Numera Senatum! Broker Non-Votes And The Quorum Problem

In ancient Rome, the Senate could not conduct business unless a quorum was present. A senator wishing to delay action by the Senate could demand a quorum count by demanding “numera senatum!,” meaning count the house. The Romans didn’t invent the idea of the quorum. Before the Romans, the Athenians imposed a quorum requirement on their civic assembly, ?????s?a (Aristophanes’ play, Ecclesiazusae, that I mentioned the other day derives its name from Athenian assembly). 

The idea of a quorum requirement has been transplanted from the political to the corporate world. Both the California and Nevada, for example, prescribe default quorum requirements for shareholder meetings and permit some variations. California allows the articles of incorporation to alter the default quorum standard but imposes a floor. Cal. Corp. Code § 602(a). Nevada allows for alteration either by the articles or the bylaws and imposes no floor. NRS 78.320(1)(a).

This all seems very straightforward, but there can be complications. For example, what if some proxies withhold the proxy holders’ authority to vote on some matters. Can these proxies be counted toward a quorum or must a proxy holder be empowered to vote on all matters at a meeting? The California General Corporation Law doesn’t touch this question.  Nevada, on the other hand, provides a clear statutory answer – a quorum is based on the voting power present in person or by proxy, regardless of whether the proxy has authority to vote on all matters. Id.