Ordered Special Election and Pending Appeal

[J. J.]

13 minutes ago, J. J. said:

Then you would say that when the bylaws were silent, a ballot vote for officers could be by a plurality if no one objects?

Again, that would be a violation of p. 413, which ties into violating the secrecy in voting, and therefor is a breach of a continuing nature.

In the example of p. 413, ll. 4-9, deals with revealing how people voted by use of a motion to declare the vote unanimous.  Presumably the non-unanimous vote that was taken by ballot adopted the motion (or elected the person to office); adopting a motion to make that vote unanimous would not change the adoption of the motion.  The call to make the vote unanimous still is considered a method to force a voter to reveal how he voted by ballot, even if in the circumstance, it would make no difference. 

What you have here is a motion that effectively suspends the 2/3 vote to elect rule, established in the bylaws.  It also suspends the rule in the bylaw that a ballot must protect the privacy of the vote.   

I will agree that someone raising a point of order, even at the time, that a 2/3 vote was needed, would not necessarily have voted on the losing side.   However, on the RONR example, someone objection to making a vote unanimous not necessarily have voted on the losing side either. 

[Guest Touman]

For clarification, when the question was raised about the number of votes needed, it was asked before the ballots where counted.  The members agreed that 7 was the correct number before we knew how the votes where falling. (That was just based on a motion made from a floor, not a ballot).  As for the issues of suspending the rules, this was something stated to the members to avoid having to continue to ballot for the required special election on Saturday.  This was never used because at that meeting, there where more members present in support of the special elections than those who where opposed and they knew they didn't need to suspend the rules to win the election.  

[Guest Touman]

43 minutes ago, J. J. said:

This can tend to "force the disclosure" of how someone voted by ballot (p. 413 ll. 1-9).

 

It is out of order to make a ballot vote unanimous when it is not.  Likewise, it is out of order to make a ballot vote be a 2/3 vote when it is not. 

The ballot vote was not made unanimous.  A motion was made from the floor to declare that 7 was the amount of votes needed to declare a winner.  All members present voted in favor of that motion.  The ballot votes ended in a 7-4 vote. Ballot votes where not counted until after the motion on the required number of votes.  This became a question when two members left the meeting and everyone was trying to determine what the new 2/3 vote requirement was. 

[J. J.]

43 minutes ago, Guest Touman said:

The ballot vote was not made unanimous.  A motion was made from the floor to declare that 7 was the amount of votes needed to declare a winner.  All members present voted in favor of that motion.  The ballot votes ended in a 7-4 vote. Ballot votes where not counted until after the motion on the required number of votes.  This became a question when two members left the meeting and everyone was trying to determine what the new 2/3 vote requirement was. 

But that, in the same way, causes the people that voted on the losing side to reveal their votes, if the object. 

My answer would be different if this wasn't a ballot vote. 

[J. J.]

54 minutes ago, Guest Touman said:

For clarification, when the question was raised about the number of votes needed, it was asked before the ballots where counted.  The members agreed that 7 was the correct number before we knew how the votes where falling. (That was just based on a motion made from a floor, not a ballot).  As for the issues of suspending the rules, this was something stated to the members to avoid having to continue to ballot for the required special election on Saturday.  This was never used because at that meeting, there where more members present in support of the special elections than those who where opposed and they knew they didn't need to suspend the rules to win the election.  

You still could not have suspended the rules in such a way that it would reveal how they voted. 

There is a relationship between if a rule can be suspended and if a violation of that rule creates a breach of a continuing nature. 

[Dan Honemann]

A rule in the bylaws requiring that a vote be taken by ballot cannot be suspended, but a rule that it will require a two-thirds vote for its adoption can be.

As a practical matter, this ordinarily becomes significant only when the announced result of the vote is erroneous (for example, the chair mistakenly believes that only a majority vote is required), and no point of order is raised promptly at the time of the breach. 

[J. J.]

2 minutes ago, Daniel H. Honemann said:

A rule in the bylaws requiring that a vote be taken by ballot cannot be suspended, but a rule that it will require a two-thirds vote for its adoption can be.

