MEMORANDUM

TO: Office of the Assemblies

FROM: Kendall Karr, Judicial Codes Counselor
DATE: Saturday, April 7, 2018
RE: Disqualification of Varun Devatha Review
CC: Student Assembly Elections Committee; Office of the President; Varun Devatha

Executive Summary
• The Student Assembly Elections Committee (the “Committee”) applied the Student
Assembly Election Rules (the “Rules”) in a biased and unfair manner when it disqualified
Varun Devatha from the Student Assembly Presidential Race.
• The Committee acted with bias when:
o Committee members who were required to recuse themselves failed to do so,
o the Committee improperly broadened the scope of the reconsideration hearing to
avoid addressing the specific findings of the disqualification in the initial report,
o Committee members participated in a vote without being present for testimony and
deliberations, and
o the Committee failed to produce a minimally acceptable report, hindering the
disqualified candidate’s ability to create a compelling request for reconsideration
and the Judicial Codes Counselor’s ability to fully review the Committee’s actions
for bias.
• A non-superfluous reading of the Rules vests the power to overturn the Committee’s
decision in the Judicial Codes Counselor. To uphold the integrity of the Student Assembly
elections process, the Judicial Codes Counselor overturns the Elections Committee’s
decision to disqualify Devatha.

Introduction
In 2015, the Office of the President approved the Judicial Codes Counselor to serve in a
capacity of “institutional check” for the Student Assembly Elections Committee and Trustee
Nominating Committee, replacing the Ombudsman and the Senior Director of Campus Relations,
who previously served that role. The Student Assembly Election Rules state, “If a disqualified
candidate finds that the Elections Committee was biased in their application of the rules, they may
request a review by the Judicial Codes Counselor (JCC). If the JCC review finds that the
application of the rules was biased, the decision of the Elections Committee may be overturned.”
In the instant case, on March 28, 2018, Varun Devatha was challenged for violating a rule
that prohibited the inclusion of the Cornell insignia and logo in promotional materials in Student
Assembly election campaigns. Subsequently, the Student Assembly Elections Committee
disqualified Devatha. On March 29, 2018, Devatha requested that the Committee reconsider its
decision. The Committee upheld its decision. On March 30, 2018, Devatha requested a review by
the Judicial Codes Counselor. After due consideration, the Judicial Codes Counselor finds that the

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Committee applied the Rules in a biased manner, and the Judicial Codes Counselor has decided to
overturn the Committee’s decision to disqualify Devatha.

Discussion
A. Findings of Bias in the Committee’s Application of the Rules
1. Conflicted Committee members’ failure to recuse themselves was a violation of the Rules
and created procedural bias against Devatha.
According to Article II, Section B(4) of the Rules, “Elections Committee members are
expected to abide by the highest standards of personal conduct and integrity . . . If a member of
Elections Committee sits on the Executive Board of an organization who chooses to endorse a
candidate, the committee members are required to recuse themselves from any challenge hearing
involving the endorsed candidate.” The purpose of Sec. B(4) is to eliminate bias during challenge
hearings. In a two-candidate race, a challenge that could result in the disqualification of an
endorsed candidate’s opponent most certainly “involves” the endorsed candidate. An erroneous
reading of “involving the endorsed candidate” could narrowly limit the clause to require that
Committee members only recuse themselves if the challenge is against the endorsed candidate;
however, that reading does not fall in line with the plain meaning of the word “involving,” nor
with the spirit of Sec. B(4).
The Judicial Codes Counselor finds that the evidence provided by Devatha in Appendix E
demonstrates that Terrill Malone, Clady Corona, and Lucy Yi-Lin all sit on the Elections
Committee and on the Executive Boards of organizations who endorsed a candidate that was
involved in this challenge. Malone, Corona, and Yi-Lin were mandated by the Rules to recuse
themselves and did not have the discretion to choose not to. The written report did not indicate that
members recused themselves, nor which members of the Committee were present for the challenge
hearing. The report only indicated that seven members voted and one abstained. The
reconsideration written report indicates that ten members voted and one abstained. The
Committee’s failure to indicate that Malone, Corona, and Yi-Lin recused themselves resulted in
the Judicial Codes Counselor finding a procedural bias that requires the Committee’s decision to
be overturned.

