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Conclusion
Text of Inspectors Report
Date: Tue, 13 Jan 1998
Decision of the Inspectors of Election
on Complaints about Structure of Immigration Ballot
The Inspectors of Election have received three formal complaints, as well
as several less formal inquiries, about the basic structure of the Club's
1998 ballot questions on the Club's position on immigration to the United
States and the wording of what has been called Alternative B. This is a
question referred to the membership in September 1997 by the Board of
Directors, pursuant to Bylaw 11.1, in response to a question placed on the
ballot by petition of the members in January 1997, pursuant to Bylaw 11.2.
This initiated question, dubbed Alternative A when the board referred its
own resolution, essentially reverses the board's February 24, 1996
resolution mandating a position of neutrality by the Club "on immigration
levels or on policies governing immigration into the United States." In
addition, we have received a complaint asking for a choice of voting
against both proposals (in effect, "None of the above") and a minor
complaint about the ballot instructions.
Summary of Ruling. The major complaints are essentially that the choice
of A or B offered by the board, rather than allowing members to vote yes or
no on each question, violates Bylaw 11.3. This bylaw requires that the
ballot allow "the members to express approval or disapproval of each
resolution." We agree with the board that, if two resolutions are
opposites, the board meets this requirement by offering the members a
choice between them. However, we have concluded that the board's
Alternative B is not the opposite of the initiated question and that
therefore the A/B choice does not meet this requirement. To comply with
Bylaw 11.3, the board must either rewrite its resolution to meet squarely
what is offered in the initiated resolution or offer a Yes/No choice on
both resolutions.
Authority of Inspectors. The inspectors have broad authority to
supervise Club elections. Although the bylaws and standing rules contain
specific references to clerical functions such as counting the ballots,
reporting the results and deciding where the ballots are to be mailed,
Bylaw 5.5 gives the inspectors authority to "supervise the election."
Since at least Wheaton Smith's tenure as chief inspector, the inspectors
have exercised this authority broadly to insure fair Club elections. (The
newest references in the standing rules, however, in SR 5-2-5.10, imply
that the inspectors have a role in enforcement of the new spending limits,
in keeping with the supervision authority conferred by Bylaw 5.5.) The
broad language of Bylaw 5.5 is in keeping with what is apparently the
governing provision of the California Nonprofit Corporations Law, which
authorizes inspectors of election, if appointed for a written ballot, to
"do such acts as may be proper to conduct the election or vote with
fairness to all members." We conclude that we have jurisdiction over the
complaints, that is, to rule on them and order remedies.
Board of Directors' Power to Refer Resolutions to the Membership. The
board of directors has authority under Bylaw 11.1 to refer any measure to
the membership for a vote and to prescribe the form of the question. It
exercised this authority in placing Alternative B on the 1998 Club ballot.
The board also has authority, under Bylaw 11.1, to prescribe "the form in
which such question shall be submitted to the membership." It apparently
has no such authority over the form of questions initiated by the
membership, covered by Bylaw 11.2 (see below).
Required Form of Ballot. Bylaw 11.3, however, restricts the form of
resolutions on the ballot, whether initiated by the membership or referred
by the directors. It states: "The ballot shall be printed so as to enable
the members to express approval or disapproval of each resoltion." A
provision of California law to which one of the complainants referred us
is, if accurate, to the same effect, providing: "Such ballot shall ...
provide an opportunity to specify approval or disapproval of any proposal
...." The complainants, and earlier Alan Kuper and other proponents of the
initiated question, argue that this language requires that the members be
allowed to vote yes or no on each resolution. The board, however, on the
opinion of Club counsel, decided to give members the choice of A or B,
rather than Yes/No on each.
The board claims that this choice will produce a clearer expression of the
will of the members, the apparent intent of the quoted provision of Bylaw
11.3, and that it has the right to prescribe the form of the ballot.
However, the board's power to certify "the form" is only for questions it
refers to the membership under Bylaw 11.1; by contrast, Bylaw 11.2 provides
that the board shall "shall certify [the initiated resolution]," without
any provision about the form. (The only power over the form or content of
initiated measures is the power granted by Bylaw 11.2 to "specify the
procedure for the initiation and circulation of ... petitions, including
approval of the wording to assure that it is properly framed.") Nothing in
the bylaws appears to give the board power over the form of the ballot.