As a practical matter, this ordinarily becomes significant only when the announced result of the vote is erroneous (for example, the chair mistakenly believes that only a majority vote is required), and no point of order is raised promptly at the time of the breach. 

The problem is that it reveals how a member voted in the same way as it would for a motion making a ballot vote that is was not unanimous, being declared unanimous.  This deals only with the ballot vote requirement. 

I will agree that the rules can be suspended to permit someone not receiving the requisite number of votes to be declared the winner.  

While there is some question about what is completely included in the requirement for a ballot vote in an election, the right to secrecy in voting, and the right to cast write-ins are two points that always are.

P. 413 is sufficient to indicate that this violates the right to secrecy in voting.  Ironically, had a requiring a 2/3 vote been suspended before the vote was taken, IMO the secrecy of the ballot would not have been violated. 

[Joshua Katz]

4 hours ago, J. J. said:

The problem is that it reveals how a member voted in the same way as it would for a motion making a ballot vote that is was not unanimous, being declared unanimous.  This deals only with the ballot vote requirement. 

 

I have to admit, I do not see what you mean here.

[J. J.]

1 minute ago, Joshua Katz said:

I have to admit, I do not see what you mean here.

When a vote is required by the bylaws to be taken by ballot, that creates certain basic rights of an individual member.  One of those rights is the right to secrecy in voting.  Nothing can be done to reveal how a member voted.  That is part of having a secret ballot.

A rule could not be adopted to require that, in order to be counted, each member must sign his ballot, for example. The society could not number the ballots and keep a list of who cast that particular ballot.  That violates the rule, and one of the main purposes for having a secret ballot. 

RONR states that on p. 413 no motion is in order if it "would force the disclosure of the member's vote or views on the matter."  It notes that a motion to make a ballot vote unanimous that was not unanimous (unless the vote on the motion to make unanimous is also conducted by ballot), is out of order, is because that has the effect of revealing how a member voted.  There is a presumption, in text, that someone voting against a motion to make a vote unanimous voted against the original motion.

In other words, if the bylaws required a 2/3 vote to amend the bylaws, and required a ballot vote, someone could not move to make the vote unanimous after the vote was cast.  A member voting against a motion to make it unanimous would (likely) be forced to reveal his vote on the amendments by voting openly against the motion to make the vote unanimous. 

The rule that a 2/3 vote is required to amend the bylaws is a rule in the nature of a rule of order, and could be suspended.  Attempting to suspend it after the result is announced would "thereby reveal that he [the member voting against it] did not vote for the prevailing choice (p.  413, ll. 8-9)."

Assuming that the 2/3 vote to elect rule is a rule in the nature of a rule of order, and could be suspended, can it be suspended after the vote is taken, without violating the secrecy of the ballot?   If a member voted against suspended the rule would he "thereby reveal that he  did not vote for the prevailing choice?"  I would have to say that this would reveal how the member voted, based on the cited text on p. 413.

If this were not a ballot vote, the rules could have been suspended to "permit the chair to declare ____ elected."  The problem is that doing that with a ballot vote causes anyone voting against it, or objecting to it, to reveal how the voted, at least according to p. 413.

[Joshua Katz]

35 minutes ago, J. J. said:

If this were not a ballot vote, the rules could have been suspended to "permit the chair to declare ____ elected."  The problem is that doing that with a ballot vote causes anyone voting against it, or objecting to it, to reveal how the voted, at least according to p. 413.

Let's assume all that.  Now, dealing with Mr. Honemann's point, I take him to be saying that the actual application of this 'suspension' is that, by not raising a point of order, it has been, in effect, suspended.  That is, if the chair announces, where a vote requires 2/3, "the vote is 7 in favor and 4 against, the motion is adopted," and no one raises a point of order, then the body has unanimously voted to suspend the rules and allow the vote to be made by a lower threshold.  

