An absent member's vote is a yes vote.

[J. J.]

On 7/20/2023 at 11:59 AM, Dan Honemann said:

Yes, in the same way that a requirement of a vote of a majority of the entire membership means that an absence has the same effect as a no vote. 

But suppose when the vote is taken there are more no votes cast than there are yes votes. The rule's second requirement for adoption will not have been met.  

That was the purpose of the example.  Otherwise any meeting with less than 25% of the membership could adopt those motions.

[puzzling]

On 7/20/2023 at 7:14 PM, J. J. said:

That was the purpose of the example.  Otherwise any meeting with less than 25% of the membership could adopt those motions.

I think under your suggestion a yes vote of less than 25% of the membership could adopt those motions.

The organisation should set some extra quorum requirements or better a participation requirement of minimal % of membership present and voting in favour. (See one of my rules)

I don't want to make it impossible,  but I do want to make it difficult to prevent misuse of such a role.

[Drake Savory]

On 7/20/2023 at 12:14 PM, J. J. said:

Otherwise any meeting with less than 25% of the membership could adopt those motions.

Actually, under the OP's bylaw amendment wouldn't any motion to do X in a meeting with less than 25% attendance (assuming quorum meet) be passed even if everyone their voted no?

[Shmuel Gerber]

On 7/19/2023 at 9:13 PM, Gary Novosielski said:

On 7/19/2023 at 3:37 AM, Gregory Carlson said:

Bylaw amendment proposal:  "At a meeting, for a vote that requires 70% or more of the entire membership, an absent member's vote counts as a yes."

The wording is faulty on the face of it since "an absent member's vote" is a fiction.  Absent members do not vote, so you are fabricating votes that were not cast. I'm not sure exactly what else that violates, but it violates reason.  It seems like an attempt to mimic the common misconception that an abstention counts as a No vote, when the threshold is a certain fraction of those present. 

I agree. The wording is nonsensical.

[Dan Honemann]

On 7/24/2023 at 2:28 PM, Shmuel Gerber said:

I agree. The wording is nonsensical.

But the intent of the motion appears to be clear.  The absence of a member shall be counted as a yes vote.

[Shmuel Gerber]

On 7/24/2023 at 3:41 PM, Dan Honemann said:

But the intent of the motion appears to be clear.  The absence of a member shall be counted as a yes vote.

I'm a bit skeptical about that as well. The definition of voting is expressing a choice. It does not seem legitimate to me to adopt a rule that counts a member as having made a particular choice when the member in fact made no such choice. 

[Dan Honemann]

On 7/24/2023 at 4:13 PM, Shmuel Gerber said:

I'm a bit skeptical about that as well. The definition of voting is expressing a choice. It does not seem legitimate to me to adopt a rule that counts a member as having made a particular choice when the member in fact made no such choice. 

Do you doubt the intent of the rule or its efficacy?

[J. J.]

On 7/24/2023 at 4:13 PM, Shmuel Gerber said:

I'm a bit skeptical about that as well. The definition of voting is expressing a choice. It does not seem legitimate to me to adopt a rule that counts a member as having made a particular choice when the member in fact made no such choice. 

You might try looking at First Quarter 2003 National Parliamentarian (Q & A section #26).  The question dealt with a rule making an abstention be counted as a yes vote. 

I have no doubt that a bylaw could be adopted that would say "A motion to ___________ shall be adopted provided that 25% or more of the membership do not vote against the motion."  Such a rule, in this form, would have an unintended consequence (q.v.). 

[Shmuel Gerber]

On 7/24/2023 at 6:17 PM, Dan Honemann said:

Do you doubt the intent of the rule or its efficacy?

I think that in order for such a rule (hypothetically, where it is not contrary to law) to be effective, it would have to be prefaced by something like "For purposes of determining whether the motion is adopted,…“.

Otherwise, votes are being ascribed to members, against those members' will, who did not actually cast them. 

On 7/24/2023 at 7:38 PM, J. J. said:

 

I have no doubt that a bylaw could be adopted that would say "A motion to ___________ shall be adopted provided that 25% or more of the membership do not vote against the motion."

That's a lot closer, in my opinion, to a legitimate parliamentary rule, but it ought to make clear that it applies only with respect to a motion that actually comes to a final vote (or passage by unanimous consent), in a meeting at which a quorum is present. 

[Gary Novosielski]

On 7/24/2023 at 4:13 PM, Shmuel Gerber said:

I'm a bit skeptical about that as well. The definition of voting is expressing a choice. It does not seem legitimate to me to adopt a rule that counts a member as having made a particular choice when the member in fact made no such choice. 

I agree.  Calling a tail a leg doesn't make it one.

[J. J.]

The original bylaw amendment was:   "At a meeting, for a vote that requires 70% or more of the entire membership, an absent member's vote counts as a yes."   While the rule I suggested may be more clearly worded, the intent is the same.  So is the unintended consequence. 

