Secret ballot

[Guest Taytay]

If a party's constitution/bylaws provide for all votes to be cast by standing vote, is there any way to have a secret ballot? My organization has an upcoming vote where members fear repercussions if their vote is known.

[Richard Brown]

Yes, unless the bylaws provide that this provision cannot be suspended.   This provision, although it is in the bylaws, is in the nature of a special rule of order and may be suspended by a 2/3 vote. Therefore, with a 2/3 vote, the assembly could adopt a motion to suspend the rules and conduct the vote by some other means, such as “by ballot”. 

Edited to add:  Ser 25:7 of RONR (12th ed.) which provides in part as follows:

Rules contained in the bylaws (or constitution) cannot be suspended—no matter how large the vote in favor of doing so or how inconvenient the rule in question may be—unless the particular rule specifically provides for its own suspension, or unless the rule properly is in the nature of a rule of order as described in 2:14.
 

Edited February 2, 2023 at 06:03 PM by Richard Brown
Added last paragraph and citation

[Guest Taytay]

On 2/2/2023 at 12:54 PM, Richard Brown said:

Yes, unless the bylaws provide that this provision cannot be suspended.   This provision, although it is in the bylaws, is in the nature of a special rule of order and may be suspended by a 2/3 vote. Therefore, with a 2/3 vote, the assembly could adopt a motion to suspend the rules and conduct the vote by some other means, such as “by ballot”. 

Edited to add:  Ser 25:7 of RONR (12th ed.) which provides in part as follows:

Rules contained in the bylaws (or constitution) cannot be suspended—no matter how large the vote in favor of doing so or how inconvenient the rule in question may be—unless the particular rule specifically provides for its own suspension, or unless the rule properly is in the nature of a rule of order as described in 2:14.
 

Thank you!!! does Rule 30:5 apply?
The local parliamentarian (who the request for secret ballot has been run by in advance of the meeting) citing 25:7 and 25:11  said the following, which I do not believe to be true: "Read together, it seems clear that when organizational bylaws require a certain method be used for the counting and recording of votes, those bylaws cannot be suspended. It cannot be said that voting method is a mere ‘rule of order’ as it directly relates to the rights of individual members to know in advance how votes will be counted and, in this case, to have knowledge that votes will be made in the open and subject to public scrutiny." 

[Richard Brown]

I do not believe 30:5 is directly applicable for the reason that the method of voting is specified in your bylaws, making it a special rule of order which supersedes the default provisions in RONR. 

I disagree with your parliamentarian as to whether your bylaw provision providing for the method of voting is a rule of order and whether it can be suspended.  I believe it is clearly in the nature of a rule of order.  As to its suspendability, rules of order and rules in the bylaws which are in the nature of rules of order can be suspended per 25:7.  However, RONR provides specifically that a bylaw provision requiring that votes be taken by secret ballot cannot be suspended.  That is to protect the right of the member to have his vote remain secret.  Bylaw provisions regarding other methods of voting can be suspended.  RONR would not contain a provision that only says bylaw requirements for secret ballots cannot be suspended if NO bylaw provisions regarding the method of voting can be suspended.  If that was the intent of RONR, I'm quite certain General Robert and the current authorship team would clearly say so.  Instead, they say only that a requirement for a secret ballot cannot be suspended.

Edited February 2, 2023 at 09:07 PM by Richard Brown
typographical correction

[Rob Elsman]

I am quite inclined to agree with Mr. Brown that the rule is clearly identifiable as a rule of order which is suspendable by a two-thirds vote.

Had the rule been written as a prohibition against methods of secret voting, there might have been some wiggle room for the parliamentarian's point of view that the adopters of the rule specifically intended that voters stand up and be seen how they voted. As it is, though, the rule is not written that way.

[Caryn Ann Harlos]

I agree with Mr. Brown.  If the members wanted this to be non-suspendable, they can amend the bylaws to say so.  In principle, I agree with your parliamentarian, but that is not what RONR says.  I happen to dislike secret ballots but that is me, and I am in the minority.  

[Rob Elsman]

@Caryn Ann Harlos, nothing in parliamentary law stands in the way of persons agreeing to the defining terms of their free association. Persons who do not agree to the defining terms of an association are free to not associate.

However quacky, goofy, or lacking in merit I may find this rule, I do not find it to be absurd, per se. However, if the intent is to make voters always openly show their judgment, as the parliamentarian opines, the rule should have been written differently to make clear that this is a defining characteristic of the freely associating members. In my mind, the rule, as it is written, misses that mark.

[Atul Kapur]

On 2/2/2023 at 3:43 PM, Guest Taytay said:

directly relates to the rights of individual members to know in advance how votes will be counted and, in this case, to have knowledge that votes will be made in the open and subject to public scrutiny

 This is not listed in 25:11 as a basic right of the individual member, so I agree with the replies above.

