On this vote the yeas are 50, the nays are 50. The Senate being equally divided, the Vice President votes in the affirmative and the nomination is confirmed.
—U.S. Vice President Mike Pence, 2/7/2017
by Keokani Kipona Marciel, MS Loea Lula Ho‘omalu Kākau Hoʻopaʻa ʻia - Registered Parliamentarian (RP)
Under parliamentary law, a motion is lost if there is a tie vote (or less than two-thirds if that is the required vote).
To maintain the impartiality of the chair, the presiding officer normally votes only to make or break a tie vote. If there is a tie vote, and the chair is indifferent, or wishes for the motion to be lost, he or she can choose not to vote. Since such an abstention does not disclose the chair's position, if any, on the question, the anyonymity protects the impartiality of the chair.
Alternatively, if a two-thirds vote is required, the chair can vote in the affirmative to make a two-thirds vote, or can vote in the negative to lose a two-thirds vote.
Also notice, in the video clip, that after the result of the confirmation vote was declared, the Senate Majority Leader, after obtaining the floor, immediately made an original main motion to Reconsider the vote, which can only be made by a member of the prevailing side.
He then followed this by a subsidiary motion to Table the motion to Reconsider the confirmation vote, which was carried.
Finally, he asked for unanimous consent to waive the mandatory quorum call, which is an incidental main motion to Suspend the Rules, requiring a two-thirds vote under general parliamentary law. The chair confirmed unanimous consent by saying "Without objection." This means that opposition to the motion, if any, had acquiesced, since a single objection would have compelled a vote. However, this could have been viewed as dilatory, potentially making the opposition look bad.
The motion to Table, under the procedural rules of the U.S. Senate, is different than the motion to Lay on the Table under general parliamentary law. In the former case, the motion to Table has the same effect as Postpone Indefinitely under general parliamentary law, which is to kill the motion.
Why did the Senate Majority Leader move to Reconsider, then to Table that motion?
By killing the motion to Reconsider the vote on the confirmation, it prevented that reconsideration from again being moved by a member who voted in the affirmative. By making this motion as soon as possible after the confirmation was declared, it minimized time for contemplation of the motion to Reconsider, thereby making it easier for the motion to be tabled by a majority vote.
Why did the Senate Majority Leader ask for unanimous consent to waive the mandatory quorum call?
In theory, it is possible that enough opposition members could have exited in time for the assembly to lose its quorum, and possibly jeopardize the validity of the confirmation vote. Given the sustained opposition to the confirmation, nothing would be out of the question. Therefore, by making this motion immediately after the confirmation vote, it would minimize the time available for senators to make an exit.
In any case, the series of three motions made by the Senate Majority Leader can be seen as a formality to make it clear for the record that the confirmation was unequivocal.
"Recess" Between Plenary "Sessions". The convention program consists of a series of business meetings on separate days, along with other activities. The entire convention is a single session. If the meetings themselves were sessions, then the assembly would be dissolved at the end of each session, and delegate credentials would have to be established all over again with each new session. The "Recess" listed in the program at the end of each meeting is actually a motion to Fix the Time to Which to Adjourn, which adjourns the meeting to continue the session at the next business meeting on the schedule. The motion to Recess is only meant to be for a short break, not to continue overnight until the meeting on the next day is called to order. However, for the sake of a convention, it is not uncommon to use terms like "recess" or "session" loosely for the average person to grasp the actual intent.
Point of information.Robert's Rules codifies a parliamentary motion called a Request for Information, which in the past, used to be called Point of Information. The reason for the revision was to make it clear that the motion is to request information, rather than to give information. At the 2016 AHCC convention, it was common practice, after obtaining the floor, for a person to begin their statement by saying, "Point of information." Since this is not a special rule of order provided by the governing documents of AHCC, it really is not a motion at all. Rather, it is merely speaking in debate, and therefore counts just the same toward the time alloted for a person to speak on a pending motion. This established practice would be recognized as a custom under parliamentary law, which is the lowest ranking class of rules adopted by a society.
"I so move..." It was common practice at the convention for a person to introduce a motion by saying, "I so move..." This is frowned upon under parliamentary law because it has the effect of saying that the person seeks adoption of the statement made by the person who spoke previously. So, even though this is an AHCC custom, the form is flawed. The correct wording should be, "I move that ..." Or, "I move to ..."
