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. The ballot is not counted toward quorum. 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. RONR (12th ed.) 45:35.
- 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). RONR (12th ed.) 45:33.
- 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). RONR (12th ed.) 45:32.
- 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.
Inspectors Report. The Inspector's report should reflect irregularities where appropriate. See RONR (12th ed.) 45:31-36 for additional information about counting irregularities.
When a Vote Recount May be Held
Many times elections are decided by a single vote. Although the Inspector of Elections determines the outcome of the election (Civ. Code § 5110(c)(7)) one or more candidates can request a recount. In the event of a tie vote, a recount should be automatic. A "recount" is an official count by the Inspector which may change the outcome of the original count. If the tabulation changes, the Inspector then announces the new numbers which become the official outcome of the election. Neither the Davis-Stirling Act nor the Corporations Code addresses recounts. Although not binding on homeowner association elections, California's Elections Code provides useful guidelines on how recounts can be handled by associations.
- The request must be in writing. (EC § 15620.)
- The request be lodged within five days of the announcement of the election results. (EC § 15620.)
- The person seeking the recount must deposit with the elections official an amount to cover the cost of the recount. If the recount changes the outcome of the election, the monies shall be returned to the person. If the recount does not change the election results, any funds in excess of the cost of the recount shall be returned. (EC § 15624.)
- The recount shall be conducted under the supervision of the elections official. (EC § 15625.)
- The recount shall be commenced not more than seven days following receipt of the request by the elections official, weekends and holidays excepted. (EC § 15626.)
- A notice stating the date and place of the recount must be posted and all candidates notified. (EC § 15628)
- The recount must be conducted publicly. (EC § 15629.)
- Ballot may not be touched or handled without the express consent of and under the supervision of the elections official. (EC § 15630.)
- The results of the recount shall be posted. (EC § 15633.)
Written Demand. Using the Elections Code as a guideline, any member of the association can demand a recount provided (i) it is made in writing to the Inspector of Elections within five days after the election results have been announced and (ii) the member pays in advance for the cost of the recount. Monies advanced by the member shall be refunded if the outcome of the election is changed by the recount.
Recount Procedure. The recount must commence not more than seven days following the request for the recount must be supervised by the Inspector of Elections. The recount may be observed by members of the association. No election materials may be touched or handled by any person without the express consent of the Inspector of Elections and under the supervision of the Inspector.
Results Published. The results of the recount must be reported to the board of directors and the membership and must be recorded in the minutes of the next board meeting.
The Cost. As a rule, the person asking for a recount bears the cost. Until last year, not even the State of California had a policy for state-funded recounts. The cost will depend on the size of the association (the number of ballots cast) and whether the recount is done by machine or by hand.
Recommendation: Boards should amend their election rules to address recounts and tie votes.
Tie Vote - Coin Toss, Runoff Election
The Davis-Stirling Act does not address how associations should handle elections when two or more candidates receive the same number of votes. If there is a tie vote, the inspector can on his/her own initiative hold a recount. As provided in Civil Code 5110(c), inspectors have the authority to determine the tabulated results of the election and to perform any acts as may be proper to conduct the election with fairness. In addition, the board could authorize a recount if they thought it beneficial, i.e., it would be less expensive than a run-off election.
If the association’s governing documents specify a method for breaking a tie, then that method must be used. If the bylaws or election rules are silent, The winner can be determined by flipping a coin for two-way ties, but only both candidates agree. In a three-way tie, the candidates can either draw straws or draw a name to determine the winner, but only if all agree. If one or more candidates wish, a runoff election must be held. For guidance, we can turn to California's Elections Code. It states a special runoff election must be held not less than 40 nor more than 125 days after the tie vote. (Elections Code § 15651.)
For more information, see "Election Menu."
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