Write-In Candidates Mandatory?

[orderful]

Hi,

This is my first post on this forum.  I've been searching diligently for an answer to this for a while, unsuccessfully, and hoping this forum can help me finally get some clarity on this time sensitive matter:

 

THE SHORT VERSION OF THE QUESTION:

 

In an organization that votes by written ballot, and which makes zero mention of write-in candidates in their bylaws, is a member allowed to be elected via write-in on the ballot?

 

 

 

 

 

Since I don't know which will be more helpful to people who can answer my question, here's...

THE LONG VERSION:

 

I'm involved with California a non-profit organization that ostensibly operates according to Roberts Rules (although, as a small group, the have a history of inconsistency in following them or striving to understand them when it's politically inconvenient to do so).

 

They have an election upcoming for Board members in a few weeks.  For the entire history of the organization (almost 20 years), the paid members of the organization have voted via written ballot.

 

Currently, there are several incumbent candidates for re-election in uncontested positions.  

 

For one of those positions (Board President), another member missed the deadline (by one day) for his nomination to be received by the organization by mail (their deadline is the day of receipt, not the day of postmark) due to this winter's all-too frequent weather-based mail delays.

 

Thus, he wishes to run against the incumbent President as a write-in candidate.

 

In response, the Board president has asserted that the bylaws of the organization make no provision for write-in candidates, and thus they cannot and will not be recognized.  Some of the other Board members have agreed; others (as well as regular organization members) have not, but in those cases have expressed ignorance about the rules in this matter, and thus have been hesitant in their opposition of the Presdent.  Personally, I have been in the organization from its start, and I recall that historically there have been write-in candidates that have been recognized (although none got enough votes to win), but there are no records I can find (old minutes, etc.) which document this definitively.

 

They are holding a board meeting in one week to vote on a policy for write-in candidates, both determining the outcome of this pending election and setting future policy and precedent.  Not only does this seem problematic for the integrity of the current election, but I also worry on a more philosophical and long-term level about finally putting into hard-coded rule a vote made by a Board that is demonstrating no diligence in determining past practice or even larger precedence and opinions from other organizations, regulations, or Robert's Rules.  Almost 20 years of data will then get ignored going forward as well in deference to the upcoming ruling, which will probably have no integrity of its own due to such lack of diligence.

 

It's my strong sense that the ruling on this is self-evident, that write-ins should be allowed in absence of an existing bylaw or policy.  I'm also concerned about a vote on this policy done by Board members that are also running in uncontested positions -- that seems like a clear-cut conflict of interest.

 

I have searched the web for weeks, and all I can find is constant references in discussions of Robert's Rules to the use of write-in candidates; and then 2 secondary sources (Dummy's Guide to RR, and a forum about procedure that claims to be stating the official RR stance on write-ins), which both state that write-ins must be accepted when the votes are taken by written ballot.

 

However, the only texts I could find on search of RR made no explicit direct mention of write-ins; and the only other references to write-ins within RR sources do what all other web references have done -- make mention of them all the time as if they are a given, without express declaration of whether or not they must be accepted.

 

It seems to me if this is just a cut and dry issue to folks like you who have much more experience and wisdom regarding RR, it would cut through all the fog and obstacles of history, baggage, political charge, poor record keeping, etc.

 

So...if anyone knows the answer -- or at least can point me in the right direction -- I would really appreciate it (as would a lot of other people)!

 

Thanks!

 

 

[Guest Edgar]

THE SHORT VERSION OF THE ANSWER:

 

Since members have a right to vote for whomever they wish, write-in votes are always permitted.

 

Which is not to say that an organization can't adopt a rule prohibiting them (for instance, when absentee voting is permitted).

 

[Josh Martin]

THE SHORT VERSION OF THE QUESTION:

 

In an organization that votes by written ballot, and which makes zero mention of write-in candidates in their bylaws, is a member allowed to be elected via write-in on the ballot?

 

Yes.

 

"Votes can be cast for any person who is eligible for election, even if he has not been nominated." (RONR, 11th ed., pg. 439, lines 22-23)

 

Which is not to say that an organization can't adopt a rule prohibiting them (for instance, when absentee voting is permitted).

