Returned ballots deadline in bylaws not adhered to

[Guest Ericka]

Our constitution and bylaws state that our Member Practices may be amended at any time provided a copy of the proposed amendments are accompanied by a ballot by the secretary mailing/emailing the ballots.  The notice shall specify a date not less than thirty (30) days after the date of mailing and electronic transmission by which the ballots must be returned to the Secretary and/or the board designated independent e-balloting organization to be counted.

On April 15 notice was sent that the paper mailings were going out  and were due back not later than May 8th.  Based on the bylaws, we believe the returned by date should have been May 15th. 

The club had decided to save money by placing those Member Practices changes in the mailing with the annual election which required that the two ballots be returned by May 8th disregarding the bylaws which would have allowed members more time to discuss the member practices changes before having to vote.

On the electronic side, you had one link and had to make both your choices at the same time, even if you didn't have time to read the changes to the member's practices which were substantial which also required it to be completed by May 8th.

What is the proper  Robert's rules procedure to use when the voting results for the Member's Practices are announced at the annual meeting where the members can challenge the results due to the bylaws requirements.   Regardless of how the vote goes, members on both sides are upset that they had to respond to both at the same time without enough time to review and discuss.  We can't suspend since bylaws can't be suspended and a vote has already been taken.  We'd like to keep this from becoming a divisive issue in the club since the changes were made without member's input unlike the changes proposed in  2016 with allowed members input but the board never bought it to the membership for a full vote.  

The members would very appreciate knowing the proper procedure/motion in Robert's rules would apply.

Thank you

 

[Josh Martin]

A Point of Order should be raised that the vote is null and void due to insufficient notice (since the ballots were not mailed 30 days before the due date) as the bylaws require, followed by an appeal if necessary.

[J. J.]

If ballots that arrived between 5/8 and 5/15 were not credited, the vote was null and void.  However, if they are counted, the bylaws have been followed in this matter.

Basically, there would be two possible ways for this error to be corrected without re-balloting. 

1.  If all ballots that were received by 5/15 are counted, then there is no violation of the bylaws.  The statement in conflict with the bylaws has no validity and any member could have consulted the bylaws to see the proper return time.  Depending on how the electronic voting was handled, this might not have been possible.  

2.  Every member voted on or before 5/8.

If any ballots arriving after 5/8 were destroyed, and it could possibly effect the result, then re-balloting will be needed.  It might be necessary to have an adjourned meeting for thebresults to be announced.

Before I would be willing to say that this is null and void, I would need more information. 

[Atul Kapur]

We are told that those who voted electronically could only vote before the 8th. Some may have voted by mail after the 8th, but by doing so would have lost their opportunity to vote in the election. So I have trouble agreeing with your (1) because members were not treated equally depending on how they voted. 

I can only agree with your (2) if you mean that every single member voted by the 8th (as opposed to the alternative interpretation that no one cast a vote after the 8th). Since there has been a violation of the bylaws, I don't think it matters whether or not the number of members who did not / could not cast a vote is enough to possibly change the results. I think it might be null and void if even one member was not able to cast a vote. I look forward to hearing other's views on this point.

Edited May 18, 2019 at 04:38 AM by Atul Kapur
Initially sent before editing for clarity.

[Richard Brown]

@Atul Kapur are you using voice to text? You might want to read over your last post carefully and make sure it says exactly what you intended for it to say. It seems like a couple of words may be missing and I wonder if you intended to refer to catching the boat at the end of your post or if you intended to say cast a vote. My voice to text regularly types boat when I'm trying to say vote. Among lots of other screwy screw-ups! 

[Atul Kapur]

Thanks, @Richard Brown. I was dictating it but inadvertently sent it before I had a chance to clarify my thoughts and edit it.

[Guest Zev]

I cannot see how the fact that all ballots were counted has the side effect of nullifying the bylaw requirement of thirty days time period for voting even if I had incontrovertible proof that every single ballot that was mailed had been returned.

[J. J.]

5 hours ago, Atul Kapur said:

We are told that those who voted electronically could only vote before the 8th. Some may have voted by mail after the 8th, but by doing so would have lost their opportunity to vote in the election. So I have trouble agreeing with your (1) because members were not treated equally depending on how they voted. 

I can only agree with your (2) if you mean that every single member voted by the 8th (as opposed to the alternative interpretation that no one cast a vote after the 8th). Since there has been a violation of the bylaws, I don't think it matters whether or not the number of members who did not / could not cast a vote is enough to possibly change the results. I think it might be null and void if even one member was not able to cast a vote. I look forward to hearing other's views on this point.

