Write-In Candidates: When are they Required?

Published in the ECHO Journal, March 2013

A major legislative overhaul of how homeowners associations in California are required to conduct director elections (and other membership votes) occurred in 2006.[1] At each election cycle since then, our clients have barraged us with a number of excellent questions for clarification on various aspects of the relevant law. One of the questions we hear often deals with write-in candidates: “Is the secret ballot required to have spaces for write-in candidates?”

It is an interesting question and it is not one we had any reason to give much thought to before the enactment of Section 1363.03. With a few exceptions, prior to 2006 director elections occurred at an association’s annual membership meeting and a member would typically vote for whomever had been nominated at that meeting. Post-2006, however, the statute requires elections to be conducted very differently.

Our first instinct when the above question was originally posed to us was to check Section 1363.03 for guidance. Unfortunately, beyond a brief mention in Section 1363.03(j) stating that the election rules adopted pursuant to Section 1363.03(a) “may permit write-in candidates for ballots”, there is no language to tell us when write-in candidates are required on director election secret ballots. At the very least, the statute contemplates write-in candidates as being an acceptable method of nomination. Not unexpectedly, however, it seems the legislature intended for us to do a bit more mental heavy-lifting to figure out when write-in candidates should be permitted or required.

After reviewing the statute, the next logical place to seek guidance to answer the question posed would be an association’s governing documents, and usually the bylaws.[2] However, as most of our clients’ bylaws were written and adopted prior to 2006, any such older bylaws do not contain language taking the new election process into account. Consequently, very few of the pre-2006 bylaws expressly mention or authorize write-in candidates, as that was simply not a common method for members to become candidates at the time. Of course, if an association’s pre-2006 bylaws do happen to mention write-in candidates, then the answer to the above question for that association should be much clearer. In such a case, the election rules that were drafted by that association pursuant to Section 1363.03(a) will (hopefully) be consistent with the bylaws (this article will not address what happens if such election rules contradict the bylaws on that point) and will indicate whether or not write-in candidates are allowed or required for that particular association.

However, as noted above, the much more common situation is that an association’s bylaws do not mention write-in candidates at all. If the bylaws are silent, how can the question of whether write-in candidates are required for a particular association’s director elections reliably be solved? Is it as simple as saying that write-in candidates must not be allowed if the bylaws are silent? Unfortunately, it is not that simple. It involves, as was hinted earlier, a bit of mental heavy-lifting.

While it is true that most pre-2006 bylaws are silent on write-in candidates, most bylaws do specify other methods of nominating candidates for election to an association’s board. The methods of nomination in bylaws can certainly differ and Section 1363.03 does not require that certain nomination procedures in older bylaws be preferred or used over others.[3] The question then is which of these varying nomination methods could be interpreted, in consideration of and in conjunction with Section 1363.03’s secret ballot requirements, to require or allow write-in candidates on the secret ballots? In the author’s opinion, the only method of nomination that could possibly be interpreted to require or allow write-in candidates on secret ballots is “nominations from the floor”.[4]

Our reasoning for this is that nominations from the floor accomplish the same objective and have nearly the same effect as write-in candidates. Writing in a candidate, as a method of nominating such candidate for election to the board, allows anyone to “throw their hat in the ring”, as well as anyone else’s hat, should they desire, irrespective of any other person who may have conducted a formal candidacy and campaign. Nominations from the floor have that same effect. However, unless the meeting where “nominations from the floor” are taken is held prior to the secret ballots being mailed out, it is simply not a useful method of nomination under Section 1363.03 (since candidates cannot be added to the ballots via nominations from the floor once the ballots have been mailed).

With the above discussion in mind, we can answer the question of “Is the Association required to provide space on the secret ballot for write-in candidates?” with the famous lawyerly response of “It depends . . . .” There are a few different scenarios that are possible and the following example situations should help explain those scenarios (please note that, in each case, the bylaws are assumed to be silent on the use of write-in candidates):

  1. If the association’s bylaws do not allow or require nominations from the floor, then write-in candidates are not permitted in that association’s director elections unless the association’s election rules authorize or mandate write-in candidates.
  2. If the association’s bylaws do allow or require nominations from the floor, and a meeting is held to accept nominations from the floor prior to the beginning of the balloting period in compliance with Section 1363.03 (so that the names of any candidates nominated from the floor are preprinted on the secret ballot), then secret ballot write-in candidates are not permitted unless the election rules authorize or mandate write-in candidates be allowed.
  3. If the bylaws do allow or require nominations from the floor, and a meeting is not held to accept nominations from the floor prior to the beginning of the balloting period, then write-in candidates must be allowed.[5]

The above situations, where the bylaws are silent on write-in candidates, should adequately address whether or not write-in candidates are required for a particular association’s director election. Again, we leave it to our colleagues to point to other mechanisms (besides “nominations from the floor”) that may exist in an association’s bylaws that could produce the functional equivalent of write-in candidates.

In practice, of course, nothing is ever a perfect match with example situations. Always check with your association’s legal counsel for guidance in determining whether or not write-in candidates are authorized or required for your director elections.

[1]California Civil Code Section 1363.03 (which was enacted by Senate Bill 61 and then amended by Senate Bill 1560).  All subsequent statutory references are to the California Civil Code.

[2]While write-in and other election/nomination provisions could certainly be found in other association governing documents (and not just an association’s bylaws), for purposes of this article and simplicity, we will refer only to an association’s bylaws.

[3]However, Section 1363.03(a)(3) indicates that any nomination or election procedure that would disallow a member of the association from nominating himself or herself for election to the board of directors shall not be deemed reasonable.

[4]The author cannot readily identify any other nomination procedure or mechanism that provides the functional equivalent of nominations from the floor or write-in candidates but he leaves it to his colleagues to determine if there are any other such procedures or mechanisms.

[5]The author recommends including an express requirement in the election rules to either (1) hold a meeting for nominations from the floor prior to mailing or delivering the ballots, or (2) ensure that write-in candidate spaces are provided for on the secret ballot if such a meeting is not held.  This way, the likelihood that anyone conducting the election will overlook the issue becomes much smaller.

Deon Stein is the owner of The Law Offices of Deon R. Stein in Sacramento.  Mr. Stein has been advising homeowners associations throughout California for 23 years.