Suppose the ICANN Board Squatters resign, then what? It's a very fair question, especially as ICANN in its various public statements has misleadingly framed the question as a false choice between the Board Squatters and empty chairs. The answer, I think, is to have elections as soon as reasonably possible after a short period in which voters are given a second chance to navigate the ICANN registration gauntlet. Since even with the best will in the world that will take some time, in the interim we have no choice but to follow the procedures in the ICANN by-laws, and have the ICANN Board appoint four replacements. Those replacements would serve only until replaced by elected Board Members. Admittedly, there are some difficult questions about how the Board would select the temporary directors, but these are surmountable. The best interim solution would be to have the five elected at-large directors propose four names for the full Board's approval.
My main point throughout this debate has been that the compromise that made ICANN possible was predicated on having half the Board represent the public, and that participants in ICANN have a moral duty to respect this deal. As soon as ICANN secured the Department of Commerce's recognition, however, ICANN immediately set to work to undermine this commitment. When this strategy produced howls of protest, ICANN agreed to hold an election, against its will, but limited it to five of the nine promised seats.
Nobody I know thinks ICANN's first election was perfect, or even good enough to make one particularly comfortable. There are far too many known problems, and an even larger number of things we don't know about the election, for anyone to say that. We do know, for example that an extraordinarily large number of people who attempted to register, especially towards the end of the registration period, were not able to do so due to ICANN's computer problems. (Rumors abound that the software in question was written by a well-known opponent of the process; whatever the facts, it is clear that the job of writing it was not put up for bids and that the software is not open source.) It appears also that when ICANN became aware of the issue it did nothing. We know, at least anecdotally, that some people who registered never received PIN numbers (I should say, however, that I got mine). Using a metric that has not, so as I know, been revealed publicly, or even subjected to any outside review at all, ICANN rejected an extraordinarily large number of the registrations as potentially fraudulent or otherwise deficient. Without more information it is impossible to know whether this represents over-vigillance, under-vigillance, or good sense. We know also that there was a substantial additional drop-off between the number who got PINs and the number who voted.
Given the very limited state of our knowledge, I think that the registration process ought to be re-opened for a period before having new elections. Even with that, there remain sufficient questions about the entire process that it is only fair to say that whatever is done in the short term should be without prejudice to thinking more carefully about what should be done in the long term. ICANN is right that the sort of election it is trying to run poses genuinely difficult and novel problems, and there is no point in pretending otherwise, even if some of the problems experienced were of ICANN's own making.
One other problem will need to be resolved: there are five regions but only four open seats. Given all the international political implications and the depth of feeling on the issue, redrawing the constituencies is not, I think, a practical option in the time available. My own preference for resolving this issue -- again, as a temporary matter, without prejudice to finding a better long-term solution -- would be to hold the election in all five regions, but agree not to seat the director whose geographic region casts the smallest number of ballots. Alternately, once the registrations are closed, the two regions with the smallest number of registered voters could be amalgamated for this one election.
The second option has the severe disadvantage of further perpetuating the unfairness that this exercise is designed to remedy. Worse, if -- as seems to be the case -- ICANN remains opposed to the idea of elections, this option creates an incentive for ICANN to drag its feet on holding them.
By far the best option, or the least bad one anyway, is the third one. The problem here, however, is that while the entire Board is vested with the power of picking replacement directors, who serve out the term of the predecessors, the current Board minus the squatters remains dominated by representatives of the functional constituencies. It doesn't make enormous sense for representatives of the functional constituencies to have the deciding votes to pick the persons to represent the at-large which is supposed to act as a balance against them. Here, however, ICANN has already shown us the way. Just as the self-appointed at-large directors met among themselves to decide which four among their number would be the squatters, so too could the five elected directors meet among themselves and propose four names to the full Board for its approval. (Unlike the secret selection of the Board squatters, however, the proposal would be public before the full Board acted on it, thus allowing the public to comment.) While this is admittedly a very messy solution, and one that requires the willing cooperation of the entire Board, it seems as good an interim solution as we are likely to get.
This document resides at http://personal.law.miami.edu/~froomkin/boardsquat2.htm