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BALLOT IRREGULARITIES

When members mark their ballots, they sometimes make mistakes that may or may not invalidate their votes. It depends on the particular error. Inspectors of Election should count the votes on a ballot when the meaning is clear.

  • Blank Ballots. Blank ballots were no votes are cast, still count toward quorum.
     
  • Candidate Dies. If a candidate passes away prior to the counting of ballots, his votes are removed from consideration. The remaining candidates with the highest votes win the election. If he dies after the election results are announced, the board appoints a replacement (unless the bylaws state otherwise).
     
  • Candidate Withdraws. If a candidate withdrew after the ballots are mailed, the board is not required to reschedule the election and send new ballots. Instead, the board should notify the membership so people don't waste their votes. As for those who already voted, their ballots are irrevocable. If they voted for the candidate who withdrew, their votes are unfortunately wasted. Those with the highest votes (other than the former candidate) will be elected to the board. The inspector of elections should still report all vote tallies, including those for the person who withdrew. 
     
  • Ineligible Candidate. If voters write in an ineligible candidate, the ballots are used for quorum purposes. Votes for the ineligible candidate are included in the Inspector's Report but do not affect the election results.
     
  • Ineligible Voter. If ballots have been cast by ineligible voters (as determined from the outer envelope), the envelope is not opened. Instead, the ballot is marked "Ineligible Voter" and the ballot is set aside unopened. An ineligible voter is anyone who is not a member of the association.
     
  • Missing Inner Envelope. If a member forgets to use the small inner envelope and places their ballot in the signed outer envelope, the ballot is still valid and should be counted.
     
  • Multiple Ballots. An owner of multiple properties will receive a ballot for each property. The owner should put each ballot in a separate double-envelope and return it to the inspector. If, however, he puts all three in one envelope, the inspector counts the votes on each ballot. On the other hand, if the person with multiple properties put all of his votes on one ballot, The inspectors can either (i) void the ballot because it has multiple votes on a single ballot, or (ii) count the votes. Inspectors have the authority to make a judgment call. (Civ. Code § 5110(c)(8).) Whenever feasible, inspectors should count the votes.
     
  • Multiple Envelopes. If multiple ballot envelopes are received from an owner, the first one counts, and the others are set aside unopened.
     
  • Proxy + Ballot.  If a ballot is mailed to the inspector of elections and a proxy is either included in the envelope is or is registered at a later date, the ballot prevails. Once a ballot has been cast by an owner, it is irrevocable and the proxy has no force or effect. The inspector should mark the proxy "Void" and write on the proxy why it was voided. It should then be set aside but retained by the inspector with the election materials once the election is concluded.
     
  • Signed Ballot. Restrictions on signing are imposed on associations, not owners. That means associations cannot require members to sign their ballots. (Civ. Code § 5115(a).) If an owner inadvertently (or intentionally) signs their ballot, inspectors of election should not invalidate the owner's vote. Their vote counts. 
     
  • Technical Errors. Misspelling a write-in candidate does not invalidate the vote. If a voter writes "Bob Smith" instead of "Robert Smith" or writes "Robert Smyth" instead of "Robert Smith," the technical error is overlooked and the votes counted (unless there are two owners with similar names--Robert Smith and Robert Smythe--which renders the votes uncountable).
     
  • Unsigned Outer Envelope. If the outer envelope is not signed, the envelope must be marked "Void" and set aside unopened. Although associations are not obligated to do so, it is permissible to contact members who failed to sign their envelopes so they can correct the oversight. Whether this is done or not will depend on the Inspector of Elections since he/she receives the ballots and oversees election integrity. Time and cost constraints will likely be a factor in the Inspector's decision, and whether the Inspector logs in the envelopes before the cutoff for receiving ballots. If they are not registered in advance of the meeting, the Inspector will not know that the envelopes have not been signed.
     
  • Illegible Address. If the outer envelope has an invalid or illegible owner name and address, the envelope must be marked "Void" and set aside unopened.
     
  • Unintelligible Ballots. If a write-in vote is illegible or the vote cast is otherwise unintelligible, the vote is not counted (but may used for quorum purposes).
     
  • Unsigned Envelopes. If a voter fails to sign the outer envelope, the ballot is not counted toward quorum. 
     
  • Unvoted Portions. If a ballot has multiple issues for voters to decide and ballots are cast where some issues are marked and others are not, the ballots are valid. The voted issues are counted and the blank ones are not.

The Inspector's Report should reflect irregularities where appropriate. See Robert's Rules of Order (11th ed.) pp. 415-417 for additional information about counting irregularities.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Stirling PLC