Voting, quorum, abstentions (the old FAQ #6)

[Guest Cate]

We are a fairly new organization. Our board has 12 people. (we are not a membership organization)

Our bylaws say this about board elections:

The board of directors shall be elected by a simple majority (50% + one) by the voting deadline.

Elections committee will present a ballot containing vetted nominees to the board of directors for voting. The election ballot will be presented to the board in its entirety by e-mail, regular mail, or be web-based. 

E-votes require 100% participation of voting board of directors members. An initiative passes/fails by a simple majority (50% plus one) affirmative/negative of voting board of directors Members.     (for regular votes, though, it says: An initiative passes/fails by a simple majority (50% + one) affirmative/negative vote of the quorum present during a meeting. )

Here is our confusion around abstentions: if quorum for e-votes is essentially 100%, what happens when there are abstentions, given the way the bylaws are written, and given abstentions are neither a yes or a no vote?  

How we have consistently treated abstentions: We count the yes votes, and if there is >50% + 1, the person is elected.  

Essentially, we have been operating as though this part of the answer to FAQ #6 is what applied to our organization for board elections:

On the other hand, if the rules explicitly require a majority or two thirds of the members present, or a majority or two thirds of the entire membership, an abstention will have the same effect as a “no” vote. Even in such a case, however, an abstention is not a vote and is not counted as a vote. [RONR (12^th ed.) 44:1, 44:3, 44:9(a); see also p. 66 of RONR In Brief.]

The reason: our "quorum" for e-votes is 100% of board members - which to us, was the same thing as "the entire membership".  We set it up this way so that, for elections that occur online, we are assured that everyone has a say - such that 50% +1 of all board members would need to vote yes for a candidate to be elected.

That is what we intended and how we have operated all along. And we are now wondering if the bylaws need to be revised to be clearer and reflect how we do things - or if they are ok as is.

We just had an election where the candidate received 6 yes votes (50%), and 4 no votes, and 2 abstentions.

This is the first time we've had ANY no votes for a candidate; and previously had only had 1 abstention for a candidate - so this question has never come up.

There are questions about the abstentions, and whether they reduce the number of voting members (quorum) to 10, which would therefore mean the person was elected at 6 votes.  Our thought is the vote does not pass at 50% - meaning the abstentions have the same effect as a "no" vote, because of the 100% participation/quorum of voting members requirement, and the vote does not pass.

Thank you for any help/insight.

 

[Gary Novosielski]

I have read the bylaws excerpt several times, and I still have no idea what it is trying to say. But I can comment on some points:

• a majority is not 50%+1.   It is anything more than half, no matter how slightly.  Even 50% + 0.001 is a majority.  So your bylaws appear to contradict themselves.  I can't tell whether the intent was to redefine majority, or is just an error.  But with a small board such as this it probably will not matter.
• You're confusing quorum with voting.  Quorum, in an in-person meeting is how many members must be in the room for business to be conducted.  It does not matter whether they vote or not.
• Voting by e-mail presents some problems.  Have you adopted any rules on the subject?  Merely saying e-votes are allowed leaves open some questions, such as how to establish quorum.  In an in-person meeting, a member who abstains but is still present counts toward quorum.  Do your rules say whether a person who abstains is counted toward a quorum?
• Do your rules say whether a person who abstains has "participated" in the election?  If so, then your example of 6 votes to 4 is certainly a majority. 
• You say that you wanted everyone to have a say, but are you certain that you want to effectively remove the right of a member to abstain?  

Edited December 17, 2023 at 03:32 AM by Gary Novosielski

[Shmuel Gerber]

On 12/16/2023 at 9:47 PM, Guest Cate said:

And we are now wondering if the bylaws need to be revised to be clearer and reflect how we do things - or if they are ok as is.

They are definitely not OK as is. 

[Guest cate]

On 12/16/2023 at 11:19 PM, Shmuel Gerber said:

They are definitely not OK as is. 

Thanks for that helpful feedback. We are starting an annual bylaws review.  This is one of the sections that will be revamped. We've learned a lot since we started, for sure.

I have been suggesting for a while that the 50% + 1 (which was likely copied from some other set of bylaws) needed to change to anything more than 50%. So that's in the work.

The current question is specifically around web-ballot voting, which is only done for board member elections.  Email votes are ok for urgent business decision votes, and  require 100% of board members participate in the vote, with 50% +1 to pass.

Likewise, for web-ballot votes, we require 100% of board members to vote, 50%+1 to pass.  

So in order for the vote to occur and be valid, 100% have to vote. So in that way, the quorum to have a web ballot is 100% of voting members participating.

Unfortunately abstentions are not specifically mentioned, but because of the 100% participation requirement we counted abstaining as participating - and "effectively as no votes" (because they aren't yes votes), per the FAQ #6 answer I copied and pasted. (rightly or wrongly - abstentions are used in this case because they felt badly voting no - though the argument can be made that this negates the duty of care and isn't appropriate) 

Worst case, we will have to re-do the vote so that those who abstained originally can instead vote no. And will do the needed work to short this up during the annual review (including what simple majority means; maybe some valid reasons to abstain; and clarification that for the purposes of board elections conducted using web ballots, abstentions get counted as votes)

Thanks!

