Cabell's Work-in-Progress [3 Feb. 99] for the
Membership Advisory Committee Report
(includes comments from MAC,  membership@icann.org and
Berkman Representation in Cyberspace Study)

Comments from Berkman's January 23 Workshop Elections breakout are in green text

ICANN By-Laws Article V Section 9(c):

At Large Board members other than those serving on the Initial Board shall be elected by a process to be determined by a majority vote of all At Large members of the Initial Board, following solicitation of input from the Advisory Committee on Membership described in Section 3 of Article VII and other interested parties and consideration of all such suggestions. At a minimum, such a process shall consist of nominations from Internet users, industry participants, and organizations, and should give consideration to such nominees. Such process shall call for election of At Large directors by one or more categories of members of the Corporation admitted pursuant to qualifications established by majority vote of the At Large members of the Initial Board.


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:

Cheap, easy, low-maintenance, more representational.  Higher risk of fraud, spoofed candidacies, under-qualified candidates, potential for oversubscription that makes a thorough candidate evaluation unduly burdensome on voters.

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:

5.4  Nominating Committee
May produce more qualified and authentic candidates with track record of accomplishment; limits range of choice, less representational. 6.0  ELECTION OF AT-LARGE DIRECTORS

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.  Voting Classes

    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)

    6.3   International Representation

    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  Regional classes/election pools to ensure regional representation? Revise by-laws to eliminate board-wide regional cap and add regional requirements for SO candidates: Revise by-laws to use language or demographics rather than geography as means of representation  Regional Identification - by self-nomination?

    Africa Africa plus mid-East to Iran, and West Indian Ocean Islands
    Asia/Aust/Pacific Mid-East, Pakistan, India, China, Japan, eastern India, Afghanistan and countries to the East, including East Indian Ocean islands, Antarctica, exclude US and L.American possessions.
    Europe E. & W. Europe, N. Atlantic islands, Scandinavia, Turkey, Russian
    Federation plus previous members of USSR
    Latin America Continental nations plus their possessions, Caribbean Islands,
    S. Atlantic Islands
    North America USA, Canada (including territories and possessions)
    Undecided Georgia, Armenia, Azerbaijan, Turkey (Eu or As)? See http://www.state.gov and http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm

    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.
    6.4.3  Waiting Period
    3-month waiting period recommended to avoid packing rolls for a particular issue.

    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

    6.4.6  Number of Candidates
    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).
    The by-laws currently call for staggered elections, 3 each year.  Public comment suggested that putting all seats up for election each year would result in more representational voting (in that a minority interest might have a better chance of electing its own representative if only 1/9 of the total votes would be needed, as opposed to 1/3 of the votes).  The disadvantage of this plan is that it reduces continuity, entails inefficiency while new directors become educated on issues and allows capture of the membership by 9 special interest groups.

    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.

    6.5.1  Fraud

    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.


    7.1  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.
    Should ratification be processed in the same manner as an election or should greater security be required?
    Can AL members propose changes?  If so, how and under what constraints?
    At present, ICANN By-laws only permit members to ratify amendments to Articles.  California Code grants members (who elect directors) the right to amend By-laws as well.

    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