Write In Candidate allowed?

[Guest CuriousBoardMemebr]

If the procedure (per the bylaws) is that a nominating committee assembles eligible candidates and members of the organization can also elect candidates (within a certain timeframe prior to the election, with 5 member signatures), is a write-in option allowed on the ballot?

[Weldon Merritt]

Impossible to say for sure without reviewing your bylaws. The general rule is that both floor nominations and write ins area allowed unless specifically prohibited by your bylaws. But if the alternate nomination procedure you describe is mandated by your bylaws (is it, or is itt just custom)?, I'm not sure how that would affect the general rule. Thus, the need to see the bylaws.

[Alicia Percell, PRP]

Since you said it's a ballot, yes.  See RONR 45:18:

"Voting by Ballot. Voting by ballot (also known as secret ballot) is used when secrecy of the members’ votes is desired. A ballot vote is a vote taken by instruments, such as slips of paper or electronic devices,3 by which members can indicate their choices without revealing how individual members have voted. On a ballot vote in an election or other vote involving multiple possible choices, members are able to write in or fill in a vote for any eligible person or choice and are not confined to voting for or against candidates that appear on the ballot."

 

[Weldon Merritt]

On 11/12/2022 at 12:26 PM, Alicia Percell, PRP said:

Since you said it's a ballot, yes.  See RONR 45:18

I agree that you are probably right, but I don't think you can say that for certain in this instance. I have seen bylaws with nominations methods similar to the one described that also take the further step of prohibiting write-in votes. That's why I said that a definitive answer is impossible without reviewing the bylaws.

[Alicia Percell, PRP]

On 11/12/2022 at 12:06 PM, Weldon Merritt said:

I agree that you are probably right, but I don't think you can say that for certain in this instance. I have seen bylaws with nominations methods similar to the one described that also take the further step of prohibiting write-in votes. That's why I said that a definitive answer is impossible without reviewing the bylaws.

Nearly all of the answers in this forum could come with a footnote like, "These answers presume you have disclosed to us everything from your bylaws and other rules that is relevant to answering the question.  If you left something out, that's on you!"  When a poster paraphrases a bylaw, especially on subjects where the nuanced wording makes all the difference, we do often ask for the verbatim text, but even then we're assuming there's not another bylaw provision which somehow changes the calculus.

So, of course, you're correct that there COULD be something else there.  My gut instinct is that if the bylaw went on to expressly prohibit write-in votes, the question likely wouldn't have arisen here.  Similarly if there were to be a bylaw which said only those formally nominated are eligible to be elected, that would also make a difference because voters are allowed to write in names of those who are eligible for election, but again my gut instinct is that the question likely wouldn't have arisen here with such a bylaw in place.

But it never hurts to ask for clarity, and I often do that.

[Guest CuriousBoardMemebr]

On 11/12/2022 at 11:24 AM, Weldon Merritt said:

Impossible to say for sure without reviewing your bylaws. The general rule is that both floor nominations and write ins area allowed unless specifically prohibited by your bylaws. But if the alternate nomination procedure you describe is mandated by your bylaws (is it, or is itt just custom)?, I'm not sure how that would affect the general rule. Thus, the need to see the bylaws.

Here are the bylaws for further clarity (and the voting is online using election buddy):

Section 5.1 Candidates. At least thirty (30) days prior to the Annual Meeting, the Nominating Committee shall file with the Secretary a written nomination of candidates for each open director position. The Secretary shall forward the list of candidates nominated by the committee first to the Board of Directors, and then to each Member with the notice of meeting required by these Bylaws.

Section 5.2 Additional Member Nominations. Other Members may be nominated for election as directors if proposed by at least five (5) Members entitled to vote. Such nominations must include the names and signatures of the Members making the nomination, and if received by the Secretary at least twenty-one (21) days prior to the Annual Meeting shall be included in the Notice of Meeting. If not received at least twenty-one (21) days prior to the date of the Annual Meeting, the names shall be posted at the clubhouse and sent by electronic transmission to the membership. Nominations received fewer than three (3) days before the Annual Meeting will not be valid unless there are insufficient nominees to fill all vacancies.

Section 5.3 Election. The election of directors shall take place at the Annual Meeting. The election shall be by written ballot of the Members in attendance who have not previously filed their proxy with the Secretary or cast their votes via a secure electronic voting procedure established by the Board of Directors.

