5.0  NOMINATION OF AT-LARGE CANDIDATES

California Code

5521.  A corporation with 500 or more members may provide that, except for directors who are elected as authorized by Section 5152 [delegates] or 5153 [organizational members], and except as provided in Section 5522 [below], any person who is qualified to be elected to the board of directors of the corporation may be nominated:
   (a) By any method authorized by the bylaws, or if no method is set forth in the bylaws by any method authorized by the board.
   (b) By petition delivered to an officer of the corporation, signed within 11 months preceding the next time directors will be elected, by members representing the following number of votes: (under 500 members, 2%; over 5000, minimum of 100, etc.)
   (c) If there is a meeting to elect directors, by any member present at the meeting in person or by proxy if proxies are permitted.

5522.  A corporation with 5,000 or more members may provide that, in any election of a director or directors by members of the corporation except for an election authorized by Section 5152 or 5153.
   (a) The corporation's articles or bylaws shall set a date for the close of nominations for the board.  The date shall not be less than 50 nor more than 120 days before the day directors are to be elected.   No nominations for the board can be made after the date set for the close of nominations.
   (b) If more people are nominated for the board than can be elected, the election shall take place by means of a procedure which allows all nominees a reasonable opportunity to solicit votes and all members a reasonable opportunity to choose among the nominees.
   (c) A nominee shall have a reasonable opportunity to communicate to the members the nominee's qualifications and the reasons for the nominee's candidacy.
   (d) If after the close of nominations the number of people nominated for the board is not more than the number of directors to be elected, the corporation may without further action declare that those nominated and qualified to be elected have been elected.

There are a range of processes for nominating candidates for the Board of Directors.  On the low-cost, low-tech, directly representative end is self-nomination.  Some disadvantages include having too many candidates for the electorate to properly assess and an excess of spoofed candidates or other forms of fraud.  A mid-range solution would be to combine self-nomination with some show of additional Membership support.  On the highly structured end, a Nominating Committee responsible for selecting a slate and overseeing secured voting mechanisms would likely produce more reliable candidates but the costs could be quite burdensome.

A preference was expressed at the Berkman Workshop for establishing non-judgmental criteria for candidates in order to provide a more authentic candidate and assist voters to make an evaluation. A standing nominating committee might be established to oversee the mechanics of the election/ratification processes.

5.1.  Any member may be nominated by any individual or organization or by self-nomination unless disqualified on objective grounds such as:

• Concurrent service as an SO-elected Director
• 2-term limit as per by-laws (V.9.d)
• Government official as per by-laws (V.5)
• Recent Initial Board member as per by-laws (V.1)
• Member of Nomination Committee
• ?Campaign fraud

5.2. Any member may be nominated as in 5.1 with show of support from (X) members
Helps keep list of candidates small enough for voters to adequately investigate and assess the choices

5.3.  Any member can self-nominate as in 5.1.1, on petition and provision of verifiable information concerning objective criteria:

• identity,
• office sought,
• bio of not more than 250 words,
• platform statement of not more than 250 words,
• Internet access adequate to fulfill responsibilities of office,
• commitment to providing adequate personal time to fulfill responsibilities of office (specific number of hours? specific level of service?),
• willingness to pay for/provide translation if necessary (How would this  constrain candidates?)
• citizenship at the time of nomination as defined by country of claimed citizenship
• sources of income and conflicts of interest (latter needs definition)
• ? Other possible criteria:

---showing of additional support from membership (validates candidate and reduces over participation)
---statement of actual age or a claim of adulthood
---Nominating Committee recommendation

• Oversee the mechanics of elections and ratifications (e.g., authenticating candidates, confirming criteria, mailing ballots, etc.)
• Identify a slate of candidates (based on consensus criteria; based on pre-determined values)

Standing committee; use existing MAC structure for this purpose with future members appointed by the permanent ICANN board?

6.1.  Campaigns

California Code

5523.  A corporation with 500 or more members may provide that where it distributes any written election material soliciting a vote for any nominee for director at the corporation's expense, it shall make available, at the corporation's expense to each other nominee, in or with the same material, the same amount of space that is provided any other nominee, with equal prominence, to be used by the nominee for a purpose reasonably related to the election.

