Compound Election Process Issues

[Guest BJBerli]

Greetings,

I apologies in advance for the lengthiness of this inquiry, any spelling, and grammer errors. :-)

This is an election year for officers for our association. Our association bylaws have adopted RONR as our parliamentary rules. At least we did that right!

Issue one:

Our bylaws state that the BOD by majority vote can amend the bylaws. In a recent change to those bylaws the BOD has “prohibited write-in ballots” for election of association officers. This little tidbit is news to the membership (I did an informal inquiry) and even some of the BOD members who were in office at the time this amendment was “approved”. A small group of members have challenged the amendment “prohibiting write-in ballots” asking the current President and Secretary to provide a copy of the minutes that show evidence of this vote and notification to the membership that such an amendment was considered and approve. What has been provided so far is a copy of the email calling a special meeting of the BOD (allowed by our bylaws) to vote on this and several other amendments. The email does not provide the exact verbiage in the current the bylaws which are “write-in ballots are strictly prohibited.” What is says is “for consideration amend the write-in candidate authority”.

The questions on this issue: 1) should minutes from the Special Meetings not be located and provided do these or any other amendments considered during that Special Meeting stand? 2) If minutes are located and verbiage approved does not align with the verbiage currently in the bylaws does the amendment stand? 3) Should minutes be located supporting the vote and change however, was never advised to the membership by being included in the general meeting minutes (which took place after the Special Meeting) do the amendment stand? 4) Does the membership have the right to Appeal? 5) Can a motion to “Suspend the Rules” as it relates to the prohibition of write-in ballots for this election be made at the general meeting? 6) What else, if any can the membership do under RONR?

Issue two:

Our bylaws state voting by ballot is the process for election of officers. The bylaws however are silent on what constitutes a win. The current election process has encountered numerous hiccups. Although there was formal call for nominations there was never formal notice of when the nomination process closed. Thus, the current VP who is running for President is unopposed and other nominations were not accepted as nominators were told it was past the nomination close date, something that was never published. In response nominators pursued the write-in candidate ballot route not knowing of the amendment change prohibiting write-in ballots, as the copies of the bylaws available to the membership does not reflect the change. This is the previous is that part that ties to issue one above. By the way, no direction on this matter has come from the Election Chair. A significant number of the membership is supporting the write-in ballot/candidate approach as they cannot attend in person the annual meeting and are absentee voting.

The questions on this issue: 1) is it correct that since we are voting by ballot, the Chair/current President cannot “proclaim by acclimation” the unopposed candidate as winner? 2) Even though the bylaws are silent, does the unopposed candidate need to win by majority? 3) If the write-in ballots are deemed void (because of issue one above) what is the impact on determining the Total Votes Cast and the majority needed to win?

I thank you in advance for your input. It is much appreciated.

Best regards,

BJ

[Robert B Fish]

I'll start answering. You can respond with whatever you feel is not resolved.

The possible loss of the minutes of the meeting does not invalidate the fact that the BOD did act in an particular manner. They did what they did and the minutes cannot be used to change history.

The amendment that was adopted is whatever was actually passed. If the minutes - the official record of yoru BOD - do not support the current copy fo the bylaws, then the copy must be changed.

Unless the bylaws require the BOD to provide advance notice of changes to the bylaws, their failure to notify you does not affect the change.

Read Oi 2006-13.

You can move to reopen nominations even though that have been "closed." (majority vote required).

If your bylaws require voting by ballot, that provision may not be waived, even by unanimous vote.

-Bob

[BryanSullo]

Wait. Your Board of Directors amended your bylaws? Do they have that authority?

[Guest Edgar]

Wait. Your Board of Directors amended your bylaws? Do they have that authority?

Our bylaws state that the BOD by majority vote can amend the bylaws.

[Robert B Fish]

If you gave them that right - most groups don't - then it's hard to complain if they amend them in ways you don't like. Next to go will be the members' right to vote on their officers.

-Bob

[Guest BJBerli]

Thank you Mr. Fish for you quick response.

It has provided me a place to start. I will investigate further what RONR says on Countermanding Board Actions.

Unfortunately, the level of power asssigned the BOD per our bylaws, was done before my involvement in the group. The fact that they would consider not permitting write-in candidates/ballots,is representative of their knee jerk reactions to preceived issues. In this case during the prior election a write-in candidate won for a position (Recording Secretary) that had no candidates. I believe that when they drafted the amendment they totally forgot that when our bylawas are silent RONR is followed as per our bylaws.