Reasoning Logically the opposite of A is "not A." If only the
initiated resolution (A) were to appear on the ballot and the members were
allowed to vote yes or no, that would meet the requirement: Yes would be a
vote to adopt the resolution, no would be a vote against, in this case to
keep the status quo. The board appears to be correct that a choice between
two opposing resolutions may also allow the expression of approval or
disapproval required by Bylaw 11.3. It may even allow a better expression
of the will of the electorate. This formulation requires that the
resolutions be not only different, but opposite in all important respects.
If Alternative B is exactly (or almost exactly) the opposite of A--if
anyone supporting A could not support B and vice versa--then B is really
"not A" and the board has "enable[d] the members to express approval or
disapproval of each resolution," as if they were allowed to vote yes or no
on A. If, however, B is not the opposite of A, the A vs. B choice does not
comply with Bylaw 11.3.
We can decide that question only by seeing what the initiated resolution,
if adopted, would do and whether the referred resolution merely does the
opposite.
Alternative A states:
Shall the Sierra Club reverse its decision adopted February 24, 1996, to
take no position on immigration levels or on policies governing immigration
into the United States and adopt a comprehensive population policy for the
United States that continues to advocate an end to U.S. population growth
at the earliest possible time through reduction in natural increase (birth
minus death), but now also through reduction in net immigration
(immigration minus emigration).
The February 24, 1996 resolution to which the initiated question refers
states: "The Sierra Club, its entities, and those speaking in its name will
take no position on immigration levels or on policies governing immigration
into the United States. The Club remains committed to environmental rights
and protections for all within our borders, without discrimination based on
immigration status."
This resolution reversed accumulated Club policy. The Club's Population
Committee adopted this policy in April 1988, confirmed by the Conservation
Coordinating Committee in July 1988: "Immigration to the U.S. should be no
greater than that which will permit achievement of population stabilization
in the U.S." An exposition in the Club's Population Report called for the
Club to "lend its voice to the congressional debate on legal immigration
... only on the issue of the number of immigrants--not where they come from
or their category." This policy reflected the implication of a policy
statement adopted by the Board of Directors in May 1978, which urged
Congress to "review U.S. immigration laws, policies, and practices ... [to
analyze] (1) the impact of immigration of different levels on population
trends in the United States, (2) the disproportionate burden on certain
states, and (3) the effect of immigration to the U.S. on population growth
and environmental quality in this country." The board put this analysis
into an international context, reasoning that
substantial international migration ... arises to a great extent from
the growing desperation in many societies. ... [I]nternational migration
can make only an insignificant contribution to easing world population
pressures. Currently, only the U.S., Canada, and Australia among all
countries accept more than a handful of permanent immigrants. All regions
of the world must reach a balance between their populations and resources.
Developing countries need to enlarge opportunities for their own residents,
thus increasing well-being, eventually lessening population growth rates,
and reducing the pressures to emigrate. Developed nations must work
towards greater conservation of resources as well as population
stabilization in order to reduce impact on depletion of non-renewable
resources, creation of pollution, and damage to ecosystems. This
combination would remove the root causes of international migration, by
providing more equitable opportunities for people throughout the world.
These portions of the May 1978 policy are more fully reproduced in a memo
emailed by Gene Coan on November 24, 1997 (subject: "Background on
Population Issue"), entitled "The Sierra Club's Policies on Population and
the Debate about Immigration."
The May 1978 policy also put the Sierra Club on record in favor of ending
U.S. population growth and tied this goal to consumption of resources: "All
developed nations, including the United States, being the countries with
impact on the world environment disproportionate to their population sizes,
have an obligation both to end their population growth as soon as feasible
and to substantially reduce their consumption of this planet's
non-renewable resources." A policy adopted in June 1970 and amended in
July 1995 also called for "stabilization of the population first of the
United States and then of the world."
If passed, the initiated ballot question, Alternative A, would (1) reverse
the first part (first sentence) of the February 1996 resolution; and (2)
require the Club to expand its advocacy of population control policy for
the U.S. from reduction in natural increase (birth minus death) and to
include reduction in net immigration (immigration minus emigration).
The question would require no other changes in Club policy, which, as
noted, ties population pressures to consumption and an understanding of the
pressures that cause migration; that is, it would change Club policy only
on U.S. immigration. It appears to be intended to build on the population
control policies of the Club quoted above. It would leave it to the board,
as Carl Pope has pointed out, to decide on the details of the new policy
advocating U.S. population growth reduction partly by reducing immigration
(or conceivably but improbably by increasing emigration).