Now, it seems you're saying this is inappropriate, because to raise a point of order would carry the implication that the person raising it voted against.  I can understand that in the circumstance you describe, but in this case, I'm less convinced.  The chair has laid out the numbers, and they're clearly wrong - either because the chair is doing the math wrong, or just think it takes a majority.  Why can't I, as someone who voted in favor, point out "no, as much as I wanted my side to prevail, it did not?"  In other words, why the presumption that people will only raise points of order (as opposed to affirmatively voting to suspend a rule, which they would do to achieve an outcome) when they will benefit?  This strikes me as a presumption against honesty.

[Dan Honemann]

It is certainly not out of order to raise a point of order regarding the conduct of a ballot vote, nor is it out of order to appeal from the ruling of the chair on such a point of order, based solely upon the assumption that raising the point of order, or voting on the appeal, forces disclosure of a member's vote or views on the question which had been voted on.

It would be equally erroneous to argue that making or voting on a motion to order a recount of a ballot vote is not in order because it forces disclosure of a member's vote or views on the question which had been voted on.

[J. J.]

9 hours ago, Joshua Katz said:

 

Now, it seems you're saying this is inappropriate, because to raise a point of order would carry the implication that the person raising it voted against.  I can understand that in the circumstance you describe, but in this case, I'm less convinced.  The chair has laid out the numbers, and they're clearly wrong - either because the chair is doing the math wrong, or just think it takes a majority.  Why can't I, as someone who voted in favor, point out "no, as much as I wanted my side to prevail, it did not?"  In other words, why the presumption that people will only raise points of order (as opposed to affirmatively voting to suspend a rule, which they would do to achieve an outcome) when they will benefit?  This strikes me as a presumption against honesty.

The rule can be suspended, at some level, but it cannot be suspended if that suspension would force the disclosure of how the member voted.

Let me give you a middling case.  The assembly votes ballot on an issue, a choice between three cities to hold their convention, that is adopted, but not unanimously.  City A received a majority vote.  The bylaws require that the vote be taken by ballot.

After this vote is taken, a member moves, "to suspend the rules and make the vote unanimous," which is seconded.   Based on p. 413, ll. 4-9, this would be out of order, "since any member who openly votes against declaring the first vote unanimous will thereby reveal that he did not for the vote for the prevailing choice."  Doing this is treated as a violation of the secrecy of a ballot, or something "that would force the disclosure of a member's vote or views on the matter."  A bylaw requiring that a taken be by a secret ballot cannot be suspend (263, ll 9-11).  and some motion that would "force the disclosure of a member's vote," would be out of order.

It this vote had not been taken by ballot, the clause on p. 413, ll. 4-9 would not apply.  A motion, "to suspend the rules and make the vote unanimous," would not be out of order on that ground.

Since you asked, "Why can't I, as someone who voted in favor, point out 'no, as much as I wanted my side to prevail, it did not?'"  You can, however, the presumption is that forcing a member into that position, would reveal how the member voted.  That presumption may be incorrect, but that doesn't change what the presumption is in RONR.  It is impossible, in a ballot vote, for the chair to know if you wanted that side to win or be defeated.  If you were raising a pointing of order, it would be simply "that motion did not receive the required two thirds vote and was not adopted."  It would not be "Even though I wanted the motion to be adopted, it did not receive the required two thirds vote and was not adopted."

The clause on p. 413, ll. 4-9 creates a presumption that, even though it would not necessarily effect the result of the action taken, it is out of order to do something that could force the member to reveal his vote. On a ballot vote, not going along with an incorrect declaration, could force the member to reveal his vote.

The currently hypothetical 12th edition might well modify this, but as of now that is the presumption we are forced to live with. 

 

[J. J.]

2 hours ago, Daniel H. Honemann said:

It is certainly not out of order to raise a point of order regarding the conduct of a ballot vote, nor is it out of order to appeal from the ruling of the chair on such a point of order, based solely upon the assumption that raising the point of order, or voting on the appeal, forces disclosure of a member's vote or views on the question which had been voted on.

It would be equally erroneous to argue that making or voting on a motion to order a recount of a ballot vote is not in order because it forces disclosure of a member's vote or views on the question which had been voted on.

It is in order, but such a point of order need not be raised when the breach occurred.    The sole question is when  a point of order timely, i.e. when can it be legitimately raised. 

