absentee ballots Proxy voting and absentee ballots

[Guest mario]

Let's say there is a Federation with governing bylaws, which has individual Associations who also have bylaws. When it comes to election/voting, if proxy voting nor absentee ballots are NOT mentioned at all in neither Federation bylaws nor Association bylaws, can a member vote proxy/absentee ballot if they're unable to attend the annual meeting when elections happen?

And proxy voting and absentee ballots are not the same, correct? Meaning, if a bylaw did say proxy voting isn't allowed, that does not automatically also mean absentee ballots are not allowed?

[Joshua Katz]

On 2/21/2024 at 9:31 PM, Guest mario said:

When it comes to election/voting, if proxy voting nor absentee ballots are NOT mentioned at all in neither Federation bylaws nor Association bylaws, can a member vote proxy/absentee ballot if they're unable to attend the annual meeting when elections happen?

No, both of those must be authorized in the bylaws (or higher ranking documents).

On 2/21/2024 at 9:31 PM, Guest mario said:

And proxy voting and absentee ballots are not the same, correct? Meaning, if a bylaw did say proxy voting isn't allowed, that does not automatically also mean absentee ballots are not allowed?

Correct.

[Atul Kapur]

On 2/21/2024 at 11:31 PM, Guest mario said:

And proxy voting and absentee ballots are not the same, correct?

Proxy voting is one example of absentee voting.

On 2/21/2024 at 11:31 PM, Guest mario said:

Meaning, if a bylaw did say proxy voting isn't allowed, that does not automatically also mean absentee ballots are not allowed?

No, but let's be clear: the default is that absentee ballots are still not allowed unless they are explicitly authorized in the governing documents.

So if a bylaws said proxy voting isn't allowed but is silent regarding absentee ballots, then absentee ballots are not allowed.

[Guest Mario]

On 2/22/2024 at 2:19 AM, Joshua Katz said:

No, both of those must be authorized in the bylaws (or higher ranking documents).

Correct.

Ok, what if a member couldn't attend the meeting to vote during the elections due to a personal emergency situation, and asked if there is any other way to vote (bylaws do not mention proxy/absentee). Would that person be allowed to vote somehow? And would that request be approved or denied by executives only, or would the membership decide if they did/not support an individual still being able to vote despite a tragic emergency situation? 

Appreciate the help, new to Robert's Rules. 

 

Also, if proxy voting/absentee ballots are NOT in the Federation bylaws but members of an individual Association would like it to be, a bylaw could be drafted and proposed by the Association members, right?

Meaning: If the Federation bylaws say no proxy, then the Association can't do this because the Federation is their governing body; however if the Federation does NOT mention proxy/absentee, then the Association could make a bylaw?

 

On 2/22/2024 at 6:05 AM, Atul Kapur said:

Proxy voting is one example of absentee voting.

No, but let's be clear: the default is that absentee ballots are still not allowed unless they are explicitly authorized in the governing documents.

So if a bylaws said proxy voting isn't allowed but is silent regarding absentee ballots, then absentee ballots are not allowed.

Ok thank you. Could bylaws say proxy voting is not allowed and absentee ballots are allowed?

[Joshua Katz]

On 2/22/2024 at 7:59 AM, Guest Mario said:

Ok, what if a member couldn't attend the meeting to vote during the elections due to a personal emergency situation, and asked if there is any other way to vote (bylaws do not mention proxy/absentee).

The person should be told "no."

On 2/22/2024 at 7:59 AM, Guest Mario said:

nd would that request be approved or denied by executives only, or would the membership decide if they did/not support an individual still being able to vote despite a tragic emergency situation? 

There is nothing to decide. Absentee voting is not permitted unless authorized in your bylaws.

On 2/22/2024 at 7:59 AM, Guest Mario said:

Also, if proxy voting/absentee ballots are NOT in the Federation bylaws but members of an individual Association would like it to be, a bylaw could be drafted and proposed by the Association members, right?

 

 

On 2/22/2024 at 7:59 AM, Guest Mario said:

Meaning: If the Federation bylaws say no proxy, then the Association can't do this because the Federation is their governing body; however if the Federation does NOT mention proxy/absentee, then the Association could make a bylaw?

 

Correct.

On 2/22/2024 at 7:59 AM, Guest Mario said:

Ok thank you. Could bylaws say proxy voting is not allowed and absentee ballots are allowed?

