Mail Ballot Not Following RONR Procedure

[Weldon Merritt]

An organization’s bylaws provide:

Quote

When the Association is proposing a Constitution or By-Law change, a ballot shall be mailed along with the proposed change. In the event the Active Member is unable to be in attendance at the Association meeting, the Active Member may vote by returning their ballot to the Association President five (5) working days prior to the Association meeting.

This is the only language in the bylaws regarding mail balloting.

RONR, p. 424, l. 34 to p. 425, l. 8 provides:

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If the vote is to be secret, an inner return envelope—with a space for the voter's signature placed on its face instead of on the ballot—should be sent to the voter with the ballot, in addition to the self-addressed outer return envelope described above. The ballot sent to the voter should be prefolded a sufficient number of times so that—when returned marked and refolded in the same manner and sealed in the inner envelope—there will be no chance of accidental observance of the member's vote by the teller who removes the ballot from the inner envelope.

The organization mailed the ballots with instructions to return them to a specified address (the president’s) but did not include an inner envelope. The ballots did not specify that they should not be signed, but there was no signature space on them, nor any other space for voter identification. It is not clear whether they were folded in the manner suggested by RONR.

A member is now contending “that the ballot as mailed to the membership is not valid.” In support of his contention, the member refers to some purported provisions from RONR. The language quoted by the member is not from either the 11th or the 10th edition (I didn’t try to go back any further) but has similar provisions about use of an inner and outer envelope. Interestingly, it also includes the statement that, “Voting by mail cannot be a secret ballot, as it is necessary for the tellers to know by whom each vote is cast.”

Even if the member had quoted the correct language from RONR, it is my opinion that failure to follow the RONR provisions about folding of the ballot and use of an inner envelope would not invalidate the voting, so long as the provisions in the organization’s bylaws are followed (which they were). Although there is no actual conflict between the bylaws and RONR (it would be possible to comply with the bylaws while still using a two-envelope system and making sure the ballot is folded as suggested by RONR), I think it would take a more serious error to invalidate the ballots than what the member suggests.

Does anyone disagree with my view?
 

[Joshua Katz]

I struggle with this theme often: just when are the bylaws "silent?" I've come to a restrictive view - the bylaws are silent only when they say nothing at all. When they say something, RONR does not apply. As a result, I agree with you. (Also as a result, organizations should be cautious about adding things to their bylaws that are already in RONR "just because.") 

I am puzzled by the use of an inner and outer envelope in a context where the vote is not secret. What's the point of the inner/outer thing if not to maintain secrecy of the vote?

[Bruce Lages]

If that statement from your member is in fact from (a much earlier version of) RONR, it does not seem to be in accord with the basis for the mail ballot procedure as currently stated in RONR. The whole purpose of the two-envelope system is to be able to identify the voter, but not the vote itself, thus preserving the secret nature of a secret ballot.

You are probably correct that what was done may not be sufficient to invalidate the vote - I'm not sure that specifying a ballot vote requires a secret ballot vote without specific words to that effect.

Edited to add:  although RONR (current edition) states unequivocally that "voting by ballot ...is used when secrecy of the members' votes is desired."

Edited September 13, 2018 at 02:58 AM by Bruce Lages

[Guest Who's Coming to Dinner]

I don't think RONR contemplates anything other than a secret ballot when using the term "ballot."

Voting by ballot (slips of paper on which the voter marks his vote) is used when secrecy of the members' votes is desired.
RONR (11th ed), p. 412, l. 13–15

When a vote is to be taken, or has been taken, by ballot, whether or not the bylaws require that form of voting, no motion is in order that would force the disclosure of a member's vote or views on the matter.
RONR (11th ed), p. 413, l.1–4

[Weldon Merritt]

3 hours ago, Joshua Katz said:

I am puzzled by the use of an inner and outer envelope in a context where the vote is not secret. What's the point of the inner/outer thing if not to maintain secrecy of the vote?

Good question. I have no idea, but I suspect that the language the member quoted is from a knock-off version. I suppose it is possible that an earlier v ersion of RONR might have ocntained the language, but I am doubtful.

[Weldon Merritt]

2 minutes ago, Guest Who's Coming to Dinner said:

I don't think RONR contemplates anything other than a secret ballot when using the term "ballot."

I agree. But I don't think that affects whether the ballots sent by the organization are invalid.

[Guest Zev]

Quote

“Voting by mail cannot be a secret ballot, as it is necessary for the tellers to know by whom each vote is cast.”

It is on page 200 of all the editions of 1951 (6th), 1943 (5th), and 1915 (4th), but none others.

[J. J.]

A while back, I remember a discussion about this.  A mail ballot is not necessary a secret ballot.  The term ballot, when unqualified, is a secret ballot.  The term "ballot" when qualified, may not be a secret ballot, e.g. a sign ballot is clearly not a secret ballot. 

I would take it that a vote on the amendment at the meeting need not be by secret ballot.  If a ballot is not required to be used at the meeting, i.e., the votes cast by members at the meeting are not secret.  If so, there would not be a right for all members to secrecy in voting.   It would be possible for the rules to provide that there  be secrecy is casting of votes by mail, but not with voting in person, but such a rule is unlikely, and in my opinion, would need to be clearly stated.

I am in agreement with the conclusion of Messers Merritt, Katz and Lages.  I do disagree with Guest Who's Coming to Dinner's suggestion that RONR contemplates nothing "other than a secret ballot when using the term 'ballot,'" especially in light of p. 420, ll. 22-25.  I think that Guest Zev does show that, at least in earlier editions, a ballot by mail is not necessary a secret ballot. 

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