Delegates
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DELEGATE VOTING

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. The new election procedures do not apply to delegates who cast votes for their respective districts. (Civ. Code §5100(d).) The statute only applies to members in each district for such things as election of delegates and other matters for which members vote.

Voting Systems. Not all CC&Rs and bylaws set up the same system for delegate voting. There are 3 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.

Adopting New Voting Rules. To avoid election problems, associations with delegate voting need to send proposed rules to the membership for comment and then, after considering the comments, adopt election rules. The first 2 methods described above may be most affected by the new election law. Boards should work with their managers and corporate counsel to devise rules that comply with the new law.

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