Yes, although they should specify exactly what is permitted.

[Guest Mario]

On 2/22/2024 at 10:07 AM, Joshua Katz said:

The person should be told "no."

There is nothing to decide. Absentee voting is not permitted unless authorized in your bylaws.

 

Correct.

Yes, although they should specify exactly what is permitted.

Thank you so much 

[Gary Novosielski]

On 2/22/2024 at 9:59 AM, Guest Mario said:

Also, if proxy voting/absentee ballots are NOT in the Federation bylaws but members of an individual Association would like it to be, a bylaw could be drafted and proposed by the Association members, right?

No, I don't think so.   I disagree with Mr. Katz.

If the Federation bylaws do not mention proxy voting, but the Federation has adopted RONR as its parliamentary authority, then by doing so it has prohibited proxy voting in its bylaws.  [See RONR (12th ed.) 45:71]

Therefore, the Individual Association may not adopt any conflicting provisions in its own bylaws.

Edited February 22, 2024 at 04:25 PM by Gary Novosielski

[Josh Martin]

On 2/22/2024 at 8:59 AM, Guest Mario said:

Ok, what if a member couldn't attend the meeting to vote during the elections due to a personal emergency situation, and asked if there is any other way to vote (bylaws do not mention proxy/absentee). Would that person be allowed to vote somehow?

No.

On 2/22/2024 at 8:59 AM, Guest Mario said:

And would that request be approved or denied by executives only, or would the membership decide if they did/not support an individual still being able to vote despite a tragic emergency situation?

Members cannot vote by absentee methods, period, notwithstanding their reasons for doing so, unless such methods are authorized in the bylaws or applicable law.

To the extent an organization does authorize methods of absentee voting in its bylaws, generally my experience is that persons have an automatic right to cast their vote by the specified method(s) and there is not a need for the executives, the membership, or anyone else to approve a "request" for a member to vote in this manner, but I suppose an organization could adopt rules of this nature in its bylaws if it wished to do so.

On 2/22/2024 at 8:59 AM, Guest Mario said:

Also, if proxy voting/absentee ballots are NOT in the Federation bylaws but members of an individual Association would like it to be, a bylaw could be drafted and proposed by the Association members, right?

Sure.

I would note, however, the following:

• I must reiterate that proxy voting and absentee ballots are two different things.
• RONR strongly advises against the use of proxy voting.
• RONR strongly advises against "mixing and matching" absentee ballots with votes cast at a meeting.
• To the extent an organization nonetheless wishes to permit one or both of these voting methods, careful consideration should to be given to the details. It's not as simple as saying "Proxy votes are permitted" or "Absentee ballots are permitted."

Ultimately, however, the organization is free to adopt such bylaw provisions as it wishes, so long as those provisions do not conflict with the rules of the Federation or applicable law.

"An organization should never adopt a bylaw permitting a question to be decided by a voting procedure in which the votes of persons who attend a meeting are counted together with ballots mailed in by absentees. The votes of those present could be affected by debate, by amendments, and perhaps by the need for repeated balloting, while those absent would be unable to adjust their votes to reflect these factors. Consequently, the absentee ballots would in most cases be on a somewhat different question than that on which those present were voting, leading to confusion, unfairness, and inaccuracy in determining the result. If there is a possibility of any uncertainty about who will be entitled to vote, this should be spelled out unambiguously and strictly enforced to avoid unfairness in close votes." RONR (12th ed.) 45:56

"But in a nonstock corporation, where membership is usually on the same basis as in an unincorporated, voluntary association, voting by proxy should not be permitted unless the state's corporation law—as applying to nonstock corporations—absolutely requires it." RONR (12th ed.) 45:70

On 2/22/2024 at 8:59 AM, Guest Mario said:

Meaning: If the Federation bylaws say no proxy, then the Association can't do this because the Federation is their governing body; however if the Federation does NOT mention proxy/absentee, then the Association could make a bylaw?

I think this is all correct, but I would note that even if "the Federation bylaws say no proxy," the rule in question will have to be reviewed to determine whether the Federation is saying that proxy votes are not permitted for meetings of the Federation, or whether the prohibition on proxy voting is also applied to the Federation's constituent associations.

