Sole candidate withdraws DURING election

[Stan Duffy]

We are a 250 member association. Our President and VP resigned. After  call for candidates we had ONE candidate step forward for each position. The online election started 2 days ago and ends tomorrow night. The ONE Presidential candidate just told me he is no longer interested. As Secretary, and the only remaining Board member, how do you recommend I handle this?

Is the VP candidate elected as VP and we put out a new call for Presidential candidates and have a NEW election election for President? Or is the Presidential candidate assumed to have won the election and then resigned, in which case our Bylaws state that the VP becomes President and appoints a VP for the remainder of the VP term of 3 years?

 

[Joshua Katz]

Nominations cannot be withdrawn, so it seems to me that the Presidential candidate won, although you'd need to consult your election rules to be sure, given that you have customized rules allowing for an online election. Can you tell us more about them?

The President would then need to resign, making your VP President and creating a vacancy in the VP slot.

But stay tuned for other opinions, and mine could change depending on your answers.

[Josh Martin]

28 minutes ago, Joshua Katz said:

Nominations cannot be withdrawn, so it seems to me that the Presidential candidate won, although you'd need to consult your election rules to be sure, given that you have customized rules allowing for an online election. Can you tell us more about them?

The President would then need to resign, making your VP President and creating a vacancy in the VP slot.

But stay tuned for other opinions, and mine could change depending on your answers.

While nominations cannot be withdrawn, an election can be declined. In the ordinary case, if the winning candidate for President were to immediately decline upon being elected, a new election would be held for the office of President.

I agree, however, that the online elections may complicate matters.

Edited June 5, 2020 at 04:19 AM by Josh Martin

[Joshua Katz]

Perhaps I should have explained my opinion more carefully. I don't see how the winning candidate can decline immediately after being elected in an online process. Also, it's possible that holding the election in the first place was an error.

[Stan Duffy]

Thanks SO much for your quick replies.  We manage our elections online via a 3rd party anonymous product called ElectionBuddy  Our Bylaws only say that we are to run elections 'by ballot' which we interpreted a couple of years ago to mean either in person show of hands, in-person paper ballot, or (for greater convenience and to allow everyone the democratic opportunity to vote, via an online tool. So there is precedent.

 

I was also thinking that if he declines the position, or if he withdraws before the election is complete, then he is not resigning per se.

[Joshua Katz]

Just now, Stan Duffy said:

Our Bylaws only say that we are to run elections 'by ballot' which we interpreted a couple of years ago to mean either in person show of hands, in-person paper ballot, or (for greater convenience and to allow everyone the democratic opportunity to vote, via an online tool. So there is precedent.

Well, then holding an election was not an error. But, precedent or not, my opinion is that, based on the information provided, your bylaws do not allow for electronic voting. 

As to the immediate question, how does ElectionBuddy work? Is it simultaneous voting, or voting over an extended period of time? Does the software allow for write-ins?

[Stan Duffy]

Crazy situation, but this is where we are.

He told me 2 days before the election that he was solidly on board.

I have to do the best I can with a bad situation. My gut says we have to redo the election for President since the election wasn't completed if the guy doesn't accept - we don't have a President if he doesn't accept, therefore we need to elect one.... ?

[Joshua Katz]

I think Mr. Martin likely agrees with your gut. My opinion depends on the mechanics of your election software (notwithstanding the fact that I'm not convinced it is permitted by your bylaws in the first place).

Edited to add: In the event of a conflict, you should listen to Mr. Martin on this.

Edited June 5, 2020 at 04:32 AM by Joshua Katz
Addition

[Stan Duffy]

Voting over a 3 day period to give maximum voting opportunity to everyone. It closes at midnight PST tomorrow.

A planned Bylaw amendment is to clarify that electronic voting is permitted. We have run elections this way for 2 prior elections. With the current situation in person is not possible and we have an urgent need because the previous President and VP quit.

[Stan Duffy]

Thanks again. I think I am going to go with "if the winning candidate for President were to immediately decline upon being elected, a new election would be held for the office of President."

[Joshua Katz]

Given the length of time involved, my opinion would be the one I stated above. But, as stated, Mr. Martin is more likely to be correct than I am.

Edited to add: However, I would add this: if your software does not allow write-ins, you should, if possible, find a way to modify it so that it does. At least it seems your organization does not mix in-person and not-in-person ballots, which is good.

Edited June 5, 2020 at 04:38 AM by Joshua Katz
Addition

[Atul Kapur]

I don't think the length of time that the polls are open matters. However, the real question is whether the candidate consented to their candidacy, which it sounds like they did. Therefore, "An election to an office becomes final immediately if the candidate . . .  is absent but has consented to his candidacy." (RONR 11th ed., p. 444, lines 18-20, emphasis added).

