“Secret ballot” may be defined as meaning “the expression by ballot, paper ballot or otherwise, of a choice cast in such a manner that the person expressing such choice cannot be identified with the choice expressed.”1
A growing trend for nonprofit and for profit organizations is to provide for electronic balloting. Indeed, many state corporation laws now allow for electronic balloting whether or not the organization’s bylaws expressly allow for it.2
The question might be posed what is the relevance of secret ballots in the context of a member-owned private club or other nonprofit organization election process. Does anyone care? Is there a fear of retaliation if the voter’s choice expressed by ballot is exposed to others within the organization? Private clubs and trade associations are not like unions. The anxiety over retaliation or other concern is not as real as in the trade union context.
However, in the current atmosphere of concern over privacy and government intrusion into our inner most feelings about the organizations to which we belong, some anxiety does exist to merit serious consideration in preserving ballots as secret and the contents known only to the voter. Also, e.g., a member may be anxious about his voting record if it is open to scrutiny by the organization when he is being considered for a position within the organization.
There are a number of third party vendors offering on line balloting services to private organizations. If a private club, trade association or other organization desires to utilize electronic balloting as a matter of convenience and labor saving, then if using a third party vendor, the vendor should be carefully vetted to enhance the likelihood of the integrity of the process. Integrity includes ensuring the balloting process is “secret”. The vetting should include such criteria as the vendor not being related to persons who are directors, officers, managers or members of the organization desiring to retain the vendor. Other considerations include:
Does the vendor’s system provide for voter authentication?
Block multiple votes for candidates?
Capture how individuals vote on particular issues?
Provide an accurate tally of yes, no and abstention votes?
Provide a transparent vote verification webpage whereby voters can self-audit the vote counts and verify the accurate recording of their own votes?
Allow online vote for the desired number of days allowing everyone a chance to vote online at a convenient time?
Require you to install or maintain software?
Provide the option to manage your online vote or use the web-based vendor system to manage your own online elections?
The foregoing are only illustrative of the many “bells and whistles available on the market today. A search on your browser will enable you to identify other criteria that may be important to you.
Most online voting systems available today that advertise the ability to run “secret ballot elections” utilize an electronic balloting system that allows a third-party administrator, presumably unconnected with the organization (other than by independent agency contract) soliciting ballots to identify a ballot with the voter. However, it is usually recommended that the results, whether shared with the designated organization election judges or not, be destroyed after an interval of not more than six months or even shorter interval.3
Many organizational bylaws requires certain votes, e.g., to elect governors or directors or to approve assessments, be conducted by “secret ballot.” Even if the bylaws themselves do not specify “secret ballots”, incorporation of Robert’s Rules of Order Newly Revised in the bylaws mandates ballots be “secret”.4
Moreover, to demonstrate to the organization’s members an online balloting process is appropriate for maintaining a secret ballot, assuming the applicable state law enables electronic voting, the club’s bylaws should be examined and if necessary, amended, to explicitly provide for it. Most members are not familiar with statutory law governing private corporations. Thus, it is a useful idea to specifically include authorization for electronic balloting in the bylaws. For example, the bylaws might provide: “Whenever a notice is required by these bylaws and whenever a vote is to be taken at an annual or special meeting of members, or at a meeting of the board or at a committee meeting, the notice to or vote of a member (including related materials such as proxies), may be delivered by any electronic means which may be printably recorded by the person who receives it.”
Care should be taken to allow for paper balloting for those members who may not be computer literate. If it is known or becomes known that some members are not capable of utilizing electronic voting procedures, then the organization should make paper balloting available for those members who request it. This alternative avoids a later claim of unfair disenfranchisement.
Further, the organization’s general counsel should be involved in the process to support and verify the third party vendor (or the organization itself if it is self-administering the voting) is capable of providing the secrecy desired and to provide input into the bylaw amendments and policies to be proposed or adopted. Counsel’s input is useful to ensure conformity with state law and to provide a modicum of protection for the club’s governing board, officers and management. That is, if the club’s directors, officers and management rely on counsel whom they believe to be competent in advising them, they may be exempt under state law from later claims of misfeasance by the members in having authorized electronic balloting.5
One organization6 has identified additional criteria necessary to ensure balloting is not only secret but secure. They include:
ensure a proper and accurate vote count;
authenticate the eligibility of each voter;
limit each member to one vote cast;
protect against the interception or alteration of votes; and
ensure that a process is available to conduct a recount of the ballots if necessary.
