The judicial codes counselor, Kendall Karr, law '18, and Travis Cabbell '18 disagreed over who had the authority to make the final ruling on whether a candidate should be disqualified.

Boris Tsang / Sun Assistant Photography Editor

The judicial codes counselor, Kendall Karr, law '18, and Travis Cabbell '18 disagreed over who had the authority to make the final ruling on whether a candidate should be disqualified.

April 13, 2018

JCC Was Intended to Be ‘Institutional Check’ on Elections Committee With Power to Overturn Rulings, Emails Show

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The director of the assemblies office said in 2015 that the judicial codes counselor could act as an “institutional check” on the Student Assembly Elections Committee and would be able to overturn the committee’s decisions based on a finding of bias, according to emails obtained by The Sun.

“The JCC may either uphold the decision of the Elections Committee or overturn it,”Gina Giambattista, the director of the Office of the Assemblies, wrote on March 3, 2015.

The correspondence about the authority of the judicial codes counselor in election disputes is at odds with the current evaluation of the S.A. president and S.A. elections committee. The judicial codes counselor, Kendall Karr, law ’18, and the elections committee have sparred in recent days over who has the final say in the committee’s disqualification of Varun Devatha ’19, one of two S.A. presidential candidates.

Karr has said that Devatha should be reinstated, while the elections committee, chaired by Travis Cabbell ’18, has said that he should be disqualified because a member of his campaign violated an election rule when she posted a meme with a Cornell logo. Karr and Cabbell both believe that they have the final authority in the matter, leading to an S.A. fiasco in which the results of the presidential race remain unclear.

The 2015 emails show that Giambattista and former directors of elections believed, at the time, that the judicial codes counselor had the final say in election disputes in which a candidate appeals based on alleged bias in the elections committee’s decision.

Giambattista wrote that the assemblies office had “received confirmation from the Office of the President that we may proceed with the proposal to have the JCC serve as [an] ‘institutional check’ for the Student Assembly elections.”

“The S.A. Elections Committee is the institution charged with creating, implementing, and applying the rules,” Giambattista wrote. “Thus, it is important that there be an institutional ‘check’ to the committee to ensure fairness.”

On Thursday, Gabe Kaufman ’18, S.A. vice president for finance, proposed a resolution (embedded below), which, if passed, would declare Karr’s report as the final ruling and name the presidential candidate with the most votes the winner.

S.A. members tabled Kaufman’s resolution at the end of a hectic and contentious three-hour meeting on Thursday amid shouting matches between assembly members and members of the public, leaving the winner of the presidential race between Devatha and Dale Barbaria ’18 unclear for a second day — or potentially for even longer.

The elections committee ruled on March 28 that a member of Devatha’s campaign had violated election rules by including a Cornell logo in a meme posted on Facebook that encouraged students to vote for Devatha. The committee disqualified Devatha, saying Barbaria was the winner by default. Devatha confirmed on Thursday that the student who posted the meme was on his campaign team.

Devatha appealed to Karr, who said in a report that she had found four instances of bias in the elections committee’s decision and said each finding, on its own, justified overturning Devatha’s disqualification. Cabbell has said that Karr’s report was purely advisory, that Karr did not have enough information to make her conclusions and that the elections committee acted carefully and without bias.

The candidates for Student Assembly president, Varun Devatha '19 and Dale Barbaria '19, at an S.A. meeting on Thursday, April 12, 2018.

Michael Wenye Li / Sun Photography Editor

The candidates for Student Assembly president, Varun Devatha ’19 and Dale Barbaria ’19, at an S.A. meeting on Thursday, April 12, 2018.

But the 2015 emails — shared with all S.A. members late on Thursday night by Kaufman — reveal that, at the time of its inception, Giambattista and the former directors of elections believed the judicial codes counselor’s role in election disputes was that of an appellate reviewer with final authority.

“The JCC would be charged with being the institutional ‘check’ [on] the S.A. Elections Committee,” Giambattista wrote to Kushagra Aniket ’15 and Matt Henderson ’15 in the 2015 email chain. Aniket and Henderson served as director of elections in the 2014-2015 and 2015-2016 academic years, respectively.

Giambattista wrote that the “institutional check” would be “written into the S.A. Election Rules,” and she referred to a passage of the rules that is now the basis for both of the opposing interpretations by Karr and Cabbell.

The rule reads: “If a disqualified candidate finds that the Elections Committee was biased in their application of the rules, they may request a review by the Judicial Codes Counselor (JCC). If the JCC review finds that the application of the rules was biased, the decision of the Elections Committee may be overturned.”

S.A. President Jung Won Kim '18 said publicly and in an email to the director of elections that he believes the elections committee has the final say in disqualifications, which emails indicate is at odds with the original purpose of involving the judicial codes counselor.

