Overview of Methods of Absentee Voting

Absentee voting refers to any permitted system whereby a member of a corporation can vote at a meeting of members, even though the member is not present in person at the meeting. Historically, voting by proxy was the only permitted form of absentee voting. However, as a result of advances in communications technology, modern corporate legislation has embraced new methods of absentee voting, while retaining older methods.

1. Overview

The Canada Not-for-profit Corporations Regulations ("Regulations") prescribe three permitted methods of absentee voting, which are:

● voting by proxy (the historical method);

● voting by mailed-in ballot; and

● voting by means of telephonic, electronic or other communication facility (which includes, in particular, electronic balloting).

Unless a corporation specifically adopts one or more forms of absentee voting in its by-laws (or, less commonly, articles), the default rule is that absentee voting is prohibited.

In non-profit corporations with a far-flung membership, the failure to provide for a method of absentee voting in the by-laws or articles can have the practical effect of disenfranchising all but a few members. The vast majority of members may find that the cost and inconvenience of attending a meeting of members in person to cast a single vote is unjustified at a personal level. This can have several negative effects for the corporation, including:

● the inability to obtain a quorum of members;

● member disillusionment, disengagement and apathy; and

● ease of a hostile take-over by a few members willing to unexpectedly show up at the meeting to overthrow the incumbent board and install a new board.

2. Voting by Proxy

With voting by proxy, members not in attendance in person at the meeting vote by appointing a proxyholder (and, in the same form of proxy, one or more alternate proxyholders). The proxyholder (or alternate proxyholder) attends and acts at the meeting in the manner and to the extent authorized by the proxy and with the authority conferred by it. A proxyholder is not required to be a member. By-law provisions purporting to require all proxyholders to be members are invalid.

A proxy is subject to certain requirements, such as:

● a proxy is only valid at the meeting at which it is given or at a continuation of that meeting if it is adjourned;

● a member may revoke a proxy, either before the meeting or by depositing an instrument of revocation with the chairperson of the meeting on the day of the meeting or continuation of an adjourned meeting; and

● the proxy must meet certain prescribed requirements, such as providing a means:

● for the member to designate some other person as proxyholder; and

● to specify how the member's vote is to be cast (whether for or against each matter or group or related matters or, in the case of the election of director, for one or more candidates).

Proxies have been subject to much abuse - especially in organizations with an open membership and a low annual membership fee. Rival factions seek to stack the meeting with supporters, who pay the minimal annual membership fee and sign a proxy in favour of the faction that recruited the new member.

Proxies are also prone to forgery, as there is often great difficulty at a meeting for scrutineers to verify the authenticity of proxy signatures.

3. Mailed-in Ballots

With mailed-in ballots, the corporation must have in place a system that enables the votes of members to be gathered in a manner that permits their subsequent verification without it being possible for the corporation to identify how each member voted. Thus, mailed-in ballots are the functional equivalent of secret ballots. Members vote, but the corporation is blind to how each member votes. This means that, in practice, the corporation must engage a third party agent to receive and tabulate the mailed-in ballots. The agent could be a scrutineer or the corporation's lawyer or accountant, as long as individual voter-secrecy is maintained and not disclosed to the corporation (except, of course, the aggregate result of the vote).

Mailed-in ballots avoid many of the difficulties encountered with proxies. Systemic forgery is more difficult, because the ballots are sent to members individually.

4. Electronic Voting

Electronic voting has surged in popularity in recent years. More and more organizations have embraced forms of electronic voting.

With voting by telephonic, electronic or other communications facility, the system must meet the same functional specifications as the system for voting by mailed-in ballot. That is, the communication facility must:

● enable the votes to be gathered in a manner that permits their subsequent verification; and

● permit the tallied votes to be presented to the corporation without it being possible for the corporation to identify how each member voted (again, an analogue of a secret ballot).

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