Edited February 2, 2023 at 10:19 PM by Atul Kapur

[Josh Martin]

On 2/2/2023 at 2:43 PM, Guest Taytay said:

does Rule 30:5 apply?

I don't think 30:5 is relevant to this question. That paragraph relates to the general rule concerning motions for a ballot vote. It has nothing to do with whether the rule in your organization's bylaws can be suspended.

On 2/2/2023 at 2:43 PM, Guest Taytay said:

The local parliamentarian (who the request for secret ballot has been run by in advance of the meeting) citing 25:7 and 25:11  said the following, which I do not believe to be true: "Read together, it seems clear that when organizational bylaws require a certain method be used for the counting and recording of votes, those bylaws cannot be suspended. It cannot be said that voting method is a mere ‘rule of order’ as it directly relates to the rights of individual members to know in advance how votes will be counted and, in this case, to have knowledge that votes will be made in the open and subject to public scrutiny." 

I respectfully disagree with the parliamentarian on this matter. I do not agree that this rule creates a "right of individual members to know in advance how votes will be counted." (Indeed, with this sort of logic, one could try to argue any number of rules of order creates an individual right.) It is also not clear to me that the intent behind a requirement for a standing vote is "that votes will be made in the open and subject to public scrutiny." (Even to the extent that was the intent, I'm not sure a standing vote is the best way to do that. But that's beside the point.)

I would note that 25:11 reads in full as follows: "Rules protecting a basic right of the individual member cannot be suspended. Thus, while generally applicable limits on debate and the making of motions may be imposed by motions such as the Previous Question, the rules may not be suspended so as to deny any particular member the right to attend meetings, make motions or nominations, speak in debate, give previous notice, or vote. These basic rights may be curtailed only through disciplinary proceedings." RONR (12th ed.) 25:11

It seems to me that suspending the rules so as to provide that all members shall vote by a different method than the usual method is is more comparable to "generally applicable limits on debate" and certainly is not a suspension which has the effect of denying any particular member the right to attend meetings, make motions, speak in debate, or vote.

Further, as Mr. Brown has noted, RONR explicitly states that a rule in the bylaws requiring a ballot vote cannot be suspended. If it was instead the intent of the authors that no rules in the bylaws pertaining to any manner of voting could be suspended (as the parliamentarian suggests) it would seem that the rule would say so.

In any event, the parliamentarian is simply an advisor. It is ultimately up to the assembly to interpret its rules. If the chair rules the motion to suspend the rules and take a ballot vote out of order, be prepared to Appeal from the decision of the chair. I advise reviewing Section 24 of RONR as preparation.

In the long run, it would seem prudent to clarify this rule one way or the other. Or get rid of it. Whatever is the society's preference.

Edited February 3, 2023 at 12:41 AM by Josh Martin

[Caryn Ann Harlos]

On 2/2/2023 at 3:01 PM, Rob Elsman said:

@Caryn Ann Harlos, nothing in parliamentary law stands in the way of persons agreeing to the defining terms of their free association. Persons who do not agree to the defining terms of an association are free to not associate.

You are singing the song of my people, I agree.  Just throwing out my personal peeve. 

[Gary Novosielski]

On 2/2/2023 at 3:43 PM, Guest Taytay said:

Thank you!!! does Rule 30:5 apply?
The local parliamentarian (who the request for secret ballot has been run by in advance of the meeting) citing 25:7 and 25:11  said the following, which I do not believe to be true: "Read together, it seems clear that when organizational bylaws require a certain method be used for the counting and recording of votes, those bylaws cannot be suspended. It cannot be said that voting method is a mere ‘rule of order’ as it directly relates to the rights of individual members to know in advance how votes will be counted and, in this case, to have knowledge that votes will be made in the open and subject to public scrutiny." 

No, that logic does not hold water in my view, for the reasons others have pointed out.

Fortunately, the opinions of parliamentarians are not binding.  Move "to Suspend the Rules and vote by ballot." And if the motion is ruled out of order, move an Appeal as discussed in RONR 12th ed. §24.  Be familiar with the procedure and assemble support for the action in advance.

The final decision on the question is up to the assembly, not up to one individual.

[Richard Brown]

I agree completely with the advice by Josh Martin and Gary Novosielski to make the motion at the next meeting, be prepared for the chair to rule against you, be prepared to appeal from the ruling of the chair and have people lined up to second the appeal and make some good arguments in debate.  The final decision is up to the members, not the parliamentarian or the chair.