Michael Wenye Li / Sun Photography Editor

S.A. President Jung Won Kim ’18 said publicly and in an email to the director of elections that he believes the elections committee has the final say in disqualifications, which emails indicate is at odds with the original purpose of involving the judicial codes counselor.

Jung Won Kim ’18, the current S.A. president, Cabbell and several other S.A. members have maintained that the elections committee has the final say. Giambattista did not respond to a request for comment on Friday morning.

In a brief phone interview, Cabbell pointed out that this election season is the first time someone has appealed a ruling to the judicial codes counselor, so the counselor’s authority has never been tested.

“This is the first time,” he said. “Precedent is not decided for us. We are deciding that through this [process].”

Kim made his view clear in an email to Cabbell last week, shortly before Karr submitted her report to the Office of the Assemblies. He told Cabbell that “it is clear that the Elections Committee has final say after all requests for consideration and recommendations have been submitted” and cited a section of the election rules that says: “The determination of the committee after expiration or resolution of requests for reconsideration shall be final.”

Kim, in the email to Cabbell, urged the elections committee to “seriously take into account the contents of the report,” but referred to it as a “recommendation.”

“I trust that your committee will make the right decision for the integrity of the Elections process and for shared governance here at Cornell as well,” Kim said.

Gabe Kaufman '18, S.A. vice president for finance, right, introduced a resolution to invalidate the election committee's announcement and decide the S.A. presidential race based on which candidate earned the most votes.

Michael Wenye Li / Sun Photography Editor

Gabe Kaufman ’18, S.A. vice president for finance, right, introduced a resolution to invalidate the elections committee’s announcement and decide the S.A. presidential race based on which candidate earned the most votes.

The dispute over whether the election rules give the judicial codes counselor the right to overturn the committee’s disqualification — or if the counselor’s report is just an advisory opinion for the committee to consider — has upended the presidential race and led to a situation, 15 days after voting ended, in which a successor to Kim has not been determined.

Kaufman’s resolution, which the assembly discussed on Thursday but did not vote on, said the elections committee had inaccurately continued to claim that Devatha remains disqualified after Karr’s report.

The presidential results released on Wednesday, which name Barbaria as the next president, should be invalidated, Kaufman said, and his resolution called on the Office of the Assemblies to release the vote count in the race — which has been withheld throughout the controversy — and for the election to be decided by the numbers.

“My opinion is that there is no reason that Varun should have been disqualified,” Kaufman said, adding: “The person that should become S.A. president is the person who got the most votes in the election.”

S.A. members tabled a resolution at the end of a hectic and contentious three-hour meeting on Thursday, April 12, 2018.

Boris Tsang / Sun Assistant Photography Editor

S.A. members tabled a resolution at the end of a hectic and contentious three-hour meeting on Thursday, April 12, 2018.

Vote totals for disqualified candidates are generally destroyed, but Devatha said on Thursday that Karr had requested that the Office of the Assemblies preserve the votes and any other evidence until the disagreement between Karr and the elections committee is resolved.

Kaufman sat on a panel at the Thursday meeting with Cabbell and Karr, as attendees and representatives debated what to do next in heated discussions.

Cabbell said the elections committee had additional documentation explaining its decision and noted that candidates are “responsible for anyone acting on your behalf — anyone on your campaign team.”

Karr’s report “is full of personal opinions and inaccurate information,” Cabbell said. “Our interpretation, as well as what we enforced, was that we had the final say.”

Karr told the assembly that, “For me, this situation has nothing to do with vests, memes or Facebook posts,” an apparent reference to Devatha’s campaign slogan: “Vest in Varun.”

“This isn’t about why Varun was disqualified, it was about how he was disqualified,” she said.

“There were such procedural errors that any decision that they reached had to be overturned,” Karr said. “I found bias, and it wasn’t a recommendation, it was a ruling.

The parliamentarian, Zachary Schmetterer '18, counts votes during a procedural vote at a Student Assembly Meeting on Thursday, April 12th, 2018.

Boris Tsang / Sun Assistant Photography Editor

The parliamentarian, Zachary Schmetterer ’18, counts votes during a procedural vote at a Student Assembly Meeting on Thursday, April 12th, 2018.

S.A. members have repeatedly said that the drawn out process is a bad look for the assembly and will make governing more difficult for whichever candidate is determined to be the winner. Online criticism of the elections committee’s decision and both candidates has also taken its toll, students have said.

Barbara Cruz ’19, one of many students who attended the meeting, told S.A. members that she was disappointed by rude online posts from S.A. members themselves, which she said were “tainting this whole process.”

“I see several members of the Student Assembly posting really ridiculous, really immature things,” she said, later commending Barbaria and Devatha for not taking part in the posts.

The assembly is scheduled to vote on Kaufman’s resolution, Resolution 44, on April 19, although its members could call a special meeting before then.