2. The Committee violated the Rules when it failed to reconsider the specific findings outlined
in its original challenge report, resulting in bias against Devatha.
According to the Rules, “If the committee determines a candidate should be disqualified,
the candidate may request reconsideration within twenty-four hours of receiving the written report.
To be reconsidered, the candidate seeking such reconsideration must submit a request in writing
to the Office of the Assemblies via email to assembly@cornell.edu. The statement should address
the specific findings in the written report to be reconsidered.” To be able to form compelling
arguments in a reconsideration request, a disqualified candidate must be put on notice as to “the
specific findings” of the Committee. Those “specific findings” should be clearly articulated in the
Committee’s initial written report.
In the instant case, the original challenge, submitted by Noah Elden on March 28, 2018,
cited “Article I, Section B, Part 5: Promotional Material” of the Rules. The challenge explained
that the rule “explicitly states that the Cornell insignia or logo cannot be used in a candidate’s
promotional material.” Article II, Sec. B(5) twice mentions the prohibition of using Cornell’s
insignia or logo: once under Sec. B(5.5) and once in the final sentence of Sec. B(5). The challenge

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did not specify that it was referring to Sec. B(5.5), rather it referenced all of Sec. B(5),
encapsulating both references to the Cornell insignia or logo.
The Elections Committee, however, narrowed the scope of the challenge when it only
considered Sec. B(5.5). According to the Elections Committee’s written report on the challenge
hearing, “A majority of the members agreed with the following point from the Student Assembly
Election Rules (Article I, Section B, Part 5 - Item 5); that during the campaign period: The
candidate had promotional materials that included the ‘Cornell insignia or logo’ which is not
allowed” (emphasis added). Article I, Section B, Part 5 – Item 5 clearly refers to printed materials
provided by the Office of the Assemblies. Devatha, in his statement to the Elections Committee,
specifically requested reconsideration of the violation the Elections Committee found him
responsible for –– Article I, Section B, Part 5 – Item 5, and outlined arguments related to that
specific finding.
The Elections Committee applied the Rules in a biased manner when it “reconsidered” a
violation that it did not consider in the initial challenge hearing report. In the reconsideration
written report, the Elections Committee wrote:
Following the Reconsideration Hearing, the Committee held a vote to determine if
the alleged violations were substantiated, and whether they did compromise the
fairness of the election to the extent the challenged candidate should be disqualified.
After deliberation and consideration, a majority of the members agreed that the
following point from the Student Assembly Election Rules (Article I, Section B,
Part 5) had been violated during the campaign period: The candidate had
promotional materials that included the “Cornell insignia or logo,” which is not
allowed. (emphasis added)
The Elections Committee reconsidered the broader Sec. B(5), when it only initially considered
Sec. B(5.5). The last sentence of Sec. B(5) that mentions the prohibition of the use of the Cornell
insignia or logo is arguably broader than the reference to the insignia and logo prohibition in Sec.
B(5.5). The Committee proceeded in an unfair and biased manner when it did not reconsider the
“specific findings in the written report” that it issued after the initial challenge hearing. The
Committee’s decision to broaden the scope of their reconsideration unfairly limited Devatha’s
ability to articulate his request for reconsideration and demonstrated a desire to find Devatha
responsible for a violation, even if the Committee’s conduct violated the Rules in doing so.