The bylaws of the society require a ballot of the pending motion.  After a vote on that motion is taken can the society move to suspend the rules to permit a motion to be adopted, by something other than what the bylaws require, without using a ballot to vote on the motion to suspend the rules?  If they cannot without violating the rules, does that create a breach of a continuing nature?

Edited December 21, 2017 at 03:54 PM by J. J.

[Josh Martin]

2 hours ago, J. J. said:

It this vote had not been taken by ballot, the clause on p. 413, ll. 4-9 would not apply.  A motion, "to suspend the rules and make the vote unanimous," would not be out of order on that ground.

Since you asked, "Why can't I, as someone who voted in favor, point out 'no, as much as I wanted my side to prevail, it did not?'"  You can, however, the presumption is that forcing a member into that position, would reveal how the member voted.  That presumption may be incorrect, but that doesn't change what the presumption is in RONR.  It is impossible, in a ballot vote, for the chair to know if you wanted that side to win or be defeated.  If you were raising a pointing of order, it would be simply "that motion did not receive the required two thirds vote and was not adopted."  It would not be "Even though I wanted the motion to be adopted, it did not receive the required two thirds vote and was not adopted."

J.J., I still don’t follow the logic behind equating a vote to make a prior vote unanimous with a Point of Order that is 7 is not 2/3 of 11. Yes, it is quite logical to assume that a member who objects to making a vote unanimous is doing so because he did not support the winner. I don’t think it is logical to assume that a member who points out that 7 is not 2/3 of 11 is doing so because he does not support the leading candidate. You keep saying that RONR requires us to make this assumption, but that is only the case if we accept that these situations are comparable. I do not think that they are.

Additionally, even if we were to accept your argument as a general rule, it would appear that in this particular case, the assembly made its decision before it was aware which candidate had seven votes.

22 hours ago, Guest Touman said:

For clarification, when the question was raised about the number of votes needed, it was asked before the ballots where counted.  The members agreed that 7 was the correct number before we knew how the votes where falling.

Therefore, I certainly don’t think it can be said that the assembly’s decision reveals which candidate any member supports. It merely reveals that the members are bad at math, which is not a continuing breach.

Edited December 21, 2017 at 06:08 PM by Josh Martin

[J. J.]

1 hour ago, Josh Martin said:

J.J., I still don’t follow the logic behind equating a vote to make a prior vote unanimous with a Point of Order that is 7 is not 2/3 of 11. Yes, it is quite logical to assume that a member who objects to making a vote unanimous is doing so because he did not support the winner. I don’t think it is logical to assume that a member who points out that 7 is not 2/3 of 11 is doing so because he does not support the leading candidate. You keep saying that RONR requires us to make this assumption, but that is only the case if we accept that these situations are comparable. I do not think that they are.

 

While it may be usual, I'm in agreement with Mr. Katz that a member may have voted on the prevailing side might be the one raising the point of order. 

There are two separate breaches of the rules.  1.  The motion didn't get a 2/3 vote.  2.  The motion was adopted in violation of the "rule in the bylaws requiring the vote be taken by ballot."

Let's take look at three scenarios, two with a ballot and one without by a counted rising vote.

1.  A counted vote is taken; there is no bylaw requiring a ballot .  Candidate Adams gets 7 of the 11 votes.  A member moves "to suspend the rules and elect Adams."  The motion is adopted by a standing vote.  Is that in order?  Yes.  The vote needed to suspend the rules is 2/3, the same to elect.    What if the rules were not suspended?  A point of order could be raised, but since the assembly has the ability to suspend that particular rule, the point of order would have to be timely.

2.  A ballot vote, as required in the bylaws, is taken.  Candidate Adams gets 7 of the 11 votes.  A member moves "to suspend the rules and elect Adams." The motion is adopted by a standing vote.  Is that in order adopt the motion the motion to suspend the rules?  Well, it is, as shown above. 

Is it in order to do it by a voice vote?  No, it is not permissible to elect someone to this position unless the vote is by ballot; what the percentage is needed to elect is not relevant to the requirement that a ballot is needed.  What if the rules were not suspended.  A point of order could be raised at the time, but as this is a breach in the "rule in the bylaws requiring the vote be taken by ballot," it would not need to be a timely point of order.

