How to Count a Majority for Voting
“How do we know its majority rule in your city?” asked an assistant attorney general reviewing a bond application for a city I represented. What? You mean are we a democracy? I asked. Yes, prove it, the AG said.
How do you know white is white or one plus one equals two? How do you prove a city in Texas, within a county in Texas, within the State of Texas within the United States is a democracy honoring majority rule as opposed to a local monarchy, a city-state or a banana republic strongman? Is there a law that says majority vote wins? The Texas and Federal Constitutions just established 3 branches of government, but where does it say you have to vote and a majority vote wins?
In 1922, the Texas Supreme Court stated that “The general rule is that, in the absence of an express provision to the contrary, a proposition is carried in a deliberative body by a majority of the legal votes cast.” The Texas Legislature in 1985 stated that “A grant of authority to three or more persons as a public body confers the authority on a majority of the number of members fixed by statute. A quorum of a public body is a majority of the number of members fixed by statute. A joint authority given to any number of officers or other persons may be executed by a majority of them unless expressly provided otherwise. A majority of a board or commission established under law is a quorum unless otherwise specifically provided.” Wow, I’m glad we didn’t have any monarchist in 1921! Having the question of our form of government settled, how do you count the votes?
Lawyers are terrible at math. Perhaps it’s because they usually come in to law school as English majors or debaters. The really bad part is that they think they are good at math; especially when it comes time to divide profits, then everyone becomes an Einstein.
Recently, an issue arose in a municipal setting requiring long division and multiplication of fractions. Think Count Dracula of “Sesame Street” as Martin Sheen’s character in “Apocalypse Now” saying, “the horror, the horror.” Here is what caused the horror: what number equals a super majority of a city council or board? Regardless of whether it is 2/3 or 3/4, is it a number greater than a majority? Or is it? Is the number to be calculated on the members present or the total membership? Do you round up or round down if you come up with a fraction? Oh, the humanity of it all.
The members present or total membership is determined by rules (hopefully) adopted by the body before the issue comes up. Careful drafting of the rules or city charter should make this clear; extremely careful drafting is necessary. Using phrases such as “full city council” has caused a debate.
The same goes for determining the vote under deed restrictions. Is it the majority of the “owners of the lots” or a majority of the lots? Usually husband and wife own a house, which would be two owners per lot, or is a majority simply more than half of the total owners or total lots? There have been lawsuits to resolve the questions of what the deed restrictions mean.
It is better in drafting to define majority as more than half. The use of fifty percent plus one can cause problems. Suppose in voting on a motion 17 votes are cast, 9 in favor and 8 opposed. Fifty percent of the votes case is 8 ½ so that 50 percent plus one would be 9 ½. Under such an erroneous definition of a majority, the argument is that the motion was not adopted because it did not receive 50 percent plus one of the votes cast, although it was clearly passed by a majority vote. Where is that bottle of Tylenol?
Do you round up or down when computing a vote? No, it is a vote—you cannot ignore a vote cast. But what is two-thirds of 101 votes? Mathematically it is 67.33 votes. Will 67 affirmative votes out of 101 votes cast meet the requirements of a 2/3rds vote? No, the requirement of a two-thirds vote means at least two thirds. Nothing less will do. If 101 votes are cast, 67 affirmative votes are not at least two-thirds. That is less than two-thirds. Therefore, for a super majority of 101 votes cast, 68 votes are required. Or, in other words, always round up when counting votes; fractions are given a full vote.
What happens if you had a 6-member board? A majority is defined as more than half would be 4. A two-thirds majority mathematically would be 4 (6 x 2=12 divided by 3 =4). Two-thirds of a 14-member panel is 10, which is the same for a 15-member panel. In other words a two-thirds super majority is twice as many affirmative votes as negative votes.
What is a person to do? Consult a lawyer!