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conducting a vote "with anonymity"


Guest Cathy Guest

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Our Board is conducting a vote by email vote where members will not see how others voted. "The Board’s intention is to conduct a separate email vote on the Certificate and the Bylaws, allowed by the current bylaws Article VI Section 8, as voting by email has resulted in greater lot owner participation and allows for anonymity on controversial topics."

Take aside the fact that email voting is not expressly allowed in our Bylaws and take aside that is says that Bylaws must be amended at a meeting, with regards to "secret ballot," our Bylaws only mention secret ballot with regards to electing officers at an Annual Meeting. Our Bylaws say: 

Section 5. Directors shall be elected at the annual meeting of the Association. Nominations in addition to those of the Annual Nominating Committee may be made from the floor, provided that each such nominee is present and agrees to serve if elected; in such event, members shall vote by secret ballot, each member being entitled to vote for one Association member to fill each vacancy for which there are more than one nominee, and votes shall be collected and counted by tellers appointed by the President.

Can you comment on the Board's authority to conduct a ballot with anonymity. Members have objected to this point but the Board is now conducting a second vote in the same fashion. 

What do you recommend for the correct procedure for recourse? Our understanding of secret ballot is that no one sees how the votes are cast. In this fashion, it appears that the Board, or a subset of the Board get to see how the votes are cast but no one else. 

Thank you in advance for your comments. 

 

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It is a fundamental principle of parliamentary law that voting is limited to members physically present in the one room or area where a properly-called or scheduled meeting is held.

If voting by email is to be allowed, the bylaws must be amended to permit it, and the society should adopt special rules of order to set out how it should be handled.

Absent authorization in the society's governing documents, any vote conducted by email while members are not present at a meeting is null and void. See RONR (12th ed.) 23:6, item (d).

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On 3/17/2023 at 2:17 PM, Guest Cathy Guest said:

separate email vote on the Certificate and the Bylaws, allowed by the current bylaws Article VI Section 8

On 3/17/2023 at 2:17 PM, Guest Cathy Guest said:

Take aside the fact that email voting is not expressly allowed in our Bylaws

The Board apparently disagrees with you. What does Article VI, Section 8 actually say?

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On 3/17/2023 at 2:58 PM, Atul Kapur said:

The Board apparently disagrees with you. What does Article VI, Section 8 actually say?

Article VI, Section 8. In any Association meeting or mail vote of the membership, decision on each question or proposal shall, unless otherwise required by law or stipulated in these Bylaws, be by majority vote of members present at the meeting in person or by proxy or of members voting by mail. Voting at meetings shall be oral, except that the President shall conduct a roll-call vote or a secret ballot if either be requested by any member present.

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On 3/17/2023 at 4:00 PM, Guest Cathy Guest said:

Article VI, Section 8. In any Association meeting or mail vote of the membership, decision on each question or proposal shall, unless otherwise required by law or stipulated in these Bylaws, be by majority vote of members present at the meeting in person or by proxy or of members voting by mail. Voting at meetings shall be oral, except that the President shall conduct a roll-call vote or a secret ballot if either be requested by any member present.

So apparently mail voting is authorized. Before being as absolute as @Rob Elsman, I'd like to see the provision that authorizes absentee voting (eg: mail voting) to see its exact wording.

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On 3/17/2023 at 4:07 PM, Rob Elsman said:

It is just my own opinion that the cited bylaw does not authorize voting by email, since "mail" means delivery by postal service, not electronic communication over the internet.

I agree but I am actually more concerned about the anonymous voting at this point. Any thoughts on that?

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On 3/17/2023 at 4:14 PM, Atul Kapur said:

So apparently mail voting is authorized. Before being as absolute as @Rob Elsman, I'd like to see the provision that authorizes absentee voting (eg: mail voting) to see its exact wording.