Based on the responses provided; Is it correct that the unopposed candidate still needs to win by majority ballot vote? Also, our ballots include all officer positions up for election. So is it correct that any write-in ballot received will be considered void for only the positions that have the write-in candidate names thus not counting toward the Total Ballots Cast for that position? For example, 50 Total Ballots Cast; 10 ballots have write-in for President; total legal ballots for President 40; 21 needed for majority to win. Each of the otherf positions would require 26 votes to win.

Thank you again to all who have responded. I am learning so much having to investigate this matter.

Ciao,

BJBerli

[David A Foulkes]

Is it correct that the unopposed candidate still needs to win by majority ballot vote?

If the bylaws require a ballot vote (which you say yours do) then a ballot vote it must be (no acclamation by the President for a sole candidate).and a majority vote would be required, unless your bylaws say otherwise. (RONR 11th Ed. p. 441 ll. 25-28)

So is it correct that any write-in ballot received will be considered void for only the positions that have the write-in candidate names thus not counting toward the Total Ballots Cast for that position?

I can't provide a citation for this, but my sense is the write-in votes would be considered illegal votes and counted toward the total of votes cast, thus 26 votes out of 50 cast required for a majority. But stay tuned.

[Guest BJBerli]

[if the bylaws require a ballot vote (which you say yours do) then a ballot vote it must be (no acclamation by the President for a sole candidate).and a majority vote would be required, unless your bylaws say otherwise. (RONR 11th Ed. p. 441 ll. 25-28)

Okay I'm kewl on this one.

I can't provide a citation for this, but my sense is the write-in votes would be considered illegal votes and counted toward the total of votes cast, thus 26 votes out of 50 cast required for a majority. But stay tuned.

Same bat channel, same bat station

[Guest Nancy N.]

David, why not p. 416, lines 2 - 5: "... ballots cast for an ... ineligible candidate are treated instead as illegal votes ..."?

[David A Foulkes]

David, why not p. 416, lines 2 - 5: "... ballots cast for an ... ineligible candidate are treated instead as illegal votes ..."?

It is the basis for my thinking, however in this case, it may not necessarily be the who but the how. An intelligible write-in vote for an identifiable, eligible person would still be considered illegal by virtue of the method of voting, not the name written in.

[Guest Nancy N]

It is the basis for my thinking, however in this case, it may not necessarily be the who but the how. An intelligible write-in vote for an identifiable, eligible person would still be considered illegal by virtue of the method of voting, not the name written in.

You're saying that the candidate himself might be technically, or theoretically, eligible, but it is the bylaws-prohibited writing-in of the vote that is the violation, and RONR does not say that this vote does satisfactorily qualify as illegal??

What, it's not illegal, just naughty?

[David A Foulkes]

Write-in voting is illegal because the bylaws, to which RONR yields (without direct and explicit reference to this specific case of illegal vote), say it is. You don't need a bylaw to declare illegible ballots illegal, it's in The Book (assuming RONR as the adopted PA). To declare write-in voting "illegal", you step outside RONR, as RONR declares write-in voting a member right (11th, p. 442 l.1).

It's illegal, but I wouldn't go so far as to call it naughty.

[Trina]

'An organization should never adopt a bylaw permitting a question to be decided by a voting procedure in which the votes of persons who attend a meeting are counted together with ballots mailed in by absentees.' (RONR 11th ed. p. 423 ll. 25-28). The cited passage then continues, describing reasons why an organization should never follow this path of combining in-person and absentee voting.

The fact that the organization in question has apparently closed its eyes to this warning will likely contribute to the problems at the annual meeting.

I assume, for the moment, that absentee voting IS specifically authorized in the organization's bylaws... and that there isn't some confusion between the concept of write-in votes, and the (entirely separate) concept of absentee voting.

[Guest BJBerli]

I assume, for the moment, that absentee voting IS specifically authorized in the organization's bylaws... and that there isn't some confusion between the concept of write-in votes, and the (entirely separate) concept of absentee voting.

The bylaws allow absentee ballot voting, which is how most members will cast their vote since they cannot make it to the general meeting in person. If those absentee ballots have write-in candidates then by the new bylaw change that no one knew about which states "...write-in ballots are prohibited" the absentee ballots would be illegal I believe.

I am trying to understand the RONR on this because I think it impacts how the Number of Votes for Election is determined.

[Guest Gary c Tesser]

A couple questions for Guest BJBerli. (These might be worth chewing on, and the answers might be useful. I expect that Guest BJBerli's time might be better spent preparing for fireworks at his meeting than in typing on the Internet, so I don't really want answers here; this thread has already taken up much of the OP's time.)

Who says that nominations have closed? (And where do they think they got that authority from?)

