if all Councillors understood what this is all about (I am not entirely sure I understand all the concerns myself). Therefore, I will start by listing the facts, which unfortunately were missing in Stephen’s email:
1) The ccNSO Council has approved the timeline for the Nomination process to fill ICANN Board seat 11. Part of the timeline is the voting process that was scheduled from 14 January until 31 January;
2) We have appointed Nomination Manager who oversees the entire process;
3) The Nomination Manager sent ballots to ccNSO members on 13 January. Voting started (votes were accepted) on 14 January at 00:01 UTC;
4) On 14 January, one of the members notified the Nomination Manager about an issue in the voting system (due to a mistake in semantics, it was not possible to vote for one of the candidates);
5) The Nomination Manager immediately stopped the voting process, i.e. closed the voting using previously distributed ballots (hereinafter, Faulty Ballots);
6) Immediately after that, at 08:19 UTC, the Nomination Manager informed the community, including the ccNSO Council, via email, about the closure of elections. In the same email, the Nomination Manager said that the ballot would be re-sent and voting would re-start on 15 January at 00:01 UTC, i.e. the next day. In addition, the Nomination Manager informed the Council about the concern of one of the members and explained that votes cast using Faulty Ballots would not be taken into consideration.
7) The new ballots were distributed on 14 January and voting re-started on 15 January (hereinafter, Renewed Ballot).
8) Additional fact: before the closure, 3 members had cast their votes using the Faulty Ballot. These three votes will definitely NOT be added to the final result of the vote using Renewed Ballot.
Now, about Stephen’s questions and concerns.
Stephen’s question: “What exactly was the error that caused the election to be voided, and why was Council not informed fully about this when it happened? Remedial action is the responsibility of Council”
Response: The Nomination Manager did inform the Council (see Fact 6). With respect to the question of what happened: as you all know, we use ICANN’s system for voting (hereinafter, Tally). Tally requires to create a general label and then add this label between square brackets next to each voting option. It is a pure text only field. The Nomination Manager added a vertical bar instead of a closing bracket for one of the candidate’s label. The system did not notify about any issue, and optically the Nomination Manager did not notice the mistake, i.e. that there was something wrong. The system accepted the entry without a closing bracket (which, I firmly believe, it should never allow!). Only when one of the members informed the Nomination Manager about the issue (see Fact 4), the mistake was noticed.
Is remedial action the responsibility of the Council? I think the response is way more complicated than a simple “yes” or “no”. Let’s not expand on a theoretical debate but look at the specific case: the Faulty Ballot did not allow members to vote for one of the candidates. The Nomination Manager had two options:
- Option 1: ask and wait for Council guidance or
- Option 2: stop the voting immediately.
The Nomination Manager chose Option 2. Looking at the facts, it was the ONLY RIGHT action and I thank the Nomination Manager for taking this decision.
Can you name one single reason why we, the Councillors, would go for Option 1 knowing that members cannot cast votes for one of the candidates? Can you name one single reason why not to stop the vote using Faulty Ballot immediately but wait for response from the Council while voting is open? I honestly cannot. The voting had to be stopped and stopped immediately.
Stephen’s question: “The election manager then took a decision to start a new vote a day later, but that is not the vote starting date that the Council agreed to in our Resolution. There is no provision in any Ryle of the ccNSO or any Bylaw authorising such a situation.”
Response: As I explained earlier, I believe that the Nomination Manager did the only right thing by stopping the voting. The question is whether the Nomination Manager had the right to decide to resume the voting next day.
Guideline: ccNSO Nominations process ICANN Board seats 11 and 12 (hereinafter, Guideline) Article 3.3. states: “The Nomination Manager is responsible for managing the timeline and procedures, including the voting if necessary.” In my view, this authorises the Nomination Manager to make certain decisions, including taking this particular decision as the overall timeline for casting a vote is still within the boundaries defined in the Guideline Section 3.7: “The election voting period will be at a minimum for two weeks, but no longer than three (3) weeks.”
So, for me, the question of whether re-starting of the voting was the right decision, is the question of proportionality. Should the Nomination Manager ask for input from the Council and risk not meeting the deadline of 22 April, or shorten the voting period by one (!!!) day? As there were only 3 votes cast (Fact 8 above), I would say that it was a proportional decision to re-start the voting only one day later.