Section 7. If it becomes necessary for the Association membership to act on any matter of business, and if, in the judgment of the Board, an Association meeting would be inconvenient or unnecessary, a mail vote of members may be taken, provided that each member be fully informed of the details of the proposed matter of business. Decision may be reached only by return of ballots by not less than one-third of all Association members within the time stipulated by the Board and stated in the mail-vote notice.

Section 8. In any Association meeting or mail vote of the membership, decision on each question or proposal shall, unless otherwise required by law or stipulated in these Bylaws, be by majority vote of members present at the meeting in person or by proxy or of members voting by mail. Voting at meetings shall be oral, except that the President shall conduct a roll-call vote or a secret ballot if either be requested by any member present.

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It is worth noting that previous editions of RONR used the word "mail" in connection with the sending of the call of a meeting to members. I once opined the the specific use of "mail" in the rule precluded the use of email, since "mail" referred to delivery by postal service. The authors of RONR changed the text to read "send" instead of "mail" to permit organizations to email the call of a meeting to members who had agreed to receive communications by email.

Conforming to my earlier opinion about the meaning of "mail", I see nothing in the cited bylaws to lead me to believe that the organization has authorized voting by email or any other form of electronic communication.

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On 3/17/2023 at 4:33 PM, Rob Elsman said:

It is worth noting that previous editions of RONR used the word "mail" in connection with the sending of the call of a meeting to members. I once opined the the specific use of "mail" in the rule precluded the use of email, since "mail" referred to delivery by postal service. The authors of RONR changed the text to read "send" instead of "mail" to permit organizations to email the call of a meeting to members who had agreed to receive communications by email.

Conforming to my earlier opinion about the meaning of "mail", I see nothing in the cited bylaws to lead me to believe that the organization has authorized voting by email or any other form of electronic communication.

Again, I agree, but can you comment on the fact that it is also "anonymous." Let's say this vote was done by "mail" meaning postal service. If it were done by "mail" wouldn't the "anonymous" part still be problematic? If so, can you also comment on why it would be problematic.  (Feel free to also comment on why "email" is problematic. I am interested in arguing my case and would like to provide justification in why the vote is not being held in the proper fashion. 

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In order for a mailed vote to be secret, it is necessary to separate the outer envelope with its return address from the inner envelope which is blank. Once separated, it is not possible to ascertain which inner envelope was mailed by which member.

With email, the sender's email address is embedded in the header and cannot be separated. For that reason, I do not believe that email can be used to deliver a secret vote, even if a sophisticated user sends the email to himself with a "bcc" to the secretary of the organization.

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On 3/17/2023 at 4:19 PM, Guest Cathy Guest said:

I agree but I am actually more concerned about the anonymous voting at this point.

I seem to recall previous threads on this forum that concluded that members do not, usually, have a right to know how every other member voted.

Why are you concerned about this aspect? 

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On 3/17/2023 at 5:24 PM, Atul Kapur said:

Why are you concerned about this aspect? 

It does not seem that this vote will be able to pass. I don't think they have enough votes. However, there are a series of votes about to go through. Once they see who votes for what, it will not be hard to lobby for the next votes to convince members or to get more previously non-voting members to vote. In other words, if I know how everyone votes, before the next vote, I would be able to rally support by making about 10 phone calls. If I have no idea about how any members are voting then I have to call all 125 members to find out where they stand. The reason why we have no idea where people stand is because we have not have meetings on this topic, only emails. Some people get some emails, others do not. We don't know what information which people are getting. So, it is the intelligence gained by surveying members in a forced fashion, by calling it a vote. Does that help to explain?

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On 3/17/2023 at 5:18 PM, Rob Elsman said:

In order for a mailed vote to be secret, it is necessary to separate the outer envelope with its return address from the inner envelope which is blank.

Is it allowable to have a vote where it is not secret but where the Board or a subset of the Board are allowed to see how people voted, but the other members are not able to see how people voted?