"If the unit for which the bylaws are to be drawn up is subject to a parent organization or superior body, such as a state or a national society (or both), or a federation, the bylaws governing at these higher levels should be studied for provisions which are binding upon subordinate units in a way that must be taken into account. The bylaws of a subordinate unit need to conform to those of a superior body only on clearly requisite points. For example, if the superior body limits the size of its subordinate units to 200 members, the bylaws may not contain a higher limit. But the subordinate unit should not adopt provisions from the other document that have no local application, and the bylaws of the superior body should not require it to do so." RONR (12th ed.) 56:7

On 2/22/2024 at 8:59 AM, Guest Mario said:

Could bylaws say proxy voting is not allowed and absentee ballots are allowed?

Yes, but as noted above, there's a little more to it than just saying "absentee ballots are allowed."

On 2/22/2024 at 10:24 AM, Gary Novosielski said:

No, I don't think so.   I disagree with Mr. Katz.

If the Federation bylaws do not mention proxy voting, but the Federation has adopted RONR as its parliamentary authority, then by doing so it has prohibited proxy voting in its bylaws.  [See RONR (12th ed.) 45:71]

Therefore, the Individual Association may not adopt any conflicting provisions in its own bylaws.

I disagree.

"The bylaws of a subordinate unit need to conform to those of a superior body only on clearly requisite points." RONR (12th ed.) 56:7

The fact that the Federation has adopted RONR as its parliamentary authority is not the same as a rule requiring that the Federation's constituent associations must also adopt RONR as their parliamentary authority. And even if the latter rule were to exist, RONR itself provides that the bylaws take precedence over RONR.

In my view, the association is free to adopt proxy voting in its bylaws unless the Federation's rules specifically provide that proxy voting is not permitted for associations, or if proxy voting is prohibited by applicable law for this type of organization.

Edited February 22, 2024 at 09:27 PM by Josh Martin

[Atul Kapur]

On 2/22/2024 at 1:01 PM, Josh Martin said:

In my view, the association is free to adopt proxy voting in its bylaws unless the Federation's rules specifically provide that proxy voting is not permitted for associations, or if proxy voting is prohibited by applicable law for this type of organization.

FWIW, I agree with Messrs. Katz and Martin and, therefore, disagree with Mr. Novosielski, for the reasons Mr. Martin including his citation of 56:7.

[Gary Novosielski]

Okay, in the words of the immortal Tom Lehrer, "If anyone disagrees with anything I say, I am quite prepared not only to retract it, but to deny under oath that I ever said it." 

I had not taken 56:7 into account, and stand corrected.   Er, I mean, that's what I meant to say.   😉

[Guest Mario]

On 2/22/2024 at 3:26 PM, Atul Kapur said:

FWIW, I agree with Messrs. Katz and Martin and, therefore, disagree with Mr. Novosielski, for the reasons Mr. Martin including his citation of 56:7.

Ok, thank you. So the Federation can't simply say verbally that proxy voting and absentee ballots are not allowed and have never been allowed, it must specify this in the federation bylaws, that proxy voting and absentee ballots are not allowed in associations?

[Guest Mario]

On 2/22/2024 at 1:01 PM, Josh Martin said:

No.

Members cannot vote by absentee methods, period, notwithstanding their reasons for doing so, unless such methods are authorized in the bylaws or applicable law.

To the extent an organization does authorize methods of absentee voting in its bylaws, generally my experience is that persons have an automatic right to cast their vote by the specified method(s) and there is not a need for the executives, the membership, or anyone else to approve a "request" for a member to vote in this manner, but I suppose an organization could adopt rules of this nature in its bylaws if it wished to do so.

Sure.

I would note, however, the following:

• I must reiterate that proxy voting and absentee ballots are two different things.
• RONR strongly advises against the use of proxy voting.
• RONR strongly advises against "mixing and matching" absentee ballots with votes cast at a meeting.
• To the extent an organization nonetheless wishes to permit one or both of these voting methods, careful consideration should to be given to the details. It's not as simple as saying "Proxy votes are permitted" or "Absentee ballots are permitted."

Ultimately, however, the organization is free to adopt such bylaw provisions as it wishes, so long as those provisions do not conflict with the rules of the Federation or applicable law.

