What about our elections in this pandemic?
© Can Stock Photo/72soul
With fall and the turning of the year, many organizations are struggling over their elections. We can’t do things the way we have always done, so what are the options? Here are a few thoughts on holding elections in this pandemic. As always, this is not legal advice. Be sure to consult your attorney!
1. What do your bylaws say about elections?
First of all, read your bylaws carefully to determine what they say about elections. Depending on the language, it may be necessary to amend them to allow elections in this pandemic.
For some organizations, the board has the power to amend the bylaws (see below on this). However, If the bylaws specify an election at an in-person membership meeting, you will have to consider how best to proceed. Robert’s Rules of Order says that electronic or mail-in elections must be authorized in the bylaws. But sometimes it’s not possible to hold a meeting to amend the bylaws, thus creating a vicious circle.
We suggest that you research what your state says about this issue. In the case of Washington State, for example, the governor issued a proclamation (read it here) striking out the restricting language “if specifically permitted by the articles of incorporation or bylaws” from the Revised Code of Washington RCW 24.03.085(3). This means that voting by mail, by electronic transmission, or by proxy is legal for nonprofit organizations as long as this proclamation remains in effect, no matter what your own authority documents say.
It is important, for the sake of consistency and good procedure, that you amend your bylaws as soon as possible to bring them in conformity with this law and any practices you adopt.
One thing to note is that if you are an unincorporated club or organization, this permission given by state direction would not apply to you.
2. What if we have to meet in person to amend the bylaws?
What if your state has NOT authorized electronic meetings or elections, and your bylaws require that meetings be held in person? Bylaws have a special status and we must obey them as far as we possibly can. But if it becomes impossible to comply with the bylaws, it may be necessary to break the rules, while adhering as closely as possible to their spirit.
For a membership organization where the members have the power to amend the bylaws, you could prepare bylaws amendments that allow these methods of meeting and voting. You would email them to every member, and request that members vote on the proposed amendments by a certain date. If two-thirds of those who cast their vote, vote in favor, you can take it as a valid amendment.
General Robert himself offered a similar suggestion in his book Parliamentary Law, which expands on many points in Robert’s Rules of Order. It’s in accord with common law doctrine of “cy pres,” a legal term meaning “as close as possible.” A legal requirement or a bylaw requirement cannot be enforced when the organization is unable to do it. The organization is charged with doing “the next best thing.” Be sure to do this in good faith, and make a genuine effort to reach everyone!
Be warned that if you have a litigious member who disagrees with this action, it could be challenged as a violation of your bylaws. However, in general, the courts engage with this type of procedural issue only when it can be shown that someone has been harmed by the organization’s action, which might be difficult to demonstrate.
3. Can the board amend the bylaws?
In some organizations the board is the body that can amend the bylaws. If electronic meetings of the board are authorized, the board can make the necessary changes.
If electronic meetings are not authorized by the bylaws, the board might be able to meet under a state-issued directive as mentioned above. If you don’t have such a directive, there is still another option. The board could meet electronically, even though this is improper, and amend the bylaws to allow an electronic election. Having done this, the board would make arrangements to conduct the election. The board would then ratify this action—the board holding an election—the next time it is possible to meet properly.
Robert’s Rules says that a board may ratify “action taken by officers, committees, delegates, or subordinate bodies in excess of their instructions or authority—including actions to carry out decisions made without a valid meeting, such as…at an electronic meeting of a body for which such meetings are not authorized” (Robert’s Rules of Order Newly Revised ((12th ed)) 10:54). Here again, a litigious member might contest this action. And if the action should not be ratified at the future valid meeting, the board members who took that action would be personally responsible.
4. Could our officers continue in their positions without an election?
Another question to ask is whether some of your officers and directors could continue in their positions without an election. Read your bylaws to see what they say about term limits for officers and elections. The way term limits are defined makes a big difference to this question.
If your bylaws say that officers and directors hold office for a term of one or more years and/or until their successors are elected, then if no election is held, the individuals continue in office.
If your bylaws say that officers and directors hold office for a term of one or more years, period, then at the end of that time, the office becomes vacant. In such a case, if the bylaws allow for the board or executive board to fill vacancies, then the vacant positions could be filled by appointment, provided that there are enough members continuing on the board to constitute a quorum to make the appointments. This is not an ideal approach, but for a small membership organization where it’s hard to recruit volunteers, it might be the simplest way to move ahead.
5. A meeting is one thing, an election is another
It’s important to note that holding an electronic meeting is one thing, and conducting an electronic election is another. The very qualities that make electronic meetings feasible can make voting challenging, particularly if you have a large organization. It is difficult to cast secret ballots online, for example. We recommend that groups NOT use polling or chat to elect. You may want to choose one of the many electronic voting services. A recent election using Election Runner seemed smooth and affordable. And please decide on a single method—don’t mix mail-in and electronic voting, or electronic voting and voting in person at an online meeting, for example.
Sometimes you can find simple solutions. A reader advised that in her meeting of 120 people, when raising hands became too chaotic, the chair asked everyone in favor of a motion to hold up a piece of paper. Three monitors quickly counted those in favor and checked their tallies. She then asked those opposed to hold up a paper, and they were counted. It’s all right to be creative, as long as you are careful to remain fair and accurate.
6. You need careful procedures for online meetings and elections
Robert’s Rules of Order Newly Revised, 12th edition, provides helpful Sample Rules for Electronic Meetings. You can download these rules here. Four different scenarios are given. For many organizations, Scenario A: Use of Full-Featured Internet Meeting Services, will be most relevant. The sample rules include both bylaws provisions, and rules for electronic meetings (pp. 3-5).
Problematic features of online meetings to think about ahead of time include:
- How will you ensure security?
- How will members get the chair’s attention if they want to make a Point of Order or an Appeal?
- Will members be allowed to chat with each other during the meeting? This can be distracting and, for local government bodies, can violate the open meetings act in your state.
Related articles:
Publish your numbers when electing nonprofit officers
Amend bylaws or revise bylaws?
After amending bylaws, secretary must…
Essential tips for effective online meetings
Jim Slaughter: Let’s have our meeting or convention online!
How are online meetings going for you? Let us know!
Robert’s Rules of Order Newly Revised 12th edition was published in September 2020. Our previously published materials refer to the 11th edition. In substance the two editions are the same. There are minor differences, textual changes, and a change in reference method. The new edition gives references by section number, not by pages.
