Rules Protecting absentees cannot be suspended?

[Digging into it]

Our church congregation had a special meeting where the Board had a motion to amend 2 bylaws and told the congregation that we could not change any of the amendments  because there was absentee ballots but only could vote on them.  I read from Robert's Rules of Order 12th Edition by Henry M. Robert III page 84 9:16 under special meetings that state "When a main motion related to business specified in the call of a special meeting is pending, it is as fully open to germaine amendment as if it had been moved at a regular meeting. The parliamentarian quoted from a different Robert's Rule for Order edition and state the rule "Rules protecting absentees cannot be suspended, even by unanimous consent or an actual unanimous vote, because the absentees do not consent to such suspension. For example, the rules requiring the presence of a quorum, restricting business transacted at a special meeting to that mentioned in the call of the meeting, and requiring previous notice of a proposed amendment to the bylaws protect absentees, if there are any and cannot be suspended when any member is absent.  I do not understand this rule as it pertains to anyone able to change the amendment even if there are absentee ballots or does the resolved motion have to stand as written.  Does the congregation have the power to change the amendment even with absentee ballots?? 

[J. J.]

RONR notes that absentee ballots must be authorized in the bylaws (45:56).  It also says that absentee ballots should never be counted with in person ballots.

I would say that, unless you bylaws expressly permits the mixing of ballots in this manner, the action is subject to a point of order, with an appeal of the decision of the chair if necessary.  If successful, the bylaw would be amendable, within scope of notice, at the meeting.  Voting, including absentee voting, would be conducted after the amendments are put in the final form.  Basically, if absentee voting is permitted in the bylaws, the church can basically have a do over, with the initial ballots being void.

Note that special meetings must be authorized in the bylaws. 

[Rob Elsman]

This post is an excellent exposition of the impossible situation that arises when some votes are cast at a meeting and others are submitted by mail.

Nevertheless, when authorized in the bylaws, the only fair way to proceed with the consideration of bylaw amendments (previous notice having been properly given) at the special meeting (called for the purpose) is complicated.  At the meeting, debate and allowable amendment should proceed, as usual.  When the question is put, however, members at the meeting should line up at a polling station to receive a paper ballot and an unmarked envelope.  The membership roll should be checked off as each ballot and envelope is issued.  These voters should each complete their ballot and seal it within the unmarked envelope.  The sealed envelopes should be deposited into a locked ballot box.  When the poll is closed, the locked box should be given to the secretary for custody under lock--preferably having been sealed, itself, by the president or sergeant at arms.  The secretary should then send identical ballots, unmarked envelopes, and outer return envelopes to each member who did not receive a ballot at the special meeting.  These voters should complete their ballots, seal them in the unmarked envelopes, and mail them in the return envelopes to the secretary before a reasonable deadline--as adopted at the meeting and instructed.  Several days after the deadline for returning ballots by mail, the tellers should convene and open the [sealed] locked box and mix the unmarked envelopes with those that have been received in the mail and already separated from the outer envelopes by the secretary before opening each unmarked envelope, scrutinizing the ballot, and recording the vote.  The tallying should proceed, as usual, and the tellers report and announcement of the result of the vote should occur at the next regular meeting, as usual.

There might be an alternative method to proceed using electronic voting that would occur after all members (attending and absentee) were notified of the question after debate had closed.  Under this procedure, debate would close, and all members would receive a notice of the putting of the question and a reasonable time within which to cast a vote by electronic means.  The votes would be tallied after the polls closed.  The tellers report and announcement of the result of the vote would be announced at the next regular meeting.

Anybody else have an idea?

[Gary Novosielski]

I would suggest that checking off names on issuing ballots is not ideal.  This would effectively allow proxy voting by people handing their blank ballot to others.  Until cast, ballots are just pieces of paper.

Membership should be scrupulously confirmed upon casting of the ballots, with the ballots having been sealed in envelopes or folded twice to ensure that multiple ballots are not cast by one member.  If the tellers encounter an envelope with more than one ballot, or multiple ballots folded together, these are counted as a single illegal vote.

[Josh Martin]

On 4/12/2022 at 9:17 PM, Digging into it said:

Our church congregation had a special meeting where the Board had a motion to amend 2 bylaws and told the congregation that we could not change any of the amendments  because there was absentee ballots but only could vote on them. 

RONR strongly advises against combining absentee ballots and in-person votes. RONR's advice is that either everyone should vote by absentee ballot or everyone should vote in person. Mixing and matching causes problems. If an organization nonetheless chooses to provide in its bylaws for mixing and matching absentee ballots and in-person votes, RONR further advises that the rules should clearly spell out how exactly this works.

As a result, RONR ultimately has no answer to this question and it will ultimately be up to your society to resolve this issue for itself. In the long run, the bylaws should be amended for clarity.