"An organization should never adopt a bylaw permitting a question to be decided by a voting procedure in which the votes of persons who attend a meeting are counted together with ballots mailed in by absentees. The votes of those present could be affected by debate, by amendments, and perhaps by the need for repeated balloting, while those absent would be unable to adjust their votes to reflect these factors. Consequently, the absentee ballots would in most cases be on a somewhat different question than that on which those present were voting, leading to confusion, unfairness, and inaccuracy in determining the result. If there is a possibility of any uncertainty about who will be entitled to vote, this should be spelled out unambiguously and strictly enforced to avoid unfairness in close votes." RONR (12th ed.) 45:56

"But in a nonstock corporation, where membership is usually on the same basis as in an unincorporated, voluntary association, voting by proxy should not be permitted unless the state's corporation law—as applying to nonstock corporations—absolutely requires it." RONR (12th ed.) 45:70

I think this is all correct, but I would note that even if "the Federation bylaws say no proxy," the rule in question will have to be reviewed to determine whether the Federation is saying that proxy votes are not permitted for meetings of the Federation, or whether the prohibition on proxy voting is also applied to the Federation's constituent associations.

"If the unit for which the bylaws are to be drawn up is subject to a parent organization or superior body, such as a state or a national society (or both), or a federation, the bylaws governing at these higher levels should be studied for provisions which are binding upon subordinate units in a way that must be taken into account. The bylaws of a subordinate unit need to conform to those of a superior body only on clearly requisite points. For example, if the superior body limits the size of its subordinate units to 200 members, the bylaws may not contain a higher limit. But the subordinate unit should not adopt provisions from the other document that have no local application, and the bylaws of the superior body should not require it to do so." RONR (12th ed.) 56:7

Yes, but as noted above, there's a little more to it than just saying "absentee ballots are allowed."

I disagree.

"The bylaws of a subordinate unit need to conform to those of a superior body only on clearly requisite points." RONR (12th ed.) 56:7

The fact that the Federation has adopted RONR as its parliamentary authority is not the same as a rule requiring that the Federation's constituent associations must also adopt RONR as their parliamentary authority. And even if the latter rule were to exist, RONR itself provides that the bylaws take precedence over RONR.

In my view, the association is free to adopt proxy voting in its bylaws unless the Federation's rules specifically provide that proxy voting is not permitted for associations, or if proxy voting is prohibited by applicable law for this type of organization.

Thank you so much for all these details.

[Joshua Katz]

On 2/28/2024 at 12:44 PM, Guest Mario said:

Ok, thank you. So the Federation can't simply say verbally that proxy voting and absentee ballots are not allowed and have never been allowed, it must specify this in the federation bylaws, that proxy voting and absentee ballots are not allowed in associations?

Are you asking about a circumstance where the federation wishes for associations not to use any form of absentee balloting? In that case, yes, my opinion is it must say so in the bylaws, while Mr. Novosielski disagrees. However, if the federation and association bylaws are both silent, then no form of absentee balloting is permitted.

[Gary Novosielski]

On 2/28/2024 at 2:49 PM, Joshua Katz said:

while Mr. Novosielski disagrees.

On the contrary, Mr. Novosielski is prepared to deny under oath that he ever disagreed. 😏

[Guest Mario]

On 2/28/2024 at 2:49 PM, Joshua Katz said:

Are you asking about a circumstance where the federation wishes for associations not to use any form of absentee balloting? In that case, yes, my opinion is it must say so in the bylaws, while Mr. Novosielski disagrees. However, if the federation and association bylaws are both silent, then no form of absentee balloting is permitted.

Yes. An Association was told by their Federation that no proxy/absentee is allowed, and that never was (when asked if could be added to Association bylaws, that is allowed). But when read everything over, the thing is that it doesn't say that in the bylaws, not mentioned at all. So since it isn't mentioned (doesn't say prohibited for associations) the Association wants to add it to their bylaws, that it is allowed (with whatever details like don't mix absentee ballots and ballots of people at the meeting, and so on, as explained above). 

[Joshua Katz]

As you can see, I was wrong about Mr. Novosielski. We regulars are in agreement that if the federation bylaws are silent on the question, an association may provide for absentee balloting in its own bylaws. 

[Guest Mario]

On 3/4/2024 at 7:35 PM, Joshua Katz said:

As you can see, I was wrong about Mr. Novosielski. We regulars are in agreement that if the federation bylaws are silent on the question, an association may provide for absentee balloting in its own bylaws. 

Ok thanks you for all the replies and clarification. 

I'm still being told by the federation that it is not allowed- absentee ballots nor proxy voting- and when I said that this was not in the bylaws, I was told whether in bylaw documents or not, it is not allowed and has never been allowed. This is surprising and doesn't seem like rules are being followed (to say it doesn't matter if it says in documents or not) but I'm no expert. 

