illegal votes - urgent request

[Guest LNM]

Our homeowners association utilizes cumulative voting and consists of over 300 apartments. There are eleven different configurations of percentages of common interests reflecting eleven different types of apartments.

 

At our recent annual election, eligible association members were each given a ballot indicating the percentage common interest of their apartment.

 

Then those individuals who were assigned proxies were each given a single ballot (“proxy ballot”) indicating the combined common interests of all their proxy assignments. (This contrasts with other associations, where when an individual is assigned a proxy, that individual is given a separate ballot for each assignment; thus an individual who is assigned many proxies is given as many ballots as the proxies assigned to him/her.)

 

The assignees, including the Board of Directors as a whole, who were assigned many proxies had ballots which were easily identifiable because of the unique combined common interest amounts (because we have eleven different configurations). Conversely, those who were only assigned the proxy of one apartment did not have identifiable proxy ballots as that proxy ballot indicated the percentage of common interest of a single apartment and resembled other single apartment ballots.

 

The Board of Directors, with voting to be determined by their majority, had a single proxy ballot assigned to them reflecting the combined common interests of all proxies assigned to “Board majority.”

 

Nearly two weeks after the election, when members of the association were finally allowed to participate in a review of the election records, these members learned that in the “Board majority” ballot were the common interests of apartments to which they were NOT entitled to vote by State law, thus inflating the influence of the majority of the Board’s vote. Our State laws says, “No votes allocated to a unit owned by the association may be cast for the election or reelection of directors.”  The association owns as many as seven or eight apartments.

 

Those members who participated in the review contested the inclusion of the common interests of those apartments to which the Board was not entitled. 

 

In Robert’s Rules, 11^th edition, page 416, it says, “If one or more ballots are identifiable as cast by persons not entitled to vote, these ballots are excluded in determining the number of votes cast for purposes of computing that majority.”  

 

Am I correct to infer that the entire single ballot of the “Board majority” should be excluded because contained within that single ballot are the common interest amounts of units it was not entitled, by State law, to cast?

 

There rest of that paragraph reads, “If there is evidence that any unidentifiable ballots were cast by persons not entitled to vote, and if there is any possibility that such ballots might affect the result, and if there is any possibility that such ballots might affect the result, the entire ballot vote is null and void, and a new ballot vote must be taken.”  However, the “Board majority” ballot is easily identifiable and unique because it contained the common interests of many proxies. 

 

The association does not want to go through the difficult effort of trying to secure another honest and proper election.  This is the second annual election in as many years (and in the nearly two years of my ownership) that the electoral process was severely flawed and that the Board disregarded procedures clearly enumerated in our State laws and in our association’s By-Laws.

 

As one of two Tellers of this recent election, I signed the Certificate of Election.  But I did not know until later, upon the members’ review of election records, that the Board cast votes that it was not entitled to use.  What will happen if I withdraw my certification? 

 

The Board is poised to ratify election results which reflect numbers which they have not explained and which may or may not include the votes to which they were not entitled. I am ready to protest that ratification as Robert’s Rules, 11^th edition, says on page 125, “An assembly…cannot make valid…anything done in violation of procedural rules prescribed by national, state, or local law, or in violation of its own bylaws…”  Does my protest carry any weight?  How can members prevent the ratification of election results if the Board does reduce the weight of their ballot by the common interests of those apartments’ votes they were not entitled to vote, but does not exclude the entire ballot?

 

What is proper?

 

Your assistance is greatly appreciated.

 

Respectfully,

 

LNM

 

[Larry Cisar]

You may need a lawyer more than a parliamentarian. If the percentage assigned to the Board was done (redone) correctly, would the results change? If not, then go with the results. If so, then adjust the results correctly. Otherwise, you will be fighting over this election for the next upteen years.

