Counting Votes: What Counts?
One of the purposes of a democratic government is to instill law-making power in the people rather than grant authority to one or two individuals. The small size of many local governing bodies may at times run counter to this basic principle of democracy. Planning boards may have between five and nine members, depending on the form of local government. The Board of Selectmen has just three or five members. Conflicts of interest, member absenteeism and abstentions all increase the likelihood that decisions by local boards and commissions may be made by a small minority of the members. The requirement of a quorum offers some protection from this, however abstentions often create situations where one or two individuals may make decisions for a whole body.
Imagine an example not yet litigated in New Hampshire: A five-member planning board needs three members for a quorum. If three are present, two abstain and one votes for the measure, what is the outcome? If the measure passes, then this is an extreme case of minority rule. Under existing New Hampshire law it seems the measure would pass. It might upset our notions of democracy to a degree, but this result is in conformity with the law. How could this be?
In an often-cited historical decision, in 1882 the New Hampshire Supreme Court was asked to decide whether a measure could pass in the following situation: there were seven aldermen and six present at the meeting; three voted for adoption of the measure and the remaining three abstained. The Court ruled “a proposition is carried in a town meeting or other legislative assembly, by a majority of the votes cast.” Attorney General v. Shepard, 62 N.H. 383 (1882). The Court rejected the argument that a majority of the aldermen elected had to vote in favor for passage. The Court held onto the English common law tradition of treating abstaining votes as acquiescing in the decision of the majority. This policy discourages abstentions by placing equal blame for bad policies on the majority who adopted it and those who took no action against it.
In a more recent case, Laconia Water Co. v. City of Laconia, the Court rejected the plaintiff’s contention that Laconia’s acquisition of the Laconia Water Plant was flawed because a majority of the 8,240 registered voters did not vote in favor of the acquisition. 99 N.H. 409 (1955). The Court held that only a majority of qualified voters actually taking the time to vote in the city referendum was required. The Court reiterated the English common law principle and wrote,
The elective franchise is to be exercised affirmatively… The practical working of the elective system necessarily requires that those who do not vote be considered as acquiescing in the result declared by a majority of those who do vote. Id. at 411.
The measure passed because a majority of those voting voted in favor of the acquisition. A refusal of the majority of the city voters “to express their views by depositing their ballots cannot stop the machinery of government.” Id.
The Laconia case dealt with a citywide referendum rather than a meeting of the governing body or of another representative or appointed body. In some states a majority of votes cast may not suffice for passing a law unless the majority of votes cast also constitutes the majority of a quorum. Reynolds, Osborne, Jr., Voting Requirements In Municipal Governing Bodies: Minority Rule or Legislative Stalemate, 27 URBLAW 87 (Winter, 1995). Allowing a measure to pass only if a majority of the votes cast constitutes the majority of a quorum would help protect against minority rule in representative local government bodies.
If only four members of a seven-member board were present, and one member abstained, one member voted against, and two voted in favor, the measure would fail under the majority of a quorum rule. Only an affirmative vote of three members would constitute a majority of the quorum of four. Under current law in New Hampshire, the measure would pass.
In Opinion of the Justices No. 4233, the New Hampshire Supreme Court wrote, if there is a quorum of Executive Councilors present (three), a majority of that quorum need not vote in favor of a gubernatorial nominee in order for him to be confirmed. 98 N.H. 530, 532 (1953). A majority of the votes cast is all that is required. Therefore, if three Executive Councilors are present and one Councilor votes to approve the gubernatorial nomination and the remaining two abstain, the action of the Council is to approve the nomination. Based on this opinion, coupled with a strong policy against not voting, it is clear that abstaining votes do not count as votes cast.
Town officials should be aware that RSA 674:33, III creates one of the rare instances in New Hampshire law where a majority of votes cast isn’t enough to pass a measure. The exception is in regard to five-member zoning boards of adjustment. It mandates three concurring votes are needed to decide in favor of an applicant or to reverse a decision of an administrative official.
In the name of running a democratic local government, members of local boards ought to consider the consequences of abstaining from voting. The appearance of minority rule can result in the loss of credibility among citizens and can give the appearance of impropriety. Unless there is an actual conflict of interest requiring a member to disqualify him or herself from voting, local officials ought to cast their vote for or against any measure considered.