3. Absence of voting members during Devatha’s testimony in the reconsideration hearing

and voting members’ absence during Committee deliberations created procedural bias
against Devatha.
Under Article II, Section E(8) of the Rules, the Committee must convene in response to a
request for reconsideration of a disqualification. The Committee is required to evaluate each
request for reconsideration and take a vote requiring a simple majority to determine if the previous
decision to disqualify should be overturned. The Rules do not specifically require, nor prohibit, a
disqualified candidate being permitted to give in-person testimony at a reconsideration hearing.
In-person testimony is required, if requested by a challenged candidate, in an original challenge
hearing, according to Article II, Section E(6).
The Committee did permit Devatha to testify in his reconsideration hearing. The
reconsideration hearing written report indicates, “The committee held a Reconsideration Hearing
consistent with the Spring 2018 Election Rules, heard testimony from the candidate, and reviewed
written testimony provided by the candidate.” According to Devatha, “Many members of the

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Elections Committee were not present for discussion but were still asked to vote during the
appeal.” Because of the lack of detail in the Committee’s written report regarding the challenge
hearing, the Judicial Codes Counselor will assume the validity of Devatha’s statement that Shreya
Mantrala, a member of the Committee, voted without being present for Devatha’s testimony or
any of the discussion of the hearing. Additionally, the Judicial Codes Counselor will also assume
the validity of Devatha’s statement that Alexis Pollitto, a member of Committee, was not present
for Devatha’s testimony, joined internal discussions part way through, and voted. By allowing
Committee members to vote on Devatha’s disqualification, without requiring that all members be
present for Devatha’s testimony, the Committee created a clear bias against Devatha. The
Committee’s conduct, in its unfair application of the Rules, requires that its disqualification of
Devatha be overturned.

4. The Committee’s failure to produce a minimally acceptable written report violated the
Rules and created procedural bias against Devatha.
a) Vagueness
According to Article II, Section E(7), the Rules require that a written report includes a
summary of the challenge(s), the decision made, and how the Committee reached its decision.
Additionally, the report must include all of the evidence the Committee received or found, any
violations substantiated, and any decisions to disqualify the challenged candidate. According to
Article II, Section E(8.1), “If the committee determines a candidate should be disqualified, the
candidate may request reconsideration within twenty-four hours of receiving the written report. To
be reconsidered, the candidate seeking such reconsideration must submit a request in writing to
the Office of the Assemblies via email to assembly@cornell.edu. The statement should address
the specific findings in the written report to be reconsidered.”
On March 29, 2018, Devatha was notified that he was disqualified as a candidate for
Student Assembly President. Travis Cabbell, Director of Elections, provided Devatha with a
written report. This report, however, did not fully comply with Article II, Section E(7). The written
report was five sentences long, with little substance in each of those sentences. The report made
conclusory statements regarding the decision the Committee rendered and did not include “all
evidence received/found.” The written report was internally inconsistent and too vague to comply
with the totality of the procedural rights provided to Devatha by the Rules.
The report did mention that the Committee reviewed written testimony from the challenger
and the candidate, but did not highlight what that testimony consisted of or what testimony led the
Committee to the decision it reached. Devatha provided a sample of a previous Elections
Committee written report, see Appendix H. Appendix H demonstrates what a written report that
complies with the Elections Rules should include. Because Devatha did not have detailed
information to respond to in his request for reconsideration, due to the Committee’s failure to
produce a satisfactory written report, Devatha was unable to fully exercise his right to
reconsideration by the Committee, which resulted in a biased application of the Rules.
The reconsideration written report poses the same problems as the written report on the
initial challenge hearing, see supra. The lack of substance in both the first and second written report
hindered the Judicial Codes Counselor from completing an in-depth analysis of the Committee’s
conduct. As a result of the limitations the Committee placed on the Judicial Codes Counselor’s
ability to assess the Committee’s conduct, Devatha’s right to a full review by the Judicial Codes
Counselor was violated. The Committee’s conduct clearly biased the process against Devatha.