So it sounds like I disagree with Mr. Martin in that I think it's too late for the candidate to decline.

[Dan Honemann]

What was it that the wise man here used to say? As I recall, it had something to do with the folly of seeking shelter under the roof your tearing down.  🙂

As has been noted, RONR provides that:

"An election to an office becomes final immediately if the candidate is present and does not decline, or if he is absent but has consented to his candidacy. If he is absent and has not consented to his candidacy, the election becomes final when he is notified of his election, provided that he does not immediately decline. If he does decline, the election is incomplete, and another vote can be taken immediately or at the next meeting without further notice."

It seems that an attempt is now being made to determine whether or not a candidate who has previously consented to his candidacy is present at the time of his election if the election has been conducted in a manner which renders it null and void to begin with, and apparently no one knows when, where, how, and to whom the results of the election are to be announced.

Good luck with that. 

 

[Josh Martin]

7 hours ago, Atul Kapur said:

I don't think the length of time that the polls are open matters. However, the real question is whether the candidate consented to their candidacy, which it sounds like they did. Therefore, "An election to an office becomes final immediately if the candidate . . .  is absent but has consented to his candidacy." (RONR 11th ed., p. 444, lines 18-20, emphasis added).

So it sounds like I disagree with Mr. Martin in that I think it's too late for the candidate to decline.

The rule on this subject assumes that the election is being held at a meeting with members present. If an election is being held by absentee voting, where everyone is absent, then I'm not sure the rule on pg. 444 applies in the same manner.

In addition, although the candidate did originally consent to his candidacy, he also withdrew that consent prior to the end of the election. I don't believe the rule on pg. 444 should be interpreted as preventing candidates from changing their minds.

Of course, the fact that the organization's bylaws apparently don't even authorize online voting in the first place causes some additional problems.

[George Mervosh]

2 hours ago, Daniel H. Honemann said:

What was it that the wise man here used to say? As I recall, it had something to do with the folly of seeking shelter under the roof your tearing down.  

 

Our friend, John H, yes.  I miss him being here, for sure.

[Joshua Katz]

8 hours ago, Atul Kapur said:

I don't think the length of time that the polls are open matters.

Certainly, I'd agree if we were talking about the difference between 10 and 15 minutes. But for online voting, I'd distinguish between "okay, everyone log on at 1 and we'll do this vote online" and "we're taking votes over an extended period." Ultimately, I think Mr. Honemann has the right idea, though. 

[Stan Duffy]

The candidate presented himself as a candidate, so no question about that. I don't see how it can be "too late for the candidate to decline" - we cannot force him to become President if he now doesn't want to. So the board position of President is vacant by default. The question is how do we proceed to fill it.

I have to get past the question of whether or not an electronic election is kosher. The electronic process is how we have done elections for 3 years. 3 years ago the Board voted to interpret 'by ballot' to be vague/no-specific and that it was open enough to interpretation that we could vote electronically. With the goal of being more democratic and enabling ALL members to vote.

With the current restrictions on in-person meetings it is not possible to hold in-person balloting anyways. The exigent circumstances combined with precedent, combined with I'm sure no-one is going to try to invalidate the election because of us conducting it electronically leads me past that as an obstacle.

The only issue (for me) is how we deal with him either withdrawing before the election ends, or declining the position once it has ended.

I'm leaning towards "if the winning candidate for President were to immediately decline upon being elected, a new election would be held for the office of President." and "If he does decline, the election is incomplete, and another vote can be taken". If we say that an election is not complete until an elected person accepts the position, then the election is 'incomplete'.

I think that is our safest bet and the action least likely to be contested.

 

Thanks again to all of you for your wisdom and guidance. It has been truly helpful.

[Atul Kapur]

1 hour ago, Josh Martin said:

The rule on this subject assumes that the election is being held at a meeting with members present. If an election is being held by absentee voting, where everyone is absent, then I'm not sure the rule on pg. 444 applies in the same manner.

If everyone is absent, that would include the candidate. So I don't see why the excerpt I quoted would not apply (ie: I don't see why absentee voting affects the applicability of the rule). The candidate (a) is absent along with everyone else, and (b) consented to his candidacy.

Both Mr. Martin and Mr. Katz seem to feel that the length of time that the polls are open affects the analysis here. Let me draw an analogy. A member consents to their candidacy for President. The polls are open from 8am - 3pm (paper ballots and ballot boxes in room adjacent to the meeting room).  A candidate, who has consented, changes their mind after polls have been opened (let's say, at noon). They win the election. It seems clear to me that the quote from p. 444 applies and the election is final. So the newly-elected President could then resign.

I don't see how the fact that the voting is conducted electronically changes the essentials of the analogy enough to claim that the rule on p. 444 no longer applies.

