Election Results-challenging certified results

[damian110]

I am a member of an Association which operates under Roberts Rules recently revised.  The Association recently held an election for new directors at its last annual meeting, held for the purposes of election through the Ballot process.  All candidate directors were eligible for election.  Ballots were collected, counted and the results announced.  There were four nominees and four open positions.  The length of term was determined by the number of ballots for each nominee. The Ballots were counted by a management agent, witnessed by two members of the association who were not candidates.  A parliamentarian who was appointed the pro tem and in charge of the meeting then read the results a second time and then signed off on the certificate of election and the meeting was adjourned.  I was informed that the state has no provisions in its statues governing the issue of election certification, the By-Laws do not cover certification of elections and only state "Each Owner shall be entitled to cumulate the Owner's votes and give all thereof to one nominee or to distribute the votes in such manner as the Owner shall determine among any or all of the nominees, and the nominees receiving the highest number  of votes on the foregoing basis, up to ·the  total  number  of  Directors  to  be  elected,  shall  be deemed elected."  The certificate is currently in the official record of the association election and is provided upon request by members.  

Under Roberts Rules

1. What is the process to challenge the results of the meeting after it is adjourned?

2. On what grounds can the results be challenged after a vote has been held, results read twice, election certified and meeting adjourned?

3. Can the results be challenged after the meeting is adjourned?

3. If an error was made on the counting of ballots and is discovered after the meeting is adjourned, can the results be changed (if so by whom) or is there a process that could be implemented to correct the error?

Sorry for all the information I hope is helpful rather than hinders any guidance or advice that can be provided.

thank you for any guidance.

[Atul Kapur]

I suggest that you review 46:48 - 46:50 on "Contesting the Announced Result of an Election," where you will likely find many of the answers to these questions.

45:41 reviews the process for ordering a recount of a ballot vote.

After reviewing these sections, perhaps you can share what has actually happened (or what you suspect has happened) and you can ask questions specific to the circumstances.

[Josh Martin]

On 3/8/2023 at 8:16 PM, damian110 said:

1. What is the process to challenge the results of the meeting after it is adjourned?

It depends on what the issue is. If a member believes there is an error in the count, then at a meeting of the association, a member would move that a a recount be conducted. The motion requires a majority vote for adoption. Such a motion may only be made if the ballots have been securely preserved and there are also time limits for how long such a motion is in order.

On the other hand, if the member is alleging there was some violation of the rules which would invalidate the election, then at a meeting of the association, a member would raise a Point of Order regarding the issue. The chair would rule the point "well taken" (meaning he agrees) or "not well taken" (meaning he disagrees). Such a ruling may be appealed from. A majority vote is required to overturn the chair's ruling.

On 3/8/2023 at 8:16 PM, damian110 said:

2. On what grounds can the results be challenged after a vote has been held, results read twice, election certified and meeting adjourned?

A recount can be ordered based upon any grounds the assembly determines to be sufficient, provided that the ballots have been securely preserved and the time period for ordering a recount has not yet passed.

A Point of Order regarding an election conduced at a previous meeting can only be raised in regard to particularly egregious violations of the rules.

"If an election is disputed on the ground that a quorum was not present, the provisions in the last sentence of 40:12 apply. Other exceptions to the general timeliness requirement are those that come within the five categories listed in 23:6, in which cases a point of order can be made at any time during the continuance in office of the individual declared elected. For example:

a) If an individual does not meet the qualifications for the post established in the bylaws, his or her election is tantamount to adoption of a main motion that conflicts with the bylaws.

b) If there was a previously valid election for the same term, the subsequent election of another is the adoption of a main motion conflicting with one still in force.

c) If the votes of nonmembers or absentees in the election affect the result, action has been taken in violation of the 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.

d) If an election to fill a vacancy is held without required previous notice, action has been taken in violation of a rule protecting the rights of absentees.

e) If a number of members sufficient to affect the result are improperly prevented from voting in an election, action has been taken in violation of a rule protecting a basic right of the individual member." RONR (12tth ed.) 46:49

I would note that there is no such thing as "certifying" an election under RONR, so the fact that the election has been "certified" has no significance so far as RONR is concerned. If your organization's rules provide for such a thing, it may be that those rules also say something regarding this matter.

On 3/8/2023 at 8:16 PM, damian110 said:

3. If an error was made on the counting of ballots and is discovered after the meeting is adjourned, can the results be changed (if so by whom) or is there a process that could be implemented to correct the error?

A recount may be ordered by the assembly, by majority vote, provided that the ballots have been securely preserved and the time period for ordering a recount has not yet passed.

[damian110]

Thank you all for the information.  I was able to review 46.48 -46.50.  To answer the question of what has prompted my inquiry to this forum.   The meeting was adjourned without any challenges or call for a recount.   

The day after the meeting the officers of the boards were announced, and the new/re-elected directors were announced but no official numbers-other than a note on the bottom stating Final voting percentages will be released upon receipt from the managing agent-even though the numbers had been announced at the annual meeting.

