QUESTION. I have a large master association that uses delegate voting for its elections. How do we ensure that delegates are voting only their district's allotment and still maintain the secret ballot requirement?
ANSWER. Davis-Stirling Act election procedures including the secret ballot requirements do not apply to delegates who cast votes on behalf of members. (Civ. Code § 5100(d).) Statutory procedures must apply only to membership elections where members vote directly.
Voting Systems. Not all CC&Rs and bylaws set up the same system for delegate voting. There are three voting methods that are most often used for delegates.
1. Vote Carrier. In the first, delegates are vote carriers and transmit only those votes cast by members in their delegate district. If there are 100 homes in the district and only 27 members vote, the delegate gets only 27 votes, even though for quorum purposes the delegate represents 100 members. The 27 votes must be cast by the delegate exactly as the 27 members cast them. Prior to SB 61, members of the district would send their votes to the management company (or CPA firm), which prepared a ballot for their delegate reflecting the votes cast by the 27 members.
2. Percentage Voting. In the second method, the delegate casts all 100 votes but in proportion to how members voted. For example, if 27 of the 100 members cast votes and 15 of the 27 vote for an amendment and 12 vote against it, the delegate casts 56% of the 100 votes (56 votes) for the amendment and 44% (44 votes) against the amendment.
3. Discretionary Voting. In the third plan, member votes are not binding on the delegate. Even though only 27 members voted, the delegate carries all 100 votes and casts all 100 votes any way the delegate wants, regardless of how members voted.
One Vote Per Issue. Due to a change in the Corporations Code that went into effect January 1, 2022, delegates are limited to one vote for each matter presented for action.
A corporation may provide in its bylaws for delegates having some or all of the authority of members. Where delegates are provided for, the bylaws shall set forth delegates’ terms of office, any reasonable method for delegates’ selection and removal, and any reasonable method for calling, noticing, and holding meetings of delegates, may set forth the manner in which delegates may act by written ballot similar to Section 7513 for written ballot of members, and may set forth the manner in which delegates may participate in meetings of delegates similar to paragraph (6) of subdivision (a) of Section 7211. Each delegate shall have one vote on each matter presented for action. A delegate shall not vote by proxy. Delegates may be given a name other than “delegates.” (Corp. Code § 7152.)
Delegate Qualifications. Qualifications for the election of delegates are subject to requirements imposed by Civil Code § 5105. The statue states that election rules must "specify the qualifications for candidates for the board and any other elected position." (Civ. Code § 5105(a)(3).) The statute then describes mandatory and permissive qualifications for candidates and how the procedure for electing them. See Candidate Qualifications.
Recommendation: Boards should seek advice from legal counsel on how best to handle this situation.
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