[Guest Taytay]

On 2/2/2023 at 5:22 PM, Josh Martin said:

I don't think 30:5 is relevant to this question. That paragraph relates to the general rule concerning motions for a ballot vote. It has nothing to do with whether the rule in your organization's bylaws can be suspended.

I respectfully disagree with the parliamentarian on this matter. I do not agree that this rule creates a "right of individual members to know in advance how votes will be counted." (Indeed, with this sort of logic, one could try to argue any number of rules of order creates an individual right.) It is also not clear to me that the intent behind a requirement for a standing vote is "that votes will be made in the open and subject to public scrutiny." (Even to the extent that was the intent, I'm not sure a standing vote is the best way to do that. But that's beside the point.)

I would note that 25:11 reads in full as follows: "Rules protecting a basic right of the individual member cannot be suspended. Thus, while generally applicable limits on debate and the making of motions may be imposed by motions such as the Previous Question, the rules may not be suspended so as to deny any particular member the right to attend meetings, make motions or nominations, speak in debate, give previous notice, or vote. These basic rights may be curtailed only through disciplinary proceedings." RONR (12th ed.) 25:11

It seems to me that suspending the rules so as to provide that all members shall vote by a different method than the usual method is is more comparable to "generally applicable limits on debate" and certainly is not a suspension which has the effect of denying any particular member the right to attend meetings, make motions, speak in debate, or vote.

Further, as Mr. Brown has noted, RONR explicitly states that a rule in the bylaws requiring a ballot vote cannot be suspended. If it was instead the intent of the authors that no rules in the bylaws pertaining to any manner of voting could be suspended (as the parliamentarian suggests) it would seem that the rule would say so.

In any event, the parliamentarian is simply an advisor. It is ultimately up to the assembly to interpret its rules. If the chair rules the motion to suspend the rules and take a ballot vote out of order, be prepared to Appeal from the decision of the chair. I advise reviewing Section 24 of RONR as preparation.

In the long run, it would seem prudent to clarify this rule one way or the other. Or get rid of it. Whatever is the society's preference.

Thank you!! My motion was denied, I  hadn't read ahead, and the matter was treated as decided.  Talking to the parliamentarian afterwards he claimed that because the rule was in the organization's constitution, we are bound to vote publicly until we amend the constitution. I will try to press the issue going forward.

[Richard Brown]

On 2/2/2023 at 8:15 PM, Guest Taytay said:

Thank you!! My motion was denied, I  hadn't read ahead, and the matter was treated as decided.  Talking to the parliamentarian afterwards he claimed that because the rule was in the organization's constitution, we are bound to vote publicly until we amend the constitution. I will try to press the issue going forward.

Ask your parliamentarian to read this thread and to chime in as to why he thinks the rule cannot be suspended.

Edited to add:  BTW, it doesn't matter if the rule in in your bylaws or your Constitution.  It is in the nature of a rule of order and is suspendable regardless of which document it is in. §2:8 RONR.

 

Edited February 3, 2023 at 02:42 AM by Richard Brown
Added last paragraph

[J. J.]

On 2/2/2023 at 9:15 PM, Guest Taytay said:

Thank you!! My motion was denied, I  hadn't read ahead, and the matter was treated as decided.  Talking to the parliamentarian afterwards he claimed that because the rule was in the organization's constitution, we are bound to vote publicly until we amend the constitution. I will try to press the issue going forward.

Is this group a representative body of some type? 

[Rob Elsman]

What if a member were to move that a vote be taken by roll call? Voting by roll call is not a method of secret voting, yet it seems to be prohibited if Principle of Interpretation 4 in RONR (12th ed.) 56:68 is applied to the bylaw. What supposed basic right of an individual member makes the rule unsuspendable in that case, according to the reasoning of this parliamentarian?

[Josh Martin]

On 2/2/2023 at 8:15 PM, Guest Taytay said:

Thank you!! My motion was denied, I  hadn't read ahead, and the matter was treated as decided.  Talking to the parliamentarian afterwards he claimed that because the rule was in the organization's constitution, we are bound to vote publicly until we amend the constitution. I will try to press the issue going forward.

I will note that, notwithstanding my disagreement with the parliamentarian on this issue, the suggestion to amend the constitution for clarity is still a good one. It seems to me there are a few options in this regard.

1.) Remove the rule entirely and simply follow the default rules for voting in RONR, which are as follows:

• Start with a voice vote (unless a 2/3 vote is required)
• If a voice vote is inconclusive, take a rising vote (start with a rising vote if a 2/3 vote is required)
• If a rising vote is inconclusive, take a counted rising vote
• The assembly may, however, order a different voting method in a particular case (such as a ballot vote) by majority vote

2.) If the assembly instead feels that it is important that "votes will be made in the open and subject to public scrutiny," then I think it would instead be preferable to require a roll call vote. This is a much better method of ensuring that votes are "subject to public scrutiny," since the vote of each member is recorded, rather than forcing people to quickly look around the room and determine how other members are voting.