 

 

[Gary Novosielski]

On 7/24/2023 at 8:03 PM, J. J. said:

The original bylaw amendment was:   "At a meeting, for a vote that requires 70% or more of the entire membership, an absent member's vote counts as a yes."   While the rule I suggested may be more clearly worded, the intent is the same.  So is the unintended consequence. 

 

 

Be that as it may, it is still my view that the intent of the state law is also clear in its intent, and takes precedence.  Attempting to find a cute way to phrase the bylaws will be to no avail.

[J. J.]

On 7/24/2023 at 9:27 PM, Gary Novosielski said:

Be that as it may, it is still my view that the intent of the state law is also clear in its intent, and takes precedence.  Attempting to find a cute way to phrase the bylaws will be to no avail.

That is a completely different question. 

The question is if such a bylaw could be adopted and applicable to the society.

Edited July 25, 2023 at 01:45 AM by J. J.

[Gary Novosielski]

On 7/24/2023 at 9:44 PM, J. J. said:

That is a completely different question. 

The question is if such a bylaw could be adopted and applicable to the society.

Well, the original question began with the state law.  I suggest it might be a good place to end.

[J. J.]

On 7/24/2023 at 11:45 PM, Gary Novosielski said:

Well, the original question began with the state law.  I suggest it might be a good place to end.

The original post raised the question of a fundamental principle of parliamentary law being violated.

There are two distinct questions:

1.  Is there some way to effectively count absent voters as yes votes?

2.  Would that method comply with statute?

The answer to the first question is, "Yes."  The answer to the second is, "Ask an attorney that is licensed to practice in your state."   

[Drake Savory]

On 7/24/2023 at 4:17 PM, Dan Honemann said:

Do you doubt the intent of the rule or its efficacy?

I would say the efficacy but as many here have said, that is a legal issue as to if they can count votes that way not a parliamentary one.

[Gary Novosielski]

On 7/25/2023 at 2:28 PM, J. J. said:

The original post raised the question of a fundamental principle of parliamentary law being violated.

There are two distinct questions:

1.  Is there some way to effectively count absent voters as yes votes?

2.  Would that method comply with statute?

The answer to the first question is, "Yes."  The answer to the second is, "Ask an attorney that is licensed to practice in your state."   

Well, the original question was: Does this violate a fundamental principle of parliamentary law, or is it a valid bylaw provision?   The answer to that is Yes:  it does, and it is.   Presuming some coherent language could be proposed, bylaws provisions are free to violate fundamental principles of parliamentary law all day long, no matter how arbitrary or indefensible.  Speaking for myself, I choose not to facilitate the drafting of such proposals.  

But simply as a matter of logic it is not possible to count non-voters as votes, so that drafting is far from complete anyway.

As to whether it would comply with statute or not, I can't say as a matter of law; I am not a lawyer.  But hypothetically, if I were in the chair and a Point of Order were raised that such a bylaw amendment was not in order because it conflicted with such a statute--one mandating a certain percentage of those present and voting, I would nevertheless, as a non-lawyer, be called  upon to rule on that point.  And I'm fairly certain I'd have to agree.

[J. J.]

On 7/25/2023 at 6:02 PM, Gary Novosielski said:

Well, the original question was: Does this violate a fundamental principle of parliamentary law, or is it a valid bylaw provision?   The answer to that is Yes:  it does, and it is.   Presuming some coherent language could be proposed, bylaws provisions are free to violate fundamental principles of parliamentary law all day long, no matter how arbitrary or indefensible.  Speaking for myself, I choose not to facilitate the drafting of such proposals.  

But simply as a matter of logic it is not possible to count non-voters as votes, so that drafting is far from complete anyway.

As to whether it would comply with statute or not, I can't say as a matter of law; I am not a lawyer.  But hypothetically, if I were in the chair and a Point of Order were raised that such a bylaw amendment was not in order because it conflicted with such a statute--one mandating a certain percentage of those present and voting, I would nevertheless, as a non-lawyer, be called  upon to rule on that point.  And I'm fairly certain I'd have to agree.

You are not the person who wished to do this.

Since non voters can be treated as having the effect of a no vote, when a MEM vote is required, your logic fails. 

Whether you are an attorney or not, the assembly may appeal your ruling. 

[Shmuel Gerber]

On 7/25/2023 at 6:19 PM, J. J. said:

Since non voters can be treated as having the effect of a no vote, when a MEM vote is required, your logic fails. 

Nonvoters are never treated as "having the effect of a no vote" under the rules in RONR. However, their failure to vote may have the same effect as a no vote would have on the outcome. 

They are simply not treated as having voted yes. When a vote of a majority of the entire membership is required, the failure to vote yes can have an effect on the outcome, even if a member is absent or abstains from voting. 

[Gary Novosielski]

On 7/25/2023 at 6:19 PM, J. J. said:

Since non voters can be treated as having the effect of a no vote, when a MEM vote is required, your logic fails. 