Is it too late to challenge the assertion that nominations have closed, and to write to the expected absentees, telling them who the other, preferred nomininees are?

Does ONLY the board have the right to amend the bylaws, or have the bylaws also left this right to the membership? (If only the board has the right to amend the bylaws, then OI 2006-13 does not apply.)

[Gary Novosielski]

There's also the matter that members of an organization have a presumed right to know what their own bylaws say. So I believe that, no matter what duty the board may or may not have to report its actions to the membership in general, they have the duty to report in detail what amendments are made to the bylaws.

[Burke Balch]

Can a motion to “Suspend the Rules” as it relates to the prohibition of write-in ballots for this election be made at the general meeting?

RONR (11th ed.), p. 17, ll. 22: "Rules clearly identifiable as in the nature of rules of order that are placed within the bylaws can [with the exceptions specified in section 25] . . . be suspended by a two-thirds vote . . . ." See also p. 263, ll. 1- 7. A rule prohibiting write-in votes relates to methods of voting (obviously) and is therefore "clearly identifiable as in the nature of rules of order". I cannot see that any of the exceptions in section 25, which are found on pages 263-65, apply. It is true that "A rule in the bylaws requiring that a vote-- such as, for example on the election of officers-- be taken by (secret) ballot cannot be suspended, however, unless the bylaws so provide . . . ." While the rule prohibiting write-in votes relates to the manner of ballot voting, it is not a rule that a vote be taken by ballot -- and, of course, the vote for officers will still be taken by ballot if the rules are suspended to permit write-in voting.

In short, I see no reason why the members present at the association meeting at which the election is to be conducted may not, by a two-thirds vote, suspend the bylaws prohibition on write-in votes.

A small group of members have challenged the amendment “prohibiting write-in ballots” asking the current President and Secretary to provide a copy of the minutes that show evidence of this vote and notification to the membership that such an amendment was considered and approve.

RONR (11th ed.), p. 487, ll. 14-20: "[board] minutes are accessible only to the members of the board . . . unless the society by a two-thirds vote (or the vote of a majority of the entire membership, or a majority vote if notice is given) orders the board's minutes to be produced and read to the society's assembly."

Finally, given the description of the situation in the organization that has been provided, it may be a good idea before the association election meeting to read -- and be prepared to use -- the "Remedies for Abuse of Authority by the Chair in a Meeting" found on pages 650 to 653 of RONR (11th ed.)

[Gary c Tesser]

A couple of bits.

1. Congratulations and thanks to Mr Balch: till now, nobody saw through the hullabaloo, chaos, and excitement in the setup enough to have given Original Poster BJBerli’s fifth-first question (!?) the attention it deserved. I, for one, have been bouncing around all weekend and beyond, without its even occurring to me to think about suspending the egregious, flagitious, oligarchic, insidiously subversive rule. So the answer to the fifth-first question, once Mr Balch points it out, is trivially, annoyingly obvious. And, along with the cited material on p. 650 – 653, it might lead to the Gordian knot-cutting solution, particularly if the absentee voters are notified in advance of this prospective action and advised to consider making some write-in votes in the event that the action is successful. (Speaking of “annoying,” though, those three sentences are too long, or at least sinuously convoluted. But it’s five in the morning. If I had a used-dictionary salesman on my staff, I could get them copy-edited; but, alas, the budget goes only so far, and remember the hungry mouths to feed.)

(1a. Unfortunately, if the fight to re-open nominations is won, then getting write-in votes permitted might actually divide opposition to the entrenched Power Structure, especially since the absentees will vote without allowing for these new nominations. This might be irrelevantly a purely strategic question. But why not? Was Henry M. Robert given the rank of General by the National Association of Parliamentarians, or what!)

2. Mr Balch, I don’t understand what the fifth and sixth sentences of the first paragraph of your post (#17) are about. Voting by ballot is not contended here at all, except perhaps implicitly in BJBerli’s first-second (?!??) question. A moment of explanation, if you care to?

[George Mervosh]

RONR (11th ed.), p. 17, ll. 22: "Rules clearly identifiable as in the nature of rules of order that are placed within the bylaws can [with the exceptions specified in section 25] . . . be suspended by a two-thirds vote . . . ." See also p. 263, ll. 1- 7. A rule prohibiting write-in votes relates to methods of voting (obviously) and is therefore "clearly identifiable as in the nature of rules of order". I cannot see that any of the exceptions in section 25, which are found on pages 263-65, apply. It is true that "A rule in the bylaws requiring that a vote-- such as, for example on the election of officers-- be taken by (secret) ballot cannot be suspended, however, unless the bylaws so provide . . . ." While the rule prohibiting write-in votes relates to the manner of ballot voting, it is not a rule that a vote be taken by ballot -- and, of course, the vote for officers will still be taken by ballot if the rules are suspended to permit write-in voting.