5524.  A corporation with 500 or more members may provide that upon written request by any nominee for election to the board and the payment with such request of the reasonable costs of mailing (including postage) the corporation shall within 10 business days after such request (provided payment has been made) mail to all members, or such portion of them as the nominee may reasonably specify, any material, which the nominee may furnish and which is reasonably related to the election, unless the corporation within five business days after the request allows the nominee, at the corporation's option, the rights set forth in either paragraph (1) or (2) of subdivision (a) of Section 6330.

5525.  (a) This section shall apply to corporations publishing or mailing materials on behalf of any nominee in connection with procedures for the nomination and election of directors.
   (b) Neither the corporation, nor its agents, officers, directors, or employees, may be held criminally liable, liable for any negligence (active or passive) or otherwise liable for damages to any person on account of any material which is supplied by a nominee for director and which it mails or publishes in procedures intended to comply with Section 5520 or pursuant to Section 5523 or 5524, but the nominee on whose behalf such material was published or mailed shall be liable and shall indemnify and hold the corporation, its agents, officers, directors and employees and each of them harmless from all demands, costs, including reasonable legal fees and expenses, claims, damages and causes of action arising out of such material or any such mailing or publication.
   (c) Nothing in this section shall prevent a corporation or any of its agents, officers, directors, or employees from seeking a court order providing that the corporation need not mail or publish material tendered by or on behalf of a nominee under this article on the ground the material will expose the moving party to liability.
 

Minimum campaign is a simple list of candidates on the ICANN website (including criteria data); could include links to home pages. Campaign mailings as per 5524 would benefit wealthy candidates.

? Ban against private campaign funding?

Could offer a campaign listserv for discussion; an e-mail Q & A with queries from moderators/members; streaming video/audio debates

Translation services are desirable but expensive.  Link to online services?  Ask for volunteers?

Constrained by Art. V.9.e:

"Resources of the Corp. shall not be expended in support of any campaign of any nominee for the Board."

6.2.1.  Individuals
Only one opportunity to vote in an election per member; no disqualification by virtue of membership in SO or employer because too burdensome to investigate and neither should be a disqualification per se

6.2.2.  Organizations (corporations, associations)

• Voting or Non-voting?
• Voting for directors or voting on ratification/referenda?
• Weight of vote? Separate classes for profit vs. non-profit?
• Separate classes for corporate vs. association?
• Separate candidate pools?  Each class elects its own directors, possibly more than 9 total, so in a 2d. round from those the 9 could be selected to fulfill the geo-rules
• How to verify corporate or association status?
• How to verify representative?

The consensus of the Berkman Workshop breakout session is that the current by-laws concerning international representation (Article V Section 6) appear to be unnecessarily complicated and nearly unworkable.  They should be revised to simplify the means of securing regional representation on the Board.

6.3.1  Regional Representation

6.3.1.1  Regional classes/election pools to ensure regional representation?

• At Large members elect 5 candidates from each regional pool.  From this panel a lottery will be used to select the 2 directors within each pool (rotate allocation of the shorted region).

• No SO may nominate more than one director from any one region.
• Under that plan, for example all three SOs might nominate one US, one EU, one LA, so there would be 3 US, 3 EU and 3 LAs at this point.
• The At Large must first nominate the candidate from each region with the highest number of votes (all members can vote across all regions).  This adds one US, one EU, one LA, one AFR, one PAC to the pile.  We now have 4 US, 4 EU, 4 LA, 1 AFR and 1 PAC
• No more than 4 At Large directors can come from the same region.  At this point only 3 of these can come from US, EU or LA.
• The remaining directors (4) shall be the 4 remaining candidates with the highest total number of votes, selected in descending order, omitting any candidate who regional quota has already been met.

6.3.1.3  Regional Identification - by self-nomination?
 

6.4  Voting Mechanics

6.4.1  Authentication of Voter
The consensus of the Berkman Workshop breakout group was that identification and authentication should occur at the point of membership registration.  At this point, an ICANN identifier can be assigned which will be used to forward ballots.  Secrecy and anonymity are primary goals.  No organization should be permitted to barter for votes or vote on behalf of individuals.

6.4.2  Ballots
Members can be assigned codes at time of registration to authenticate votes.  Paper ballots (with double envelopes) can be used for greater security. Digital certificates are expensive, not available everywhere, and not very user-friendly. CD-ROM diskette applications bear further investigation.

California Code

5513 (e) Directors may be elected by written ballot under this section, where authorized by the articles or bylaws, except that election by written ballot may not be authorized where the directors are elected by cumulative voting pursuant to Section 5616.

