Contest an election due to disenfranchisment

[Guest Terry]

What would be the process to contest a mail in ballot election due to disenfranchised members?  Our CB&L’s state all ballots must be postmarked by a given date, due to a typo the date on the ballot was a later date.  The board wants to use the date stated in the CB&L without proper notification to the general membership.  And all ballots sent in after the date per the CB&L would be considered null and void.

[Guest Who's Coming to Dinner]

You would raise a point of order at a meeting of the members.

[Chris Harrison]

A member (at a meeting) should raise a Point of Order that members are not having their votes counted due to a mistake not of their own making.  The Chair would rule and that ruling can be Appealed. 

Is this something that has already occurred (the ballots have been sent out and received and you all are having to deal with the fallout now) or is it currently ongoing?  If it is happening now is there time to either send out new ballots with the correct date or send some sort of notification to the members letting them know of the correct return date?

[Guest Terry]

35 minutes ago, Chris Harrison said:

A member (at a meeting) should raise a Point of Order that members are not having their votes counted due to a mistake not of their own making.  The Chair would rule and that ruling can be Appealed. 

Is this something that has already occurred (the ballots have been sent out and received and you all are having to deal with the fallout now) or is it currently ongoing?  If it is happening now is there time to either send out new ballots with the correct date or send some sort of notification to the members letting them know of the correct return date?

The date has been surpassed for postmark, but the ballots have not been opened.  By the time a mailing would be sent out, the incorrect date will have passed.  I am thinking there should be a call for a revote based on disenfranchisement.   What does RONR say as it relate to elections and disenfranchisement?

[Richard Brown]

RONR does not address your specific situation. Most voting and issues related to voting occur in meetings. RONR discourages voting by mail, which is a form of absentee voting, even prohibiting it altogether unless authorized in the bylaws or required by state law.

RONR does have specific Provisions on how to deal with situations in a meeting where a member is denied the right to vote. However, when you have a problem with the way a mail ballot is conducted, you are generally on your own.

I do not have a good answer for you, especially without knowing more about your organization and precisely what is said in the bylaws about elections. Perhaps someone else will have a suggestion in addition to those already presented. Keep checking back.

 

[Guest Terry]

5 hours ago, Richard Brown said:

RONR does not address your specific situation. Most voting and issues related to voting occur in meetings. RONR discourages voting by mail, which is a form of absentee voting, even prohibiting it altogether unless authorized in the bylaws or required by state law.

RONR does have specific Provisions on how to deal with situations in a meeting where a member is denied the right to vote. However, when you have a problem with the way a mail ballot is conducted, you are generally on your own.

I do not have a good answer for you, especially without knowing more about your organization and precisely what is said in the bylaws about elections. Perhaps someone else will have a suggestion in addition to those already presented. Keep checking back.

 

Thank you, we are a small national organization that per our bylaws are required to elect out regional directors via USPS.  All ballots must be postmarked before a given date which has been passed. On the ballots there was a typo which added days to the time in which the ballots needed to be post marked.  All though it is a positive to the general membership, it is not per the C&BL’s.  So through social media it was announced that the club would be going by the C&BL date and not the one on the ballot.  Not all of our members have access to social media, therefore disenfranchising an unknown number of are membership, since their ballots will not be counted and was not aware of the error.  

[jstackpo]

Nice mess...

When, where, and by who(m) was the original "mail by" date set, that is, the date that was meant to be on the ballots? 

How (and/or where) was that original date documented?

If the answer to #1 & #2 is "in the bylaws" please quote the exact wording from the bylaws -- no paraphrases, please.

[Guest Terry]

34 minutes ago, jstackpo said:

Nice mess...

When, where, and by who(m) was the original "mail by" date set, that is, the date that was meant to be on the ballots? 

How (and/or where) was that original date documented?

If the answer to #1 & #2 is "in the bylaws" please quote the exact wording from the bylaws -- no paraphrases, please.

We no longer put ballots on the quarterly digest, only mail out ballots are used now.  Thank you again.

"The secretary-treasurer shall mail the ballots, or they may appear in the official publication (known as the XXXXXXXX), to all members whose dues do not expire prior to August 1^st.  The names off all candidates who have properly qualified under Article V Section 1, or have been selected under Article V section 3, shall appear on the ballot.  The reverse side of the ballot printed in the official publication shall be blank, no art work or printing of any kind. A self-addressed envelope shall accompany each ballot with the election chairman’s name and address thereon.  Ballots must be postmarked not later than August 25^th.   The committee shall count all acceptable ballots and send a certified statement of the results to the president and secretary-treasurer. The ballots and certified statement are to be retained for one (1) year should there be any questions concerning ballots. " 

[Joshua Katz]

Maybe I'm going to be odd man out here, but if the governing documents say August 25, it seems to me that incorrect statements in lower-ranking documents do not change anything. I don't like that result, but why should this organization count ballots, according to the principles of parliamentary law, that come in later? The hierarchy of rules seems to counsel it should not.