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On 3/17/2023 at 4:59 PM, Guest Cathy Guest said:

Again, I agree, but can you comment on the fact that it is also "anonymous." Let's say this vote was done by "mail" meaning postal service. If it were done by "mail" wouldn't the "anonymous" part still be problematic? If so, can you also comment on why it would be problematic.  (Feel free to also comment on why "email" is problematic. I am interested in arguing my case and would like to provide justification in why the vote is not being held in the proper fashion. 

Voting by mail using a secret ballot is not problematic at all.  A dual envelope system, such as that described in RONR (12th ed.) 45:60 maintains secrecy.  

But it is quite problematic in email voting, since without some complex encryption algorithms it becomes impossible to conceal the identity of the voter, even from those people counting the votes.  In any case, since it's not allowed in your bylaws, it is strictly prohibited by RONR, and any such election would be null and void.

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On 3/17/2023 at 5:34 PM, Guest Cathy Guest said:

Is it allowable to have a vote where it is not secret but where the Board or a subset of the Board are allowed to see how people voted, but the other members are not able to see how people voted?

If someone knows, then it's not anonymous.  The board should have no involvement at all in a vote of the membership, much less access to how individuals voted.  <shudder>

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On 3/17/2023 at 5:39 PM, Gary Novosielski said:

If someone knows, then it's not anonymous.  The board should have no involvement at all in a vote of the membership, much less access to how individuals voted.  <shudder>

In all seriousness, then who should run the vote? The Board is putting forth these votes because they want to pass them. They are calling a vote and sending it out. What rationale can members give to not have this happen. I think I am hearing that voting is not allowed to occur without a motion. Is that the argument?

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The board sounds like they are assuming powers that boards don't typically have.  Boards can't typically "call for a vote" of the membership.

Yes, a vote can only take place on a motion, but if the membership is to vote on it, it must be a motion made in a membership meeting.  The process you describe of boards making up things to vote on and sending out ballots does not correspond to anything in RONR.  If your bylaws allow for this, that's different, but all we can tell you is what the rules in RONR say.  

As to who should run the vote, presuming there has been a motion at a membership meeting, opportunity for debate and amendment, etc., then the secretary, possibly with help, would mail out ballots, and receive the returned ballots, keeping them sealed until time to count them.   

The count would take place by a Tellers Committee, chosen for impartiality, appointed by the chair, unless the membership intervenes, and the tellers would check the received envelopes against the membership list to ensure that nobody voted twice, and for validated ballots, open the inner envelope and place the ballot, now anonymous, into a box or pile without unfolding it.  

After all the now-anonymous ballots have been combined, counting would be done, and a report issued at a meeting.  Based on the count, the chair would announce the result.  

Note that the board, as such, has no role, although it is common for the president of the board and the secretary of the board would have the same role in matters of the membership.  Common but not universal.  Your rules supersede the rules in RONR.

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On 3/17/2023 at 6:04 PM, Gary Novosielski said:

The board sounds like they are assuming powers that boards don't typically have.  Boards can't typically "call for a vote" of the membership.

Yes, a vote can only take place on a motion, but if the membership is to vote on it, it must be a motion made in a membership meeting. 

Thank you sooo much. This is enlightening. I argued last year that the Board needed to call a Special Meeting if they wanted to call a vote, but they told me that this as "more convenient" for members. I will renew my challenge that a vote can only happen after a motion. Thank you!

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On 3/18/2023 at 9:18 AM, Guest Cathy Guest said:

 I argued last year that the Board needed to call a Special Meeting if they wanted to call a vote, but they told me that this as "more convenient" for members. I will renew my challenge that a vote can only happen after a motion.

