Closing the Polls.
There is a conflict as to who may close the polls. The Davis-Stirling Act requires that meetings of the membership be conducted in accordance with a recognized system of parliamentary procedure. (Civ. Code §5000
.) As provided in Robert's Rules of Order, the chair of the meeting closes the polls. "When everyone appears to have voted, the chair inquires, 'Have all voted who wish to do so?' If there is no response, he says, "If no one else wishes to vote . . . [pause], the polls are closed." (Robert's Rules
, 11th ed., p. 415.)
Inspectors of Election.
However, the election provisions of the Davis-Stirling Act specifically provide that Inspectors of Election "Determine when the polls shall close, consistent with the governing documents." (Civ. Code §5110(c)(6)
.) Whenever there is a conflict between statutes, the specific prevails over the general. That means the Inspector of Elections makes the determination for when the polls close.
Reopening the Polls.
Determining who may reopen the polls is more problematic. If anyone arrives after the polls are closed and wants to cast a ballot, Robert's Rules provides that "if other members arrive who wish to vote, a majority vote is required to reopen the polls." (Robert's Rules
, 11th ed., p. 415.) Reopening the polls is not one of the enumerated powers of the Inspectors of Election. However, there is a catch-all provision that Inspectors shall:
Perform any acts as may be proper to conduct the election with fairness to all members in accordance with this section, the Corporations Code, and all applicable rules of the association regarding the conduct of the election that are not in conflict with this section. (Civ.
It appears the conflict would tilt in favor of the Inspectors of Election for two reasons, (i) a quorum of the membership is normally not physically present at association meetings--quorum is typically achieved through counting the ballots mailed to the Inspector, and (ii) the election provisions of the Davis-Stirling Act seek to establish fairness in the election process by putting it in the hands of a neutral Inspector.
: Boards should address this issue through their Election Rules with the advice of the association's legal counsel. Associations needing legal assistance can contact us
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