[Guest Terry]

8 minutes ago, Joshua Katz said:

Maybe I'm going to be odd man out here, but if the governing documents say August 25, it seems to me that incorrect statements in lower-ranking documents do not change anything. I don't like that result, but why should this organization count ballots, according to the principles of parliamentary law, that come in later? The hierarchy of rules seems to counsel it should not.

Although I agree that the prescribed date of August 25th should not supersede the misprint on the ballot. We are disenfranchising an unknown number of our membership by not honoring the later date.  Should the election be declared void, based on disenfranchisement?

[jstackpo]

I'm afraid I have to go along with Mr. Katz, and be hard-nosed about this.  One of the responsibilities of membership in an association is to be acquainted with the bylaws, and those bylaws seem crystal clear to me (although I haven't read all of them).

It is unfortunate, to be sure, but ignoring the bylaws can lead to greater difficulties.  (Vide any newspaper)

[Guest Terry]

4 minutes ago, jstackpo said:

I'm afraid I have to go along with Mr. Katz, and be hard-nosed about this.  One of the responsibilities of membership in an association is to be acquainted with the bylaws, and those bylaws seem crystal clear to me (although I haven't read all of them).

It is unfortunate, to be sure, but ignoring the bylaws can lead to greater difficulties.  (Vide any newspaper)

Thank you again.........so I guess the only unanswered question is should we call for a revote or not, based on disenfranchisement?  As I understand ignorance is no excuse for the law, an unknown group of our membership has taken the later date for the truth, since it was sent as an official document by our Secretary-Treasure.

[Joshua Katz]

45 minutes ago, Guest Terry said:

Although I agree that the prescribed date of August 25th should not supersede the misprint on the ballot. We are disenfranchising an unknown number of our membership by not honoring the later date.  Should the election be declared void, based on disenfranchisement?

In my opinion, unless your bylaws provide for such a thing, no. The way the hierarchy works is that, when one rule governs over another, the lower one is simply void and of no effect. Here, you have a rule in the equivalent (I suspect) of your bylaws, indicating when the vote must be postmarked. Then you have a contradictory statement, seemingly not even adopted as a rule, on the ballot. It's a harsh outcome, and not one I'm pleased with, but I say you count those that came in before the real deadline (and, yes, disenfranchise the rest, to an extent), and the election results are final. If there is a procedure for holding an early election, your organization could consider using that to hold a new election, but if not, well, there you go. I suppose if you have the "successors are elected" language in the term of office, you could adopt a motion to remove everyone for the purpose of a new election, but it will be held by whatever your vacancy procedure is, which is likely not another election by the same assembly.

In short, I guess I'm not fond of work-arounds. Your members are assumed to know the bylaws. The bylaws say August 25. Then they get a letter saying a later date, they should say "hmm, well, the bylaws say August 25, I'd better be safe and mail it in early." I think there could be a bigger issue, actually, if the dates were reversed - then people would be saying they voted, but they didn't have time to fully consider their votes because of an artificially early deadline - and there would be no "safe" solution. Here, the safe solution for anyone is to vote by the earlier deadline (not often). That is, they could comply with both rules, and should.

[Guest Terry]

13 minutes ago, Joshua Katz said:

In my opinion, unless your bylaws provide for such a thing, no. The way the hierarchy works is that, when one rule governs over another, the lower one is simply void and of no effect. Here, you have a rule in the equivalent (I suspect) of your bylaws, indicating when the vote must be postmarked. Then you have a contradictory statement, seemingly not even adopted as a rule, on the ballot. It's a harsh outcome, and not one I'm pleased with, but I say you count those that came in before the real deadline (and, yes, disenfranchise the rest, to an extent), and the election results are final. If there is a procedure for holding an early election, your organization could consider using that to hold a new election, but if not, well, there you go. I suppose if you have the "successors are elected" language in the term of office, you could adopt a motion to remove everyone for the purpose of a new election, but it will be held by whatever your vacancy procedure is, which is likely not another election by the same assembly.