3. A ballot vote, as required in the bylaws, is taken.  Candidate Adams gets 7 of the 11 votes.  A member moves "to suspend the rules and elect Adams." The motion is adopted by a ballot vote.  Is that in order adopt the motion the motion to suspend the rules?  Well, it is, as shown above.  Was there a violation of the ballot requirement?  No, because there was a ballot.  Any point of order, even one raised at the time, should not well taken.

This question is solely, at this point, is can the assembly could suspend the rules and elect the person with 7 vote, without using a ballot to elect?

Edited December 21, 2017 at 07:33 PM by J. J.

[Joshua Katz]

7 hours ago, J. J. said:

Since you asked, "Why can't I, as someone who voted in favor, point out 'no, as much as I wanted my side to prevail, it did not?'"  You can, however, the presumption is that forcing a member into that position, would reveal how the member voted.  That presumption may be incorrect, but that doesn't change what the presumption is in RONR.  It is impossible, in a ballot vote, for the chair to know if you wanted that side to win or be defeated.  If you were raising a pointing of order, it would be simply "that motion did not receive the required two thirds vote and was not adopted."  It would not be "Even though I wanted the motion to be adopted, it did not receive the required two thirds vote and was not adopted."

 

Yes, but you are extending the presumption beyond where RONR applies it.  RONR applies it in the case of making a non-unanimous vote unanimous.  The only reason to object to such a move is precisely if you voted against the motion.  The presumption makes sense there.  In my opinion, it makes less sense in the context you now wish to extend it - the counting of votes.  There are other reasons to object here.  Suppose that the point of order is not that a 2/3 vote is needed, but rather that the chair has miscounted the votes.  (This can happen in an explicit way - the chair can announce "there being 7 in favor and 4 opposed, the motion received a 2/3 vote and is adopted.")  I can object to that regardless of how I voted, because it's a question of math.  Even if the chair erroneously thinks it takes a majority, I would say the presumption doesn't really make sense.  Now, if RONR said there's a presumption in those cases, that would be that (although, one would think, such a presumption would be in some manner rebuttable).  But it doesn't.  You are inferring the application there from a different context, and one where no other rules are at stake (whereas here two rules are at stake - the 2/3 requirement, and math), so that there's no good reason to object absent having voted on the losing side originally.  Since you're extending the concept, I would maintain that, if the foundation on which it rests doesn't exist here, you should not extend it in this manner.

 

 

[Josh Martin]

5 hours ago, J. J. said:

This question is solely, at this point, is can the assembly could suspend the rules and elect the person with 7 vote, without using a ballot to elect?

None of the scenarios you describe are what happened.

According to the OP, a ballot vote was taken. Before the votes were counted, the assembly adopted a motion that seven votes were necessary for election. So it does not seem to me that there is any violation of the rule that a ballot vote is required, only a violation of the rule requiring a 2/3 vote.

[J. J.]

1 hour ago, Joshua Katz said:

Yes, but you are extending the presumption beyond where RONR applies it.  RONR applies it in the case of making a non-unanimous vote unanimous.  The only reason to object to such a move is precisely if you voted against the motion.  The presumption makes sense there.  In my opinion, it makes less sense in the context you now wish to extend it - the counting of votes.  There are other reasons to object here.  Suppose that the point of order is not that a 2/3 vote is needed, but rather that the chair has miscounted the votes.  (This can happen in an explicit way - the chair can announce "there being 7 in favor and 4 opposed, the motion received a 2/3 vote and is adopted.")  I can object to that regardless of how I voted, because it's a question of math.  Even if the chair erroneously thinks it takes a majority, I would say the presumption doesn't really make sense.  Now, if RONR said there's a presumption in those cases, that would be that (although, one would think, such a presumption would be in some manner rebuttable).  But it doesn't.  You are inferring the application there from a different context, and one where no other rules are at stake (whereas here two rules are at stake - the 2/3 requirement, and math), so that there's no good reason to object absent having voted on the losing side originally.  Since you're extending the concept, I would maintain that, if the foundation on which it rests doesn't exist here, you should not extend it in this manner.