Two days later the managing agent sent an email to all members stating "Due to an error made by our staff during tallying of the votes cast for the Election of Directors at the Annual Meeting, a total of fifty-six (56) votes cast for xxxxxxxxxxx were mistakenly posted for xxxxxxxxx. Upon correction of this error, the accurate election results should have been as follows:"  With the recalculated results posted.   The change resulted in a change in terms for the individual directors.  

After reviewing the sections referenced above 46.48-46.50 and interpreting how they would apply I came to the following layman's interpretation:

1.   According to the RR "the voting body itself is the ultimate judge of election disputes, only that body has the authority to resolve them in the absence of a bylaw or special rule of order that specifically grans another body that authority"  There is nothing in the Bylaws or special rules, and would it be correct to say that the managing agent did not have the authority to make changes to the results that were read at the meeting?

2.  The vote was by ballot at an association meeting and the "body" who voted was the entire membership.  

3.    Had an objection been raised prior to adjournment and after the certification for a recount, it could have been easily done.  

3.   Once adjourned, a recount requires a vote within the next quarter (90 days) by the same body that voted, ie, the full membership.  

4.  The Association can hold a special association meeting to vote on whether to have a recount performed. If passed, the recount would be held. If not passed, the recount would not be held. If no meeting is called, no recount is held, the vote would stand. 

 thank you again for your time and answers.  Not being familiar with all of RR puts folks such as myself at a substantial disadvantage.  I have found that often those in control prefer ignorance of the rules.

[Josh Martin]

On 3/9/2023 at 12:56 PM, damian110 said:

1.   According to the RR "the voting body itself is the ultimate judge of election disputes, only that body has the authority to resolve them in the absence of a bylaw or special rule of order that specifically grans another body that authority"  There is nothing in the Bylaws or special rules, and would it be correct to say that the managing agent did not have the authority to make changes to the results that were read at the meeting?

Correct.

On 3/9/2023 at 12:56 PM, damian110 said:

2.  The vote was by ballot at an association meeting and the "body" who voted was the entire membership. 

Correct.

On 3/9/2023 at 12:56 PM, damian110 said:

3.    Had an objection been raised prior to adjournment and after the certification for a recount, it could have been easily done.  

I would not describe a motion for a recount as an “objection,” but this is otherwise correct.

On 3/9/2023 at 12:56 PM, damian110 said:

3.   Once adjourned, a recount requires a vote within the next quarter (90 days) by the same body that voted, ie, the full membership.

This is generally correct, but I would clarify the definition of a quarterly interval. A quarterly interval is determined in RONR by ignoring the exact date, looking at the months, and determining whether those months are within three months.

I would guess this meeting was held in February or March. If it was held in February, then the special meeting to order a recount would need to be held no later than the end of May. If it was held in March, it would need to be held no later than the end of June.

I would also clarify that if the next regular meeting is within a quarterly interval, then the motion for a recount must be made no later than the end of the next regular meeting. But I gather that the next regular meeting is more than a quarterly interval away in this instance.

On 3/9/2023 at 12:56 PM, damian110 said:

4.  The Association can hold a special association meeting to vote on whether to have a recount performed. If passed, the recount would be held. If not passed, the recount would not be held. If no meeting is called, no recount is held, the vote would stand. 

Yes, this is correct.

So based upon the facts presented, it would seem the next step is to hold a special meeting and order a recount.

In the event holding additional meetings of the membership is impractical, the association may wish to consider adopting rules in its bylaws granting the board the authority to consider these matters.

Edited March 9, 2023 at 09:34 PM by Josh Martin

[Atul Kapur]

Agreeing with @Josh Martin, I would only add that your mention of "managing agent" makes this appear to be an HOA or similar organization, so there are almost certainly laws that apply.

The agent or others may try to suggest (or even state outright) that the rules or the laws prevent the members from requisitioning a special meeting or ordering a recount. You may need independent legal advice to check if this is true and, if not, counter this argument.

[damian110]

Josh and Atul,

thank you very much for your guidance.  Atul you are correct it is an AOAO.  I have contacted the governmental agency responsible and the applicable rules governing condominiums do not address this issue and they referred me back to Roberts Rules, nor do our By-Laws or Declarations.   You are also correct in that what happens is that legal advice is often necessary...all on an individuals cost, whereas the Board has the power of its attorney paid for by the members.  it becomes costly to contest such situations and that is why many folks just do not bother.

I greatly appreciate the time and effort of your detailed responses.  I know these can be time consuming.

[Josh Martin]

On 3/9/2023 at 1:57 PM, Atul Kapur said:

The agent or others may try to suggest (or even state outright) that the rules or the laws prevent the members from requisitioning a special meeting or ordering a recount. You may need independent legal advice to check if this is true and, if not, counter this argument.

Unless they also argue that the agent or the board have the authority to order a recount on their own, such arguments would seem to be counterproductive. As I understand it, the ultimate goal of the management is to correct the apparent error in which "a total of fifty-six (56) votes cast for xxxxxxxxxxx were mistakenly posted for xxxxxxxxx." The only mechanism to do that, at least so far as RONR is concerned, is to have the membership meet and order a recount.