In short, I guess I'm not fond of work-arounds. Your members are assumed to know the bylaws. The bylaws say August 25. Then they get a letter saying a later date, they should say "hmm, well, the bylaws say August 25, I'd better be safe and mail it in early." I think there could be a bigger issue, actually, if the dates were reversed - then people would be saying they voted, but they didn't have time to fully consider their votes because of an artificially early deadline - and there would be no "safe" solution. Here, the safe solution for anyone is to vote by the earlier deadline (not often). That is, they could comply with both rules, and should.

Thank you again for the advise.

[Guest Who's Coming to Dinner]

While I agree with the "tough love" philosophy advanced above, it remains for the membership of this organization to decide if the balloting mistake has resulted in a fair election or not. The right to vote is fundamental, and if it has been accidentally abridged, there is an argument for taking another vote. The ultimate purpose of a vote is to get a fair sense of the will of the electorate; that purpose is higher than following the letter of the law.

[J. J.]

47 minutes ago, Joshua Katz said:

Maybe I'm going to be odd man out here, but if the governing documents say August 25, it seems to me that incorrect statements in lower-ranking documents do not change anything. I don't like that result, but why should this organization count ballots, according to the principles of parliamentary law, that come in later? The hierarchy of rules seems to counsel it should not.

You are not the odd man out here.  The bylaws, not some statement on the ballot, must govern.  

There is a general presumption in RONR that members are aware of the strictures of the bylaws and of the rules.  This is a general principle and applies to a number of things, such as notice of meetings (p. 575, ll. 32-36), and, to an extent the, rules relating to custom (p.19).

A member could have, upon receiving the ballot and consulting the bylaws, and contacted the secretary-treasure to correct the error.  Apparently no one did.

I will note that "the voting body itself is the ultimate judge of election disputes (p. 446, ll 4-5)." 

[Greg Goodwiller, PRP]

I find this question very intriguing.

Clearly, the bylaws "trump" a statement on a ballot. But I think the question is whether or not that statement qualifies as a breach under RONR pg. 445, ll. 34 ff, which states that "If a number of members sufficient to affect the result are improperly prevented from voting in an election, action has been taken in violation of a rule protecting a basic right of the individual member." If it is so believed, then "at any time during the continuance in office of the individual declared elected," a point of order may be raised (RONR pg. 445, ll. 16-17).

To follow through on a point of order so raised, one would need to know how many members were so "prevented from voting" as a result of the error. I think that could reasonably be done by counting how many votes were submitted (if that is possible) during the time period between the bylaws date and the published date. If that total number of ballots (not for whom they voted) is greater than the margin by which a candidate was elected, then there is a good argument for declaring that election invalid.

As noted by my colleague, it is ultimately for the assembly itself to judge (beginning with the ruling of the chair on a point of order, which may then be appealed).

[Joshua Katz]

10 minutes ago, Greg Goodwiller, PRP said:

Clearly, the bylaws "trump" a statement on a ballot. But I think the question is whether or not that statement qualifies as a breach under RONR pg. 445, ll. 34 ff, which states that "If a number of members sufficient to affect the result are improperly prevented from voting in an election, action has been taken in violation of a rule protecting a basic right of the individual member." If it is so believed, then "at any time during the continuance in office of the individual declared elected," a point of order may be raised (RONR pg. 445, ll. 16-17).

 

Of course, I agree (and should have said earlier) that the ultimate judge here is the voting body. That said, I think the boldfaced word above is key. Is it improper to conduct an election according to the timeline in the bylaws? I say no, and therefore, no one has been improperly prevented from voting. Nothing at all prevented them from complying with the bylaw deadline, except some misinformation - which, again, did not prevent them, since they could have complied with both.

I would think it would be far more interesting if it were impossible to comply with both.

[Greg Goodwiller, PRP]

Assuming no one can prove that there was any collusion, I suppose

 

[J. J.]

11 hours ago, Greg Goodwiller, PRP said:

I find this question very intriguing.

Clearly, the bylaws "trump" a statement on a ballot. But I think the question is whether or not that statement qualifies as a breach under RONR pg. 445, ll. 34 ff, which states that "If a number of members sufficient to affect the result are improperly prevented from voting in an election, action has been taken in violation of a rule protecting a basic right of the individual member." If it is so believed, then "at any time during the continuance in office of the individual declared elected," a point of order may be raised (RONR pg. 445, ll. 16-17).

 

I have the same problem that my colleague Mr. Katz does. Unless there simply was not time adequate between the ballot being sent and August 25; no one is being prevented from casting a vote that will count.   Some members are being prevented from casting a ballot after a certain time.  RONR may prohibit the casting of a vote after a certain point, even by an eligible member, or members.   It does thar by the motion to close the polls (p.286, ll. 15-34).