Before you do that, you might want to wait to see if @Gary Novosielski wishes to modify his advice that 

On 3/17/2023 at 6:04 PM, Gary Novosielski said:

Yes, a vote can only take place on a motion, but if the membership is to vote on it, it must be a motion made in a membership meeting.  The process you describe of boards making up things to vote on and sending out ballots does not correspond to anything in RONR.  If your bylaws allow for this, that's different, but all we can tell you is what the rules in RONR say.

based on 

On 3/17/2023 at 4:20 PM, Guest Cathy Guest said:

Section 7. If it becomes necessary for the Association membership to act on any matter of business, and if, in the judgment of the Board, an Association meeting would be inconvenient or unnecessary, a mail vote of members may be taken, provided that each member be fully informed of the details of the proposed matter of business. Decision may be reached only by return of ballots by not less than one-third of all Association members within the time stipulated by the Board and stated in the mail-vote notice.

Section 8. In any Association meeting or mail vote of the membership, decision on each question or proposal shall, unless otherwise required by law or stipulated in these Bylaws, be by majority vote of members present at the meeting in person or by proxy or of members voting by mail. Voting at meetings shall be oral, except that the President shall conduct a roll-call vote or a secret ballot if either be requested by any member present.

because it sure appears that the bylaws specifically allow for a mail vote without a membership meeting. Yes, the distinction between mail vote and email vote remains unresolved, but the principle of having the members vote outside of a meeting is explicitly authorized.

Edited by Atul Kapur
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On 3/18/2023 at 10:35 AM, Atul Kapur said:

Before you do that, you might want to wait to see if @Gary Novosielski wishes to modify his advice...

...because it sure appears that the bylaws specifically allow for a mail vote without a membership meeting. Yes, the distinction between mail vote and email vote remains unresolved, but the principle of having the members vote outside of a meeting is explicitly authorized.

Gary, remember what we talked about re: reading the entire thread? 😉

My advice included the fact that the bylaws always prevail, which I reaffirm.  But the bylaws here are anything but clear.

Yes, they appear to say that the board may call mail votes (not email votes), but there's no indication of how and in what body a motion must be made.  The bylaws language contains no clue how these "matters of [membership] business" come into being. Apparently these motions move themselves, outside of any meeting, or perhaps during board meetings, and then the board decides what the membership wants them to say, who votes on them, and when.  That's ambiguous enough, in my view, that Guest Kathy Guest has every right raise a Point of Order regarding the practice.  

But if she should choose to do so, how can that be done?  Presuming she is not a board member, she cannot properly raise a Point of Order at a board meeting, and if the board decides that a membership meeting would be inconvenient (To them? To the members? We don't know.) there's no opportunity for members to raise such points.

If all this is fine with most members, then Guest Kathy Guest's ability to reclaim the membership's authority will not succeed.  But even if the membership agrees with her, their course of action is narrow.  It seems to me that the only course the membership has when presented with votes from on high is to assure that fewer than one-third of the members return their ballots.

 

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On 3/17/2023 at 1:17 PM, Guest Cathy Guest said:

Can you comment on the Board's authority to conduct a ballot with anonymity. Members have objected to this point but the Board is now conducting a second vote in the same fashion. 

What do you recommend for the correct procedure for recourse? Our understanding of secret ballot is that no one sees how the votes are cast. In this fashion, it appears that the Board, or a subset of the Board get to see how the votes are cast but no one else. 

If voting by email is not permitted by the bylaws or applicable law, then it is not permitted.

There is no issue with taking a ballot vote. While the bylaws may only require a ballot vote for the election of officers, ballot votes are still permissible for other matters unless something in your rules suggests otherwise.

It is also correct, however, that in a true ballot vote, no one would know how the member voted. So a mechanism in which "the Board, or a subset of the Board get to see how the votes are cast but no one else" is not a true ballot vote. Notwithstanding this, because the rules do not appear to require a ballot vote, this doesn't seem to pose any particular problems.

If email voting is not permitted, then the proper recourse is to declare this vote null and void on that basis at the next regular meeting of the membership or a special meeting called for the purpose. If email voting is permitted, then I don't see a problem.

