FL: Valid Votes? Valid Ballots?

We have a Board who is attempting to do Jedi Mindgames with numbers. A 2008 Ballot proposition was recently challenged as being in error. Our Bylaws require that Bylaws can be amended by 2/3 of a quorum of members. In a nutshell, the Board is insisting that an abstention vote on a proposition reduces the Valid Ballots accordingly, thereby changing the % to pass and insists that the proposition was passed. The reasoning is so convoluted as to almost defy belief. This is an excerpt of the letter which was written to the Board by a member:

There were 619 VALID BALLOTS (a quorum was achieved). A valid ballot is not defined by the contents of the Ballot; it is defined as an acceptable vote according to the eligibility of the voting interest, as specified in the Bylaws.

A valid vote can be Yes, No, Abstain, or...nothing. It is still a valid vote on the issue. Anything other than an affirmative vote is "null"- ie meaningless--a ZERO!

Once again, it does NOT matter if the Valid Ballot contained a Yes or No or Abstention or a cartoon--if it was accepted by the Election person designated to validate Ballots, it is a VALID BALLOT and whatever is contained therein is a valid vote.

The only thing that matters is AFFIRMATIVE VOTES!

AFFIRMATIVE VOTES pass Amendments. "No" Votes are ZERO. "Abstentions" are ZERO. "Cartoons" are ZERO.

We would need 67% of the 619 Valid Ballots to vote affirmatively to pass the amendment. Of the 619 Valid Ballots, 408 votes were affirmative--that is less than 67% and the Amendment FAILED. It needed 414 to pass. The numbers do not lie. You cannot adjust affirmative votes--they are YES votes and cannot be otherwise.

The dispute is that the Amendment was erroneously passed, presumably based on the mistaken belief that only a majority of affirmative votes was needed to pass the Amendment.

The only issue is that you attempt to dilute affirmative votes with other voting choices. This makes no common sense-much less has any legal or statutory basis.

Again, the only vote that counts to pass an Amendment is the Affirmative one. You cannot make affirmative votes "disappear" because voters chose to Decline or Abstain.

The reason that Florida Statutes do not mention Absention votes is that they are meaningless-they count for nothing! They do not modify the affirmative votes in any manner. Indeed, they need not be on the Ballot at all. Passing or failing an amendment is a Yes vote matter --the Yes's must be a 2/3 majority to pass. In this instance, the amendment failed.

Our Association is trying to avoid taking the people that serve on our Board to pre-suit mediation which would be required to effect the necessary correction since they will not budge and refuse to seek professional advice. They have cited Robert's Rules for Dummies, Wikipedia and Washington University website as their "authoritative sources". I am asking for your opinions/suggestions on perhaps an alternative way or source that could be used to persuade these people that this is wrong and avoid the expense and chaos of getting Florida involved. We have already documented with our governing documents and the Florida Statutes but I suspect they do not comprehend and want it spelled out somehow.

Thank you for any help or ideas.

Also, does your governing documents require that you use Roberts Rules of Order?

ST2,

The key words here are valid votes cast.

The ballot is a valid ballot, as that was determined when the ballot was issued. However, the act of turning in a ballot does not indicate if that ballot contains a valid vote. As an example, I offer the hanging chad issue of 2004. An accepted ballot is only considered a valid or invalid vote when it is read.

Although I understand where the author of the letter you posted is intending. It's the technicality of the language that is in play here.

Your posting indicated that 613 valid ballots were turned in. However, as I pointed out, this doesn't indicate that each ballot contained a valid vote. The language you quoted requires 2/3 of the valid votes cast NOT 2/3 of the ballots cast. This, I believe is the basis of the confusion.

Contrary to the letter you posted, a vote is yea or nay. Abstaining is not considered a vote as the definition of abstain is to refrain from doing an action. Therefore to abstain from voting is to not vote. A blank ballot is considered an abstention.

For a vote to be valid, there must be a clear indication on how the vote was intended to be cast. If a ballot doesn't indicate how the vote should be counted (yea, nay, for candidate A, etc.) it is considered an invalid vote.

Now, depending on the wording of what is required for an amendment to pass, the non-votes could impact if the measure passes or not. Your language specified 2/3 of the valid votes were required to approve the amendment.

As mentioned above, blank ballots are considered a non-vote (abstain from voting) and would not be counted in the total # of valid votes. Invalid votes (no clear determination of a yea or nay) would also not be counted in the total # of valid votes.

I can not determine the number of yea votes you would have needed based on the information you provided. This is because you only indicated the number of ballots turned in and not how many of them were blank (abstained from voting) or considered invalid.

Therefore, I offer the following example:

If you had 80 ballots turned in, 39 yeas, 20 nays, 15 blanks and 6 invalid votes you would then need 2/3 of 59 valid votes or 40 yeas (39.3 rounded up) for the measure to pass. In this case the measure would fail to pass.

If you had 45 yeas, 25 nays, 5 blanks and 5 invalid you would need 2/3 of the 70 valid votes, or 47 yea votes to pass and the measure would have failed.