"An organization should never adopt a bylaw permitting a question to be decided by a voting procedure in which the votes of persons who attend a meeting are counted together with ballots mailed in by absentees. The votes of those present could be affected by debate, by amendments, and perhaps by the need for repeated balloting, while those absent would be unable to adjust their votes to reflect these factors. Consequently, the absentee ballots would in most cases be on a somewhat different question than that on which those present were voting, leading to confusion, unfairness, and inaccuracy in determining the result. If there is a possibility of any uncertainty about who will be entitled to vote, this should be spelled out unambiguously and strictly enforced to avoid unfairness in close votes." RONR (12th ed.) 45:46

On 4/12/2022 at 9:17 PM, Digging into it said:

I read from Robert's Rules of Order 12th Edition by Henry M. Robert III page 84 9:16 under special meetings that state "When a main motion related to business specified in the call of a special meeting is pending, it is as fully open to germaine amendment as if it had been moved at a regular meeting.

Yes, this is correct as a general matter, but there are some complications here. When a motion requires previous notice (as amendments to the bylaws generally do) amendments are restricted, although they are not prohibited altogether. Speaking generally, amendments must be within the "scope of notice." That is, the change proposed by the amendment cannot be greater than the change proposed by the original bylaw amendment. This principle is discussed in more detail in RONR (12th ed.) 57:10-13.

The other complication, of course, is your society's rule which permits mixing absentee ballots with votes at a meeting, which is not permitted under RONR and which RONR strongly recommends against.

On 4/12/2022 at 9:17 PM, Digging into it said:

The parliamentarian quoted from a different Robert's Rule for Order edition and state the rule "Rules protecting absentees cannot be suspended, even by unanimous consent or an actual unanimous vote, because the absentees do not consent to such suspension. For example, the rules requiring the presence of a quorum, restricting business transacted at a special meeting to that mentioned in the call of the meeting, and requiring previous notice of a proposed amendment to the bylaws protect absentees, if there are any and cannot be suspended when any member is absent.  I do not understand this rule as it pertains to anyone able to change the amendment even if there are absentee ballots or does the resolved motion have to stand as written.

This rule remains the same in the current edition. See RONR (12th ed.) 25:10.

I do not think this citation is applicable to the situation you describe. This relates to motions to suspend the rules. The assembly could not, for instance, adopt motions to Suspend the Rules to permit amendments outside the scope of notice, or Suspend the Rules to permit the introduction of items not included in the call of the special meeting. Those motions would violate the rights of absentees.

The situation here is that your society has adopted a rule in its bylaws which (depending on how it is interpreted) may affect the rights of absentees, which the society has the right to do. The question is whether the rule in your society's bylaws permits the introduction of amendments for motions where absentee ballots and votes at a meeting are combined. That is a question your society will have to answer for itself. RONR has no answer to what the rules in your bylaws mean.

I will say that the parliamentarian's position that amendments are not permitted in these circumstances seems reasonable and may well be correct, but the rule in 25:10 has nothing to do with this question.

On 4/12/2022 at 9:17 PM, Digging into it said:

 Does the congregation have the power to change the amendment even with absentee ballots?? 

This question depends upon an interpretation of the society's rules, not RONR. It will be up to the society to decide this question. I have not reviewed the society's rules on this matter, so I take no position on the answer to this question.

Edited April 14, 2022 at 10:57 AM by Josh Martin

[Rob Elsman]

No, Mr. Novosielski, the membership roll should be checked off when the ballot is issued to the member at the poll to prevent the secretary from sending a second ballot to the same member in the mail.  It must be remembered that a member is free to put his blank ballot in his pocket and walk out of the polling place without casting it, but doing so should not entitle him to a second ballot through the mail.

[J. J.]

It terms of the mechanics, I agree with Mr. Elsman.  It the signed envelope method for mail voting is used for all ballots, that should prevent the "effective proxy" problem.

I would note that the congregational meeting might adopt an incidental main motion, "to suspend the rules and prohibit amendments to the proposed bylaw amendments."  This would require a two-thirds vote.  Failing that, it would be out of order to prohibit amendments of the proposed bylaws change; such amendments must be within the scope of notice. 

Absentee right would not be violated if the ballots are mailed out after the question it placed in its final form and submitted to the assembly.  Absent the method in the above paragraph, that is the sole way to fix the problem that the church created when sending out the ballots first.

 

[Gary Novosielski]

On 4/13/2022 at 10:08 PM, Rob Elsman said:

No, Mr. Novosielski, the membership roll should be checked off when the ballot is issued to the member at the poll to prevent the secretary from sending a second ballot to the same member in the mail.  It must be remembered that a member is free to put his blank ballot in his pocket and walk out of the polling place without casting it, but doing so should not entitle him to a second ballot through the mail.

I don't see why not.  RONR establishes that a ballot may consist of nothing fancier than a blank sheet of paper.  Surely it would be absurd for the secretary to carefully control the issuance of blank sheets of paper.  But it would be essential to check that people when voting are checked off a membership list, and only allowed to submit one ballot, no matter how many blank sheets of paper they may possess. 

No matter how carefully the issuance of ballots is controlled, it is still essential that ballots turned in are checked against the voting roll.  And as long as this is done, duplicated ballots, counterfeit ballots, plain paper ballots, and similar situations present no problem at all.  One person, One vote is assured.

In particular, if a person loses a blank ballot and is issued a replacement, no harm is done, as long as the votes actually cast are carefully controlled.