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b) Likely Failure to Adhere to the Bifurcated Voting Process
According to Article II, Section E(6), the Election Committee will determine: “1. Whether
a preponderance of evidence substantiates each alleged violation; and, 2. Which, if any,
substantiated violations or combination thereof compromised the fairness of the election and
constituted a material advantage to the extent the challenged candidate should be disqualified by
a two-thirds majority.” The written report’s internal inconsistencies about how the decision was
reached demonstrates that the Committee may not have adhered to the bifurcated voting process
that is mandated by the Rules. The written report mentions that a “majority of the members agreed”
that “The candidate had promotional materials that included the ‘Cornell insignia or logo’ which
is not allowed.” The written report does not include a vote breakdown by number or name for this
consideration. The report does include a vote breakdown by number for the decision to disqualify,
but does not articulate the vote breakdown by name. This inconsistency highlights that the
bifurcated voting process may have been conflated, rendering an unfair application of the Election
Rules.

B. Arguments the Judicial Codes Counselor Did Not Find Compelling or Did Not Consider
1. Devatha’s “Issue 3: Rule Alteration’s Implication” is not relevant as to whether the
Committee applied the Rules in a biased manner.
In his request for review by the Judicial Codes Counselor, Devatha preemptively raised
arguments contesting a hypothetical new challenge that the Committee may choose to bring. No
such challenge has currently been brought. If a new challenge is raised, Devatha’s arguments may
be assessed in a future review.

2. Devatha’s “Issue 5: Other Potential Biases and Conflicts” was not a compelling argument
to find bias.
In his request for review by the Judicial Codes Counselor, Devatha raised “Other Potential
Biases and Conflicts,” under “Issue 5” and Appendix G, which were not compelling signs of a
biased application of the Rules.
Devatha argues that Shreya Mantrala and Alexis Pollitto have conflicts that required
recusal because they served for two years with Devatha’s opponent, Dale Barbaria, on the
Academic Policy Committee. Service on a committee does not inherently create a bias for other
individuals on that committee.1 Individuals active in Cornell’s shared governance make up a small
portion of the University’s overall population, and it is likely that those individuals will cross paths
in professional contexts. Professional interactions on a committee do not demonstrate that these
members of the Committee demonstrated bias against Devatha. Unlike service on an Executive
Board that has endorsed a candidate, the Rules do not specifically highlight previous service on a
committee with candidates as a concern for bias.
Devatha also argues that Mantrala and Pollitto have conflicts that required recusal because
they are Barbaria’s personal friends. No evidence was presented to substantiate that a personal
friendship with Barbaria resulted in a biased application of the Rules.
Devatha proposes that Chasen Richards has conflicts that required recusal because
Richards was a co-author of a “highly politicized and public report” that criticized an initiative

1
For the sake of transparency: The Judicial Codes Counselor serves as an ex-officio member of the Codes and Judicial
Committee (CJC) and Barbaria serves as a voting member of the CJC. The Judicial Codes Counselor feels no bias for
or against Barbaria. Aside from the JCC’s work on the CJC, the JCC has had no interactions with either candidate
involved in the instant case.

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Devatha “spearheaded.” Professional disagreements do not inherently demonstrate bias. Again,
the community of active members of Cornell’s shared governance is fairly concentrated, and
crossing paths in a professional context –– whether contentious or not –– does not inherently
suggest bias. Devatha does not point to any ad hominin attacks by Richards, nor any specific
evidence that Richards was incapable of compartmentalizing Richards’ perspectives on the
defunding of the Cornell Cinema and the challenge in question.

3. Devatha’s “Issue 6: The Election Committee’s Disposition to Disqualification and

Recurring Mistakes” is not relevant.
Devatha’s reference to the Committee’s disqualification of candidates in relation to those
candidates’ failure to submit expense reports is irrelevant to the instant case. Concerns regarding
those disqualifications should have been raised in separate requests for review.
Devatha’s reference to procedural issues in other challenges, such as the names on certain
ballots, is not relevant to the instant case. Concerns related to election ballots should have been
raised in separate requests for review.