I am not sure what you mean by "not being treated equally?"  All the ballot cast by 5/15 would have to be counted, and there is no "closing" of the electronic "polling place."  Anybody who wanted to cast a vote before 5/15 could and could cast it via mail or Internet; that is the situation I'm envisioning. 

Yes, when I say "every member" I mean every member. 

I would add that if it could be shown that the number of people who did not vote did not effect the result, then the actual balloting would stand.  For example, the total membership is 100; a 2/3 vote is required.  80 people vote and 67 vote in favor of the amendment; in that case, the amendment was adopted.  I think pp. 252-3 would cover the situation.  See also pp. 445-6.

I do not see this as a matter of notice, but of depriving members of the right to vote.  I would note that a point of order could be raised that the bylaws were not followed, but that may not be sufficient to invalidate the vote.

 

Edited May 18, 2019 at 08:09 AM by J. J.

[Guest Zev]

Remember that there are two things being voted on: (1) the new Member Practices, and (2) an election. If the new practices and all new officers receive votes of a majority of the entire membership then I see no particularly useful thing to be achieved by complaining. However, if any of these votes fail to achieve a majority of the entire membership then I would raise a Point Of Order requesting a new vote on either or both as the case may be. The OP never told us what the vote count was. The thing that bothers me is the complaint that some members feel as though they were harried into making a decision on the new practices. Perhaps this can be ameliorated by moving to Rescind the new practices and then moving to refer the motion to a committee and the committee holding hearings and report back to the assembly their recommendation. In this fashion the membership would gain some time to consider a lengthy document and tell the committee how they feel about it.

[Guest Ericka]

So what happened was the chair looked at the former secretary who used to run old show and is now in charge of the "guidance" committee. who is not on the board.  First they said they had to look up the bylaws which I read to them, and then after some somewhat heated discussions with some members who indicated this is not a guidance issue, it states clearly in the bylaws they ballots should be returned within 30 days, not 20.   It ended up with the president/chair saying the board will look into it and decide whether the bylaws have been violated.  Should the chair have made the decision then  at the meeting?   There is no general meeting again until next year

[J. J.]

28 minutes ago, Guest Ericka said:

So what happened was the chair looked at the former secretary who used to run old show and is now in charge of the "guidance" committee. who is not on the board.  First they said they had to look up the bylaws which I read to them, and then after some somewhat heated discussions with some members who indicated this is not a guidance issue, it states clearly in the bylaws they ballots should be returned within 30 days, not 20.   It ended up with the president/chair saying the board will look into it and decide whether the bylaws have been violated.  Should the chair have made the decision then  at the meeting?   There is no general meeting again until next year

If the body authorized the board to do that, even passively, yes. 

At least in my mind, there are a number of questions that would before there could be a decision.  It is possible for the bylaws to have been violated and for the vote to have been legitimate.  The "worst" possibility is that, if the changes to the Member Practices were adopted, they would be null and void, but that could not be determined from your posts. 

Perhaps, if you posted the total number of members, and the voting result, I could say something a bit more definite. 

[Atul Kapur]

7 hours ago, J. J. said:

I am not sure what you mean by "not being treated equally?"  All the ballot cast by 5/15 would have to be counted, and there is no "closing" of the electronic "polling place."  Anybody who wanted to cast a vote before 5/15 could and could cast it via mail or Internet; that is the situation I'm envisioning

But that is not the situation given in the OP. The electronic ballot was combined with the ballot for the elections and both closed on the 8th. Voters were not treated equally because people voting electronically could not possibly vote after the 8th while mail ballots may continue to be mailed in.

Your answer re my second point is helpful.

[Atul Kapur]

1 hour ago, Guest Ericka said:

So what happened was the chair looked at the former secretary who used to run old show and is now in charge of the "guidance" committee. who is not on the board.  First they said they had to look up the bylaws which I read to them, and then after some somewhat heated discussions with some members who indicated this is not a guidance issue, it states clearly in the bylaws they ballots should be returned within 30 days, not 20.   It ended up with the president/chair saying the board will look into it and decide whether the bylaws have been violated.  Should the chair have made the decision then  at the meeting?   There is no general meeting again until next year

It sounds like you raised a Point of Order at the general meeting which the Chair should have ruled on at the meeting.

[J. J.]

18 minutes ago, Atul Kapur said:

It sounds like you raised a Point of Order at the general meeting which the Chair should have ruled on at the meeting.

A point of order submitted to the assembly can be referred to a committee, inclusive of the board.  It is likely that it was submitted to the assembly, perhaps not in correct form, since there were "somewhat heated discussions."  

If there was no objection to the president's action at the time, it was referred to board. 

