Max Fees, an Undergraduate Student Government Tempe presidential candidate, filed a lawsuit in federal court Monday asking a judge to instruct ASU to overturn his disqualification, one day before the Palmer ticket was inaugurated into executive office.
The suit, Fees v. Arizona State University, says the University should understand the Fees ticket's disqualification as a violation of the First Amendment and denounce parts of the election code, which the lawsuit says asks candidates to restrain political speech.
The Associated Students for ASU Supreme Court Chief Justice inaugurated the Palmer ticket Tuesday, making Jacqueline Palmer president, Kajol Kapadia vice president of policy and Josh Freid vice president of services for next school year.
If a judge sides with Fees, David Jordan, the lawyer representing Fees and a 1988 ASU graduate, said he will ask the court to remove the seated officers.
Palmer, a senior studying political science, business law and marketing, said it was "disheartening" that a process meant to serve students would be drawn out for so long.
"ASU is facing a lot right now," Palmer said, referencing the new coronavirus and its economic and social impacts. "We need to make sure things are being dealt with, and if this process is delayed any longer, the repercussions the student body will face are too great."
When election results were first announced, only a few senate races were final while the executive race went to a runoff. The Fees ticket won the popular vote with 2,239 votes, 344 more than Palmer's 1,895.
However, the ASASU Supreme Court announced the results were under review as they discussed possible election code violations committed by the Fees ticket during the runoff period.
Among violations resulting in 15 infraction points after debate were promotion of the election by a non-campaign staff member, proposal of damaging actions against an opponent by a non-campaign staff member and damage of campaign materials on social media.
Fees' lawsuit, filed in the U.S. District Court of Arizona, is broken into several sections: Fees was disqualified for free speech on Instagram, for failing to police the free speech of other students and how Fees appealed to ASU to protest free speech violations.
"We assert that the penalties assigned to the campaign by the student court are both a failure of reason and a failure to apply the Election Rules as written," a statement from the Fees ticket said.
The suit argues none of the social media content was "destroyed, tampered, removed" by members of the Fees ticket – with Fees for president, Jack Fuller for vice president of policy and Emma Short for vice president of services – rather, supporters added likes and comments to "increase visibility," the suit says.
The Fees ticket received infraction points from the student court for instructing supporters in a large group chat to like comments supporting their campaign rather than the Palmer ticket.
The suit claims the Fees ticket was not alone in liking comments made on the @tempebarstool Instagram account to promote support for campaigns.
"The Tempebarstool account was akin to a rally," the suit says. "In a rally, both sides organize supporters hoping that the support of these persons will be more visible than the support given to their opponent."
The Fees ticket received nine infraction points for malicious intent to take down campaigning done on social media. But the suit claims Fees was solely punished for "content-based reasons" and for the speech of the ASU community on a public social media platform, violating the First Amendment rights of Fees and his supporters.
The second section claims promotion of the election by non-campaign members was another violation of the First Amendment.
During the runoff period, Fuller and several other students were found to have made comments over a Zoom call to their teaching assistant before the start of class. The ASASU Supreme Court said the conversation violated the rules by displaying election advertisements in class.
The suit claims precedent from the case outlines disqualifying actions as any speech by a student concerning public elections within the school that could injure a candidate.
"In the future, to avoid disqualification, a candidate will have to engage in massive prior restraints of the free speech of ASU students," the suit says. "Prudent candidates would have to police every ASU speech forum to ensure that no student would be allowed to make any statement to anyone that could possibly be construed as an 'in class' election statement."
The last section claims that after the Fees ticket was disqualified on April 25, the team made several attempts to reach out to the University about an independent review in order to "evaluate the apparent violation of First Amendment rights and students' rights to due process," the suit says.
On April 28, the ASASU Supreme Court issued a timeline for reassessment of the decision, that announced reversing the decision to disqualify was not off the table. On May 28, the decision was final and the Palmer ticket was still the next to take executive office.
Since the reassessment, Fees has asked the University's general counsel to delay inauguration in order to discuss the First Amendment. The University did not respond, according to the suit, and inauguration went on as planned.
"ASU provided inadequate oversight necessary to comprehend how modern political speech is exercised in digital media or to protect the First Amendment Rights of Expect More candidates and of our supporters," a statement from the Fees ticket said.
The University, Arizona Board of Regents and ASU Elections Department does not comment on pending litigation.
Precedent and similar cases
Fees' lawyer points to Flint v. Dennison, a 2004 case filed by a student against then president of the University of Montana about student government elections, as a similar scenario.
Aaron Flint exceeded campaign finance limits set by the student senate and ended up winning the popular vote. He was denied his seat for spending almost over $115 more than was allotted to him.
Flint responded by filing a suit against the university's president and collective student government claiming the spending cap was a violation of his free speech rights under the First Amendment.
The court denied Flint's injunction, writing most U.S. courts respect the right of educational institutions to ensure their missions even if that means some First Amendment rights are denied. The opinion in Flint's case quotes a number of cases dealing with free speech in school, making it clear restrictions on speech for adults are a lot less than those for students.
While the facts from Flint are different than those in the Fees v. ASU case, Jordan said there is a similar framework. He explained in an email that "the Ninth Circuit established that there can be First Amendment violations in such elections and showed us how to evaluate them."
The Flint opinion quotes Alabama Student Party v. Student Government Association agreeing with the sentiment that "this is a university, whose primary purpose is education, not electioneering" and wrote in their own opinion that "educational interests outweigh the free speech interests of the students who campaigned."
Prior to Flint, there was no precedent on how to deal with free speech in student elections but the case gave an example of how a conversation should be dealt with.
"A content-based restriction on speech in a public or designated public forum is subject to strict scrutiny, requiring the state to show a compelling interest in the restriction that is drawn narrowly to meet that interest," the Flint opinion says.
While the Flint case was about expenditures that impact everyone equally when campaigning, Jordan said their case is not content neutral.
"In our case, we are arguing that they punished Max uniquely for pro-Fees speech on Instagram. His opponent’s supporters were also promoting their candidate on the Tempebarstool account, but only the pro-Fees posts and likes merited punishment," Jordan said in an email.
Correction: This article incorrectly stated the number of infraction points the Fees ticket received from social media. The article was updated at 2:21 on June 12 to correct the error.
Reach the reporters at pjhanse1@asu.edu and follow @piperjhansen on Twitter.
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Piper Hansen is the digital editor-in-chief at The State Press, overseeing all digital content. Joining SP in Spring 2020, she has covered student government, housing and COVID-19. She has previously written about state politics for The Arizona Republic and the Arizona Capitol Times and covers social justice for Cronkite News.