4. Devatha’s “Issue 9: Falsifying Documentation and amending Post-Hoc” lacked evidence

to substantiate the claim or was irrelevant.
Any potential Committee infractions outside of this challenge are not the focus of this
review. Devatha referenced issues regarding a hearing about Barbaria and the recusal, or lack
thereof, of Committee members. This information is outside the scope of this review. Regardless
of what occurred in Barbaria’s challenge hearing, however, it is clear that Lin, Malone, and Corona
did not recuse themselves for Devatha’s challenge hearings, see supra; thus, the Rules were
violated, creating procedural bias.

5. Devatha’s “Issue 10: Abuse of Confidentiality Clause” lacked evidence to substantiate the
claim.
This argument was conclusory and offered no substance.

6. Devatha’s “Appendix D” is not relevant.

Devatha’s Appendix D was not reviewed by the Committee; thus, it is not relevant as to
whether the Committee was biased in its application of the Rules. If a new challenge is made,
Devatha may raise the arguments in Appendix D if they become relevant.

7. Devatha’s “Appendix J” was not considered by the Judicial Codes Counselor.

The Judicial Codes Counselor did not consider any testimony of Austin McLaughlin,
former Director of Elections. The Judicial Codes Counselor’s role is to serve as an “institutional
check.” To maintain impartiality, the Judicial Codes Counselor only reviewed information
provided by the Office of the Assemblies, which included:
• the Student Assembly Election Rules
• challenges against Devatha
• challenge against Andrew Kong
• the Committee’s two challenge written reports
• Devatha’s written statement to the Committee for reconsideration
• Devatha’s written statement to the Committee for reconsideration addendum
• Devatha’s written statement to the Judicial Codes Counselor

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 • Appendices A–I
• email communications related to this challenge
• the Student Assembly Elections Committee member list
Ex-parte communications with individuals about their opinions of whether Devatha’s
disqualification should be overturned, regardless of whether someone has served on the
Committee, would improperly influence the “institutional check” by the Judicial Codes Counselor.

C. Decision to Overturn the Committee’s Disqualification of Devatha

The Student Assembly Election Rules are poorly written and create many instances of
ambiguity. According to Devatha, the Director of Elections stated, “The committee may reconsider
its ruling in response to a recommendation from the JCC.” The Committee is incorrect that the
Judicial Codes Counselor’s findings are a non-binding recommendation. The language of the rules
is slightly ambiguous, given that part of Article II, Section E(8.3) is written in passive voice, which
results in the lack of a clear subject. The only subject in previous clause of the sentence is the
Judicial Codes Counselor review. Given that the Judicial Codes Counselor review is to serve as a
safeguard against procedural bias, regarding the review as simply a recommendation to the body
that rendered the biased decision would not be an intuitive reading of the sentence. If the Rules
really intended for it to be a recommendation, then it likely would have made such a distinction
clear. The language of Sec. E(8.3) refers to “overturning” the Committee’s decision, it does not
use words such as “remand” or “recommend.” There is discretion as to whether the decision may
be overturned, because the word “may” is used, rather than “must” or “shall.” That discretion,
however, is left to the Judicial Codes Counselor. It would be nonsensical and superfluous to have
the Judicial Codes Counselor review the Committee’s conduct for bias, find bias, and ask the
biased body to reverse itself. The commonsense reading of the Rules vests the power to overturn
the Committee’s decision in the Judicial Codes Counselor. The Judicial Codes Counselor found
that the Committee applied the Rules in a biased manner, and has decided to overturn the
disqualification.
Assuming, arguendo, that this report is simply a recommendation, this Committee’s
disqualification of Devatha demonstrates that it believes that even minor infractions should result
in serious condemnation. The Judicial Codes Counselor would then expect that the Committee
evaluate its own infractions with that same level of scrutiny and would follow the Judicial Codes
Counselor’s findings.

Conclusion
The Judicial Codes Counselor found four instances where the Committee applied the Rules
in a biased manner. Each of the Judicial Codes Counselor’s findings of bias are individually
sufficient to find that the Committee’s decision to disqualify Devatha should be overturned.

Respectfully submitted,
Kendall Karr
Judicial Codes Counselor