Stephen’s question: “Initiation of a second round of voting by staff action outside of the decided timeline that was agreed by Council Resolution. (Moreover this was done without any notification to or agreement from Council)”
Response: it is not a second round of voting. It is the same round of voting re-started a day later.
As clearly stated in Fact 6 above, the Nomination Manager did inform the Council and also the members. Yes, the reason for this action was not clearly explained in the email itself. However, as stated in the email to Eberhard Lisse on 14 January, the incident and queries will be included in the Nomination Report (as will be other concerns).
Stephen’s question: “Why are the partial votes cast for individual candidates during the first voting attempt still available for all to see? (This last is really troubling to me and seems to be a breach of the fundamental principle of ballot secrecy while an election is in progress)
Response: As you may remember, this was something I raised when the results of the ccNSO members vote two years ago (the last Board Seat 12 Nomination Process) were announced on Facebook before they were publicly announced by the Nomination Manager and before the Council nominated the person. As we were explained, that is the way Tally is built – if you know where to look, you can see the results of each vote, faulty or not. It is the way the system is built in order to ensure transparency. All closed voting (Faulty Ballot is a closed voting too) can be seen. Results will remain publically viewable until the election is archived (after being archived the data can still be retrieved if necessary, but won't be shown by default). We can neither rebuild Tally, nor ask/wait for ICANN to do it. That is a part of transparency, and, based on previous experience, should not come as a surprise.
“The fundamental principle of ballot secrecy” means that nobody knows which ccTLD voted for which candidate, not that nobody knows how many people voted for which candidate. What is seen is this:
---
Board11:
1: 1 vote [] Calvin Browne
2: 2 votes [] Nigel Phair
[Board11| Patricio Poblete
3: 0 votes [] None of the above
---
I am not able to tell who voted for whom. Therefore, personally, I cannot see where there is a breach of ballot secrecy.
Stephen’s question: “One question, in particular, needs to be answered: What authority exists for Staff/Secretariat to unilaterally decide an alternative timetable and to shorten the election by one day, without informing, consulting Council or obtaining our consent?”
Response: As I explained above, I believe it was the right and timely decision. Speaking about Staff/Secretariat authority in the context of Council or Board elections (not about this issue in general), I think we need to answer the fundamental question: why do we have Nomination or Election Manager in the first place? Maybe the Council can manage the process? Guideline Article 3.3 says: “The Nomination Manager must be a person who cannot propose a candidate, second or vote, and who has no direct connection with a ccTLD manager or other potential conflict of interest.” I think it makes perfect sense – Nomination Manager oversees the process and has no interest in the outcome whatsoever. For the purpose of simplicity, we usually appoint a member of the ccNSO Secretariat. Should this practice be changed? I think it works perfectly well as this case has proven. The decision was impartial, taken timely and addressed proportionally (of course, there is always room for improvement).
Finally, based on the arguments above, I believe that the authorisation from the Council was not needed. I would like to point out that the Council was informed as soon as possible on 14 January, including about the course of action and, therefore, see no reason to interfere in the process at this stage. Once the Nomination Manger has submitted the Nomination Report, we should discuss the incidents as part of our voting on the candidate in accordance with section 10.3 (i) of the ICANN Bylaws and section 4 of the Guideline.
If any of the Councillors believe that regardless of the facts and arguments above, the Council must stop the voting, revise the timeline and start a new vote, please let other Councillors know your arguments as soon as possible (members cast their votes as we “speak”).
And one final request - please do not put your concerns/arguments in .pdf files. It makes answering unnecessary longer as I have to re-type the questions. Normal e-mails will suffice. Thank you for understanding!
Kind regards,
]{atrina
From: Stephen Deerhake @ ASNIC [mailto:sdeerhake@nic.as]
Sent: Friday, January 17, 2020 4:14 AM
Subject: Please see the attached letter
Greetings fellow Council members.
A belated Happy New Year to you all.
Please review the attached correspondence concerning the membership election for Board seat 11.
Best Regards,
/Stephen
