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CUMULATIVE VOTING IN ELECTIONS

1.  CONVENTIONAL VOTING. In a contested election with conventional voting, i.e., no more than one vote is cast per candidate (like municipal, state, and federal elections), the formula for the number of votes needed to guarantee the election of a director is as follows:

V =    M    + 1 (Truncate if the result is fractional, i.e., do not round up or down--simply eliminate the fraction.)
(D + 1)


V = VOTES (number of votes needed to guarantee the election of a director)
D = DIRECTORS (total number of open seats at the time of the election)
M = MEMBERS (total number of members eligible to vote)

Example. Assume a 5-member board serving 1-year terms, a membership of 100, and a contested election (more than 5 candidates running for 5 open seats on the board). The formula produces the following result:

Votes  to guarantee the election of one director =  100   + 1 = 17.7 When truncated, the number 17.
(5 + 1)


Based on the above results, any attempt to block one candidate from being elected would require 17 votes each for five other candidates. 5 x 17 = 85, leaving only 15 votes for the remaining candidate. If the minority candidate receives at least 17 votes, it will be impossible to block this candidate since 18 votes must be cast for 5 other candidates. Because 5 x 18 = 90, but only 83 votes remain, there are not enough remaining votes to block this candidate.

2.  CUMULATIVE VOTING. Cumulative voting is different. If you have 5 open seats and more than 5 candidates, members can cumulate (or stack) their votes for candidates. It means votes may be distributed in any manner they choose (so long as no more than 5 votes are cast). For example, members can cast:

5 votes for one candidate, or
4 votes for one candidate and 1 for another, or
3 votes for one candidate and 2 for another, or
2 votes for one candidate, with one each for 3 other candidates, or
1 vote each for 5 candidates

A voter can also choose to throw away votes. For example, a voter might cast 2 votes for one candidate and no votes for any of the remaining candidates. Voters can also turn in a blank ballot, thereby throwing away all their votes but allowing their ballot to count toward quorum.

a.  When Cumulative Voting is Required. Cumulative voting is required under the following conditions:

  • Governing Documents. Although optional under Corporations Code § 7615(a), the Davis-Stirling Act requires the inclusion of cumulative voting on ballots if permitted in an association's governing documents. (Civ. Code § 5115(e).) That means notice must be given to the membership of their right to cumulate their votes so all members can exercise that right. (Corp. Code § 7615(b).) To satisfy the requirement, notice to cumulate votes should be given in the voting instructions when ballots are mailed to the membership.
     
  • Director Elections. If cumulative voting is required (as described above), it only applies to director elections and only when more than one director is elected to the board. Sometimes, however, bylaws may require that more than two seats be open for cumulative voting to take effect. Accordingly, associations must review their documents when adopting election procedures. If an association is under developer control, more than two positions must be open before cumulative voting applies. (Calif. Code of Regulations § 2792.19(b)(1).)
     
  • Director Recalls. If cumulative voting is used to elect directors, it will apply to the removal of directors.

b.  Formula For Cumulative Voting. The formula to calculate the number of votes needed to guarantee a candidate's election is as follows:

V =  M x D  + 1 (Truncate if the result is fractional, i.e., do not round up or down--simply eliminate the fraction.)
(D + 1)


V = VOTES (to guarantee a seat on the board)
D = DIRECTORS (total number of open seats at the time of the election)
M = MEMBERS (total number of members eligible to vote)

Example. Assume 5 open seats in a contested election in a 100-member association. The formula produces the following result:

Votes to guarantee the election of one director =  100 x 5  + 1 = 84.3 When truncated, the number 84
(5 + 1)

Based on the above, any attempt to block one candidate from being elected would require 84 votes each for five other candidates. 5 x 84 = 420, leaving only 80 votes for the remaining candidate. If the minority candidate receives 84 votes, it would be impossible to block this candidate since 85 votes must be cast for 5 other candidates. Because 5 x 85 = 425, but only 420 votes remain, there are not enough votes to block this candidate.

c.  Staggered Terms. With staggered terms, use the number of open seats instead of the number of authorized directors. The following examples illustrate the number of votes needed to guarantee the election of a director using cumulative voting.

Example #1
(2 open seats)
Votes to guarantee the election of one director =  100 x 2   + 1 = 67.7  When truncated = 67
(2 + 1)

Based on the above results, any attempt to block one candidate from being elected would require 67 votes each for two other candidates. 2 x 67 = 134, leaving only 66 votes for the remaining candidate. If the minority candidate receives at least 67 votes, it would be impossible to block this candidate since 68 votes must be cast for 2 other candidates. Because 5 x 68 = 136, but only 133 votes remain, there are not enough remaining votes to block this candidate.

Example #2 
(3 open seats)
Votes =   100 x 3   + 1 = 76  
(3 + 1)

d.  Write-In Candidates. Cumulative voting is not allowed for write-in candidates. It can only be used for candidates whose names were placed in nomination before the voting began.

e.  Why Cumulative Voting? Cumulative voting is confusing and unnecessary. It is intended for use by stock corporations so that small shareholders can have a voice. Otherwise, companies would be dominated by large shareholders. Cumulative voting is included in the bylaws of new community associations to give owners a stronger voice when the association is controlled by the developer. Once the developer is out of the picture, there is no need for cumulative voting. As described in Robert's Rules of Order:

[T]his method of voting, which permits a member to cast multiple votes for a single candidate, must be viewed with reservation since it violates the fundamental principle of parliamentary law that each member is entitled to one and only one vote on a question. (Robert's Rules, 11th ed., p. 444.)

#3  RECALL ELECTIONS. Cumulative voting also plays a significant role when it comes to remvoing one or more directors who were elected using cumulative voting. See Director Removal.

Recommendation: The problems created by cumulative voting outweigh any theoretical benefit related to minority interests. Cumulative voting makes it easy for disruptive, fringe, and single-issue candidates to get on the board. Moreover, once a problem director has been elected, cumulative voting makes it almost impossible to remove that director from the board. With conventional voting, candidates must seek a broader base of support, thereby increasing the likelihood that more moderate, business-like candidates are elected. Moreover, if a director is dysfunctional, conventional voting makes it easier to remove the problem director from office. Because cumulative voting applies only if it is authorized by the governing documents, associations can amend their documents to remove it. The right to remove cumulative voting is provided for by statute. (Corp. Code § 7615(a).) To simplify elections and reduce costs, associations should eliminate: (i) cumulative voting, (ii) quorum requirements for the election of directors, and (iii) proxy voting.

How to Simplify Elections

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

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