 

No, that statement is not logically sound.  The premise is false: non-voters cannot be "treated" as having the effect of a No vote. And neither can they be "treated" as having the effect of a Yes vote.  

The fact that non-votes can have the effect of No votes is not by virtue of anyone treating them this way or that way, but simply by the fact that they are not votes.  The fact results simply from the stated threshold. 

Say a given motion requires for passage a Majority of the Entire Membership.  The votes required  depends only on the total number of members.  So passage depends only on the votes required and the number of Yes votes--nothing else.   

Note well that it does not depend on the number absent or present (assuming a quorum), nor on the number abstaining.  It also does not even depend on the number of No votes, or how they are treated.  The size of the negative vote is irrelevant.  Since neither abstentions nor No votes have any effect, they don't have to be "treated" at all.

What you're looking for is a way to treat a non-vote as a vote.  The term Fake Electors springs to mind, for some reason.

Edited July 25, 2023 at 11:10 PM by Gary Novosielski
fix not hole

[J. J.]

On 7/25/2023 at 6:53 PM, Shmuel Gerber said:

Nonvoters are never treated as "having the effect of a no vote" under the rules in RONR. However, their failure to vote may have the same effect as a no vote would have on the outcome. 

They are simply not treated as having voted yes. When a vote of a majority of the entire membership is required, the failure to vote yes can have an effect on the outcome, even if a member is absent or abstains from voting. 

My suggestion is that a rule can be constructed so that the failure to vote no can have an effect on the outcome.  

To use a majority of the entire membership as a standard, a bylaw saying "A motion to ___________ shall be adopted provided that a majority of the entire membership does not vote against the motion," would clearly be able to be adopted.  Similarly, the failure to vote no can have an effect on the outcome, even if a member is absent or abstains from voting.

I'm seeing symmetry between these two rules.  If a rule can be constructed so that the failure to vote yes can affect the result, so can the failure to vote no.  

Now, whether or not such a rule would comply with statute is a separate, legal, question. 

[Gary Novosielski]

On 7/25/2023 at 7:28 PM, J. J. said:

My suggestion is that a rule can be constructed so that the failure to vote no can have an effect on the outcome.  

To use a majority of the entire membership as a standard, a bylaw saying "A motion to ___________ shall be adopted provided that a majority of the entire membership does not vote against the motion," would clearly be able to be adopted.  Similarly, the failure to vote no can have an effect on the outcome, even if a member is absent or abstains from voting.

I'm seeing symmetry between these two rules.  If a rule can be constructed so that the failure to vote yes can affect the result, so can the failure to vote no.  

Now, whether or not such a rule would comply with statute is a separate, legal, question. 

Perhaps it could.

All I know is I'd never vote to adopt such a rule.

[J. J.]

On 7/26/2023 at 1:07 AM, Gary Novosielski said:

Perhaps it could.

All I know is I'd never vote to adopt such a rule.

Unless you are a member of Mr. Carlson's society, you will not be faced with the opportunity.

Here we have a society that wants to do this.  Here, we can help them draft the rules and explain the good and bad points. 

[Josh Martin]

On 7/26/2023 at 5:26 AM, J. J. said:

Unless you are a member of Mr. Carlson's society, you will not be faced with the opportunity.

Here we have a society that wants to do this.  Here, we can help them draft the rules and explain the good and bad points. 

I'm having a difficult time, however, separating the parliamentary question here from the legal question, because it seems to me the only reason Mr. Carlson's society wants to do this is as a "workaround" for the state law. I don't get the impression Mr. Carlson's society would have any interest in this rule if the state law in question did not exist. As a consequence, it would seem to me the society is better served in this matter by consulting with an attorney to determine whether such a workaround is permissible under the law in question and, if so, how this might best be accomplished.

We are told the state law in question "requires a vote of 75% of the entire membership of the organization to do X." As a consequence, I'm not inclined to think that rules attempting to change the voting threshold will be effective, since such a rule will more clearly conflict with the statute. Instead, the society would have to, as Mr. Carlson suggests, somehow "count" the votes of absent members as "yes" votes. I'm skeptical of this approach as well, but if we cast this skepticism to the wind, I would suggest something like the following:

"If a motion requires a vote of 70% or more of the entire membership for adoption, and a majority of the members present and voting, in person or by proxy, vote in favor of the motion, then members who are not present in person or by proxy shall be counted as having voted in favor of the motion, for purposes of determining whether the motion is adopted."

This would address the unintended and bizarre consequence of a motion potentially being adopted notwithstanding that most of the persons present vote against it. I think this wording is more consistent with Mr. Carlson's intent - that this is used as "extra" votes to adopt motions supported by the members present and voting, in person or by proxy. The society might (or might not) also wish to replace "majority" with a higher threshold.

[Drake Savory]

Parliamentary law aside, the real question is as far as the state is concerned, to be counted as a yes vote do you actually have to ... you know ... vote?