[Guest CuriousBoardMemebr]

On 11/12/2022 at 12:06 PM, Weldon Merritt said:

I agree that you are probably right, but I don't think you can say that for certain in this instance. I have seen bylaws with nominations methods similar to the one described that also take the further step of prohibiting write-in votes. That's why I said that a definitive answer is impossible without reviewing the bylaws.

Here are the bylaws for clarity. There is nothing prohibiting a write in option on the ballot.

Section 5.1 Candidates. At least thirty (30) days prior to the Annual Meeting, the Nominating Committee shall file with the Secretary a written nomination of candidates for each open director position. The Secretary shall forward the list of candidates nominated by the committee first to the Board of Directors, and then to each Member with the notice of meeting required by these Bylaws.

Section 5.2 Additional Member Nominations. Other Members may be nominated for election as directors if proposed by at least five (5) Members entitled to vote. Such nominations must include the names and signatures of the Members making the nomination, and if received by the Secretary at least twenty-one (21) days prior to the Annual Meeting shall be included in the Notice of Meeting. If not received at least twenty-one (21) days prior to the date of the Annual Meeting, the names shall be posted at the clubhouse and sent by electronic transmission to the membership. Nominations received fewer than three (3) days before the Annual Meeting will not be valid unless there are insufficient nominees to fill all vacancies.

Section 5.3 Election. The election of directors shall take place at the Annual Meeting. The election shall be by written ballot of the Members in attendance who have not previously filed their proxy with the Secretary or cast their votes via a secure electronic voting procedure established by the Board of Directors.

[Weldon Merritt]

Based on those bylaws, and assuming thee is noting on any other section of the bylaws that would change the answer, then I agree with Ms. Percell that write ins are allowed. It would take an explicit prohibition to disallow them.

[Guest CuriousBoardMemebr]

On 11/12/2022 at 3:51 PM, Weldon Merritt said:

Based on those bylaws, and assuming thee is noting on any other section of the bylaws that would change the answer, then I agree with Ms. Percell that write ins are allowed. It would take an explicit prohibition to disallow them.

Yes, there is definitely nothing anywhere else that prohibits a write in option. Thank you! Your insight is much appreciated

[Atul Kapur]

Recognizing that interpretation is done by the organization itself, I am not quite as certain.

If write-in votes are allowed, then what purpose is served by the provision:

On 11/12/2022 at 6:07 PM, Guest CuriousBoardMemebr said:

Nominations received fewer than three (3) days before the Annual Meeting will not be valid unless there are insufficient nominees to fill all vacancies.

There appears to be a reasonable argument that the intent is to limit eligibility to those properly nominated. If write-in votes are allowed (that is, if those nominated before or after this 3-day deadline are equally eligible) then this provision has no rational purpose and, when interpreting, "There is a presumption that nothing has been placed in the bylaws without some reason for it," suggesting that the reason is to make any person who has not been nominated by the deadline ineligible 56:68(4).

[Gary Novosielski]

On 11/12/2022 at 12:58 PM, Guest CuriousBoardMemebr said:

If the procedure (per the bylaws) is that a nominating committee assembles eligible candidates and members of the organization can also elect candidates (within a certain timeframe prior to the election, with 5 member signatures), is a write-in option allowed on the ballot?

I assume you meant "can also nominate candidates".

Unless your bylaws have some provision prohibiting write-in votes, the rules in RONR require them.

 

On 11/12/2022 at 7:10 PM, Atul Kapur said:

Recognizing that interpretation is done by the organization itself, I am not quite as certain.

If write-in votes are allowed, then what purpose is served by the provision:

There appears to be a reasonable argument that the intent is to limit eligibility to those properly nominated. If write-in votes are allowed (that is, if those nominated before or after this 3-day deadline are equally eligible) then this provision has no rational purpose and, when interpreting, "There is a presumption that nothing has been placed in the bylaws without some reason for it," suggesting that the reason is to make any person who has not been nominated by the deadline ineligible 56:68(4).

There may be a reasonable argument, but it's certainly far from explicit.  The purpose served by the provision is to allow an alternate method for nominations. I think it's a leap unsupported by the language to assume that it would limit eligibility for election.  By definition, a write-in vote is a vote for an eligible person who was not nominated.  So when the smoke clears on nominations, it would still take some additional provision to make write-ins invalid.

It's not clear from the paraphrase where the 5-signature nominations go.  If they go to the nominating committee, then it simply increases the number of candidates on the nominating committee's report, which has no effect on anyone's eligibility.

