Published in the ECHO Journal, November 2007
Homeowner association members in California continue to raise questions about how elections should be conducted under the new law that went into effect in 2005. This article provides answers to some of the more interesting questions have been asked recently.
Official Ballots Only
QUESTION: Can members create and distribute their own election ballots?
ANSWER: No. According to Civil Code Section 1363.03(e), ballots shall be delivered “by the association” to every member. As with municipal, state and federal elections, voters cannot substitute their own ballots for official ballots. To make sure owners are aware of this restriction, boards should include it in their election rules.
QUESTION: Can we write in candidates on our ballots if they were not previously nominated?
ANSWER: Under Civil Code Section 1363.03(j) associations may adopt election rules that permit write-in candidates. It would seem from the language of the statute that unless your election rules provide for write-ins, they are not allowed. However, there may be an exception. If your rules are silent as to write-ins, check your nomination procedures. If nominations are allowed from the floor of the annual meeting, then write-ins are impliedly valid, provided the write-in candidate (i) is actually nominated at the meeting, (ii) accepts the nomination, and (iii) meets the qualifications of a director.
Inspecting the Voter Sign-In List
QUESTION: Prior to the counting of ballots, can owners inspect the sign-in list? We want to know who casts ballots.
ANSWER: Although there is no requirement that inspectors allow access to the voter sign-in list, there may be good reason to allow it prior to opening the outer ballot envelopes (the ones with the voter identification information).
For example, if a person not on title (such as a spouse) or a member not in good standing (who had his or her voting rights properly suspended) were to vote, the ballot could not be challenged if other owners don’t know the person mailed in a ballot. If the challenge is not made prior to the opening of ballots, no challenge may be made since the challenged ballot can no longer be identified and removed from the tabulation process. Although California’s Election Code Section 15105 is not binding on associations, it provides guidance on this issue:
Prior to processing and opening the identification envelopes of absent voters, the elections official shall make available a list of absent voters for public inspection, from which challenges may be presented. . . . All challenges shall be made prior to the opening of the identification envelope of the challenged absent voter.
Recommendation: After the polls have been closed and prior to opening the envelopes, owners should be allowed to inspect the registration or sign-in list if they request it.
Access to Inspector’s Voter Tally
QUESTION: During an election, can owners demand from the Inspector of Elections a running tally of who returned their ballots? We want to know who voted so we can lobby owners who have not yet voted.
ANSWER: There is no requirement that inspectors provide such information. As provided for in Civil Code §1363.03(c)(3), inspectors of election must perform the following duties:
- Determine the number of memberships entitled to vote and the voting power of each;
- Determine the authenticity, validity, and effect of proxies;
- Receive ballots;
- Hear and determine challenges and questions arising out of the right to vote;
- Count and tabulate votes;
- Determine when the polls close;
- Tabulate the results of the election; and
- Perform any acts as may be proper to conduct the election with fairness.
Providing a tally of owners who cast votes is not listed as one of the inspector’s duties.
Some could argue that inspectors should supply a list because they must prepare it anyway. That argument is not valid since the statute [Section 1363.03(f)] allows but does not mandate that inspectors verify voter information prior to the meeting. Civil Code They could wait until the meeting.
If an association wants the inspector to prepare and disseminate a running tally of who has or has not voted, it needs to make arrangements with the inspector to provide this service. There will likely be an additional charge for the time involved in providing such information.
Witnessing the Counting of Ballots
QUESTION: What does the requirement that members can “witness” the counting of ballots mean?
ANSWER: Unfortunately, Civil Code 1363.03(f) does not define what it means; it merely states that:
All votes shall be counted and tabulated by the inspector or inspectors of election or his or her designee in public at a properly noticed open meeting of the board of directors or members. Any candidate or other member of the association may witness the counting and tabulation of the votes.
Because the statute does not define “witness,” we can turn to California’s election code for guidance. State and county guidelines are fairly uniform that observers must be allowed sufficiently close to observe the process but not the actual votes on the ballots. This means that observers cannot stand over the shoulder of a ballot counter. Instead, they must sit or stand at a reasonable distance and observe the counting process.
Who May Observe?
As provided for in Civil Code Section 1363.03(f), observers may only be candidates or members of the association. Lawyers representing candidates do not qualify.
Anyone who disrupts the election process may be ejected from the area. The person may also be fined, provided the association’s rules provide for it. Using the guidelines found in Election Code Section 15104(e), observers may not:
- Touch any voting materials or equipment;
- Touch election personnel;
- Assist in the tabulating of votes;
- Talk to ballot counters while they are processing ballots;
- Make loud noises or distract ballot counters;
- Use cellular phones, pagers, two-way radios, cameras, audio or video recording devices, or camera phones during the balloting;
- Eat or drink while votes are tabulated; or
- In any way interfere in any way with the conduct of the election.
Adrian Adams is a principal in the Los Angeles firm of Adams & Kessler llp. This article is reprinted from the Davis-Stirling.com Newsletter.