 

An organization may adopt a rule prohibiting write-in votes if it wishes, but such a rule would need to be in the bylaws.

[orderful]

Hi, 

Thank you so much for these replies.  I did receive them in time and presented them to this Board of Directors.  I now have response from them, right before they tally the votes of the election tonight!

 

Their response was “Robert’s Rules of Orders was only adopted by our bylaws to control our meetings, not our elections.  If we were to reference Robert's Rules to guide this election issue, it would violate our bylaws.  Since our bylaws requires a 2/3 majority of a vote of the general membership if we are changing election rules in the bylaws, we would have to have that kind of vote to allow write-ins."

 

I was surprised by this.  Can an organization cherry pick which part of Robert's Rules to follow?  Doesn't voting (in meetings) and by extension voting in elections fall under the general activities of organizations meeting that RR governs?

 

Am I wrong about this? If so, I would love to be able to help the people in this organization who feel like this election was kind of killed by 1000 cuts of paperwork.

 

 

 

 

 

Here is the bylaws passage they reference about RR (there is no such passage in the bylaws stating elections are governed by RR):

 

"Regarding majority voting and meetings of members:

 

Every act or decision done or made by a majority of voting members either present in person at a duly held meeting at which a quorum is present or represented by the responses to a written mail ballot is the act of the members, unless the law, the Articles of Incorporation of this corporation or these Bylaws require a greater number.

 

…

Meetings shall be governed by Robert’s Rules of Order, as such rules may be revised from time to time, insofar as such rules are not inconsistent with or in conflict with these Bylaws, the Articles of Incorporation of this corporation or any provision of law."

 

Here is the bylaws passage about nominations and related passages about elections voting:

 

( Directors shall be elected by written mail ballot. Such ballots for the election of directors shall list the persons nominated at the time the ballots are mailed or delivered. If any such ballots are marked "withhold" or otherwise marked in a manner indicating that the authority to vote for the election of directors is withheld, they shall not be counted as votes either for or against the election of a director.

 

SECTION 11. REASONABLE NOMINATION AND ELECTION PROCEDURES

 

This corporation shall make available to members reasonable nomination and election procedures with respect to the election of directors by voting members. Such procedures shall be reasonable given the nature, size and operations of the corporation and shall include:

 

(a) A reasonable means of nominating persons for election as directors.

 

( A reasonable opportunity for a nominee to communicate to the members the nominee's qualifications and the reasons for the nominee's candidacy.

 

© A reasonable opportunity for all nominees to solicit votes.

 

(d) A reasonable opportunity for all voting members to choose among the nominees.

 

…

 

Generally, any person who is qualified to be elected to the Board of Directors shall be nominated either by a nominating committee or by any voting member prior to the deadline for nominations for directors. 

 

 

 

 

 

 

[Gary Novosielski]

Elections are effectively a part of a meeting, just as any decision is.  The election of a president is a motion That  <name> be elected president.

 

Elections are governed by all the rules in the parliamentary authority except special rules adopted locally. 

[Gary c Tesser]

I think that what's right and what's reasonable has been established now.  I'm wondering what advice can be given to OP Orderful, per RONR. to get the job done.

[Josh Martin]

I now have response from them, right before they tally the votes of the election tonight!

 

Lovely timing.

 

Their response was “Robert’s Rules of Orders was only adopted by our bylaws to control our meetings, not our elections.  If we were to reference Robert's Rules to guide this election issue, it would violate our bylaws.  Since our bylaws requires a 2/3 majority of a vote of the general membership if we are changing election rules in the bylaws, we would have to have that kind of vote to allow write-ins."

 

I've often seen the argument that, because the organization's bylaws prescribe that the organization's meetings shall use Robert's Rules as their parliamentary authority, this means that Robert's Rules is not to be used as the parliamentary authority for absolutely anything which happens outside of the context of the meeting. I generally disagree with such arguments, and I would generally interpret the parliamentary authority to be applicable at all times unless the bylaws explicitly state otherwise.