I would also note that, based on the number of questions you have posted in recent days, it appears there are a number of issues in this organization, and I would strongly advise that the organization consult a professional parliamentarian and/or an attorney to assist the organization with these matters, in order to thoroughly review the situation and all applicable rules. While we'll still do our best to assist, I am not certain that answering these questions piecemeal over this forum is the best way to serve the organization in this matter. The National Association of Parliamentarians and the American Institute of Parliamentarians provide referral services to find a parliamentarian.

On 3/17/2023 at 3:19 PM, Guest Cathy Guest said:

I agree but I am actually more concerned about the anonymous voting at this point. Any thoughts on that?

Well, you should be more concerned about the email voting, because that is a serious problem, and the semi-anonymous voting isn't a problem.

On 3/17/2023 at 3:59 PM, Guest Cathy Guest said:

If it were done by "mail" wouldn't the "anonymous" part still be problematic?

No.

On 3/17/2023 at 4:18 PM, Rob Elsman said:

In order for a mailed vote to be secret, it is necessary to separate the outer envelope with its return address from the inner envelope which is blank. Once separated, it is not possible to ascertain which inner envelope was mailed by which member.

With email, the sender's email address is embedded in the header and cannot be separated. For that reason, I do not believe that email can be used to deliver a secret vote, even if a sophisticated user sends the email to himself with a "bcc" to the secretary of the organization.

I concur with this, but as I understand the facts, no rule of the organization actually requires a secret vote, except in the case of election of officers.

On 3/17/2023 at 4:32 PM, Guest Cathy Guest said:

It does not seem that this vote will be able to pass. I don't think they have enough votes. However, there are a series of votes about to go through. Once they see who votes for what, it will not be hard to lobby for the next votes to convince members or to get more previously non-voting members to vote. In other words, if I know how everyone votes, before the next vote, I would be able to rally support by making about 10 phone calls. If I have no idea about how any members are voting then I have to call all 125 members to find out where they stand. The reason why we have no idea where people stand is because we have not have meetings on this topic, only emails. Some people get some emails, others do not. We don't know what information which people are getting. So, it is the intelligence gained by surveying members in a forced fashion, by calling it a vote. Does that help to explain?

It explains why you are concerned about it, yes. Notwithstanding this, it does not appear to me that this aspect of the voting procedure violates any rule.

The bigger issue is the fact that the voting is being conducted by email in the absence of any provision in the bylaws authorizing this. But perhaps there are also other rules on this matter, such as in applicable law.

On 3/17/2023 at 4:34 PM, Guest Cathy Guest said:

Is it allowable to have a vote where it is not secret but where the Board or a subset of the Board are allowed to see how people voted, but the other members are not able to see how people voted?

Yes, assuming the society has no rule prohibiting this.

On 3/17/2023 at 4:39 PM, Gary Novosielski said:

If someone knows, then it's not anonymous.  The board should have no involvement at all in a vote of the membership, much less access to how individuals voted.  

No facts have yet been provided suggesting the organization's rules require a secret vote on this matter. The applicable rules require that the vote be held "by mail." They do not specify "by ballot." RONR has rules for votes by mail which are not secret as well as rules for votes by mail which are secret. In the former case, the tellers will certainly know how individual members voted. But there is no requirement that this information be shared with all members of the society.

On 3/18/2023 at 10:04 AM, Gary Novosielski said:

Yes, they appear to say that the board may call mail votes (not email votes), but there's no indication of how and in what body a motion must be made.  The bylaws language contains no clue how these "matters of [membership] business" come into being. Apparently these motions move themselves, outside of any meeting, or perhaps during board meetings, and then the board decides what the membership wants them to say, who votes on them, and when.

These matters could, for instance, be decided at a board meeting.

Edited by Josh Martin
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On 3/18/2023 at 11:37 AM, Josh Martin said:

These matters could, for instance, be decided at a board meeting.

Yes, they could, and that's probably what happens, but with such rules, the board has (or thinks it has) the power to declare membership meetings "inconvenient" and so remove the power of the membership to amend, debate, form committees, raise points of order, or propose new "matters", among other things.

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