January 30, 2001
Election Reform: Report and Recommendation to the Board of Governors
Ad Hoc Committee on Election Reform
Report and Recommendation to the Board of Governors of the Philadelphia Bar Association
January 18, 2001
An Election Procedures Task Force ("Task Force") was appointed by the immediate past Chancellor, Doreen S. Davis, to consider potential changes to the process by which officers and board members are elected in the Philadelphia Bar Association. In July, 2000, the Task Force submitted a written report, recommending that voting be allowed (a) in person, (b) by mail ballot, and (c) by Internet voting. The Task Force's report was presented to the Board of Governors ("Board") for discussion, but no action was proposed. A copy of the report is attached as Exhibit A.
At a meeting of the Board on October 26, 2000, Chancellor Davis presented a petition signed by at least 200 members of the association ("Petition"), proposing a change to the bylaws regarding voting procedures. The Petition seeks to allow voting as recommended by the Task Force, except that Internet voting would be implemented only "to the extent allowed by law pursuant to procedures established by the Board to preserve the confidentiality of the Member's vote and the integrity of the voting process." That quoted language was used because the present nonprofit corporations law in Pennsylvania does not permit Internet voting. A copy of the Petition is attached as Exhibit B.
By resolution passed on November 21, 2000, a copy of which is attached as Exhibit C, the Board directed the formation of this Ad Hoc Committee on Election Reform ("Committee"). The Committee's charge is to:
study the issues presented and make recommendations to the Board regarding, inter alia, the desirability of the proposed changes set forth in the Petition; the legality of the proposed changes set forth in the Petition; alternative potential Bylaw changes relating to the issue of election procedures; the method by which any proposed amendments to the Bylaws relating to voting procedures, including the amendment set forth in the Petition as well as any potential alternative proposals, should be presented to the Membership for consideration and for voting.
The Committee was duly formed, including the following members:
Carl S. Primavera, Chancellor
Allan H. Gordon, Chancellor-Elect
Doreen S. Davis, 2000 Chancellor
Rochelle M. Fedullo, Board Chair
Gregory H. Mathews, Treasurer
Cheryl L. Gaston, Ass't Treasurer
Mary F. Platt, Board Member
Rudolph Garcia, Board Member
Joseph A. Sullivan, Board Member
Jeffrey M. Lindy, Co-Chair, Membership Committee
Richard S. Seidel, Co-Chair, Membership Committee
Ralph S. Pinkus, Co-Chair, Charter & Bylaws Committee
David Unkovic, Co- Chair, Charter & Bylaws Committee
At a meeting on January 4, 2001, Chancellor Primavera organized the Committee's discussion by designating Mary Platt as the principal spokesperson for proponents of the Petition and Richard Seidel as the principal spokesperson for an alternative proposal to expand the absentee ballot procedure. In addition, Greg Mathews and Rudy Garcia were asked to serve as recorders of the Committee's discussions and, ultimately, to prepare its report. The issues were thoroughly discussed for several hours, as summarized below. Everyone in attendance participated in the discussion and considered each other's views.
A second meeting of the Committee was held on January 11, 2001. The competing proposals were discussed again at length and the Committee's substantive recommendations were then approved by a vote of 6 to 3, with 1 abstention. Vice Chancellor Audrey C. Talley participated in the meeting and voted as an ex-officio member, pursuant to Section 702(A) of the association's Bylaws.
The Committee next discussed the manner by which the proposals should be submitted to the association's general membership. Approval of its recommendation in that regard was unanimous.
The major issues considered in the Committee's discussions were as follows.
1. Why Should We Change the Present System?
The Committee unanimously concluded that our present system is producing well-qualified leaders in a fair and trustworthy manner. The association's current officers and governors come from a wide variety of practice areas, firm sizes, and ethnic backgrounds. Contrary to some recent implications in the press, no organizations or other segments of the bar are disproportionately represented.(see footnote 1) In stark contrast to the most recent national presidential election, our association's current system yields immediate and unquestionably accurate results.
Nevertheless, the Committee believes that we should always strive to make our system even better. The difficulty is that what some view as better, others view as worse. In general, the differing views tend to reflect a natural tension between the desire to make voting easier and the concern that doing so may impair the confidentiality of the process and erode the benefits of the present system.
2. What Do Our Members Want?
The Philadelphia Bar Association Survey in April, 2000, asked a sample of lawyers for their preferences regarding the process of electing officers and board members. The responses were as follows:
Voting Preference Total Members
Continue the current in-person
system using voting machines 129 92
Use mail paper ballots 112 87
Use e-mail or Internet voting if
security can be assured 299 228
No answer 60 37
(For more detail, see the chart attached as Exhibit D.)