In short, I see no reason why the members present at the association meeting at which the election is to be conducted may not, by a two-thirds vote, suspend the bylaws prohibition on write-in votes.

Would it be correct to say, therefore, a special rule of order could be adopted outside of the bylaws to prohibit write-in votes? I think it would be proper given the stated belief it is a suspendable rule of order if placed inside the bylaws.

[BJBerli]

Greetings All,

I am Guest BJBerli. I've finally joined the forum. I appreciate everyones input. I have been trying to prepare for the meeting of my association which is right around the corner.

My research, with your input, especially Mr. Balch's has provided me much needed direction and an approach to take for the meeting and presenting this topic to the membership. Hopefully the membership will take the appropriate actions and the right outcome will be reached that restores their rights.

Thanks again,

BJBerli

[Burke Balch]

2. Mr Balch, I don’t understand what the fifth and sixth sentences of the first paragraph of your post (#17) are about. Voting by ballot is not contended here at all, except perhaps implicitly in BJBerli’s first-second (?!??) question. A moment of explanation, if you care to?

I was trying to anticipate -- and rebut in advance -- any claim that the bylaws amendment adopted by the BOD barring write-in votes was not suspendible on the theory that it related to ballot voting and RONR lists, as an exception to what rules can be suspended, one requiring ballot voting. I hope that if you reread the sentences in question you will agree that such a theory is in fact indefensible.

Would it be correct to say, therefore, a special rule of order could be adopted outside of the bylaws to prohibit write-in votes? I think it would be proper given the stated belief it is a suspendable rule of order if placed inside the bylaws.

If the bylaws require a ballot vote, I do not think that a special rule of order could prohibit write-in votes, any more than a special rule of order could require that those voting by ballot publicly disclose their votes, because both are integral to the nature of a ballot. Note the provision in the footnote on page 441 that even though an "organization could suspend the rules, or adopt a special rule of order, that the nominee with the fewest votes is dropped from the list of nominees for succeeding ballots" it is the case that "Only a bylaws provision . . . could make the dropped nominee ineligible for election so as to render illegal any subsequent votes cast for that nominee." Prohibiting write-in votes would have the same effect as what RONR says would require a bylaws provision instead of a special rule of order.

[Gary c Tesser]

I was trying to anticipate -- and rebut in advance -- any claim that the bylaws amendment adopted by the BOD barring write-in votes was not suspendible on the theory that it related to ballot voting and RONR lists, as an exception to what rules can be suspended, one requiring ballot voting. I hope that if you reread the sentences in question you will agree that such a theory is in fact indefensible.

Thanks; that's a relief. Your argument looked over-argued because its opponent never showed up.

Yes, I do agree. It's not about balloting at all. What bothers me is that the prohibition on write-in votes has some inchoate miasma that makes it seem, on appearance, proof against suspension, which is why nobody noticed its vulnerability until Mr Balch ambled in after the rest of us had spent a few days flailing at muscae volitantes and imaginary crocodiles Its pure affront to basic rights gives it that impalpable air of intrinsic, innate unassailability. The rule presents a sense that it has behind it a subtle yet adamantine protection of somebody's rights (the absentees? the early nominees? the undefined victims of unnameable conflicts of interest?), a protection fundamentally immune to challenge.

(Yumm ... you're right, Mr Balch, that was fun.)

[George Mervosh]

If the bylaws require a ballot vote, I do not think that a special rule of order could prohibit write-in votes, any more than a special rule of order could require that those voting by ballot publicly disclose their votes, because both are integral to the nature of a ballot. Note the provision in the footnote on page 441 that even though an "organization could suspend the rules, or adopt a special rule of order, that the nominee with the fewest votes is dropped from the list of nominees for succeeding ballots" it is the case that "Only a bylaws provision . . . could make the dropped nominee ineligible for election so as to render illegal any subsequent votes cast for that nominee." Prohibiting write-in votes would have the same effect as what RONR says would require a bylaws provision instead of a special rule of order.

I appreciate the clarification.....

[Burke Balch]

My opinion that a bylaws provision prohibiting write-in votes is clearly in the nature of a rule of order and may therefore be suspended was given without consultation with my colleagues on the authorship team and should not be taken as representing their views; note the statement appearing under the line below.

[George Mervosh]

Fair enough and I hope most would have regarded it as your personal viewpoint, unless you expressly stated otherwise.