Five Union Senators have filed a Union Judiciary (UJ) case challenging the decision that a Union Constitutional amendment aimed at revamping union finances passed by a two-thirds vote. The petitioners, who named the entire Union Government as the defendant instead of Union Secretary Danny Silverman '05, who certified the vote, claim that abstain votes should have been included when calculating if the amendment received two-thirds of the vote.

After the case was filed, the UJ issued a "gag order" Sunday night requesting that parties involved in the case "refrain from discussing the financial amendment in any capacity with any member of the Brandeis community."

Silverman certified the vote last Wed. saying the amendment passed by a vote of 591 (76.8%) in favor to 180 (23.2%) against, with 133 abstentions.

The Union Constitution states that an amendment passes if "two-thirds of the voting members of the Union vote in favor of the amendment." The petitioners, who include Union Senators Mitchel Balsam '05, Jonathan Cohen '06, Mark Samburg '07, Gabriel Reif '04 and Andrew Katz '06, claim that anyone who abstains also counts as a voting member. As a result, the petition claims that the amendment should have failed as only 65.4% of the 904 total votes were in favor of the amendment.

Silverman said in an e-mail to the Justice that according to "Robert's Rules of Order," on which the Union Constitution and Bylaws are based, abstension is defined as a decision not to vote. He also said that the rules make the "clear distinction" between times when a vote requires a certain proportion of the membership as opposed to a percentage of the voting membership.

"In cases such as ours where only the voting membership is counted, abstains do not count in determining the total vote count," Silverman said.

President of the Brandeis Orthodox Organization Yoni Goodman '04, who is not a party in the case but supports it, told the Justice in an e-mail he believes that, "there were ethical if not legal principles that were violated in the running of this election."

"Though I considered filing the suite, I decided not to do so because I felt that it conflicted with other elements of campus that I am involved in," Goodman said. "The counting process needs to be examined. Hearing that others were interested in pursuing these ends I decided to pull myself from the process."

Goodman said he believes that the case is important. "(It) is serving as a needed check on the office of the Union Secretary," he said. It will also "set straight the procedural question of whether or not abstentions need to be counted."

"It is disturbing, but my research shows that in the past, secretaries determined vote counting policies as they pleased," Goodman said.

The UJ e-mailed everyone in Union Government Sunday night notifying them of the "gag-order."

"Although we realize that this will apply to a large group of people, many of whom may not view themselves as personally involved in the case, we believe that it is important that this injunction against implementation of the financial amendment, including publicity, be applied to the named defendant," the UJ's e-mail said.

"Because the pending case regards the legitimacy of the financial amendment, we believe that the publicity that the amendment receives at this time has the potential to unfairly affect its future," the e-mail said. "Please consider this decision to be in effect until this matter is resolved."

A follow-up e-mail was later sent by the UJ after receiving "valid questions regarding the authority of the UJ."

"The Union Judiciary is not the Supreme Court of the United States; we do not have jail cells or penal measures," it stated. "Consider that email a request at the behest of the UJ not to discuss the Financial Amendment with those outside the named parties in the suit. Obviously we have no means to enforce a so called "gag order" but we consider actions such as these necessary in order to ensure fair proceedings for the remainder of this matter."

Justices on the UJ did not respond to the Justice's request for comment.

According to Adam Herman '04, Assistant to the Union President, during his tenure as Union Secretary in 2001-2002 he only allowed for two choices on Constitutional amendments, "in-favor" and "against:" abstain wasn't an option.

Last year, however, on some amendments voters were given four choices of in-favor, against, abstain or no-vote - with no vote not counting towards the total number of votes.

According to Silverman, the "no-vote" option is a construct of the UNet elections system which is used during votes. He wrote in the e-mail that "the system in no way conforms to the Union Constitution or Union policy, and the labeling and tallying methods it uses are irrelevant to what we do."

"It is my personal belief that abstentions should always be counted," Goodman said. "People who vote to abstain are clearly distinguishable from the students who do not log onto the system to vote. Regardless of what past policy has been, this seems most logical to me. Further, a 'no vote' option should be instituted because it would make the distinction between abstaining and not voting crystal clear."

"It is clear that our Constitution does not handle elections and votes in a clear and consistent manner, and a voting review similar to what we did with finances is probably in order," Silverman said. "This case is not the correct way to go about conducting a full and fair review of the provisions of the Constitution that deal with balloting."

"Just because someone disagrees with a vote doesn't mean they can just go and try to overturn the will of the voters," Silverman said. "No one has demonstrated that this vote was carried out in a way that is inconsistent with the last ten amendments and petition votes."

During the vote, Goodman, in an e-mail to BOO, said that he opposes the amendment because he believes its requirement to "open some financial information to the public" would hurt the amount of money BOO receives from the Allocations Board (A-board) - which the amendment would replace with a different board named the Finance Board.

"I believe the vote on this amendment was fair and consistent with Union practice." Silverman said. "The Constitution was followed fully and accurately."

"It is just silly to think that 'abstain' means the same as 'no' - If it meant the same thing, why would we have it? Abstain is a decision not to vote and a symbolic way of saying so," Silverman said.

Union President Josh Brandfon '05 agrees. He said that he believes abstentions do not count towards the total number of "votes." However, Brandfon said he chose to abide by the UJ's "gag-order" and refused any further comment on the case.

"If the court feels that there is possible harm caused by additional communication beyond the all campus e-mail, press release and web site postings, then we will abide by their request to not speak about the amendment," Brandfon said.

No one from the party filing the case commented on the matter to the Justice.