April 15, 2016
Hybrid system allows for competition while vetting candidates, leveling field
By Mark Martini
It’s that time of year again, and we are in the throes of election season. No, I’m not talking about Trump and Clinton – though I could go on and on about that. I’m talking about the ACBA elections. Each year around this time, questions start to circulate over why the ACBA doesn’t run contested elections for the presidency of the association. So I am writing to provide some clarity about our nominating and election procedures.
Those initially slated for all officer positions, the board of governors and the judiciary are first vetted and selected by the ACBA Nominating Committee before appearing on the ballot. The nominating committee is made up of 15 to 20 ACBA members who are appointed each year by the president upon consultation with the president-elect and immediate past- president. Members of the committee must be actively involved in the ACBA and have knowledge of bar association procedures. Additionally, when viewed as a whole, the committee must be diverse in terms of gender, race and practice. The committee tends to have a wide brush of representation from across the bar.
Each year, multiple highly qualified candidates submit an application to the ACBA Nominating Committee seeking the nomination to serve as president-elect of the association. Although the only formal prerequisite to serving as president is having previously served on the board of governors, I – as someone who has served on many nominating committees – can tell you that those applying for the presidency nearly always have multi-page resumes (and that’s just to list their ACBA involvement) and a record of leadership that spans many years, if not decades. While all of the candidates tend to look great on paper, each is asked to appear before the nominating committee to outline his or her vision and plans for the ACBA and to explain why he or she should be nominated to serve as president. The committee then discusses all of the candidates, and the candidate who receives a majority vote of the committee members is then slated to appear on the ballot for the position of president-elect.
Importantly, and what many may not realize, this is not the end-all of the process. At the ACBA Annual Meeting each March, the nominating committee’s slate of candidates for all positions, including president-elect, are presented to the membership. At that meeting, any member of the association who meets the minimum qualification to serve as president – not just those who came before the nominating committee – can be placed on the ballot for the presidency with a simple motion made by another member of the association. So, while the suggestion is that the presidency is “uncontested,” the candidates are vetted by the highly respected individuals who serve on the nominating committee; and, regardless of who the committee nominates, anyone who is unhappy with the committee’s decision or who meets the qualification for the position can be placed on the ballot with minimum effort.
The question that tends to follow is that if the candidates who apply to the nominating committee are so qualified, then why not put them all – or the two or three most qualified – on the ballot and let the members decide the next president. For starters, as noted above, any person who has served on the board of governors, regardless of whether they appeared before the nominating committee, can be placed on the ballot with the support of just one other ACBA member at the annual meeting.
But the concept of putting more than one candidate on the ballot isn’t new. Indeed, many years ago, this association did in fact regularly have contested elections. In 2005, then-President Bob Racunas appointed an ad hoc committee to explore the entire election and nominating process, including the propriety of having the nominating committee select just one candidate for president-elect. The ad hoc committee held several meetings on the issue, and the board subsequently visited the issue at two meetings. After being informed on the procedures used by other bar associations, the history of our own association’s elections and the potential downfalls of other types of selection/election procedures, the board decided that it was in the best interest of the association to run a hybrid system in which the nominating committee would nominate one individual but any qualified individual would be able to easily run from the floor.
No election procedure is perfect – don’t get me started on the two-party system – but the board felt that this system that we have used for decades best allows for the qualified candidates to be vetted by the nominating committee, with one presented to the membership for consideration, while still allowing for an open election between two or more candidates if the circumstance arises.
The potential negatives of nominating more than one candidate for the presidency, or of regularly running contested elections for the position, are well known by bar associations nationwide. While it is true that some metro bar associations have fully contested elections and require their candidates to campaign for the position, it is not uncommon for those candidates and their law firms to spend thousands – and at times, tens of thousands – of dollars to get elected to a volunteer position. Such a procedure stifles diversity and opens up the possibility of only the most financially well-off attorneys being able to run for the position with no guarantee of being elected.
In the last 10 years or so, we have had presidents whose backgrounds include being a judge on the Court of Common Pleas, a law school dean, a nonprofit executive director, an of-counsel attorney and small law firm practitioners. I sincerely question how many of those great presidents – who volunteered countless hours of their time to serve as president – would have never even thrown their hat in the ring had they or their employer been expected to pony up thousands of dollars just to run for the position. Such a scenario would be a disservice to the members who want to serve and to the association as a whole.
A regularly contested election also could have a chilling effect on qualified potential candidates who might not be part of one of the larger sections of the bar. For example, what chance would the solo practitioner who doesn’t have a civil or family law practice have against a well-known civil litigator or family law practitioner with the backing of an entire section? The solo practitioner may have given blood, sweat and tears to the association for years and be the most qualified to serve as president, but he or she might stand little chance in an election against a candidate with the backing of a highly populated section. I, for one, want the most qualified person to serve as our president, not the most popular.
I don’t pretend to believe that our nomination and election process is perfect, but I reiterate that no process is. I can, however, assure you that the bar has examined the issue and determined that the system we have is in the best interest of the association, the potential candidates and the members. We can’t ask for more than that.