Almost half of the survey participants would favor Internet voting "if security can be assured." However, such security cannot be assured with the technology currently available and we have been advised by the association's counsel that Internet voting is not presently allowed under Pennsylvania's nonprofit corporations law.(see footnote 2)
The next highest number favored continuing use of our current in-person system, and the smallest number favored mail ballots. Because respondents could choose only one of the three methods, it is not clear whether a majority would favor a combination of in-person and mail balloting. The importance of the preferences to the respondents also is not known, because that question was not asked in the survey. Nor were the issues raised in this report brought to the attention of the survey participants.
It also was noted that only 540 participants responded to the voting preference question, and only 407 of them were members of the association. That is only 3% of our membership, which caused some members of the Committee to doubt whether any meaningful conclusions can be drawn from the answers to this particular survey question. Other members of the Committee relied on the statistical validity of the survey as a whole to support their belief that the responses to this question accurately reflect the preferences of our members.
In any event, the Committee noted that the best way to find out what our members really want is to submit the issues to a vote of the general membership.
3. Would Mail Voting Encourage Greater Participation?
We recognize that voting in bar elections can be inconvenient and that it is a low priority for many of our members. However, we have differing views about what that means.
Some members of the Committee believe that our voter turnout is too low. Others question that premise and see our turnout as similar to national elections.
In any event, we do not know the extent to which members choose not to vote because going to the polling place is inconvenient. Many lawyers believe that bar elections do not significantly affect their lives or practices. Others are content with how things are going and see no need to get involved. Nevertheless, convenience is probably a factor to some degree, so it may be presumed that more votes would be cast if mail balloting were allowed.
It is less clear, however, that mail balloting would encourage greater participation in any other bar activities. For example, attendance at the annual luncheon held in connection with the election would be likely to decline, because fewer members would come out to vote in person. The present system also provides an opportunity to meet the candidates and socialize with bar leaders, which motivates some members to get more involved in committees and other activities. Fewer lawyers would take advantage of that opportunity if they could simply mail in a ballot instead.
4. Would Mail Voting Impair the Confidentiality of the Process?
Several members of the Committee expressed strong concerns about the confidentiality of voting by mail. For example, a supervising attorney who enthusiastically supports a particular candidate might urge associates to vote for that candidate and then collect their ballots.(see footnote 3) The ability to seal a ballot before collection would not wholly insulate an associate from that predicament, because the supervising attorney might then suspect it was an adverse vote. Other members did not view the potential loss of confidentiality as a substantial risk. There also would be some risk of more intentional abuses, but the Committee was inclined to trust our members rather than basing any of its conclusions on that possibility. Although problems with confidentiality might be rare, even an occasional abuse would be unfortunate.
In contrast, no one can know what anyone else really does in the privacy of a voting booth.
5. Would Mail Voting Engender Voter Apathy?
One member of the Committee noted that "he mailed it in" is a common euphemism for an apathetic decision. Simply checking off names on a mailed form may not be treated as seriously as a trip to a polling place to use a voting machine. Members who know nothing about the candidates or the issues may vote anyway by mail ballots, which would add an element of randomness to election results. That is not likely to enhance the quality of our leadership.
6. Should In-Person Voting Be Encouraged?
The annual election provides all members with a chance to meet the candidates. There is a flurry of activity and excitement is in the air. Many lawyers see each other there and renew old acquaintances. It brings us closer together as an association and is a time-honored tradition that we all believe should be preserved. The view also was expressed that in-person voting is a public, civic act that forms a core value of our Nation's democracy and that, as an association of lawyers, we should prefer and encourage that method of voting.
If mail voting is allowed, the press of other business will undoubtedly result in fewer members coming to the polls. As time goes on, in-person voting may dwindle to the point where it becomes economically unfeasible. If it ultimately is abandoned, our association may lose a great deal of the camaraderie and vitality we now enjoy.
7. Should Members Outside of Center City and Disabled Members Be Allowed to Vote by Absentee Ballot?
The inconvenience of in-person voting to members who practice in distant parts of Philadelphia is much greater than it is to those whose offices are within a few blocks of the polling place. The same is true for some members who are disabled. Thus, the Committee also considered a proposal to expand the absentee ballot procedure for those types of members, for whom in-person voting is a more serious hardship. This alternative has come to be known as the "Primavera Amendment," because it was suggested previously by Chancellor Primavera as a compromise to supporters of the Task Force recommendations.
