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January 30, 2001

Election Reform: Dissenting Report to the Board of Governors

Dissenting Report
1. We favor the Bylaw Amendment proposed in the Petition
There was consensus among members of the Ad Hoc Committee that taking reasonable steps to make it easier for members to vote in bar elections would be in the best interest of the Association. It was noted that regular members of the Association are entitled to vote and that voting in elections is important to the vitality of our organization because the leaders we select set the direction of the Association. Despite the importance of voting to assure the most representative leadership, statistics provided by the Election Procedures Committee indicate a fluctuating, generally low level of voting for the past twenty years. (Exhibit 1) While election contests seem to create some incentives for a larger turnout, even contests between highly qualified candidates, such as the recent election for Vice Chancellor, fail to achieve voter turnout of more than about 30% of the membership entitled to vote.
Whatever the cause for generally low voter participation currently, there is strong evidence that easier methods of voting, such as the use of mail ballots, will increase participation substantially. The Wall Street Journal  recently reported, for example, that Oregon, which now conducts all primary and general elections by mail, has seen voter participation rise to 80%, well above the 51% voter turnout nationally in the November 2000 general election.
The Petition's proposed bylaw amendment would permit members to vote either by mail ballot or in person at the polling place. In addition, it would provide for Internet voting to the extent permitted by law subject to procedures established by the Board of Governors to preserve the confidentiality of individual votes and the integrity of the voting process. We believe adoption of such a bylaw amendment would give our busy members the flexibility of voting in the manner most convenient and meaningful to them. We recommend adoption of this amendment as the approach best able to improve voter participation by all our members.
The majority of the Ad Hoc Committee is only willing to expand absentee balloting for members with business addresses outside the central business district referred to as Center City. Opposition to the broader reform embodied in the Petition's proposed amendment seems to spring from the conviction that members should be required to vote in person at a single polling place. This is clearly not the view of our members as a whole. Sam Becker, who chaired the Survey 2000 Committee, presented to the Ad Hoc Committee survey data indicating that members with Philadelphia addresses prefer methods of voting other than in person. Specifically, the 2000 Survey conducted by Erdos & Morgan solicited information from a representative sample of Pennsylvania licensed attorneys with addresses in Philadelphia County. Of the 600 respondents, 444 were members of the Association. When asked about the method by which the Association should conduct its annual election, 51.4% of the 444 members responding preferred email or Internet voting; 19.6% preferred mail ballots; 20.7% favored the existing in-person system using voting machines and 8.3% expressed no preference. (Exhibit 2) Thus 71% of members responding preferred either Internet voting or mail voting over the current in-person system and the use of mail ballots was favored by nearly as many respondents as in-person voting. The majority report utilizes results that include 149 responses from nonmembers, which seems irrelevant to the questions of what "our members want." Some members of the majority also question whether "any meaningful conclusions can be drawn" from a sample of about 3% of our total membership, but offer no reason to believe that this sample is not representative of the views of our membership generally within normal margins of error.
The bylaw amendment  proposed in the Petition responds to this clear preference of our members for a fundamentally easier, more convenient method of participating in bar elections. In fact, under the existing, cumbersome absentee ballot process, which requires a member to anticipate an illness, accident or absent from Philadelphia on election day, over 19% of all
votes in the bar election in December 2000, were mail absentee ballots. This represents by far the highest absentee mail voting rate in the last 20 years.
During the deliberations of the Ad Hoc Committee, we heard primarily two arguments against the bylaw amendment to give all members the choice of voting in-person or by mail. First, there is the notion that voting is an important citizen/member function that is made more meaningful when members physically appear at a polling place. The membership comes together to socialize and meet the candidates as well as to vote. Of course, the proposed amendment would preserve the ability of members to continue to come to a polling place for these purposes for those members who value this aspect of participation. For many members, however, getting to the polling place is difficult or impossible due to competing professional demands or other reasons. Some members also have a different view about their experience at the polling place, where dozens of candidates and campaigners "meet and greet" each voter before the member can enter the polling place. As Columbia University history professor Alan Brinkley has observed: "Given how low voter turn out is [in public elections], it is hard to say that the ritual of going and standing in line at the polls is any longer anything that attracts people to voting." We think that many members have the same view about the current in person voting system of the Association. The alternative of convenient, unrestricted voting by mail would assure greater participation by members in the election process.
It also is worth noting that although the annual meeting luncheon takes place in the same building as the voting place, it does not appear that attendance at the luncheon is particularly affected by the current requirement for in-person voting. Indeed, attendance at the annual meeting luncheon is typically 66-75% of attendance at the quarterly meeting lunches, according to the bar staff.
The second concern expressed by some members of the majority of the Ad Hoc Committee is that the integrity of the election process would be jeopardized if members could vote by mail. It was suggested that supervising attorneys at law firms could determine how firm attorneys, particularly young associates, cast their ballot by mail. On the other hand no one can control how a member votes inside the voting booth. Today we have an honest, above board election process and there is no reason to fear it would be less so if mail voting were an option. Under the current absentee ballot system the same possibility of manipulation exists yet there has never been a suggestion of vote tampering of any absentee ballot during the 18 years the current Executive Director has served the Association. Far from giving an unfair advantage to large law firms, a new, more accessible voting system would, we think, expand the opportunities for all segments of the bar to be involved in the electoral process. With higher participation rates, candidates for office will need to make broader, issues-based appeals in order to win election, which would inevitably result in a more representative leadership.