[Richard Brown]

I agree with the comments by the esteemed Larry Cisar.  My thoughts are that the results of the election should be left alone unless it can be demonstrated that the votes illegally cast were sufficient to change the outcome of any of the elections.  However, because you must factor in the provisions of state law, it is probably wise to consult with an attorney and perhaps also with a professional parliamentarian familiar with your type of association.

 

It might turn out to be necessary to have a new election for only one or two close races which might have been influenced by the improper ballots.

 

Edited to add:  The normal (and proper) way to challenge the outcome of an election in a case such as this is to raise a point of order that illegal ballots were counted and that those ballots could have affected the outcome of the elections.  Be prepared to cite the appropriate sections of your bylaws, state law and RONR.

[Josh Martin]

In Robert’s Rules, 11^th edition, page 416, it says, “If one or more ballots are identifiable as cast by persons not entitled to vote, these ballots are excluded in determining the number of votes cast for purposes of computing that majority.”

Am I correct to infer that the entire single ballot of the “Board majority” should be excluded because contained within that single ballot are the common interest amounts of units it was not entitled, by State law, to cast?

No, I don't think so. Keep in mind that in RONR, each ballot is equal to one vote. It doesn't anticipate a situation like yours. It seems to me that, because only some of the votes from that ballot were not properly cast, only those votes should be excluded - not the entire ballot.

In addition, in the future the assembly should use a slightly different method for ballot votes. The fact that ballots are identifiable after the fact undermines the secrecy of the ballot.

As one of two Tellers of this recent election, I signed the Certificate of Election. But I did not know until later, upon the members’ review of election records, that the Board cast votes that it was not entitled to use. What will happen if I withdraw my certification?

I haven't the slightest idea. There is no mention of a "Certificate of Election" in RONR, so this must be something from your own rules, which your society will need to interpret.

The Board is poised to ratify election results which reflect numbers which they have not explained and which may or may not include the votes to which they were not entitled. I am ready to protest that ratification as Robert’s Rules, 11^th edition, says on page 125, “An assembly…cannot make valid…anything done in violation of procedural rules prescribed by national, state, or local law, or in violation of its own bylaws…” Does my protest carry any weight? How can members prevent the ratification of election results if the Board does reduce the weight of their ballot by the common interests of those apartments’ votes they were not entitled to vote, but does not exclude the entire ballot?

Your protest carries no weight at a board meeting. The members may not be able to prevent ratification, but a Point of Order may be raised at a meeting of the membership, followed by an Appeal if necessary. As I previously noted, I see no reason why the entire ballot should be excluded. Only the votes the board was not eligible to cast should be excluded. Any votes the board was entitled to cast should remain.

I agree with the comments by the esteemed Larry Cisar. My thoughts are that the results of the election should be left alone unless it can be demonstrated that the votes illegally cast were sufficient to change the outcome of any of the elections. However, because you must factor in the provisions of state law, it is probably wise to consult with an attorney and perhaps also with a professional parliamentarian familiar with your type of association.

It might turn out to be necessary to have a new election for only one or two close races which might have been influenced by the improper ballots.

Edited to add: The normal (and proper) way to challenge the outcome of an election in a case such as this is to raise a point of order that illegal ballots were counted and that those ballots could have affected the outcome of the elections. Be prepared to cite the appropriate sections of your bylaws, state law and RONR.

Because the improperly cast votes can be identified, there is no need for a new election in any event. The improperly cast votes can be removed from the tally and the result adjusted accordingly.

[Guest Guest]

Thank you for your quick and thoughtful responses.

In response to your comments, the single ballot (“Board majority”) that contained the common interests (voting power) of the apartments that the Board was not entitled to cast, if excluded, would affect the outcome of the election.

There were a total of seven candidates for five seat and if that ballot was excluded, one of the Directors that was seated would lose and be replaced. Additionally, the sequentially decreasing terms of the Directors would also be affected (three-three year terms and two-two year terms based on the candidates who received the most votes getting the longer terms).

I sincerely appreciate your help!