Seconding motions during committee meetings. Although it is not necessary to second motions during committee meetings, doing so at the convention was not prohibited by the governing documents or parliamentary authority. In fact, it was a common practice at the convention. Thus, it is a custom of AHCC, which is an established practice followed like a writtten rule. I think people like the feeling of validation that the seconding of a motion provides. I also think that it simplifies the deliberative process for people to follow procedure the same way in a committee that they are used to in a meeting of the full assembly. In other words, it removes the guesswork of having to consider when a certain practice is in order and when it is not.
Friendly amendments. After a member makes a motion, and before it is stated by the chair, another member can suggest a modification. If the maker of the motion accepts the modification, it is called a "friendly amendment." At this convetion, it was not uncommon for a delegate to propose an amendment to a pending motion (stated by the chair) and state it to be a "friendly amendment." Although technically not a "friendly amendment" in the conventional sense, what the person really meant is that the amendment is not hostile to the pending motion, but rather, intended to improve the wording.
Asking for a motion to adopt a report. It was common practice for persons presenting reports to ask for a motion to adopt the report after the reading of it was concluded. The only time a report should be adopted is if it concludes with a motion for the assembly to consider, so that it would be the motion rather than the report which is adopted. This was not the case during my observations. In addition to being unnecessary, parliamaentary law especially discourages the adopting of a report that does not conclude with a motion. The reason is because adoption of a report means that the assembly approves every word of the report as being true. Inversely, if the motion is lost, it means that the assembly has rejected every word in the report. The outcome then becomes record in the minutes of the proceedings.
To adopt or not adopt. Normally, motions are adopted or lost, and a motion to not do something is frowned upon under parliamentary law, because it has the same effect as not introducing the motion at all. Additionally, the same effect is achieved by less than a majority (or two-thirds, depending on the vote required) voting in the affirmative, in which the motion is lost. However, the governing documents of AHCC require every resolution to be brought before the assembly, even if they were lost in committee. Hence, the committee chair recommends to "adopt" or "not adopt" before the assembly of delegates, which is why this is also done during the committee meetings. This means that every resolution that is lost in committee gets a second chance during a plenary meeting of the delegates assembled. However, it would be awkward for the assembly, desiring the opposite, to vote down a motion to "not adopt," then have to move its adoption. Since this procedure, which includes the motion to "not adopt," is provided by the AHCC bylaws, rather than the parliamentary authority, it is recognized under parliamentary law as a special rule of order.
Asking for a motion to close nominations. The immediate past president, while serving in the chair, asked for a motion to close nominations after he had already asked if there was any further nominations. When there is no response to the question asking for any further nominations, the chair did not need to ask for a motion to close nominations. The appropriate procedure would have been for the chair to declare that nominations were then closed.
Same sign. Whenever calling for the affirmative vote, the chair (president) would correctly say, "All those in favor, hold up your cards." However, when next calling for the negative vote, the chair would incorrectly say, "All those opposed, same sign." This is improper parliamentry form because it literally means that those opposed agree with those in favor.
Chair calls a recess without permission from the assembly. Whenever the chair called a recess during the convention, she did so through an improper use of unanimous consent (or acclamation). The correct form would be for the chair to say, "If there is no objection [pause], we will take a recess..." Or, "Without objection [pause], we will take a recess..." Instead, the chair, without any pause, would say, "We will take a recess..." The reason a pause is critical at a large convention like this, compared to a normal meeting of a local organization, is because it takes a certain amount of time for a person to walk up to the microphone. At this convention, the chair did not allow any pause at all, so that nobody had the chance to even begin approaching the microphone. On the other hand, strict adherence to the schedule at a convention can necessitate some restriction on the normal rights of an assembly, in order to complete all of the business on the agenda.
Chair doesn't allow debate on an appeal, and states the question using incorrect form. Similar to how the chair would call a recess by unanimous consent without any pause to allow for possible objection, the chair would go straight to a vote on an Appeal of her ruling on a Point of Order. The correct form should be, "Does the ruling of the chair stand as the judgment of the assembly?" Instead, in a condescending manner, the chair would point at the person making the appeal, and say, "All those in favor of his appeal..." This violates fundamental principles of parliamentary law, namely, that the chair should be impartial, and that debate should not become personal.
