[Lnc-business] Analysis of Convention Alternatives

[Oliver Hall]

Greetings,

In anticipation of the LNC meeting tomorrow, I am sending a summary of 
options that may be considered with respect to holding the 2020 national 
convention. I am not recommending any particular alternative. My 
intention is only to address the legal issues that each alternative may 
raise.

 1. *_Hold the convention in-person as scheduled:_*

This option would violate Governor Abbott's Executive Order ("EO") 
GA-18, issued on April 27, 2020, which provides that "every person in 
Texas shall, except where necessary to provide or obtain essential 
services or reopened services, minimize social gatherings and minimize 
in-person contact with people who are not in the same househould." EO 
GA-18 expires on May 15, 2020, "unless it is modified, amended, 
rescinded or superseded by the governor."

EO GA-18 (or some similar order) may be in effect on the scheduled 
convention date, making it impossible to proceed. Additionally, the 
Marriott has canceled attendees' reservations and it appears unlikely 
that the Marriott is able or willing to perform under the current terms 
of our contract (including present dates of the convention). _
_

 2. _*Reschedule the convention for a later date:*_

Article 10(1) of the Bylaws provides that "the Party shall hold a 
Regular Convention every two years, at a time and place selected by the 
National Committee." Therefore, the LNC has the authority to take 
appropriate action to select a new time and place for the 2020 national 
convention.

If the LNC took such action, there is no way to know now whether it will 
be possible to hold the convention at the new time and place selected. 
In Texas, EO GA-18 may be extended, or a new Executive Order may be 
entered, which could make it unlawful to hold the convention at the new 
time and place selected. The same is true in many if not all other states.

Additionally, this alternative may impact the Party's ability to comply 
with ballot access deadlines and other requirements in various states. 
The Party might obtain relief from those requirements through 
litigation, but that is not guaranteed, even under the extraordinary 
circumstances presented by the COVID-19 pandemic.

 3. _*Schedule an electronic convention*_*:*

In my opinion, the LNC has authority under the Bylaws to hold an 
electronic convention, but it is a disfavored alternative that should be 
adopted -- if at all -- only under emergency circumstances that make an 
in-person convention impossible or impracticable.

The only provision of the Bylaws that expressly addresses the manner in 
which a convention must be held is Article 10(1) quoted above. That 
provision grants the LNC authority to hold a convention "at a time and 
place selected by the National Committee." Additionally, Article 7(1) 
provides that the LNC "shall have control and management of all the 
affairs, properties and funds of the Party consistent with these 
Bylaws." Because Article 10(1) does not prohibit an electronic 
convention or otherwise limit the LNC's authority to set the time and 
place of the convention, I conclude that an electronic convention is not 
inconsistent with the Bylaws, at least under the emergency circumstances 
presented here.

I recognize that Article 12 of the Bylaws expressly authorizes boards 
and committees to hold meetings by teleconference or videoconference, 
and that Article 12 is silent with respect to conventions. Additionally, 
one of the "Principles of Interpretation" set forth in Roberts Rules of 
Order, Newly Revised (11th Edition) ("RRONR") (at pp. 589-90) is that 
"If the bylaws authorize certain things specifically, other things of 
the same class are thereby prohibited." Further, Article 16 of the 
Bylaws provides that "The rules contained in Roberts Rules of Order, 
Newly Revised shall govern the Party in all cases to which they are 
applicable..."

The preferred interpretation of Article 12 of the Bylaws, therefore, is 
that it authorizes electronic meetings of boards and committees, and 
thus it generally should be construed not to authorize electronic 
conventions. A "Principle of Interpretation" is not a rule, however, and 
it is not inviolate. Principles that generally apply may not apply in 
unusual or unforeseen circumstances such as the LNC is now facing. (/See 
also/ "Parliamentary Law," Question 107, p. 452, available at 
https://babel.hathitrust.org/cgi/pt?id=mdp.35112104592482&view=1up&seq=498) 
(explaining that where a bylaw provision is "impracticable to carry out, 
the only thing that can be done is to change that provision to a 
reasonable one, complying, in making the change, with the spirit of the 
existing by-laws as nearly as possible.") Furthermore, another 
"Principle of Interpretation" in RRONR is that, where a Bylaw contains 
an ambiguity, "Each society decides for itself the meaning of its 
bylaws." (/See /pp. 588-89.)

Because the LNC Bylaws do not appear to have anticipated a global 
pandemic, strictly construing them to prohibit an electronic convention 
under these emergency circumstances, where the Bylaws do not expressly 
prohibit an electronic convention, is unwarranted in my opinion. An 
electronic convention is clearly sub-optimal from a parliamentary 
perspective, however, and it should be disfavored unless and until the 
Bylaws are amended to include an express authorization for an electronic 
convention. Furthermore, in the event that the LNC pursues this 
alternative, it may be wise to adopt a resolution recognizing that an 
electronic convention is disfavored and should not be considered unless 
emergency circumstances make an in-person convention impossible or 
impracticable.

 4. _*Amend the bylaws to include an express authorization for an
    electronic convention:*_

Article 17 of the Bylaws provides that they may be amended only by a 2/3 
vote of the delegates at any Regular Convention. Therefore, this does 
not appear to be a viable alternative.

 5. _*Amend the articles of incorporation to authorize an electronic
    convention.*_

Mr. Bishop-Henchman proposed this alternative. I believe it is a legally 
valid option for the reasons he stated. Although the manner of holding a 
convention is typically a matter to be addressed in the Bylaws, there is 
no reason the Articles of Incorporation cannot be amended to allow for 
an electronic convention.

I hope the foregoing analysis is helpful as the LNC considers the best 
course of action to address the challenging circumstances we are facing. 
I will be on the call tomorrow in case I am needed.

Thank you,

Oliver Hall
/Special Counsel
/Libertarian National Committee
202-280-0898