Since roll call votes take some time to conduct, it would likely be desirable to include some limiting principle in the rule, in order to avoid taking lengthy votes even on routine matters. Some organizations will provide that roll call votes are required only for certain votes. Others will provide that a certain number of proportion of members (ex. five members, 1/5 of the members present, etc.) may request a roll call vote.

"In a representative body, if there is no legal or constitutional provision specifying the size of the minority that can order a roll-call vote, the body should adopt a rule fixing the size of such a minority—for example, one fifth of those present, as in Congress, or some other portion of those present that is less than a majority. In the absence of such a special rule, a majority vote is required to order the taking of a vote by roll call—in which case a motion to do so is likely to be useless, since its purpose is to force the majority to go on record." RONR (12th ed.) 45:46

Wording the rule in this manner also creates a right of a minority less than one-third, which makes it more difficult to suspend the rule. If the roll call vote can be requested by 1/5 of the members present, for instance, the rule could not be suspended if 1/5 of the members present object.

3.) If the assembly prefers its current rule but also desires to clearly provide for its suspension, in order to avoid future confusion, the rule can be amended to provide that it may be suspended by a 2/3 vote. Alternately, if the assembly feels it is desirable to ensure votes are "subject to public scrutiny" (but not very much scrutiny), then the assembly could adopt rules requiring a higher vote for suspension (even unanimous consent) or even provide that the rule may not be suspended at all.

Edited February 3, 2023 at 12:33 PM by Josh Martin

[Guest Taytay]

On 2/2/2023 at 10:02 PM, J. J. said:

Is this group a representative body of some type? 

Political party, members elected by the party's voters by precinct in the county, plus an executive committee of precinct ward chairs and of those appointed by the chair who was elected by the members.

[Guest Taytay]

On 2/2/2023 at 10:02 PM, J. J. said:

Is this group a representative body of some type? 

A political party, members elected by the voters in the county in a primary election who vote the party's ballot, by precinct. 

[Gary Novosielski]

On 2/3/2023 at 1:29 PM, Guest Taytay said:

A political party, members elected by the voters in the county in a primary election who vote the party's ballot, by precinct. 

Well, that seems to support the view that the votes are intended not be secret, as this body's members are responsible to a constituency who arguably need to know how their representatives vote. 

But this is usually accomplished by requiring that the votes on substantive motions must be taken by roll-call.  A rising vote seems an odd way to accomplish this goal, since one would have to be in the room at the time to see how any individual member voted, and the votes are not recorded in the minutes.

[J. J.]

On 2/3/2023 at 1:29 PM, Guest Taytay said:

A political party, members elected by the voters in the county in a primary election who vote the party's ballot, by precinct. 

Do you have a bylaw or rule that all meetings open to the public or to the people that elect them?

Yes, I am going in the same direction as @Gary Novosielski is. 

[Richard Brown]

Responding primarily to @J. J. and @Gary Novosielski, it should not matter what the intent of that rule in the bylaws is, it is still clearly a rule in the nature of a rule of order and may be suspended.  If the membership agrees that it is a rule that should not be suspended, they can simply refuse to suspend it.

Edited to add:  it is an easy matter for them to fix with a very simple bylaw amendment. In the meantime, it can be resolved by means of a point of order and possibly  an appeal

Edited February 4, 2023 at 04:35 PM by Richard Brown
Added last paragraph

[Gary Novosielski]

I agree with @Richard Brown that, as currently written, this rule is clearly suspendible. 

While the intent of the rules would not bear directly on that question, it presumably would be important to those voting on the motion to suspend. Unfortunately, except for a brief explanation, the motion to Suspend the Rules is not debatable.

I'm pondering the advisability of further suspending the rules to allow debate on this question.  I wonder if this motion yields to a second invocation of itself, such as "Madam President, I ask unanimous consent that this question be open to debate." 

[Caryn Ann Harlos]

Mind blown.  Can a second motion to suspend be made to debate an already made motion to suspend?

[J. J.]

On 2/4/2023 at 11:33 AM, Richard Brown said:

Responding primarily to @J. J. and @Gary Novosielski, it should not matter what the intent of that rule in the bylaws is, it is still clearly a rule in the nature of a rule of order and may be suspended.  If the membership agrees that it is a rule that should not be suspended, they can simply refuse to suspend it.

Edited to add:  it is an easy matter for them to fix with a very simple bylaw amendment. In the meantime, it can be resolved by means of a point of order and possibly  an appeal

It is not intent as much as if the rule protects nonmember. or grants them a right.  I do not know if it does, but it could.