Chair does not declare the result of a vote, declares a recess, then retakes the vote without a motion to reconsider. Apparently, this is what happened. Unfortunately, I was not present during the Board meeting when this happened, so this is my understanding based on secondhand accounts. If this was true, then a Point of Order should have been raised that the chair must declare the result of a vote. Secondly, a Point of Order should have been raised that a question already decided cannot be voted on again during the same meeting without first adopting a motion to Reconsider, which can only be moved by a member of the prevailing side in the original vote.
Chair doesn't ask for new business before the close of the convention. Although new business was listed on the convention agenda, when it was in order near the close of the convention, the chair did not ask if there was any new business. Instead, the chair proceeded to announcements, which was the next category of business on the agenda. A delegate approached the microphone and asked if new business was in order at that time. The chair replied, "Well, it depends on what your question is." By this time, the voting cards had already been collected and everyone was ready to go home. It was clear that the officers and the assembly had no intention of actually following through on new business provided for in the printed program.
Transcript of the two points of order are provided below in bold, along with references and commentary. The chair (Pelekikena Annelle Amaral) ruled that the points of order were not well taken. As a tactical strategy, the ruling of the chair on the first point of order was not appealed. This way, the second point of order could be raised before the chair would be more likely to call for the sergeant-at-arms to compel the delegate to yield the floor.
The ruling of the chair on the second point of order was appealed. The appeal was debatable, since the question did not involve decorum, rules of debate, or the priority of business. See Robert’s Rules of Order Newly Revised (RONR), 11th ed., p. 398, ll. 20-27. However, the chair went directly to a vote without asking if anyone wanted to speak in debate on the appeal. Furthermore, the chair used incorrect form by pointing at the delegate and personalizing the question. "All those who agree with his point of order..." See RONR (11th ed.) pp. 259-260. The assembly sustained the ruling of the chair.
Manaʻo Hoʻomalu. I rise to a point of order. I make the point of order that the action taken by the Association Board of Directors between the 2014 and 2015 conventions, to rescind Resolution 14-28 (Acknowledging the Continuity of the Hawaiian Kingdom as an Independent and Sovereign State) and expunge it from the record, is null and void because it is in violation of the current bylaws of the Association (amended October 2011), in Article III, Section 1, lettered paragraph g, which states that the Board cannot take an action or position that is “in conflict with actions taken by the annual Convention.” Only delegates assembled at an annual Convention can rescind resolutions previously adopted at an annual Convention. For reference, please see the 11th edition of Robert’s Rules of Order Newly Revised (RONR), pages 483 and 577. If desired, I can read the reference.
A board may never alter a decision of the society’s assembly ... , even by a motion to Rescind or Amend Something Previously Adopted or by adoption of a proposal which has been rejected, unless expressly authorized by the superior body or by the bylaws (see p. 483, ll. 6-13).
The membership is the superior body to the Board of Directors. The membership delegates powers to the Board through provisions in the constitution and bylaws of the Association. Thus, the Board derives its power from the membership, and not the other way around.
The Board can only receive authorization from the membership through delegates assembled at an annual Convention. In the case of Resolution 14-28, the 2015 Convention would have been the first possible time at which the Board could have received such authorization. However, the Board action happened after the 2014 Convention and prior to the 2015 Convention. Furthermore, even if the Board waited until the 2015 Convention and received authorization from the assembly of delegates, the Board action would still be null and void since it conflicts no less with the Association bylaws, in Article III, Section 1, g. In fact, the authorization itself would be null and void because of that same conflict with the bylaws.
Second Point of Order Regarding Resolution 14-28
DELEGATE: E ka Pelekikena. Manaʻo Hoʻomalu.I rise to a point of order. I make the point of order that the action taken by the Association Board of Directors between the 2014 and 2015 conventions, to rescind and expunge Resolution 14-28 from the record, is null and void because it is a motion that requires an affirmative vote by a majority of the entire membership, which in this case would be the delegates registered at an annual Convention. Therefore, even if the Board of Directors unanimously approved the motion to rescind Resolution 14-28 and expunge it from the record, the decision clearly would not constitute a majority of the entire membership. For reference, please see the 11th edition of Robert’s Rules of Order Newly Revised (RONR), pages 310 and 404. If desired, I can read the reference.