 

Additionally, even if we assume for the sake of argument that the bylaws indeed provide that RONR is not binding on the society in this situation, that does not necessarily mean that it would violate the organization's bylaws to allow write-ins. If nothing in the organization's bylaws either permitted or prohibited write-ins, then it would stand to reason that permitting write-ins would not conflict with the organization's bylaws. In order for the board's argument to really have weight, they'll need to show that the bylaws actually prohibit write-ins (and since the bylaws take precedence over RONR, there's no need for this silly argument about whether RONR applies to a mail vote in your society).

 

It is ultimately, however, up to the organization to interpret its own bylaws. See RONR, 11th ed., pgs. 588-591 for some Principles of Interpretation.

 

In the long run, I'd advise changing the section in your bylaws regarding the parliamentary authority to read like this, in order to avoid such arguments in the future. Given how controversial this topic has been, perhaps the society should also add a rule explicitly permitting write-in votes.

 

Can an organization cherry pick which part of Robert's Rules to follow?

 

Yes, it actually can. An organization could certainly adopt special rules of order (or rules in its bylaws) which supersede RONR on certain points. An organization could even provide in its bylaws that RONR is not to be used as the society's parliamentary authority in certain circumstances, although the wisdom of such a rule escapes me. I am skeptical, however, that the rule in your bylaws means what the board says it means.

 

Doesn't voting (in meetings) and by extension voting in elections fall under the general activities of organizations meeting that RR governs?

 

Absolutely.

 

Am I wrong about this? If so, I would love to be able to help the people in this organization who feel like this election was kind of killed by 1000 cuts of paperwork.

 

If the write-in votes are not counted and they could have affected the result, a member should raise a Point of Order on the subject at the next meeting of the membership, followed by an Appeal if necessary. If the write-in votes couldn't have affected the result, well, it doesn't much matter whether the write-in votes count (at least this year).

 

As I noted previously, it would also be advisable to amend the society's rules to clarify this issue for the future.

[Guest Orderful]

Wow, thank you guys so much for your prompt and helpful replies!  I can't tell you how much I appreciate this.

 

I have two questions:

 

1) Is there explicit wording in RONR that explicitly states what Gary N says? Or is that simply the logical (and even the only generally accepted) interpretation of other more broad language in RONR?

 

I ask because the political strategy of the incumbent president (and talking points of the board in general) have been to state the kind narrow presumptions about RR I've shared with you, and then put the burden back on their constituency to keep correcting them as I have been trying to do.  I would like provide the board with Gary N's answer in a way that includes irrefutable data that makes it difficult to volley the burden back to me.

 

 

2) Maybe this is the same thing as my question 1 and/or Gary T's:  Is there a specific action I can take, documentation I can provide/reference, or statement/argument I can make that will resolve this matter in some definitive way? 

 

 

 

(P.S., FYI, I don't have dog in this fight, any interest, other than fairness and democracy.  I'm not running, and I'm not backing any one candidate.)

[Josh Martin]

1) Is there explicit wording in RONR that explicitly states what Gary N says? Or is that simply the logical (and even the only generally accepted) interpretation of other more broad language in RONR?

 

The latter, I'm afraid.

 

I ask because the political strategy of the incumbent president (and talking points of the board in general) have been to state the kind narrow presumptions about RR I've shared with you, and then put the burden back on their constituency to keep correcting them as I have been trying to do.  I would like provide the board with Gary N's answer in a way that includes irrefutable data that makes it difficult to volley the burden back to me.

 

If the board won't listen to reason, stop trying to convince the board and take your case to a higher authority (the general membership).

 

2) Maybe this is the same thing as my question 1 and/or Gary T's:  Is there a specific action I can take, documentation I can provide/reference, or statement/argument I can make that will resolve this matter in some definitive way? 

 

As I note near the end of my previous post, the definitive way to resolve this for the current election is to raise a Point of Order at the next meeting of the general membership, followed by an Appeal if necessary. It would probably be even better, in the long run, to amend the clause in your bylaws regarding the parliamentary authority and perhaps even to add a statement explicitly indicating that write-in votes are in order, so that there is no question on this point.

[Guest orderfuly]

I posted this while Josh's reply came in, so my comment above did not include recognition of his reply.  So, thank you Josh, that's very important information!

