Can uncontested elections be done by acclamation? There is disagreement in the legal community about whether ballots must be sent out if the election is uncontested, i.e., the number of candidates is less than or equal to the number of open seats.

Argument for Balloting. Those who believe that ballots must be mailed, returned, and counted, even if the outcome is already known, cite the language in Civ. Code §1363.03(b):

Notwithstanding any other law or provision of the governing documents, elections regarding assessments legally requiring a vote, election and removal of members of the association board of directors . . . shall be held by secret ballot in accordance with the procedures set forth in this section.

Arguments Against Balloting. Those who believe that balloting is not necessary argue that the law does not require idle acts nor does it favor form over substance. (Civ. Code §3532; Civil Code §3528; Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016.) Moreover, Civ. Code §1363.03(b) requires balloting only if an election requires a vote. If the election is uncontested, there is no need for a vote. The purpose of secret balloting is to protect voting privacy in contested elections not uncontested elections.

Robert's Rules of Order. As provided for in Civ. Code §1363(d), associations must adopt parliamentary procedures for membership meetings. Under Robert's Rules of Order if there is no opposition there is no need for a formal vote, the matter is decided by "acclamation" or by "unanimous consent." However, unanimous consent or acclamation cannot be used if the bylaws require the election to be by ballot. (Robert's Rules, 10th ed., pp. 428-429.) Therefore, (i) if an association's governing documents require that membership meetings be held in accordance with Robert's Rules of order and (ii) if the association's bylaws require that its election be done by balloting, the bylaws need to be amended to dispense with balloting if the election is uncontested.

NOTE: If counting the ballots affects the outcome, i.e., it determines who receives a 1-year term and who receives a 2-year term, then ballots must be mailed and counted even if the candidates are unopposed.

RECOMMENDATION: Dispensing with balloting in uncontested elections makes the most economic sense. To remove any ambiguities, associations should amend their bylaws to eliminate balloting in uncontested elections, eliminate write-ins and eliminate floor nominations.