It is obvious why the board of directors would want to put its own
resolution on the ballot against the initiated question, rather than just
making a well argued ballot statement: many voters may read the initiated
resolution but not the ballot statements. Putting an opposing resolution
on the ballot may catch the eye of these voters before they vote. This
appears to be a political decision that is well within the province of the
board, so long as it follows the requirements of Bylaw 11.3.
A resolution embodying the opposite of A would maintain the status quo by
allowing the board to keep its position that Club entities shall take no
position on immigration levels and policies on immigration into the U.S.
This would in turn preclude the advocacy of reduction in immigration
proposed in (2). Let's see whether B does this, or more or less.
The board's [November 16, 1997] referred question, Alternative B, provides:
The Sierra Club reaffirms its commitment to addressing the root causes of
global population problems and offers the following comprehensive approach:
the Sierra Club will build upon its effective efforts to champion the right
of all families to maternal and reproductive health care, and the
empowerment and equity of women. The Sierra Club will continue to address
the root causes of migration by encouraging sustainability, economic
security, human rights and environmentally responsible consumption. The
Sierra Club supports the decision of the Board of Directors to take no
position on U.S. immigration quotas and policies.
The referred question addresses the first part of the initiated question in
its last sentence. It appears only to support the power of the board to
require neutrality on the immigration issue (without restricting the
board's power to change its policy in the future). However, the question,
which purports to support the February 1996 board resolution that would be
overturned by the initiative, does not actually do this. The 1996
resolution dealt with "immigration levels"; B speaks of "immigration
quotas." This makes all the difference in the world, as Alan Kuper, the
leading proponent of the initiated question, has pointed out.
Immigration "level" means the total number of people admitted to the U.S.
in a year from all over the world. An immigration "quota" usually means
the number of people admitted from a country or perhaps region. Reducing
the level of immigration would reduce the number of immigrants without
regard to race or ethnicity (although it would fall hardest on those who
are most numerous as immigrants), whereas imposing or reducing quotas could
reduce the number of, say, Salvadorans or Mexicans or Hispanics generally
without cutting back on, say, the number of Irish or Swiss admitted.
Quotas are different. They are a dirty word in America, but particularly
in the world of immigration, where Jews and Italians and Chinese, as well
as Hispanics, remember the days of discriminatory or exclusionary quotas.
Nothing in the February 1996 resolution or in the initiated question
addresses the numbers of immigrants from individual countries or would
necessarily promote such a discriminatory policy.
When Inspector Barry Satlow protested this change of wording from the
February 1996 resolution to the board's ballot alternative at the November
1997 meeting, board members responded that the board did not have to repeat
its original resolution--it could add new policy--or that immigration
quotas are encompassed in the term "policies governing immigration" and
thus part of the 1996 resolution. This latter argument begs the question.
It is true in the broadest sense, but (1) if it is already included, why
bother to add "quotas" to "policies" in its referred resolution? and (2)
why did it leave out the issue of immigration levels, something that is
dealt with in the February 1996 resolution and in the initiated question?
The board may certainly propose new policy, but not if it wants B to be the
opposite of A's reversal of the original resolution. A choice between this
A and this B is not a choice between opposites, and members are not able
"to express approval or disapproval of each resolution."
The opinion of Club counsel on which the board relies simply does not
consider the difference between the language of the "support" for the board
resolution in the referred question and the language of the February 1996
resolution itself. Subsequent letters from counsel merely repeat this
analysis. Although we are not experts in California law, we cannot see how
this cursory reading can justify the structure chosen by the board.
We conclude that this divergence from pure opposition is enough to preclude
the A vs. B choice, but the referred question reaffirms several policy
positions (preceding the critical statement of support for the board's
immigration neutrality policy) that do not contradict anything in the
initiated question. For that reason as well, B is not the opposite of A.
The implication of this reaffirmation is that the initiated resolution
would reverse Club policy on these issues, including an approach to the
root causes of immigration, whereas it would reverse only the immigration
policy. In their Sierra magazine article, the proponents of the referred
measure make this implication stronger, stating that the measure "asks
members to reaffirm and maintain the Club's strong commitment to addressing
the root causes of global environmental problems."
We recognize the right of the board to put its own resolution on the
ballot. We also see why the proponents of the initiated question prefer
they had not. They would like to hold the contest on a field of their
choosing--their resolution. Although the question is already before the
members in the initiated question, the board has a right to muster all fair
means to oppose it, including its own formulation of the question.