 

[Bruce Lages]

I had the same response to that statement about nominations received fewer than three days before the annual meeting as Dr. Kapur. It's possible that that statement is meant to apply exclusively to nominations submitted by membership petition - especially since it's included in the bylaw section describing the procedure for nomination by petition, but taken at face value, that could be interpreted as prohibiting the election of a write-in candidate.

 

[Gary Novosielski]

On 11/12/2022 at 9:55 PM, Bruce Lages said:

I had the same response to that statement about nominations received fewer than three days before the annual meeting as Dr. Kapur. It's possible that that statement is meant to apply exclusively to nominations submitted by membership petition - especially since it's included in the bylaw section describing the procedure for nomination by petition, but taken at face value, that could be interpreted as prohibiting the election of a write-in candidate.

 

But the write-in process is intended to allow for the election of eligible persons who were not nominated.

So however exotic the nominations procedures might be, the lack of nomination does not affect eligibility for election by write-in.   An explicit provision is required, in my view. 

I agree it's possible that the purpose of this language might have been to prevent write-ins, but if that's the case then I assert that it failed to achieve that purpose.

[Alicia Percell, PRP]

On 11/12/2022 at 2:59 PM, Guest CuriousBoardMemebr said:

Nominations received fewer than three (3) days before the Annual Meeting will not be valid unless there are insufficient nominees to fill all vacancies.

All this says is that if it is received fewer than three days before, the NOMINATION isn't valid.  I think those words DO have an effect in that the nominee is not pre-printed on the ballot, but it doesn't say they're ineligible for election.  Not being pre-printed on the ballot is often a disadvantage by itself, and without clear words that make them ineligible for election, I would not read it to impose a more serious penalty which could have been clearly stated if that were the intent.

[Alicia Percell, PRP]

P.S.  Given the rest of the bylaw text, in addition to not being pre-printed on the ballot, the late nominations also don't get, "posted at the clubhouse and sent by electronic transmission to the membership" so that's another consequence of being too late to be a "valid" nomination.  They don't get their names advertised to the membership in advance.

[Dan Honemann]

On 11/12/2022 at 5:59 PM, Guest CuriousBoardMemebr said:

Section 5.3 Election. The election of directors shall take place at the Annual Meeting. The election shall be by written ballot of the Members in attendance who have not previously filed their proxy with the Secretary or cast their votes via a secure electronic voting procedure established by the Board of Directors.

Does the "secure electronic voting procedure established by the Board of Directors" allow for write-in votes?

[Richard Brown]

I agree with Weldon Merritt, Gary Novosielski, and Alicia Percell that the quoted bylaw provisions that we have seen do not prohibit write in votes and that pursuant to RONR write in votes must be permitted.

I understand the rationale of Dr. Kapur that the bylaws can conceivably be interpreted to mean that members who receive write in votes are ineligible and that write in votes would not count, but I do not believe that is a reasonable interpretation of the bylaws, especially not when read in conjunction with the very clear and specific provisions in RONR that write in votes must  be permitted unless the bylaws specifically prohibit them. I do not see what I consider to be anything close to a bylaw provision prohibiting write in votes.  

Edited to add:  responding to the argument by Dr. Kapur and Mr. Lages that it might have been the “intent“ of the bylaws to prohibit write in  votes, I feel compelled to point out that according to the principles of interpretation, intent does not even become a factor unless there is an ambiguity to be interpreted. I do not see any ambiguity at all in the quoted bylaw provisions. When both of the quoted  bylaw provisions and the rules in RONR are read together, it seems clear to me that write in votes must be permitted.
 

Edited November 13, 2022 at 04:50 PM by Richard Brown
Added last paragraph

[Guest CuriousBoardMemebr]

On 11/12/2022 at 4:10 PM, Atul Kapur said:

Recognizing that interpretation is done by the organization itself, I am not quite as certain.

If write-in votes are allowed, then what purpose is served by the provision:

There appears to be a reasonable argument that the intent is to limit eligibility to those properly nominated. If write-in votes are allowed (that is, if those nominated before or after this 3-day deadline are equally eligible) then this provision has no rational purpose and, when interpreting, "There is a presumption that nothing has been placed in the bylaws without some reason for it," suggesting that the reason is to make any person who has not been nominated by the deadline ineligible 56:68(4).

This was my initial thought as well...hence the question. Also wondering how the bylaws can be updated to make all of this more clear. 

[Guest CuriousBoardMemebr]

And thank you to everyone that has commented here. I really appreciate hearing your interpretations and advice!