Yes, I am assuming that the bylaws allow electronic voting of this type.

[Joshua Katz]

3 minutes ago, Atul Kapur said:

Both Mr. Martin and Mr. Katz seem to feel that the length of time that the polls are open affects the analysis here. Let me draw an analogy. A member consents to their candidacy for President. The polls are open from 8am - 3pm (paper ballots and ballot boxes in room adjacent to the meeting room).  A candidate, who has consented, changes their mind after polls have been opened (let's say, at noon). They win the election. It seems clear to me that the quote from p. 444 applies and the election is final. So the newly-elected President could then resign.

 

In my opinion, it matters because we have to determine if the person is present, in which case they can decline immediately upon winning. In my view, if there were simultaneous online voting (and it were permitted by the bylaws) everyone would be "present" and this would be possible. If it's not simultaneous voting, something more akin to vote by mail or an email ballot, then they cannot do so, so they must resign and the VP becomes P.

[Richard Brown]

I agree with Dr. Kapur as to issue of the candidate consenting to his candidacy and was about to say the same thing myself before he made his post.  It seems to me the candidate consented to his candidacy and therefore, pursuant to lines 17-20 on page 444, has been elected.  "An election to an office becomes final immediately if the candidate is present and does not decline, or if he is absent but has consented to his candidacy".   I do not see how he can withdraw his consent once the election is in progress.  I don't see how the fact that this is a mail  or email or ElectionBuddy ballot makes any difference.  The rule on page 444 seems quite clear.  He consented to his candidacy prior to the time voting began.

At this point I am not commenting on the other numerous issues complicating this situation.

[Josh Martin]

4 hours ago, Atul Kapur said:

If everyone is absent, that would include the candidate. So I don't see why the excerpt I quoted would not apply (ie: I don't see why absentee voting affects the applicability of the rule). The candidate (a) is absent along with everyone else, and (b) consented to his candidacy.

Both Mr. Martin and Mr. Katz seem to feel that the length of time that the polls are open affects the analysis here. Let me draw an analogy. A member consents to their candidacy for President. The polls are open from 8am - 3pm (paper ballots and ballot boxes in room adjacent to the meeting room).  A candidate, who has consented, changes their mind after polls have been opened (let's say, at noon). They win the election. It seems clear to me that the quote from p. 444 applies and the election is final. So the newly-elected President could then resign.

I don't see how the fact that the voting is conducted electronically changes the essentials of the analogy enough to claim that the rule on p. 444 no longer applies.

Yes, I am assuming that the bylaws allow electronic voting of this type.

The rule on pg. 444 states that "An election to an office becomes final immediately if the candidate is present and does not decline, or if he is absent but has consented to his candidacy." If the candidate is present, whether or not he has previously consented to his candidacy is irrelevant. The candidate may determine immediately, at the time of election, whether to decline the election. This is the case whether or not he previously agreed to serve. I do not see how there is any doubt on this point, since the first part of the sentence makes no reference to whether the member has consented to his candidacy. So unless the candidate in your scenario is not present at the time the results are announced, it seems to me he may decline (or perhaps he has changed his mind again and accepts).

I acknowledge that the latter case is more complicated due to the wording, but in my view, the rule is the way it is because the presumption is that if a candidate has previously consented to his candidacy, he intends to accept the election. I think this is a presumption, however, not an ironbound contract. If the candidate later indicates that he does not consent to his candidacy, I do not see why the assembly should ignore that.

[Nathan Zook]

As for the permissibly of the electronic vote, we are informed that the board, which we presume to be acting within its authority as generally empowered, has acted to interpret the bylaws to permit electronic and by-hands votes (!!!).  I'm pretty certain that no RP would support that view, but that is the interpretation of the bylaws that the organization has made.  Moreover, this has been the practice of the society for the prior two election, so that even if the board acted without authority, this is now the common practice of the organization, and is permitted until a point of order is raised against it.

It is a strong principle in RONR that votes cannot be interrupted.  Mechanically, however, the nature of ballot voting is protracted, and I have seen multiple occasions where members have risen to question what was being voted on.  The resulting discussion has resulted in the general spoiling of all ballots and the restart of the vote.  I have supported such decisions, though they violate the black letter of RONR, because they have permitted the body to find the will of the majority in the most expeditious fashion and did not violate any right that I could determine.

We are faced with a variant on this situation here.  The multi-day electronic vote (proper or not) is underway, and the sole candidate seeks to withdraw his consent.  Building on what Mr. Martin has stated, the general rule appears to be that the candidate has the ability to refuse an election, so long as he does so at the first opportunity.  If he is present, then this is immediate.  If he is not present, and has previously consented, that consent is presumed to still be operative.  While RONR does not mention the withdrawal of consent, it seems like an odd duck to suggest that a candidate cannot withdraw their consent before the conclusion of an election.  They can certainly, heaven forbid, become incapacitated.  Such an interpretation does not serve the candidate.  I do not see how it serves the society, either.