Likewise, offering two precisely opposite questions with a choice between
them may offer a clearer expression of the will of the members than two
Yes/No choices. A vs. B will avoid the chance that the members will
approve (or reject) both questions, leaving Club policy in limbo. What the
board cannot do is pass off a variation of its original resolution as
exactly the opposite of the initiated question and require members to
choose between the two. It must either allow the members the right to say
yes or no to each resolution or present the opposite of A as its own
alternative.
A resolution crafted to be the opposite of A would support the original
1996 resolution, without changing the words to gain more appeal. It might
also explain the policy, based on other Club population policy, as the
February 1996 resolution attempted to do. It might say that explosive
population growth is more of an international than a national problem,
although we recognize that matching population nd resources is important
in all areas of the world. It might then say that it is more effective and
less divisive to attack the root causes of world population growth and of
migration, through birth control, support of women's rights, democracy and
labor organizing and prevention of war, than to deal with the U.S.
population problem and immigration separately and that the meager Club
resources available for population issues can be better spent on these
measures. It might even say that the members consider a position on
immigration a distraction from other important work and a threat to
coalitions that do that work (on clean air and water, wilderness,
endangered species and other environmental issues).
Conclusion Lead-in
We do not presume to write the resolution for the board. But explaining
the position in the resolution would not imply that the initiated measure
would wipe out this other population policy, in contrast to the
"reaffirmation" in the present resolution. Nor would it seem like an
attack on the good intentions of the proponents of the initiated question.
They are not trying to substitute immigration control for other aspects of
a comprehensive population policy or substitute U.S. population control for
world population control; they urge that both are necessary. Although many
of the non-environmentalists supporting reduction in immigration to the
U.S. are nativist or even racist and may not care about birth control or
the root causes of migration, this is not true of the proponents of the
initiated resolution. We do the Club harm when we imply that our activists
share these nativist sentiments. The issue, we think, is not really
whether the Club can advocate both on population control and on reduction
in immigration, but whether advocacy against immigration will interfere
with much of the Club's work, on wilderness and wildlife and public health
(clean air and water, toxics, etc.).
It is critical that the protagonists on this issue and other Club members
see the process as fair. If not, we invite a court challenge from the
initiators if they lose and, more important, continued dissension and
disruption. When the board played games with the forestry issue three or
four years ago, making it appear that yes meant no and no meant yes, this
only brought a stronger (and successful) challenge the next year and the
rise of slates and massive outside expenditures in the directors'
elections. The board has already fostered suspicion on the immigration
issue by allowing its executive committee to bury the issue of sanctions
(reimbursement of the Club was recommended) for the opponents of the
immigration petition who, the inspectors ruled, violated longstanding Club
rules by using Club resources in 1996 for a mailing attacking the petition,
perhaps keeping it off the 1997 ballot.
The Sierra Club is a democracy; losers are not purged.
We all have to live and work together when this election is over.
Population control is not a major focus of the Club. The Club policy in
favor of limiting immigration that was reversed in February 1996 does not
appear to have impinged on the Club's other environmental work. On the
other hand, even if the initiators win, they must understand that
immigration, like the issue of Lake Powell, will not be a Sierra Club
priority for the foreseeable future. It is important to get on with the
99+% of our work on which we generally agree.
Conclusion. The A vs. B choice on the current resolutions violates Bylaw
11.1. If the board changes its resolution to make it the opposite of the
initiated resolution, the A/B choice will be acceptable, and the ballot
instruction that says A and B are incompatible will be accurate. If the
board chooses to leave its resolution in its present form, it must provide
the members with a Yes/No choice on each question.
Additional Complaints. We have received a less serious complaint, that
members who may want to vote against both resolutions are disenfranchised.
Although members may already choose to vote for neither resolution, we
agree that it would be preferable to let them be heard, perhaps by offering
the choice "No on both" or "Neither." Contrary to the argument of the
complaint, defeat of both resolutions would have the same effect as voting
for B or not voting--preservation of the status quo, the February 1996
resolution. But we realize that some members would like to be able to
express their opinion of the board's resolution, as well as the initiated
question. Offering the choice would imply that there is a third position,
but the board has invited this implication, by attempting to place on the
ballot a resolution reaffirming the 1996 resolution, rather than just
relying on a vote against the initiated measure.
Finally, we have received a complaint about the instruction, "If you prefer
neither [question] or don't want to express an opinion, you need not vote
for either alternative." We deny this complaint. The instruction hardly
seems necessary, but we disagree with the objection that it is inaccurate.
This complaint seems to be a less articulated variant of the complaint
discussed just above and would be resolved by providing a "Neither" choice.
Issued by Barry Satlow, Sandy Tepfer and Marvin Baker January 12, 1998
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