Hindsight from The New Gun Week March 1, 1998
Court Orders Fair NRA Election
by Joseph P. Tartaro
Executive Editor
On Feb. 5, two days before the most recent meeting of the National Rifle Association's board of directors, a New York state Supreme Court judge issued a temporary injunction requiring the NRA's leadership to follow the letter of the Association's bylaws in the 1998 balloting for 26 seats on the board of directors.
The order signed by Judge Beatrice Shainswit in Manhattan came just prior to the deadline for printing the March issues of the three magazines which carry the annual ballot. It prohibits management from showing on the ballot or anywhere in the official journal the method of nomination for candidates.
The bylaw in question, Article VIII, Section 3(e), adopted in 1979, states:
"In both the official journal and on the official ballot, no persons nominated by petition nor by the Nominating Committee shall be so designated."
The court order is the result of a pleading in New York state, where NRA is incorporated, by ten candidates for the board qualified for the 1998 ballot by petition of members, led by Howard Fezell, a practicing attorney and NRA director who was not renominated by the Nominating Committee.
Fezell had written to Edward J. Land, NRA secretary, on Dec. 17, 1997, requesting that any designation as to the manner in which Fezell was nominated as a candidate be removed from his biography to be published in the official journal. He further requested that NRA notify all candidates whose biographical sketches contain any reference to the method of nomination that such designations are not permitted by the bylaws. And he asked assurance that the report of the Nominating Committee listing its choices not be printed.
When he received no response, Fezell, in company with other petition candidates, filed the suit. The NRA immediately cross filed and asked that the action be dismissed.
After citing case law in the subject, Shainswit wrote:
"Based upon the foregoing principles of law, the court can reach only one conclusion with respect to the bylaw at issue. It says what it says in very unambiguous terms....it clearly and unequivocally says that candidates cannot be so designated in 'both the official journal and on the ballot.' Therefore, defendant's evidence of a different intent behind adoption of the bylaw in 1979 and its subsequent interpretation by NRA Boards, members, and candidates for the past 20 years is inadmissible."
The following week, the battle moved to the Washington, DC, media where The Washington Times published a story which was obviously spin-doctored by NRA leaders because the suit was reported to be an effort by "NRA dissidents" to "block leadership's plan to publicize endorsements." The Times quoted NRA President Marion Hammer as saying, "This effort is about keeping Charlton Heston from becoming president of the NRA and trying to get rid of Wayne LaPierre as well. This is the first time in our history that a sitting member of the board would sue the organization....Bringing the courts in to tell us how to run the organization, rather than the board, is just unconscionable."
The paper quoted Fezell as saying: "I have volunteered thousands of hours of time to preserve the right to keep and bear arms and never thought I would see the day I would be involved in litigation with the NRA, but it was the only way to ensure a fair election."
The next day, The Times printed a letter from Neal Knox, another NRA director, that said "The judge's ruling may have saved the NRA the embarrassment and expense of having the election overturned, just as the courts overturned the Teamster's election....The issue isn't whether Vice President Charlton Heston or Executive Director (sic) Wayne LaPierre will be re-elected by the NRA board—as I'm confident they will—but whether there's a fair board election, which is what the court ordered."
How the voting members of the NRA will react to this phase of the internal battle that has been going on since late 1996 remains to be seen. The leadership wants to make it seem that the board election this year is a referendum on LaPierre and Heston. The other faction is trying to overcome the tremendous advantages of incumbency and management control of the official journal.
The battle over designating the method of nominating candidates—and even the two nominating processes—have been the source of internal discord for over 20 years. And while board members may not have sued the Association before, the board has sued members, and individual members have sued and won to clarify their rights. The court has been and continues to be an unwelcome but necessary option.
The main purpose of some of the changes made in Cincinnati in 1977 was to make the board more accountable and responsive to the members and their interests. Under the old president-appointed nominating committee system, the outcome of board elections was pre-determined by NRA management, usually led by the president, and was seldom in doubt. If a person was nominated, they were elected.
Before then, the only alternative to the committee's slate, frequently including only as many nominees as vacancies, was the write-in option. No one was ever elected by write-in.
Two of the bylaw changes adopted in Cincinnati were designed to reduce the tremendous power of the president to perpetuate the board in his or her own image.
The one bylaw amendment gave the board power to elect the nominating committee and required the board to choose three of the committee's nine members from among the voting membership at large. The other provided for nomination by a petition containing at least 250 valid signatures of voting members.
These bylaw changes enacted by the members in 1977 governed the elections which took place the next year. In 1978, NRA-voting members elected 27 board members using the new method for the first time. The numeral "1" was used on the ballot to designate those nominated by committee, the numeral "2" to designate those nominated by petition. Both numbers were used for any candidate with dual nomination.
It should be noted that in 1978, the first board-elected nominating committee named 35 candidates for 27 board vacancies, thereby offering the NRA voting members for the first time a wider choice. However, 15 candidates also were nominated by petition, three of whom also had nominating committee endorsement.
In that election, seven petition-only candidates were elected for the first time. Seventeen candidates nominated only by the committee were elected. However, the candidates ranked first, second and third in the mail balloting were dual-nominated.
Those interested in gaining an edge in elections took notice of this result and in 1979, several groups, including some allied with management, circulated multi-name petitions. Meanwhile, the nominating committee returned to pre-Cincinnati practices and nominated just 26 candidates for 26 vacancies. Twenty-three of the 26 were also petition nominees.
As might be expected, the 23 dual nominees swept the top 23 vote-gathering slots in the 1979 election. It seemed that any power given to the members through the democratizing petition process had been neutralized.
In response, the members who still proposed, debated, sometimes amended, and voted on bylaw changes on the floor of an annual meeting in those days, further amended the bylaws in 1979 to the language cited by Shainswit.
But that was not the end of the matter. In 1981, at the annual meeting in Denver, the members turned back a management-proposed bylaw change which would have further changed the bylaws to actually require designations of the method of nomination on the ballot. In a May 1981 editorial which went to the core of the issue, Shooting Times said: "As long as there is no indication on the ballot of how a candidate is nominated, voting members will be required to evaluate potential directors solely on the basis of their biographies and qualifications, and anti-democratic influences within the existing NRA Board will not be able to use the grassroots petition system to their advantage, as they did in 1979."
It was later argued that while the NRA staff could be prohibited from showing the method of nomination on the ballot, individual nominees could include such information in the biographies they draft for publication in the NRA official journal next to the ballot.
Since 1984, the management has circumvented the bylaw prohibition by having a majority of the board pass a resolution calling for publication of the Nominating Committee's report—usually printed adjacent to the ballot—thereby showing which candidates are endorsed by the same people who elected that nominating committee in the first place.
Given the foregoing history it is not surprising that a candidate finally took the issue to court. What is surprising is that it took so long.
The New Gun Week is published three times a month by the Second Amendment Foundation (SAF) on the 1st, 10th, and 20th. Hindsight is a commentary written by SAF President and Gun Week Executive Editor Joseph P. Tartaro. This commentary may be reprinted so long as credit is given to the author and the publication. For more information or to subscribe, write Gun Week, PO Box 488, Buffalo, NY 14209, or call 716-885-6408 Monday through Friday 9 a.m. to 5 p.m. EST, or inquire on Compuserve to John Krull, Production manager-JohnSAF@Compuserve.com or gunweeksaf@broadviewnet.netAlso, check out the New Gun Week at http://www.GunWeek.com