In event of simultaneous elections of president and vice president, however, things do get trickier.  (One of the many, many joys of email voting!)  In particular, in the normal course of events, many organizations provide for the automatic promotion of a vice president to president of the organization.  Suppose the bylaws states, "In the event of a vacancy in the office of the president, the vice president shall become president until the end of the term for which he was elected."  Now, we have a simultanteous election for president and vice president.  The vice president has been elected.  If we declare that the election for president has failed, is there not now a vacancy in the office of the president?  Do not the bylaws state the the vice president shall be the president?  If we declare that the election has failed, but for some reason, the vice president does NOT become president, what if the newly-elected vice president wishes to run for president?  How does that go?

1) I do not see how we can advise on this situation without looking to see the exactly language in the bylaws regarding succession.

2) Simultaneous elections with recruited candidates over days are a bad idea.  Please don't.

 

 

 

[Gary Novosielski]

34 minutes ago, Nathan Zook said:

As for the permissibly of the electronic vote, we are informed that the board, which we presume to be acting within its authority as generally empowered, has acted to interpret the bylaws to permit electronic and by-hands votes (!!!).  I'm pretty certain that no RP would support that view, but that is the interpretation of the bylaws that the organization has made.  Moreover, this has been the practice of the society for the prior two election, so that even if the board acted without authority, this is now the common practice of the organization, and is permitted until a point of order is raised against it.

I think the presumption that the board acted within its authority is dubious.  

Boards have only the powers granted to them in the bylaws.  And it is a general principle of RONR that interpretation of the bylaws is done by the membership, not the board.  Further, it is a specific rule that any questions that arise during an election are decided by the body that is voting.

[Atul Kapur]

1 hour ago, Josh Martin said:

If the candidate is present, whether or not he has previously consented to his candidacy is irrelevant

Sure, IF the candidate is present. But present where? The entire electronic voting is a form of absentee ballot. So everyone, including the candidate, is absent.

5 hours ago, Atul Kapur said:

If everyone is absent, that would include the candidate. So I don't see why the excerpt I quoted would not apply (ie: I don't see why absentee voting affects the applicability of the rule). The candidate (a) is absent along with everyone else, and (b) consented to his candidacy.

In case it gets lost here, the bottom line is that the election is final. The candidate who won is free to resign and then the vacancy can be filled as per the bylaws. I don't think that the election can be called incomplete.

[Josh Martin]

20 hours ago, Nathan Zook said:

It is a strong principle in RONR that votes cannot be interrupted. Mechanically, however, the nature of ballot voting is protracted...

RONR specifically makes an exception to this rule for ballot votes (for this very reason).

"Interruptions during the taking of a vote are permitted only before any member has actually voted, unless, as sometimes occurs in ballot voting, other business is being transacted during voting or tabulating." (RONR, 11th ed., pg. 408)

Of course, even if RONR did not make such an exception, it's not clear to what extent this rule (or the other rules discussed here) apply in this situation anyway, since RONR also says "A group that attempts to conduct the deliberative process in writing—such as by postal mail, electronic mail (e-mail), or facsimile transmission (fax)—does not constitute a deliberative assembly. When making decisions by such means, many situations unprecedented in parliamentary law will arise, and many of its rules and customs will not be applicable (see also pp. 97–99)." (RONR, 11th ed., pg. 1, footnote)

20 hours ago, Gary Novosielski said:

I think the presumption that the board acted within its authority is dubious.  

Oh, I quite agree with those who say that the entire election is invalid since we are told that the interpretation that electronic voting is permitted is based solely on the argument that the words "by ballot" are "vague/no-specific and that it was open enough to interpretation that we could vote electronically." If the organization has adopted RONR as its parliamentary authority, this argument is clearly wrong on the face of it.

"It is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a regular or properly called meeting, although it should be noted that a member need not be present when the question is put. Exceptions to this rule must be expressly stated in the bylaws." (RONR, 11th ed., pg. 424, emphasis added)

However, the OP has made quite clear that he doesn't care what we think about this, so I suppose it's not worth spending much time on it.

19 hours ago, Atul Kapur said:

In case it gets lost here, the bottom line is that the election is final. The candidate who won is free to resign and then the vacancy can be filled as per the bylaws. I don't think that the election can be called incomplete.

I just remain baffled by this notion that if a member indicates his consent to serve in office, this is somehow an irrevocable statement.

I think there is enough ambiguity in the rules on this subject that the answer is unclear, and in such cases I am inclined to err on the side of letting the society pick its choice for President.

Edited June 6, 2020 at 05:28 PM by Josh Martin