[Joshua Katz]

On 3/20/2024 at 6:56 PM, Guest Mario said:

I was told whether in bylaw documents or not, it is not allowed and has never been allowed.

Well, I don't know what to say other than this is not good reasoning.

[Guest Mario]

On 3/20/2024 at 9:59 PM, Joshua Katz said:

Well, I don't know what to say other than this is not good reasoning.

I agree Mr.Katz. To me it seems very strange, undisclosed rules or secret rules, however you want to word it. How would anyone know this if it does not say, and now when asked about it to be told well it is just not allowed and doesn't matter if it says in or not... very strange to me. Wondering are there other rules not in the document, how would any member know!

[Guest Mario]

On 3/20/2024 at 9:59 PM, Joshua Katz said:

Well, I don't know what to say other than this is not good reasoning.

Well now that I have asked questions, I am simply being told it is Robert's Rules (which is why it doesn't matter if it is stated in documents or not)!

[Joshua Katz]

Ask for a specific citation.

[Josh Martin]

On 3/20/2024 at 8:56 PM, Guest Mario said:

Ok thanks you for all the replies and clarification. 

I'm still being told by the federation that it is not allowed- absentee ballots nor proxy voting- and when I said that this was not in the bylaws, I was told whether in bylaw documents or not, it is not allowed and has never been allowed. This is surprising and doesn't seem like rules are being followed (to say it doesn't matter if it says in documents or not) but I'm no expert. 

I do wonder if, perhaps, you and the Federation are talking past each other. The Federation may be interpreting your question as to whether your organization may, at the present time, have absentee ballots or proxy voting, or perhaps interpreting it as whether the Federation may have absentee ballots or proxy voting.

I would suggest wording your question specifically as follows:

"I fully understand that, at the present time, nothing in our Association's bylaws nor the Federation's bylaws authorize the use of absentee ballots or proxy voting and, as a result, they are not permitted. My question is whether it is permissible for my Association to amend its bylaws to provide for absentee ballots or proxy voting for meetings of the Association.

If your answer is "no," please point to the specific provisions in the Federation's rules or applicable law which prohibit the Association from adopting such rules."

Edited March 22, 2024 at 03:11 PM by Josh Martin

[Guest Mario]

On 3/22/2024 at 11:09 AM, Josh Martin said:

I do wonder if, perhaps, you and the Federation are talking past each other. The Federation may be interpreting your question as to whether your organization may, at the present time, have absentee ballots or proxy voting, or perhaps interpreting it as whether the Federation may have absentee ballots or proxy voting.

I would suggest wording your question specifically as follows:

"I fully understand that, at the present time, nothing in our Association's bylaws nor the Federation's bylaws authorize the use of absentee ballots or proxy voting and, as a result, they are not permitted. My question is whether it is permissible for my Association to amend its bylaws to provide for absentee ballots or proxy voting for meetings of the Association.

If your answer is "no," please point to the specific provisions in the Federation's rules or applicable law which prohibit the Association from adopting such rules."

Thank you, this is helpful. I don't think we're talking past each other but I'll still word it like this to see what is said. There's been lots of back and forth and the answers have been blunt, feel like she's trying to brush me off. But the answers don't reference anything or seem inaccurate so I politely and kindly ask for more clarification and have gotten blunt (almost rude) short answers. I'm not a person who just blindly trusts someone who is supposed to know something nor just trust an answer without reasons that backs it up, has happened too many times when did that (especially with things I'm not personally familiar with, just assumed they know what they're talking about) and then find out after the person was incorrect and inaccurate! So I like to look into things to make sure, especially when there's documents like bylaws to help keep things clear in a situation like this. 

Thanks for your help

[Guest Mario]

On 3/23/2024 at 9:41 AM, Guest Mario said:

Update: let's say I've asked for citations, etc. and the person is not giving them, basically repeating "proxy voting and absentee ballots are not allowed and have never been allowed". So I asked to be put into contact with the rest of the executives (it has been the secretary so far) because clearly this person is not being helpful, had dragged on for months. I want to ask the other executives my questions instead.

What of this person does not provide that to me? What next?

 

[Joshua Katz]

This person you're corresponding with is not even a member of your organization, correct? I'd say to ignore them, do what your organization wants, and let them try to enforce their interpretation.