 

 

[Atul Kapur]

I believe that you need to do another ballot in any case, because the candidate did not receive a majority of 12. Tell the abstainers that they need to participate and the bylaws only allow for affirmative and negative votes.

[Josh Martin]

On 12/16/2023 at 8:47 PM, Guest Cate said:

E-votes require 100% participation of voting board of directors members. An initiative passes/fails by a simple majority (50% plus one) affirmative/negative of voting board of directors Members.     (for regular votes, though, it says: An initiative passes/fails by a simple majority (50% + one) affirmative/negative vote of the quorum present during a meeting. )

Here is our confusion around abstentions: if quorum for e-votes is essentially 100%, what happens when there are abstentions, given the way the bylaws are written, and given abstentions are neither a yes or a no vote?  

There are two parts to this question:

• First, whether the vote is valid at all if there are abstentions, given that "E-votes require 100% participation of voting board of directors members."
• Second, provided that the vote is valid, how does the abstention affect the result?

The rule requests "100% participation" for e-votes. One potential interpretation of this would be that if a member responds "Abstain" to the e-vote, this constitutes "participation." However, if a member simply does not respond (which is also an abstention), this would make the vote invalid, since there would not be "100% participation."

Second, the question is how the abstentions affect the result. In this regard, your organization has perhaps one of the most confusing voting rules I have ever seen, and provides:

"An initiative passes/fails by a simple majority (50% plus one) affirmative/negative of voting board of directors Members."

So this rule suffers from a number of problems.

• Generally, a voting threshold simply defines the number of votes necessary for a vote to pass, not the number of votes required for it to fail. If a vote does not pass, then it fails. Your organization, however, has chosen to define both, potentially creating situations where a motion neither passes nor fails.
• Your organization uses the term "simple majority," and then parenthetically - and incorrectly - defines that term as "50% plus one." The correct definition is simply "more than half."

Setting that aside, the question arises as to how abstentions are counted. The rule is defined a "simple majority (50% plus one) affirmative/negative of voting board of directors Members." There are two potential interpretations of this rule.

• The phrase "voting board of directors Members" may refer to members who are actually voting. In that regard, abstentions would not be counted one way or the other. For example, a vote of 5-3, with four abstentions, would be sufficient to adopt a motion.
• The phrase "voting board of directors Members" may refer to members who have the right to vote. In that regard, abstentions would have the same effect as a "no" vote. So in the example above, a vote of 5-3, with four abstentions, would not be sufficient to adopt a motion.

You say that for regular votes, by which I understand you to mean "not e-votes," your bylaws provide "An initiative passes/fails by a simple majority (50% + one) affirmative/negative vote of the quorum present during a meeting." This rule is immaterial for purposes of answering this question. Your bylaws (wisely) provide a different definition for e-votes, because this rule would be nonsensical for e-votes.

This rule refers to "the quorum present during a meeting." In an e-vote, no one is present, and the term "quorum" has no meaningful application.

While we're at it, however, this rule has its own problems. In addition to the problems with the rule pertaining to e-voting, the rule refers to a majority of the "quorum present during a meeting." This is a problem, and ties in to a common misconception regarding the quorum. The term "quorum" refers to the minimum number of members required to be present for a meeting to conduct business. Many organizations, however, mistakenly understand the term to mean "the number of members present, provided that at least a quorum is present."

For example, suppose the board's quorum is a majority. With twelve members, that's seven. Whether there are seven members present or twelve members present, the quorum is still seven. So taken literally, this seems to suggest four (or maybe five, due to the 50% plus one issue) votes are sufficient to adopt a motion even if twelve members are present and all twelve members vote. What was presumably intended was to say a "vote of a majority of the members present."

So your organization will have to do its best to figure out what your current, poorly-written rules mean. In the long run, the bylaws should be amended for clarity.

On 12/16/2023 at 8:47 PM, Guest Cate said:

How we have consistently treated abstentions: We count the yes votes, and if there is >50% + 1, the person is elected.  

Essentially, we have been operating as though this part of the answer to FAQ #6 is what applied to our organization for board elections:

On the other hand, if the rules explicitly require a majority or two thirds of the members present, or a majority or two thirds of the entire membership, an abstention will have the same effect as a “no” vote. Even in such a case, however, an abstention is not a vote and is not counted as a vote. [RONR (12^th ed.) 44:1, 44:3, 44:9(a); see also p. 66 of RONR In Brief.]

The reason: our "quorum" for e-votes is 100% of board members - which to us, was the same thing as "the entire membership".  We set it up this way so that, for elections that occur online, we are assured that everyone has a say - such that 50% +1 of all board members would need to vote yes for a candidate to be elected.

