Voting by "written ballot" vs 45:42

[laser158689]

Our HOA bylaws say that "All elections of members of the Condominium Board shall be by written ballot..."

Does 45:42 allow us to vote to use an electronic method if we pass such a motion, or does the word "written" preclude that option?

[Richard Brown]

On 9/7/2022 at 1:13 PM, laser158689 said:

Our HOA bylaws say that "All elections of members of the Condominium Board shall be by written ballot..."

Does 45:42 allow us to vote to use an electronic method if we pass such a motion, or does the word "written" preclude that option?

This is actually more of a legal question than a parliamentary one, and depends on the interpretation of the term “written ballot” as used in state law.

if the law required the use of a secret ballot, rather than a written ballot, as does RONR,   I would say that 45:42, especially when read in conjunction with 45:18, 45:19, and 45:36, does permit the use of electronic or keypad Voting provided the above provisions are complied with and that the voting is truly secret and that provision is made for writing in votes unless the bylaws prohibit write in votes. The answer may depend partly on the exact wording of the relevant bylaw provision and any applicable state law. 

in your case, state law does apparently require the use of a written ballot. I am afraid your answer will depend upon an interpretation of state law which might be contained in other statutes or in court decisions. You might consider contacting an attorney with some experience in these matters to research that issue for you.  It really is a legal matter regarding the interpretation of a state statute.

Edited to add: I personally believe that the intent of the law is to provide for a secret ballot and that the actual form of the Ballot should be immaterial. However, I am not in a position to interpret or opine on the meaning that a court might ascribe to that statutory provision. 

edited again to add: after reading Josh Martin‘s post immediately above and rereading the OP‘s original post, I realize that I misread the original poster to say that a state law requires the use of a written ballot. I realize now that that is a provision in the bylaws, not in state law. That being the case, I concur with Josh Martin that I do not interpret the bylaw provision as prohibiting the use of electronic or keypad Voting, provided it complies with the requirements specified in RONR, but this is ultimately a question of bylaws interpretation which only the members of this organization can do.


 

Edited September 8, 2022 at 04:13 AM by Richard Brown
Typographical correction and added next to last paragraph And then edited again to add the last paragraph when I realized I had missed interpreted the original post

[Josh Martin]

On 9/7/2022 at 1:13 PM, laser158689 said:

Our HOA bylaws say that "All elections of members of the Condominium Board shall be by written ballot..."

Does 45:42 allow us to vote to use an electronic method if we pass such a motion, or does the word "written" preclude that option?

There is no doubt that 45:42 permits electronic methods for ballot voting, provided those methods meet certain criteria.

The question is whether the word "written" in the organization's bylaws precludes electronic methods. In my view, it does not. The word written, as it is used today, does not necessarily exclude electronic formats. I would describe the words I have typed in this post as "written," even although they have not been printed on paper. Many electronic methods are "written" to just as great an extent as a ballot printed on paper would be.

It will ultimately be up to the organization to interpret its own bylaws. In the event this provision is causing confusion, the best solution in the long run would be to amend the bylaws for clarity.

On 9/7/2022 at 2:23 PM, Richard Brown said:

Edited to add: I personally believe that the intent of the law is to provide for a secret ballot and that the actual form of the Ballot should be immaterial. However, I am not in a position to interpret or opine on the meaning that a court might ascribe to that statutory provision. 

I believe it's a provision in the organization's bylaws at issue, not a statutory provision.

I am not as certain that the word should simply be ignored as if it has no meaning as to the form of the ballot. Nonetheless, I don't think it is the case that it would categorically exclude all methods of electronic voting.

Edited September 8, 2022 at 12:04 AM by Josh Martin

[Richard Brown]

On 9/7/2022 at 6:58 PM, Josh Martin said:

I believe it's a provision in the organization's bylaws at issue, not a statutory provision

You are correct. I misread the original post to say that state law, rather than a bylaw provision, requires the use of a written ballot.  I concur with your analysis.

[laser158689]

Thanks for the opinions!