Friday, May 11, 2012

Fast & Loose: How Americans Elect Scoffs at the Rules

The ideal form of governance has been a subject of heated debate since antiquity. For example, while Plato advocated a benevolent monarchy, ruled by an idealized Philosopher King who was above the law, Aristotle argued instead that "It is more proper that law should govern than any one of the citizens" Or, as Samuel Rutherford avowed in 1644: "Lex rex" (the Law is the King), the reverse of the more medieval  notion, "Rex lex" (the King is the Law).

We had thought that this argument had long since been definitively decided, at least in Western democracies, squarely on the side of "the rule of Law, not of Man."

Then along came Americans Elect Corporation, whose owner/operator, Wall Street billionaire Peter Ackerman, has demonstrated throughout his remarkable career that he is a law unto himself.

Led by Philosopher King Ackerman, Americans Elect Corporation breaks all the rules...but not in a good way; rather, in a way which makes a mockery of its own democratic pretenses and establishes that Ackerman Rex lex. By "the rules" we mean Americans Elect's own rules: its Pre-Election Convention Rules (17 pages enshrining 87 official rules), its Post-Election Convention Rules (4 pages of 21 official rules), and its Bylaws, the basis in law of the Corporation's very existence (22 ponderous pages of legalese comprising 78 official rules). Below, we detail just a few of the many ways in which Ackerman's Americans Elect routinely tramples these rules with impunity, and without apology or correction.
  1. Pre-Election Convention Rule 1.3:  "Cutoff Date for Eligibility. Before each scheduled vote, Americans Elect shall determine and post on the Website a cutoff date, which shall be the last date on which a person may quality as a voting Delegate for that scheduled vote." With AECorp's 'support click' round of voting under way since February, and its now canceled May 8 'primary' caucus date come and gone, and its May 15th second-round 'primary' caucus date less than three days away as we write (maybe, or maybe not), Americans Elect has never posted an eligibility cutoff date on its web site, in violation of this rule.
  2. Pre-Election Convention Rule 2.1: "Any natural person who is constitutionally qualified for the office of President...shall be listed on the Website as a Declared Candidate in alphabetical order upon submission of [items including] a signed copy of the Americans Elect Candidate Pledge...a copy of which shall be posted or linked on the Website."  The web pages for none of AECorp's 31 declared candidates includes a copy of or link to his or her signed pledge, in violation of this rule.
  3. Pre-Election Convention Rule 2.1.3: "The True Colors and Core Questions posted on the Website at the time a Candidate declares his/her candidacy and as may be updated for response by Delegates and Candidates from time to time shall be completed and submitted by the Declared Candidate. The Candidate’s submission shall be posted or linked on the Website." Although there have been declared candidates at Americans Elect since February, none of their candidate pages feature links to their True Colors or Core Questions answers, in violation of this rule.
  4. Pre-Election Convention Rules,, and "The Candidate Certification Committee shall automatically certify as qualified any natural person who is eligible to serve as President and who has served in any of the following positions without removal from office or current criminal indictment or conviction: Vice President, United States Senator, Member of Congress, Presidential Cabinet Member, Head of a federal agency, Governor, Mayor of any of the largest 100 cities in the United States, Chairman or Chief Executive Officer or President of any corporation or nonprofit corporation or philanthropic organization with 1,000 or more employees, President of a national labor union with 100,000 or more members, military officer who has attained flag rank, Ambassador, and President of an American-based university with more than 4,000 students [....] Each Automatically Qualified Candidate shall receive at least 1,000 Support Clicks on the Website in each of the 10 states before his/her name may be included on the Primary Ballot. Each [other] Candidate shall receive at least 5,000 Support Clicks on the Website in each of 10 states before his/her name may be included on the Primary Ballot. On April 7th we reported that Americans Elect secretly changed the qualification of draft candidate and AECorp insider, David Walker, from "Other" to "Former Head of a Federal Agency," thus reducing his required support click total for advancement to the primary ballot from 50,000 to just 10,000 clicks. As we noted in that report, Walker has never served as the head of a federal agency; as a former Comptroller General he headed the Government Accountability Office, which is an office of Congress (federal agencies, by law, are components of the Executive Branch, not of Congress). Apparently embarrassed by being caught in this lie by us, AECorp has recently and yet again silently changed Walker's listed qualification, this time to "Former Comptroller General of the United States," but this is a distinction without a difference: the cited web page still asserts that "David Walker needs 1000 supporters in each of 10 different states to qualify." In other words it continues to treat him, for purposes of ballot qualification, as a 'Head of a federal agency,' even though AECorp appears to have lost the courage to explicitly assert this fiction.
  5. Pre-Election Convention Rule 5.2: "The unofficial tally of percentage of Candidate Votes, Support Clicks, Flags, Questionnaire Responses, and Reversal or Ratification Votes shall be displayed on the Website in real time at all times that Delegates may vote on a particular matter." During the 3+ months in which support-click voting has been underway, AECorp has never reported running vote tallies as percentages (as this rule requires), but only as accumulated totals for each candidate, from all 50 states. This violation of the rules establishes a deceptively positive impression of the progress of voting at AE (certainly conveniently, and possibly intentionally?). For example, a total of 9,999 support clicks (across 50 states) reported for an Automatically Qualified candidate can make the candidate appear to be just one click away from qualifying for the primary, when in fact that candidate may have only 20% of his required ten-state support click total. This violation alone has caused endless confusion among delegates, candidates, and the press throughout the current voting round, and would therefore seem to bring into question the validity of the vote results.