If this is what you want your bylaws to say, I would advise rewording the rules to provide as follows:

E-votes require 100% participation of voting board of directors members. An initiative passes/fails by a simple majority (50% plus one) affirmative/negative of voting board of directors Members.     (for regular votes, though, it says: An initiative passes/fails by a simple majority (50% + one) affirmative/negative vote of the quorum present during a meeting. )

For "regular votes" - "Unless otherwise provided in the organization's rules, motions shall require a vote of a majority of the members present for adoption."

For "e-votes" - "Unless otherwise provided in the organization's rules, e-votes shall require a vote of a majority of the entire membership for adoption."

On 12/16/2023 at 8:47 PM, Guest Cate said:

And we are now wondering if the bylaws need to be revised to be clearer and reflect how we do things

Yes.

On 12/16/2023 at 8:47 PM, Guest Cate said:

We just had an election where the candidate received 6 yes votes (50%), and 4 no votes, and 2 abstentions.

This is the first time we've had ANY no votes for a candidate; and previously had only had 1 abstention for a candidate - so this question has never come up.

There are questions about the abstentions, and whether they reduce the number of voting members (quorum) to 10, which would therefore mean the person was elected at 6 votes.  Our thought is the vote does not pass at 50% - meaning the abstentions have the same effect as a "no" vote, because of the 100% participation/quorum of voting members requirement, and the vote does not pass.

So in addition to the many other problems with your rules, you're also handling elections wrong.

When you hold an election, you doo not vote "yes" or "no" on candidates. Rather, for each available office, members vote for the candidate of their choice (or candidates, plural, if you're electing multiple candidates for identical positions). The only way to vote "no" on a candidate is to vote for someone else.

In any event, I can see reasonable arguments for both sides under your rules as to whether this candidate was elected.

On 12/16/2023 at 9:31 PM, Gary Novosielski said:

• a majority is not 50%+1.   It is anything more than half, no matter how slightly.  Even 50% + 0.001 is a majority.  So your bylaws appear to contradict themselves.  I can't tell whether the intent was to redefine majority, or is just an error.  But with a small board such as this it probably will not matter.

No, the "50% + 1" mis-definition actually makes a great deal of difference in small boards. For example, a vote of 6-5 is a majority, but is not "50% + 1." (50% of 11 is 5.5, plus 1 is 6.5, so that would round up to 7)

It's the other incorrect definition (51%) which makes very little difference in small assemblies, but makes a big difference in larger assemblies.

On 12/16/2023 at 11:25 PM, Guest cate said:

The current question is specifically around web-ballot voting, which is only done for board member elections.  Email votes are ok for urgent business decision votes, and  require 100% of board members participate in the vote, with 50% +1 to pass.

Well, this raises yet another question, of whether electing board members follows the other "e-vote" rules at all or, instead, if this rule is controlling.

"The board of directors shall be elected by a simple majority (50% + one) by the voting deadline."

Under this rule, it would seem to me that abstentions certainly do not count, and a vote of 6-4 would be sufficient for election.

On 12/16/2023 at 11:25 PM, Guest cate said:

So in order for the vote to occur and be valid, 100% have to vote. So in that way, the quorum to have a web ballot is 100% of voting members participating.

Okay, but that's still not what "quorum" means.

The term "quorum" in parliamentary law refers to the minimum number of members who must be present in order for the assembly to conduct business. It has nothing whatsoever to do with the number of members voting or participating. As a result, such a term has no meaningful application in an e-vote, since no one is present.

It is not unusual for organizations to require a certain percentage of members to respond to an e-vote for the vote to be valid, but this is not the same thing as a quorum requirement.

On 12/16/2023 at 11:25 PM, Guest cate said:

Unfortunately abstentions are not specifically mentioned, but because of the 100% participation requirement we counted abstaining as participating - and "effectively as no votes" (because they aren't yes votes), per the FAQ #6 answer I copied and pasted. (rightly or wrongly - abstentions are used in this case because they felt badly voting no - though the argument can be made that this negates the duty of care and isn't appropriate) 

I would indeed make the argument that eliminating the option of people actually abstaining so that other people can use it as a "backdoor" no vote, but be able to tell themselves they didn't really vote no, is not a good trade-off.

Edited December 17, 2023 at 03:52 PM by Josh Martin

[Richard Brown]

Guest Cate, who on earth drafted those bylaws? I would say they are much worse than Mr. Gerber‘s statement that they are “not OK as is“. That is a huge understatement! The quoted provisions of these bylaws are terrible – horrible! Maybe the worst I have ever seen regarding elections and voting.  

They definitely need revising. PLEASE consult with an experienced and knowledgeable parliamentarian on this. 
 

[Gary Novosielski]

On 12/18/2023 at 3:06 PM, Richard Brown said:

Guest Cate, who on earth drafted those bylaws? I would say they are much worse than Mr. Gerber‘s statement that they are “not OK as is“. That is a huge understatement! The quoted provisions of these bylaws are terrible – horrible! Maybe the worst I have ever seen regarding elections and voting.  

They definitely need revising. PLEASE consult with an experienced and knowledgeable parliamentarian on this. 
 

C'mon, tell us what you really think.  😏

But actually I agree with you.  These are some beastly bylaws.