The Task Force report sought to remedy the hardship caused by requiring geographically distant members to vote in Center City. The Primavera Amendment would alleviate that hardship by allowing members outside of Center City to vote by absentee ballot.(see footnote 4) The Task Force report did not base its recommendations on any of the other arguments now asserted by the Petition's proponents.
If a change to the bylaws is to be made, the Committee also believed it should clarify that disabled members can vote by absentee ballot. That is consistent with the intent of the current provision, which includes "illness" as a basis for submitting an absentee ballot.
Section 406(C) of the association's current Bylaws provides that "A Member who, by reason of illness, accident or absence from the City of Philadelphia, will be physically unable to vote in person, may vote by absentee ballot." That would be changed to read as follows:
A Member who, by reason of illness, disability or accident, will be physically unable to vote in person may vote by absentee ballot. In addition, a Member whose principal office is located outside of the area known as Center City Philadelphia, or who will be absent from that area on election day, also may vote by absentee ballot. The area known as Center City Philadelphia is defined as that area bordered on the east by the Delaware River, on the west by the Schuylkill River, on the north by Spring Garden Street and on the south by South Street.
The association's membership database reveals that approximately 29% of our voting members have their primary office addresses outside of Center City (based on slightly different zip code boundaries). Of those, 19% are outside the city limits and already can vote by absentee ballots. The other 10%, or approximately 1,049 voting members, would be helped by the Primavera Amendment.
An amendment to this proposal was suggested by proponents of the Petition, to add "unavoidable professional conflict" as an additional ground for using an absentee ballot. That amendment was not accepted, because it would expand the Primavera Amendment well beyond its intended purpose. Concern was expressed that justifications such as "I have too much work to do" might be viewed as an unavoidable professional conflict. That would leave little difference between the modified Primavera Amendment and the Petition.
8. Should We Adopt a Prospective Provision on Internet Voting?
Most members of the Committee believe it would be imprudent to amend the bylaws now to allow Internet voting at some unknown time in the future. The issues facing our future leaders may be quite different if and when Internet voting becomes lawful in Pennsylvania. It would be far more appropriate to consider this change in light of the circumstances existing and the technology available at that time.
9. How Should These Issues Be Presented to the Members?
Under Section 1100 of the association's Bylaws, there are three possible methods for submitting proposed bylaw changes to the general membership:
- By a majority vote of those Members voting at the Annual Meeting in the same manner as for the election of members of the Board and Officers; or
- By a majority vote of those members present and voting at an Annual, stated or special meeting of the Members; or
- By a majority vote of those Members voting by secret mailed ballot, provided that at least 100 Members shall have cast a ballot.
The Committee did not wish to wait for the next annual meeting in December, 2001, and preferred the use of voting machines for this decision by the general membership. That narrowed the possibilities down to the second approach listed above. Whether the voting should occur at a stated meeting or a special meeting was left for further discussion with the entire Board.
The Committee's recommendations are as follows:
- The Board should oppose the bylaw amendment proposed by the Petition;
- The Board should support the Primavera Amendment; and
- Both proposals should be submitted to the general membership by use of voting machines at a stated or special meeting.
Carl S. Primavera, Chancellor
Allan H. Gordon, Chancellor-Elect
Rochelle M. Fedullo, Board Chair
Jeffrey M. Lindy, Board Vice-Chair
and Co-Chair, Membership Committee
Rudolph Garcia, Board Member and Committee Recorder
Richard S. Seidel, Board Member and Co-Chair, Membership Committee
Joseph A. Sullivan, Board Member
Date: January 18, 2001
1. The dissenting report contends that the Petition's approach would result in a more representative leadership. However, that view was never expressed or discussed at any meeting of the Committee. In fact, the spokesperson for the Petition explicitly stated that, in her opinion, changing the method of voting would not change who gets elected. Under either system, anyone can run for office and everyone can vote.
2. Although the dissenting report mentions a contrary opinion by "a well-regarded authority," no such opinion was presented to the Committee.
3. The dissenting report unfairly characterizes this as an unjustified fear of intentional "vote tampering." On the contrary, this type of conduct could occur with the best of intentions at any firm.
4. The dissenting report's argument that this approach is "unfair" to Center City lawyers ignores the fact that in-person voting is a much greater burden for members in distant parts of Philadelphia. Moreover, any member who will be outside of Center City on election day would be entitled to vote by absentee ballot, not just those with their principal offices there.
# # #