Granted, sometimes abstaining votes have the same affect as a nay vote. However, this is when the requirement for approving the issue has language like:
x% of votes cast
x% of the membership
x% of the voting interest

Again, the language you provided said 2/3 of the valid votes. It's the language that made the difference. You might want to start a campaign to amend that language to say 2/3 of the members present or 2/3 of the ballots received or 2/3 of the voting interest as this can make a huge difference in the number of votes needed to approve/adopt a proposal.

I don't think that this is what you wanted to hear. Sorry about that. However, my research shows that this is how it works.

Hope it helps,

Tim

Hi ST2,

Tim is spot-on regarding the matter of not counting invalid votes (ballots). Robert's Rules of Order - 10th edition addresses this on page 388 "A two-thirds vote -when the term is unqualified - means at least 2/3 of the votes cast by persons legally entitled to vote, excluding blanks or abstentions, etc etc"

On pages 401 and 402... Robert's Rules addresses invalid (he calls them "illegal") votes...."In recording the votes cast, the tellers ignore blank ballots and do not credit illegal votes"...... "Unintelligible ballots or ballots cast for an unidentifiable candidate or a fictional character are treated as illegal votes" ..... "All illegal votes cast by legal voters are taken into account in determining the number of votes cast for the purpose of computing the majority" (in your instance 2/3).

Not knowing the number of illegal votes in your particular case, I just want to point out that the math used in calculating the 2/3 was incorrect in the letter sent to your board. Two-thirds of 619 would have been 412.666666 and rounding up to 413. I know this is moot at the moment but using 67% can result in an erroneous figure.

Hope this helps in clarifying the matter for you....

Ann

ST2,

Based on the numbers you provided, there were 597 valid votes within the 619 ballots submitted. Again, blank ballots are considered abstaining from voting and do not count toward the total number of valid votes.

2/3 of 597 valid votes = 398 yea votes needed to pass. Since there were 408 yea votes the amendment should have been adopted.

There is zero question within Roberts Rules that blank ballots do not count as a vote. In addition to what your Association provided and what Ann provided I offer the following: Counting Votes; Voting Results from SURVIVAL
TIPS on Parliamentary Procedure

The question if Roberts Rules should be used for the General membership meeting I also don't think is questionable. The section of your governing documents you quoted about Roberts Rules stated that "The provisions of this regulation apply to administration and owner responsibilities."

Holding general membership meetings is an administrative function. Counting of the Ballots is an administrative function.

FL law does specify that any dispute in elections must be handled by binding arbitration in accordance with FL 718.1255 Granted, this wasn't an election. However, I think the intent of the statute would apply.

Here is an interesting FL arbitrator ruling:

Case No. 2005-00-0374. Within this ruling, the HOA cited a case Hornsby v. Milliard 189 So. 2d 361, 363 (Fla. 1966) in which the Court stated:

A blank or spoiled ballot, or one that is so illegible that the choice of the elector on the specific issue for which the election is held cannot be ascertained, does not constitute, in our opinion, an expression of a choice (by the voter) either for or... [against], [emphasis added].

The bottom line is that a blank ballot or any ballot without a clear intent goes back to the election committee for a ruling on how to count. It appears that your Association determined that blank ballots do not count. Therefore, if you or others disagree with this decision, you will need to challenge the election result in court.

If it's challenged, let us know how the court or arbitrator rules.

ST2,

There is no such thing as an abstention vote.
To abstain means to not do something.
If your name was called in a roll call vote and you said I abstain - You chose not to vote.

The same logic you wish to use to say an abstention is a nay vote can be used to claim it's a yea vote. This is just another reason why a blank ballot is not counted as a vote.

I think we need to just agree to disagree.

If you feel strongly about your opinion, I suggest that you contact an attorney and challenge the election results. If you do this, be sure to let us know what the Judge rules.

Tim

T

ST,

You will find that when ballot counting is mentioned, the issue of blank ballots is often referred back to Roberts Rules as the authoritative source. That said, I offer you the following sources. It's up to you to decide if that are authoritative:

Davis Stirling.com page on Abstention From Voting

Treatment of Abstentions and Broker Non-Votes under Maryland Law Scroll down to page 2. It refers to Larkin v.Baltimore Bancorp, 769 F.Supp. 919, 921 n.1 (D. Md.), aff’d, 948 F.2d 1281 (4th Cir. 1991) as defining that "With respect to the counting of votes, an abstention is not a vote cast."

Article titled The Anatomy of a Shareholder Vote Calculation Scroll about half way down to see what they say about Abstentions.

Corprate Practice Library article they start talking about abstentions at the bottom of page 1.

This is all I had time to look up at the moment. Hope it helps.

Tim

I have just reviewed the content at the links you sent and these have been extremely helpful.

It does appear from a review of these articles that effect of abstentions are 1) defined under state corporation law and that 2) MOST states, including New York and Delaware) treat abstentions as a vote against a proposition, 3) CAN be subject to charters and bylaws in some instances and 4) the IRS, NYSE and NASDAQ all consider abstentions as having the same effect as a NO vote.

I will continue to digest this and further research Florida corporation law. These links provided insight and a fresh direction for "non-legal" brains to browse.