I my case, if I received a ballot on Saturday, August 25, it would be impossible for me to have had sent it to have a postmark by 8/25, even if I filled out the ballot immediately, and handed it back to the letter carrier. No post office in my neighborhood is open on a Saturday afternoon, and my mail usually  delivered in the late afternoon.  In that case, it might be a question of a member or members being "improperly prevented" from voting.

There could case where the secretary-treasurer was informed of the error on the ballot, had sufficient time to notify the members of the correct date, and chose not to.  That could violate a rule protecting a basic right of an individual to demand that the rules be enforced (p. 251, c.); RONR notes that, "It is the right of every member who notices a breach to insist on their enforcement (249, ll 32-34, emphasis added)."   I am not thrilled about applying this outside of the meeting context, but that right may exist outside of the meeting.

I would note, as well, that if the ballots remain separated, and separately counted, it will be exceptionally easy to see how the assembly  can determine if the result is affected (p. 416, ll. 30-33).  It is possible that the results of the "late" ballots, when added with ballots that were postmarked before the deadline, would not change the  outcome.  Before even considering invalidating the results, this should be the first step.

Edited August 28, 2018 at 02:04 AM by J. J.

[Guest Terry]

Thank you for everyone's input, it helped getting multiple perspectives on the situation.

[Guest Zev]

My own preference would be, if and only if the CB&L date restriction could be considered a restriction that had no application outside a meeting, to move to Suspend The Rules and allow the post-August-25 ballots to be included without separating them into two groups as suggested. In this way the election would be one single process and no person would be aware of any intermediate ballot count and very possibly avoid any bad feelings due to lost candidates. However, I am not totally convinced that the CB&L restriction can be suspended and would be happy to defer to some of our other experts on this forum concerning this matter.

[Joshua Katz]

2 hours ago, Guest Zev said:

My own preference would be, if and only if the CB&L date restriction could be considered a restriction that had no application outside a meeting, to move to Suspend The Rules and allow the post-August-25 ballots to be included without separating them into two groups as suggested. In this way the election would be one single process and no person would be aware of any intermediate ballot count and very possibly avoid any bad feelings due to lost candidates. However, I am not totally convinced that the CB&L restriction can be suspended and would be happy to defer to some of our other experts on this forum concerning this matter.

That's an interesting suggestion. I suppose my first thought is that it calls for voting outside a meeting. However, rules about voting are usually in the nature of rules of order, and voting usually takes place during a meeting, so maybe bylaws about non-meeting voting are suspendable? The question would be, how would one go about suspending them? When would the vote to do so be held? Presumably, some people might not bother voting who otherwise would have because they've been told their votes won't count, then you'll suspend and they'll learn they would have...

I think what we're finding here is that there is no perfect solution, nor agreement on what is fairest in the circumstances. 

[Josh Martin]

4 hours ago, Guest Zev said:

My own preference would be, if and only if the CB&L date restriction could be considered a restriction that had no application outside a meeting, to move to Suspend The Rules and allow the post-August-25 ballots to be included without separating them into two groups as suggested. In this way the election would be one single process and no person would be aware of any intermediate ballot count and very possibly avoid any bad feelings due to lost candidates. However, I am not totally convinced that the CB&L restriction can be suspended and would be happy to defer to some of our other experts on this forum concerning this matter.

The rule in question cannot be considered a restriction that has no application outside of a meeting. As I understand the facts, all of the votes are submitted outside of a meeting.

1 hour ago, Joshua Katz said:

That's an interesting suggestion. I suppose my first thought is that it calls for voting outside a meeting. However, rules about voting are usually in the nature of rules of order, and voting usually takes place during a meeting, so maybe bylaws about non-meeting voting are suspendable? The question would be, how would one go about suspending them? When would the vote to do so be held? Presumably, some people might not bother voting who otherwise would have because they've been told their votes won't count, then you'll suspend and they'll learn they would have...

I think what we're finding here is that there is no perfect solution, nor agreement on what is fairest in the circumstances. 

 A rule pertaining to when the polls close is certainly in the nature of a rule of order, however, a rule which has application outside of a meeting cannot be suspended.

[Joshua Katz]

1 hour ago, Josh Martin said:

 A rule pertaining to when the polls close is certainly in the nature of a rule of order, however, a rule which has application outside of a meeting cannot be suspended.

Of course, but my point is, you enter a strange area when you depart from RONR's wisdom in the first place. Voting outside of a meeting is prohibited by RONR. If the bylaws allow it, it doesn't seem that odd to me that they might also make a mess of determining what is in the nature of a rule of order. However, the standard is "clearly," so maybe that answers it.