 

I'd like to get a clarification on something Josh said:

 

 

 

 

If nothing in the organization's bylaws either permitted or prohibited write-ins, then it would stand to reason that permitting write-ins would not conflict with the organization's bylaws. In order for the board's argument to really have weight, they'll need to show that the bylaws actually prohibit write-ins.

 

 

So, does the bylaws' rule that I shared above, namely...

 

Generally, any person who is qualified to be elected to the Board of Directors shall be nominated either by a nominating committee or by any voting member prior to the deadline for nominations for directors. 

...count as prohibiting write-ins?  That bylaw passage is the thrust of their argument:  They are saying this statement means only people properly nominated may run for office, this write-in are prohibited by this very same statement.

 

It sounds like Josh is saying that the bylaws would have to explicitly prohibit write-ins. This bylaw seems to be at best an implied prohibition of bylaws which is so ambiguous and possibly incomplete that the implication should be considered to have no validity without additional explicit rules to support it.

[Guest orderfuly]

If the board won't listen to reason, stop trying to convince the board and take your case to a higher authority (the general membership).

 

 

As I note near the end of my previous post, the definitive way to resolve this for the current election is to raise a Point of Order at the next meeting of the general membership, followed by an Appeal if necessary.

 

The meeting tonight (it's approximately 7 hours from now -- it's morning where we are) is the organization's annual business meeting, which the general membership may attend (only about 15-20% of the membership is likely to turn out).  So, it seems optimal to deal with it in this meeting.

 

I don't really understand what you mean procedurally by bringing it to they authority of the membership. Can you clarify?

 

I'm familiar with Point of Order, but not so much with Appeals. I'll try to read up on that later today.

 

 

 

 

 

 

It would probably be even better, in the long run, to amend the clause in your bylaws regarding the parliamentary authority and perhaps even to add a statement explicitly indicating that write-in votes are in order, so that there is no question on this point.

 

This I think will only happen if the above issues you guys so articulately address get understood by the board and/or membership.  So, the degree of success of my efforts tonight regarding this Point of Order / Appeal will likely determine the success of getting that statement in the bylaws going forward.

[Josh Martin]

So, does the bylaws' rule that I shared above, namely...

 

Generally, any person who is qualified to be elected to the Board of Directors shall be nominated either by a nominating committee or by any voting member prior to the deadline for nominations for directors. 

...count as prohibiting write-ins?  That bylaw passage is the thrust of their argument:  They are saying this statement means only people properly nominated may run for office, this write-in are prohibited by this very same statement.

 

It's ultimately up to your organization to interpret its own bylaws. See RONR, 11th ed., pgs. 588-591 for some Principles of Interpretation.

 

I could see a reasonable interpretation that the rule prohibits write-in votes, and I could see a reasonable interpretation that it doesn't. I think the board's argument would be a little stronger if the rule in question didn't start with "Generally." But it's certainly a better argument than the rest of what they said.

 

It sounds like Josh is saying that the bylaws would have to explicitly prohibit write-ins. This bylaw seems to be at best an implied prohibition of bylaws which is so ambiguous and possibly incomplete that the implication should be considered to have no validity without additional explicit rules to support it.

 

Well, an explicit rule would be clearest, but I think a society could implicitly prohibit write-in votes. The board's argument seems to be that the rule provides that only candidates who have been nominated by the deadline are eligible for office. If that argument is correct, that would certainly prohibit write-in votes even though there is no explicit statement on the subject.

 

The meeting tonight (it's approximately 7 hours from now -- it's morning where we are) is the organization's annual business meeting, which the general membership may attend (only about 15-20% of the membership is likely to turn out).  So, it seems optimal to deal with it in this meeting.

 

I don't really understand what you mean procedurally by bringing it to they authority of the membership. Can you clarify?

 

I'm familiar with Point of Order, but not so much with Appeals. I'll try to read up on that later today.

 

Let's suppose that a member raises a Point of Order that the write-in votes are valid and must be credited. The chair rules the point not well taken and provides his reasoning. The chair doesn't have the last word. If a member disagrees with the chair's ruling, he can move to Appeal from the decision of the chair. Such a motion requires a second, is debatable, and requires a majority vote in the negative to overturn the chair's ruling (since the question is stated as "Shall the decision of the chair be sustained?"). Therefore, the membership itself has the final say in interpreting its own rules.