On extremely rare occasions when it is desired not only to rescind action but also to express the strongest disapproval, a member may move to Rescind and Expunge from the Minutes (or Record). Adoption of this motion requires an affirmative vote of a majority of the entire membership, and may be inadvisable unless the support is even greater. Even a unanimous vote at a meeting is insufficient if that vote is not a majority of the entire membership.
In a convention of delegates a majority of the entire membership means a majority of the total number of convention members entitled to vote as set forth in the official roll of voting members of the convention.
It was not too late to raise the above points of order, because unlike a rule of order which must be addressed promptly at the time it is breached, the Board action to rescind Resolution 14-28 and expunge it from the record is of a continuing nature for two reasons. First, it conflicts with the bylaws (amended October 2011, Article III, Section 1, lettered paragraph g). Secondly, the action was taken in violation of a fundamental principle of parliamentary law. Namely, the board can never alter a decision of the assembly. In this case, the board unilaterally altered a decision of the delegates assembled at the 2014 Convention. See RONR (11th ed.) p. 251, ll. 3-26, with particular attention to lettered subparagraphs a and d.
According to the current (11th) edition of Robert’s Rules of Order Newly Revised (RONR), an act adopted by a society is rendered invalid if it is contrary to the governing documents adopted by the society. See p. 251, ll. 3-10. Also, p. 343, lines 14-17:
Motions that conflict with the corporate charter, constitution, or bylaws of a society, or with procedural rules prescribed by national, state, or local laws, are out of order, and if any motion of this kind is adopted, it is null and void.
The Association bylaws provide no exception to the rule that the Board cannot take actions and positions in conflict with decisions made by an annual Convention. If, for example, the intent of Resolution 14-28 came into question by the Board after the 2014 Convention, the Board has no authority delegated to it from the bylaws to unilaterally rescind (or rescind and expunge from the record) the resolution based on a changed understanding of the intent. If there was a question about the intent of the resolution, it should have been addressed by delegates during the annual Convention at which Resolution 14-28 was adopted, or at a subsequent annual Convention. It should not have been acted upon unilaterally through a Board meeting held between annual conventions.
Under parliamentary law, the constitution and bylaws of a society cannot be suspended (RONR, 11th ed., §25), unless a provision is in the nature of a special rule of order, or provides for its own suspension. See RONR (11th ed.), pp. 13, 17, and 88. Neither exception applies to Article III, Section 1, g, of the AHCC bylaws. Motions that conflict with the governing documents are out of order, and null and void if adopted. In such a case, it is never too late to raise a point of order to reverse the action. See RONR (11th ed.), pp. 111, 251, and 343.
The chair must rule on a point of order (RONR, 11th ed., §23). Any two members can appeal the chair's decision, which then goes before the assembly to decide (RONR, 11th ed., §24). This is why it's important for the membership to be familiar with the rules adopted by the society. Parliamentary law is a system of checks and balances that allows for democratic decision-making instead of authoritarian rule, insofar as members assume responsibility for enforcing the adopted rules.
Hypothetically, if Resolution 14-28 was ruled null and void by the assembly of delegates (through a point of order) during an annual Convention, on the basis that it conflicts with a motion previously adopted, such as Resolution 13-35 (Urging the Association of Hawaiian Civic Clubs to Organize, Plan and Execute and/or Participate in a Constitutional Convention to Realize a Native Hawaiian Self-Governing Entity), the vote on Resolution 14-28 would have to have been lost rather than adopted. However, this would preclude a null and void ruling by the chair in the first place.
Notwithstanding the bylaw provision prohibiting the Board from taking actions in conflict with an annual Convention, the Board too would have to show that the vote to adopt Resolution 14-28 was on the record (minutes) as being less than a majority. This is because previous notice was given for the resolution that was adopted by a majority vote, which is the same vote that would be necessary to subsequently rescind the resolution. Thus, adoption of Resolution 14-28 has a rescinding effect on any conflicting resolutions previously adopted, such as Resolution 13-35, for example, short of actually rescinding it. See RONR (11th ed.), p. 251, ll. 12-15. Also, p. 343, ll. 18-23:
... motions are out of order if they conflict with a motion that has been adopted by the society and has been neither rescinded, nor reconsidered and rejected after adoption. Such conflicting motions, if adopted, are null and void unless adopted by the vote required to rescind or amend the motion previously adopted.