 

 

Again this is not related to the counting of the votes.   A point of order about the vote total not being a 2/3 vote would have to be timely.  If that was all there was, there would be no continuing breach.  If this were a counted standing vote or a roll call vote, a point of order would have to be timely.  This, however, is ballot vote. 

In the case of a counted standing vote, or roll call vote, the chair would be effectively saying, "If there is no objection, the chair will declare ____ elected."  The chair has assumed a motion to suspend the rules, and declare blank elected.  He could do that in so many words.  The chair could not do so in a ballot vote, unless the vote on the suspension was taken by ballot.  Why is that?

Well, because if someone want to object to the rule suspension, they may reveal what side the are on by objecting.  It is improper for a member to be put into that situation.  I will grant you that someone still has to bell the cat as it were, and raise a point of order.  The point of order not would be,that the member opposes the election of the person declared the winner.  It would be that the chair could not declare the person elected, without the assembly approving that declaration by a 2/3 vote.

The presumption is, that even in cases where it makes no difference to the result, it is still improper to do something "that would force the disclosure of a member's vote or views on the matter."  Declaring something unanimous that was properly adopted, does not change the fact that it was properly adopted under the rules.

[J. J.]

2 minutes ago, Josh Martin said:

None of the scenarios you describe are what happened.

According to the OP, a ballot vote was taken. Before the votes were counted, the assembly adopted a motion that seven votes were necessary for election. So it does not seem to me that there is any violation of the rule that a ballot vote is required, only a violation of the rule requiring a 2/3 vote.

That is what happened.

1.  I will question if the rule requiring a 2/3 vote for officers is a rule in the nature of a rule of order.

2.  I will question that, even in elections not for office or other votes, where a vote is required to be by ballot, if that rule could be suspend except by a ballot vote.  In that specific instance, the vote would have had to be by ballot, based on the p. 413 requirement.

 

[Dan Honemann]

13 hours ago, J. J. said:

That is what happened.

1.  I will question if the rule requiring a 2/3 vote for officers is a rule in the nature of a rule of order.

2.  I will question that, even in elections not for office or other votes, where a vote is required to be by ballot, if that rule could be suspend except by a ballot vote.  In that specific instance, the vote would have had to be by ballot, based on the p. 413 requirement.

 

J.J., if you wish to pursue this, may I suggest you do so by starting a new topic, and spelling out fully and exactly what set of facts are to be considered in responding to your questions.

[Guest Touman]

16 hours ago, Josh Martin said:

According to the OP, a ballot vote was taken. Before the votes were counted, the assembly adopted a motion that seven votes were necessary for election. So it does not seem to me that there is any violation of the rule that a ballot vote is required, only a violation of the rule requiring a 2/3 vote.

Question:  The decision to accept 7 as the number of votes needs to declare a winner was voted on by the body.  Does that mean that we voted to suspend the 2/3 vote requirement without using the terminology "vote to suspend".  I am trying to follow the responses and was wondering about this. 

On 12/21/2017 at 9:39 AM, J. J. said:

The bylaws of the society require a ballot of the pending motion.  After a vote on that motion is taken can the society move to suspend the rules to permit a motion to be adopted, by something other than what the bylaws require, without using a ballot to vote on the motion to suspend the rules?  If they cannot without violating the rules, does that create a breach of a continuing nature?

Our bylaws require a secret ballot vote only for the election of officers.  Motions of any kind can be taken from the floor and are voted on via voting cards. 

[Gary Novosielski]

19 minutes ago, Guest Touman said:

Question:  The decision to accept 7 as the number of votes needs to declare a winner was voted on by the body.  Does that mean that we voted to suspend the 2/3 vote requirement without using the terminology "vote to suspend".  I am trying to follow the responses and was wondering about this. 

Well, it might have.  Did the vote on that motion pass by the requisite amount for a vote to Suspend the Rules, i.e., a 2/3 vote itself?  If so, it might be just as you suggested.