[J. J.]

30 minutes ago, Atul Kapur said:

But that is not the situation given in the OP. The electronic ballot was combined with the ballot for the elections and both closed on the 8th. Voters were not treated equally because people voting electronically could not possibly vote after the 8th while mail ballots may continue to be mailed in.

 

We don't know that both were closed on the 8th.  It is possible that votes could be cast for the change balloting to still be open.  If it wasn't, that would create the problem, leading to my second point, i.e. would this have effected the result?  It very well could, but we don't know. 

[Gary Novosielski]

On 5/17/2019 at 11:03 AM, J. J. said:

If ballots that arrived between 5/8 and 5/15 were not credited, the vote was null and void.  However, if they are counted, the bylaws have been followed in this matter.

Basically, there would be two possible ways for this error to be corrected without re-balloting. 

1.  If all ballots that were received by 5/15 are counted, then there is no violation of the bylaws.  The statement in conflict with the bylaws has no validity and any member could have consulted the bylaws to see the proper return time.  Depending on how the electronic voting was handled, this might not have been possible.  

2.  Every member voted on or before 5/8.

If any ballots arriving after 5/8 were destroyed, and it could possibly effect the result, then re-balloting will be needed.  It might be necessary to have an adjourned meeting for thebresults to be announced.

Before I would be willing to say that this is null and void, I would need more information. 

I'm not sure whether the electronic voting, presuming that is even allowed, would cut off voting at the 8th, but if the material sent with the ballot said that votes after the 8th would not count, a case could be made that someone who missed the 8th date might well presume that their ballot would not count, and would not bother sending it.

I don't think that could be remedied by deciding to count ballots up to the 15th after all, since there's no way to know how many ballots might have been abandoned.

[J. J.]

1 hour ago, Gary Novosielski said:

I'm not sure whether the electronic voting, presuming that is even allowed, would cut off voting at the 8th, but if the material sent with the ballot said that votes after the 8th would not count, a case could be made that someone who missed the 8th date might well presume that their ballot would not count, and would not bother sending it.

I don't think that could be remedied by deciding to count ballots up to the 15th after all, since there's no way to know how many ballots might have been abandoned.

The member should consult the bylaws.  Something that somebody, or some body, says does not supersede the bylaws.

[Gary Novosielski]

2 hours ago, J. J. said:

The member should consult the bylaws.  Something that somebody, or some body, says does not supersede the bylaws.

No, but giving incorrect notice can invalidate the election, even if the rules were surreptitiously followed in accordance with what the notice should have been but wasn't.

Or something.

[J. J.]

2 hours ago, Gary Novosielski said:

No, but giving incorrect notice can invalidate the election, even if the rules were surreptitiously followed in accordance with what the notice should have been but wasn't.

Or something.

This is not a case of incorrect notice; it is, potentially, a violation of the basic right of an individual member to vote.

[Guest Zev]

It could be either one or perhaps both. I would let the assembly decide which one.

 

[J. J.]

2 hours ago, Guest Zev said:

It could be either one or perhaps both. I would let the assembly decide which one.

 

That can be problematic and could, potentially, create a continuing breach.

[Guest Zev]

Perhaps the justification for overturning this ballot and election can be more easily determined if we ask ourselves what reaction would have been appropriate if the timeframe had been the entire thirty day period. As far as I can tell if that period had been the entire thirty days then this ballot and election would be a done deal. The abbreviation of this time period is at the center of this problem. If the assembly takes my advice then good. If they take Mr. Martin's advice and invalidate the entire thing, then I'm good with that also.

[J. J.]

11 hours ago, Guest Zev said:

Perhaps the justification for overturning this ballot and election can be more easily determined if we ask ourselves what reaction would have been appropriate if the timeframe had been the entire thirty day period. As far as I can tell if that period had been the entire thirty days then this ballot and election would be a done deal. The abbreviation of this time period is at the center of this problem. If the assembly takes my advice then good. If they take Mr. Martin's advice and invalidate the entire thing, then I'm good with that also.

"Overturning" the ballot could create that breach of a continuing nature.

Assume that the ballot is valid.  Saying that the rule is no longer in effect is the same as rescinding it; the only way to do that is by a mail/e-mail ballot vote. Failure to do that would create a continuing breach, the same one, depriving members of the right to vote (unless all members are present).

The only way to know if the vote was valid, is to know:

1.  The total number of voting members.

2.  How many of the members cast votes.

3.  The the result of the voting, specifically the number of votes for and against. 

Guest Ericka, or someone else familiar with the results, will have to provide that information. 

Edited May 19, 2019 at 07:42 PM by J. J.