6.4.4  Voter Quorum
Is a minimum quorum required to avoid capture of the disinterested commons or correct for lack of a competitive field of candidates within a region?  Are there alternative solutions to the possible problem of insufficient participation, such as allowing residents of the geographic regions to stand as candidates?

6.4.5  Voting Method

• Single Transferable Vote(STV)/English Preferential Ballot (Voters are asked to rank all candidates in order of preference.  All 1st preferences are tallied and the candidate with least amount of 1st place rankings is eliminated; the ballots for that candidate are then distributed among the remaining candidates according to their 2nd place preferences. This is repeated until the number of candidates remaining is equal to the number of positions open.)  Disadvantage is voter confusion and disconnection with final results.
• Cumulative (If there are three positions open, a voter can use all three of his votes for one candidate or may divide them among different candidates.  Candidate with highest number of votes wins.) The California Corporations code specifically provides for cumulative voting for directors.  See http://caselaw.findlaw.com/cgi-bin/getcode.pl?code=CA&law=corp&frame=right2&art=5610-5617 for the code provisions on membership voting in non-profit corporations
• Simple Plurality (If there are three positions open, a voter may cast up to three votes, but must divide them among different candidates.  Candidate with highest number of votes wins.)
• Approval Voting (Vote yes or no for each candidate, then a simple tally) or Offset Approval (vote each candidate with a number between +10 and -50)" or "Rational Approval (vote yes or no for each candidate, and divide the yes count by the no count).

California Code

5151(b) Once members have been admitted, a bylaw specifying or changing a fixed number of directors or the maximum or minimum number or changing from a fixed to a variable board or vice versa may only
be adopted by approval of the members (Section 5034).

There is continuing concern that turnout/interest will be too low to ensure a representational Board.

6.5  Enforcement

California Code

5527.  An action challenging the validity of any election, appointment or removal of a director or directors must be commenced within nine months after the election, appointment or removal.  If no such action is commenced, in the absence of fraud, any election, appointment or removal of a director is conclusively presumed valid nine months thereafter.

• The potential for fraud runs through the entire process of nominating and electing candidates and there is little chance at present that a cost-effective mechanism exists to eliminate it entirely.  Any solution will be a compromise solution.   Member identification and authentication should occur at the point of membership registration.  Voter authentication should stem from member identification.

6.5.2   Election Management
ICANN staff, Nom Com, Internal Review, external professional organization?
Who investigates complaints and assesses misconduct?
What is the cost of such efforts?
Should Nom Com subsumed into a standing Elections Committee?

6.5.2  Pre-Election Protections
Rely on the honesty of voters; rely on the public to flag problems
Require candidates to submit sworn statements verifying eligibility
Pre-election 3-month waiting period to discourage last minute manipulation of voter registration
Randomly sample and inspect registrations or votes (What would you look for?)

6.5.3  Post-Election Protections
Disqualification of candidate for candidate fraud (but not for voter fraud if candidate cannot be shown to be responsible)
De-certification of organizations engaged in calculated voting fraud
De-certification of election results for extensive voter fraud

6. 6  Fees
Fees/dues charged to cover the reasonable costs of membership authentication and registration are acceptable.  This should not be considered a poll tax.

7.0  RATIFICATIONS & OTHER PRIVILEGES

7.1  Ratification of Articles & By-Laws

California Code

5150.  (a) Except as provided in subdivision (c), and Sections 5151, 5220, 5224, 5512, 5613, and 5616, bylaws may be adopted, amended or repealed by the board unless the action would materially and adversely affect the rights of members as to voting or transfer.
   (b) Bylaws may be adopted, amended or repealed by approval of members (Section 5034); provided, however, that such adoption, amendment or repeal also requires approval by the members of a class if such action would materially and adversely affect the rights of that class as to voting or transfer in a manner different than such action affects another class.
   (c) The articles or bylaws may restrict or eliminate the power of the board to adopt, amend or repeal any or all bylaws, subject to subdivision (e) of Section 5151.
   (d) Bylaws may also provide that repeal or amendment of those bylaws, or the repeal or amendment of specified portions of those bylaws, may occur only with the approval in writing of a specified person or persons other than the board or members.

7.2  Referenda
Should the membership be able to propose policy?  Under what circumstances could the membership be solicited for opinion?  Should ICANN host a permanent listserv?
Possibility for call-back of director?
Access to information
Access to discussions