Edited March 10, 2023 at 03:26 PM by Josh Martin

[damian110]

Josh, thank you.  As far as I know and after reviewing all our By-Laws, State statues and every other governing document I can get my hands on there is no authority of the Board or the managing agent to do anything on their own.  While you are correct in that it may be counter productive, we are dealing with a board that continually makes things up as they go.  I am not new to boards and have served on many in all positions.  This association is particularly difficult.

[Gary Novosielski]

On 3/10/2023 at 10:56 AM, damian110 said:

Josh, thank you.  As far as I know and after reviewing all our By-Laws, State statues and every other governing document I can get my hands on there is no authority of the Board or the managing agent to do anything on their own.  While you are correct in that it may be counter productive, we are dealing with a board that continually makes things up as they go.  I am not new to boards and have served on many in all positions.  This association is particularly difficult.

RONR is quite specific about this: 

Quote

46:50
Because the voting body itself is the ultimate judge of election disputes, only that body has the authority to resolve them in the absence of a bylaw or special rule of order that specifically grants another body that authority. Thus, for example, when an election has been conducted at a membership meeting or in a convention of delegates, an executive board, even one that is given full power and authority over the society’s affairs between meetings of the body that conducted the election, may not entertain a point of order challenging, or direct a recount concerning, the announced election result. While an election dispute is immediately pending before the voting body, however, it may vote to refer the dispute to a committee or board to which it delegates power to resolve the dispute.

[Emphasis added]

 

[damian110]

Gary and anyone else,

Looking for clarification.   When the original results were announced for the four candidates of which there were four positions the terms were determined by the order in which the candidate had the highest votes.  There were three 3 year terms and one 2 year term.  In the meeting at the second reading of the votes and currently the official document on record shows one order, the first one read.   The day after the meeting was adjourned the managing company sent out an email which stated "Due to an error made by our staff during tallying of the votes cast for the Election of Directors at the Annual Meeting, a total of xxxx votes cast for Candidate 4 were mistakenly posted for Candidate 1. Upon correction of this error, the accurate election results should have been as follows: "  and the new results were posted with the corresponding terms.  This change caused the number one candidate in the first reading to be moved to the fourth position (it was a very close election).    The managing agent went on to say "The only change in the above election results different from those announced at the Annual Meeting is that candidate 4 vote total qualified her to election to a 3-year term (instead of the 2-year term announced at the Meeting) and candidate vote total qualified him to election to a 2-year term (instead of the 3-year term announced at the Meeting), as there is no change to the candidates who were elected to the Board, or the 3- year terms for Candidate 2 and Candidate 3.

It seems they are basing the ability to change the terms in the election on the fact that the candidates were all elected but due to a count error they are able to correct the count, which in turn impacted the terms.  Is this a technicality that would allow the change because the candidates elected did not change only their terms?  sorry for the additional questions.  It always seems the devil is in the details.

[Rob Elsman]

The answer to your question has more to do with the contractual agreement between the association and the management company than anything in RONR (12th ed.).

[damian110]

I have reviewed the contract.  There is nothing in the contract that permits them to modify or change the election results they are  required to operate all meetings and elections of associations under RONR according to state statue.  They are only to provide the  manpower, ballots, minutes, storage of ballots, counts, etc.   They would still have to operate the election and meetings under RONR as I understand it.  When I reviewed the records for the election it was as happened in the meeting not the revised count.  

[Gary Novosielski]

Well, what they did is not allowed under the rules in RONR.  And what they did amounts to a recount, which only the assembly can initiate.  

Even if the recount had been in order, they would report only the revised vote counts, equivalent to a Tellers Report [see 45:37].  They do not announce the results, which is only done by the chair.

[Josh Martin]

On 3/12/2023 at 11:48 AM, damian110 said:

It seems they are basing the ability to change the terms in the election on the fact that the candidates were all elected but due to a count error they are able to correct the count, which in turn impacted the terms.  Is this a technicality that would allow the change because the candidates elected did not change only their terms?

If there was an error in the count, there is no mechanism to correct that except by a recount. The fact that, in this instance, the error simply changes the length of a term a person was elected to rather than whether a person was elected at all is immaterial.

[damian110]

to Gary-Is the quote you provided in the 12th edition of RRON 46:50?

[Richard Brown]

On 3/14/2023 at 9:30 AM, damian110 said:

to Gary-Is the quote you provided in the 12th edition of RRON 46:50?

Yes, that is a direct quote of RONR (12th ed.) 46:50.

[Gary Novosielski]

On 3/14/2023 at 10:30 AM, damian110 said:

to Gary-Is the quote you provided in the 12th edition of RRON 46:50?

Yes.  Well, except that it's RONR, not RRON. 🙂

Edited March 15, 2023 at 03:33 AM by Gary Novosielski

[damian110]

lol sorry about that, I will use RONR!  Is there a good searchable version of the 12th edition?   My only challenge now is what do I do.  Do I provide the section which seems very clear to the Association, the management company and challenge their correction based on that section?  It seems like that would be the next logical step.  

[Gary Novosielski]

The best choice for a searchable version would be the Kindle edition from Amazon, which can be viewed (with search capability) on a PC with the Kindle app.