  6. Pre-Election Convention Rule 7.1: "If there are 10 or more Declared Candidates and Draft Candidates in total, three Primary Rounds of voting for the office of President of the United States shall be held on the Website. Fewer Primary Rounds may be held in the event of fewer than 10 Declared or Drafted Candidates to attain six candidates for the office of President in the Nominating Round of voting. The Primary Rounds shall be held on May 8, 2012, May 15, 2012, and May 22, 2012." On May 1st we exclusively reported that Americans Elect Corporation had canceled its May 8 first-round primary vote, which AECorp confirmed some 17 hours after the fact. Thus, it arbitrarily reduced its "three Primary Rounds of voting" (required by this rule) to just two, and also violated this rule's requirement for a May 8 primary ballot. As its justification for these moves, AECorp cited a rule which does not exist (we would include a link here, but AECorp has deleted that notice from its web site).
  7. Pre-Election Convention Rule 7.4: "The Final Primary Ballot, May 22, 2012. On this date, the Delegates may cast their vote for their top Declared Candidate or Draft Candidate on the Website....The four Candidates who receive the largest plurality of the vote shall advance to the Nominating Ballots." According to the most recent version of its 'Caucus' page, AECorp has re-jiggered its May 22nd ballot to advance the top five winners, in violation of this rule.
  8. Pre-Election Convention Rule 12.1: "Any Delegate who wishes to call any matter to the attention of the Rules Committee may do so via the Website." AECorp's web site provides no mechanism by which to call matters to the attention of the Rules Committee, in violation of this rule. As AE delegates ourselves, we would call this matter to the attention of the Rules Committee...except we don't know how.
  9. Bylaws Section 2.5: "Delegates shall have exclusive power and authority to [....] determine, adopt and ratify the rules of the online convention and platform of questions. The rules of the online convention, and AECorp's platform of questions, were published on its web site without having been "determined" by the delegates; they were "determined" by the unelected members of the Rules and Platform Committees, in violation of this Bylaw.
  10. Bylaws Section 4.12: "Neutrality of Directors. Board members shall not communicate or act in favor of or in opposition to any candidate for President or Vice President at any time before the adjournment of the online nominating convention of Americans Elect." Board member Christine Todd Whitman has been a particularly egregious violator this rule since her election to the AECorp Board in October of 2011. In a December 2011 Philadelphia Inquirer interview, when asked "What about Michele Bachmann or Herman Cain?" Whitman replied "Can't we do better? [....] If someone like a Michele Bachmann gets the presidential nomination, she would not be able to win the election." When asked, "You've said you like former Utah Gov. Jon Huntsman. Do you think he could be the Americans Elect nominee?" Whitman stated, "To me he's the type of candidate that would appeal to them. [....] I think he is someone who would have an appeal." (ii) On Fox News on Dec. 8, 2011 Whitman was asked "So you like Jon Huntsman, the former Governor of Utah?" and she replied "Personally, I like him [....] I hope...that he would consider this, because he’s someone with whom I think people would, people who are interested in Americans Elect would be very interested in him." (iii) In a December 2011 interview with Politico regarding Jon Huntsman as a potential third-party candidate, Whitman stated, "I would hope he would do it, frankly. He’s someone that I would support." Speaking of Barack Obama's prospects she also said "They’re thinking the president is not the leader they hoped he would be." (iv) In an October 2011 televised interview Whitman said "Jon Huntsman is someone of whom I have a great deal of respect for. He has a wide breadth of experience in the public sector, the private sector and international." In short, since her election to the Americans Elect Board of Directors, Whitman has repeatedly communicated in favor of presidential candidate Jon Huntsman (an Americans Elect draft candidate), and in opposition to numerous other candidates, in violation of Bylaw 4.12.


  1. To be precise, "the basis in law of the Corporation's very existence" is not the Bylaws, but the Articles of Incorporation. The Bylaws would be next in the hierarchy of importance after the Articles of Incorporation. I haven't been able to locate a copy of the Articles of Incorporation online yet, though.

    Also, Pre-Election Convention Rule 7.1 says, "If there are 10 or more Declared Candidates and Draft Candidates in total, three Primary Rounds of voting ... shall be held .... Fewer Primary Rounds may be held in the event of fewer than 10 Declared or Drafted Candidates to attain six candidates for the office of President in the Nominating Round of voting." In fact, fewer than 10 candidates have qualified for the primary rounds, so the requirement of having three primary rounds does not apply here. (A literal reading might require three primary rounds just because there were at least 10 candidates who declared or were drafted, but I think a more reasonable reading of the rule would require three primary rounds only if at least 10 candidates actually qualified.)

  2. Uh yeah...#3 - response to the platform - just popped in my head yesterday...

    This could've been so freakin cool...sigh


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