Some members of the majority also suggested that votes cast by mail ballot would be less well thought out, adding "an element of randomness to election results." We think such speculation is inconsistent with the natural inclinations of our members to cast an informed vote. We should respect the judgments and electoral preferences of our members whether expressed on mail ballots or by voting machine.
2. We Support the Concept of Internet Voting
Some in the majority objected to the Internet voting provisions of the Petition. Our understanding is that Larry Beaser, counsel to the Board of Governors, has opined that there is nothing improper about this aspect of the proposed amendment because it would only allow for Internet voting "to the extent permitted by law." Furthermore, on January 16, we learned from attorney William Clark, a well-regarded authority on Pennsylvania corporate law and partner at Drinker, Biddle & Reach, that in his view, Internet voting is legal under the current provisions of the Pennsylvania Nonprofit Corporation Law. Specifically, Section 5758(b) of the Pennsylvania Nonprofit Corporation Law provides that, "[t]he manner of voting on any matter, including changes in the articles or bylaws, may be by ballot, mail or any reasonable means provided in a bylaw adopted by the members." Because the proposed Internet voting provisions would be subject to procedures established by the Board to assure the confidentiality of a member's vote and the integrity of the voting process, it would certainly appear to satisfy the "reasonableness" standard set by the statute.
The majority asserts, without authority, that security of an Internet vote cannot be assured. Yet, the January 2000 White Paper on Internet Voting, which was distributed to the Ad Hoc Committee, reaches a contrary conclusion:
The use of digital certificates to generate digitally signed ballots makes it possible to determine both the identity of the sender and the integrity of the ballot to a degree of certainty far exceeding that which now exists with the current means used for traditional voting., for example, offers an Internet voting system with security comparable to traditional voting systems (Exhibit 3).
If the bylaw provision were adopted, the Board and bar staff would be able to move in carefully controlled steps to incorporate an Internet voting capability beginning perhaps simply with the use of Internet voting technology in a supervised setting such as the existing polling place used for bar elections. The Report of the California Internet Voting Task Force, which was distributed to the Ad Hoc Committee, recommended this type of phase-in of Internet voting in the state of California.
The fact is that Internet voting is becoming increasingly popular. Labor unions, credit unions, professional organizations, corporations and other private groups have used online voting for years. In March 2000, the Arizona Democratic Presidential Primary was conducted over the Internet, by, which has run more than 600 online elections. Bar groups are joining in with the State Bar of Georgia planning to conduct its next election on the Internet, for example. Only last week, Unisys announced a joint venture with Dell and Microsoft to develop and market an Internet voting system (Exhibit 4). John Chambers, President and CEO of Cisco Systems, has predicted that by the year 2004, "the vast majority of states will already have Internet voting. You will find that most citizens will gain access to the information that makes their mind up on who to vote for and the issues from the Internet rather than the traditional ways of getting information," (quoted from conference transcript, "The Future of Internet Voting", The Brookings Institution, January 20, 2000). Considering the strong interest of our members, particularly younger members, in being able to vote by email or the Internet, including this element in an amendment to our bylaws seems appropriate.
3. The Primavera Alternative is Unfair to Center City Lawyers
After voting to oppose the bylaw amendment proposed by the Petition, the majority of the Ad Hoc Committee voted to support the Primavera sponsored amendment to the bylaws which would expand the existing grounds for absentee voting to permit all members with business addresses outside of Center City to use absentee ballots without restriction. Greg Mathews proposed an amendment to this proposal to permit any member to vote by absentee ballot if the member anticipated an "unavoidable professional conflict" on election day. This was rejected by the majority apparently on the ground that members could use such a standard as an excuse not to come to the polls with the result that in a few years no one would come to the polls. Others suggested that distance from the polling place was the only legitimate basis for not voting in person unless a member is ill, disabled or injured.
We think the Primavera alternative is unfair to members who work in Center City. It seems to acknowledge the benefits of mail voting but then denies those benefits to all members with a business address in Center City. If the Primavera alternative were adopted the result would be that about 30% of our members, based on their business address, would be free to vote by mail, while 70% of our members would not be able to do so. This fundamental inequity cannot be justified. Whatever the perceived virtues of in-person voting, it is fundamentally unfair to require that members within the central business district uphold those virtues while members outside Center City are freed from the burdens associated with an in-person voting requirement. Distance from the polls is not the only acceptable justification for not voting in person. In fact, distance from the polls is more easily remedied than an unavoidable professional conflict or personal emergency. There can be no question of favoritism if all members are treated the same way. We think every member is entitled to the choice of voting in person or by mail.
Audrey Talley, the new Vice Chancellor of the Association, is an ex-officio voting member of the Ad Hoc Committee pursuant to Section 702(A) of the bylaws. It also should be noted that the co-chairs of the Charter and Bylaws Committee, David Unkovic and Ralph Pinkus did not receive notice of the meetings of the Ad Hoc Committee and did not attend them. Nevertheless, they have reviewed drafts of the majority and dissenting reports. Ralph Pinkus joins in all aspects of this report and David Unkovic joins in Section 1 and 2.
Respectfully submitted.
Doreen Davis, 2000 Chancellor
Greg Mathews, Treasurer and Committee Recorder
Ralph Pinkus, Co-Chair Charter and Bylaws Committee
Mary Platt, Board Member
Audrey Talley, Vice Chancellor
David Unkovic, Co-Chair, Charter and Bylaws Committee
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