To actually rescind a Convention resolution previously adopted would require adoption of a motion to rescind by the delegates assembled at an annual Convention. To go one step further, and also expunge the resolution from the record, would require an affirmative vote by a majority of all delegates registered in attendance at the convention, not just those assembled and actually voting during a particular plenary meeting. Therefore, even if the 14 members of the Board unanimously approved the motion to rescind Resolution 14-28 and expunge it from the record, the decision clearly would not constitute a majority of the entire membership, whose delegates number in the hundreds at each annual Convention. See RONR (11th ed.), pp. 310 and 404.
Moreover, the action of rescinding and expunging from the record must be done by the secretary in the presence of the assembly. In the case of AHCC, this would have to be the assembly of delegates at the annual Convention. The fact that this didn't happen constitutes a violation of the parliamentary authority adopted by AHCC, and therefore, general parliamentary law that it codifies.
Finally, if there is no record of the motion being adopted, in the minutes of the Board meeting where the decision was made, then the Boardaction would be null and void on that basis alone. If the Board were to decline to provide those minutes to a member upon request, a vote by a majority of all registered delegates (without notice), or by a majority of assembled delegates (with notice), at an annual Convention, would obligate the Board to produce the minutes and read them to the assembly. See RONR (11th ed.), p. 487, ll. 13-20.
It should be noted that the words, "NULL AND VOID", printed in red capital letters superimposed on the title of Resolution 14-28 in theAHCC 2014 Final Resolutions MATRIX, are incorrect. The action taken by the Board was to rescind and expungeResolution 14-28from the record (so the correct wording would be, "rescinded and ordered expunged"). It was not a ruling of null and void by the chair in response to a point of order made during a properly called meeting of the annual Convention or of the Board. Even if it was, hypothetically, the ruling would be invalid for the reasons explained in the above analyis. Such a ruling should appropriately be appealed at the time it is made, and the appeal would be debatable. Otherwise, it would never be too late to make a point of order, followed by an appeal if necessary, to reverse such a ruling. In any case, if such a point of order was referred by the chair to the judgment of the assembly, it would be debatable to the same extent as any subsequent appeal.
It is a fundamental principle of general parliamentary law that material expunged should be crossed out and still readable, rather than deleted. However, Resolution 14-28 was deleted from the record, except for the crossed out title that still appears in the published matrix for the 2014 AHCC programmatic resolutions.
At the 2015 Convention, the Board introduced Resolution 15-21, a copycat version of Resolution 14-28—as though this would somehow absolve the Board of its action, to rescind and expunge Resolution 14-28 from the record, which remains in conflict with the bylaws and parliamentary authority. It is also a contradiction, because if the Board had a valid basis for rescinding and expunging the 2014 resolution, then by extension, the 2015 copycat resolution should also be expunged from the record on that same basis. What is applied to one, should be applied to both, to be consistent.
The aforementioned points of order regarding the legality of the Board action to rescind AHCC Resolution 14-28 and expunge it from the record, could be renewed at a future Board meeting or annual Convention. Alternatively, a main motion could be made at a Board meeting or annual Convention to reinstate Resolution 14-28 or reverse the previous Board action to (illegally) rescind and expunge the resolution from the record (including the verbatim minutes).
Except in matters placed by the bylaws exclusively under the control of the board, the society’s assembly can give the board instructions which it must carry out, and can rescind or amend any action of the board if it is not too late.
A majority of delegates at the 2016 AHCC Convention demonstrated an unwillingness to challenge questionable actions taken by the Board of Directors, and the current Pelekikena (President) in particular. This was underscored by the re-election of the Pelekikena at the 2016 Convention. Thus, during the next two years, the odds are presumably not in favor of reversing the unilateral action taken by the Board in 2015 to rescind Resolution 14-28 and expunge it from the record, contrary to the bylaws and adopted parliamentary authority (RONR, 11th ed.). However, previous notice of a point of order or motion to reverse the Board action may result in a different outcome by allowing the assembly to have ample time to consider the issue in advance. An alternative of last resort would be to challenge the questionable action through a lawsuit, in an effort to bring the AHCC in compliance with its adopted rules pertaining to Resolution 14-28. Since AHCC is a voluntary association, members may opt to resign, or clubs may opt to withdraw, if unhappy that the violation is not properly resolved.