Electronic Balloting Procedures – It is recommended the organization’s policy manual specify (1) how the ballot will be prepared and reviewed by the election judges or committee prior to being posted on the web site to each member in good standing prior to the election. The manual should specify a date be selected by the judges or committee as to when the election will open and close. During the election period no access to the web site administration area should be allowed by the organization’s directors, officers or managers. The only access to the website administration area should be given to the election judges or committee and the access is only to validate the votes cast. If a problem or dispute arises the judges or committee will determine how to proceed with instructions to the membership. After the election has been completed by the announced date, a copy of the results should be provided by the election judges or committee.
Some of the foregoing may seem to be overly cautious. However, in the current atmosphere of suspicion concerning lack of transparency, concern over the integrity of electronic data being compromised7 and the general attitude of skepticism towards the intentions of governing persons, whether they be public or private officials, it is well to maintain assurances of honesty and integrity.
1 Cf. 29 CFR §401.11.
2 See, e.g., North Carolina § 55A-1-70. Electronic transactions. For purposes of applying Article 40 of Chapter 66 of the General Statutes [Uniform Electronic Transactions Act] to transactions under this Chapter, a corporation may agree to conduct a transaction by electronic means through provision in its articles of incorporation or bylaws or by action of its board of directors. Some statutes are more specific. See, e.g., GA. Code 14-3-708. Delivery of ballot in lieu of meeting. (a) Unless prohibited or limited by the articles or bylaws, any action that may be taken at any annual, regular, or special meeting of members may be taken without a meeting if the corporation delivers a ballot in writing or by electronic transmission to every member entitled to vote on the matter. (b) A ballot in writing or by electronic transmission shall: (1) Set forth each proposed action; and (2) Provide an opportunity to vote for or against each proposed action. (c) Approval by ballot in writing or by electronic transmission pursuant to this Code section shall be valid only when the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting authorizing the action, and the number of approvals equals or exceeds the number of votes that would be required to approve the matter at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot. (d) All solicitations for votes by ballot in writing or by electronic transmission shall: (1) Indicate the number of responses needed to meet the quorum requirements; (2) State the percentage of approvals necessary to approve each matter other than election of directors; and (3) Specify the time by which a ballot must be received by the corporation in order to be counted. (e) Except as otherwise provided in the articles or bylaws, a ballot in writing or by electronic transmission may not be revoked.
3 In deciding the result of an election, there is a point at which an interest in finality and stability comes to outweigh even the interest in accuracy. Robert’s Rules Official Interpretation 2006-11. Destroying the ballots after a reasonably short interval bars belated demands for a recount in disputed elections or a vote on sensitive issues.
4 “Voting by Ballot . . . on which the voter marks his vote) is used when secrecy of the members’ votes is desired. . . . . When a vote is to be taken, or has been taken, by ballot, whether or not the bylaws require
that form of voting, no motion is in order that would force the disclosure of a member’s vote or view on the matter.” Robert’s Rules of Order, Newly Revised, 11th edition.
5 See, e.g., GA. Code 14-3-830(B)(2) In discharging his or her duties, a director is entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by: . . . (B) Legal counsel, public accountants, or other persons as to matters the director reasonably believes are within the person’s professional or expert competence; . . . .
6 IAFF Firefighters. See http://www.iaff.org/legal/online%20voting.htm.
7 See, e.g., http://www.wrex.com/story/27260820/2014/11/03/problems-with-electronic-voting-around- illinois-spark-concerns-in-rockford; http://www.newsmax.com/Newsfront/maryland-illinois-voter- fraud/2014/10/28/id/603564/.
Fred l. Somers, Jr., P.C
Atlanta, GA 30338