BALLOTS
Ballots and two pre-addressed envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the association to every member no less than 30 days prior to the voting deadline. (Civ. Code § 5105(g)(4) and Civ. Code § 5115(a).) Election Rules require the inspector or inspectors of election to deliver, or cause to be delivered, ballots to each member. (Civ. Code § 5105(h)(4).)
Associations and owners can affix a mailing label instead of writing the member's name and address by hand. If the mailing address is a post office box or it goes to offsite owners, the label needs to contain enough information for the inspector of elections to sufficiently identify the owner as a member entitled to vote.
John Douglas
123 Quail Lane, Unit 206
Meadows, CA 90000 |
Signed:______________________________
ATTENTION: Above must be signed or your vote will not be counted.
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INSPECTOR OF ELECTIONS
Address
City, State Zip
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If an association does not use a mailing label, it needs to provide the following so members can fill in the information by hand. (Civ. Code § 5115(c)(1).)
Member's name:________________________
Address of unit entitling you to membership: _____________________________________
Signed:_______________________________
ATTENTION: The above must be completed and signed, or your vote will not be counted.
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INSPECTOR OF ELECTIONS
Address
City, State Zip
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Mailbox Rule Regarding Ballots
Associations do not need to allow additional days for mail delivery. Under the mailbox rule, delivery is deemed complete upon deposit of the election package into the United States mail.
Proposed Action. If balloting is done entirely through the mail without a meeting (except to count the ballots), the ballots must set forth the proposed action by the membership, provide an opportunity for members to specify approval or disapproval of any proposal, and provide a reasonable time within which to return the ballot to the association. (Corp. Code § 7513(a), Corp. Code § 7514(a).)
Quorum. Ballots must also indicate the number of responses needed to meet the quorum requirement and, with respect to ballots other than for the election of directors, must state the percentage of approvals necessary to pass the measure submitted. The solicitation must specify the time by which the ballot must be received in order to be counted. (Corp. Code § 7513(c).)
How to Return. Ballots must also contain information on how to return them to the inspector of elections. (Civ. Code § 5115(a).)
Identifying Incumbents. "Incumbents" is a term is used to refer to the current holder of a position on the board, i.e., a sitting director. Some associations note the status next to candidates' names, and other associations do not. The matter is one of preference. Being designated as an incumbent does not violate Civil Code § 5135. Although such designations can be helpful to incumbents if people like the current directors, the designations can also be harmful if owners are unhappy with directors and want new representation.
Verifying Ballots
No Identifiers on Ballots. To preserve confidentiality, voters may not be identified by name, address, lot, parcel, or unit number on ballots. The ballot is not signed by the voter but is inserted into an envelope that is sealed. (Civ. Code § 5115(c)(1).) If the owner inadvertently signs the ballot, it does not invalidate it.
Signed Outer Envelope. This envelope is inserted into a second envelope that is sealed. The upper left-hand corner of the second envelope must contain the voter's name and a separate interest identifier, such as an address, lot, parcel, or unit number that entitles him/her to vote. The envelope must also be signed by the voter. (Civ. Code § 5115(c)(1).) The statute states that owners "shall sign" his/her name. Accordingly, a typed name by itself is not sufficient. Anyone can fraudulently apply typed names to the envelope. A handwritten signature is distinctive and difficult to forge. In addition, signatures should be in ink so they cannot be erased. The signature must be of the owner of the property, i.e., a member, not a non-member spouse. Failing to sign the outer envelope voids the ballot.
Valid Owner Address. An illegible or invalid owner address also invalidates the ballot. The second envelope is addressed to the inspector of elections.
Official Ballots Only
As with municipal, state, and federal elections, voters cannot substitute their ballots for official ballots by the association. To ensure owners are aware of this restriction, boards should include this in their election rules.
Irrevocable. Once the Inspector of Elections has received a ballot, the ballot is irrevocable. (Civ. Code § 5120(a).)
Replacement Ballots. If a member has not yet voted and has lost or misplaced his/her ballot, he/she can obtain a replacement ballot, provided it's done prior to the cutoff date for balloting.
Keeping Ballots Secure. Ballots must remain secure and unopened until the official vote-counting meeting. No person, including a member of the association or an employee of the management company, may open or otherwise review any ballot before the time and place at which the ballots are counted and tabulated. (Civ. Code § 5120(a).)
Delivery to the Inspector. To avoid ballot tampering, the sealed envelope containing a ballot may be returned to the inspector of elections by mail or by hand delivery to a location specified by the election inspector. (Civ. Code § 5115(c)(2).)
Third-Party Delivery. Nothing in the Davis-Stirling Act prohibits a third party from delivering ballots to the Inspector of Elections. The mode of delivery to the Inspector is unimportant as long as the ballot is delivered without any signs of tampering. To safeguard against ballot tampering, associations should adopt restrictions similar to those the state uses. If voters cannot return their ballot due to an illness or other physical disability, they may designate another person to return the ballot. (Elections Code § 3017(a)(2).) The statute specifically limits the acceptable group of eligible persons to family members (spouse, child, parent, grandchild, brother, or sister) or a person residing in that household. The following should be prohibited: "No candidate or representative of a candidate, and no proponent, opponent, or representative of a proponent or opponent, of an initiative, referendum, or recall measure, or of a charter amendment, shall solicit the vote of an absentee voter, or do any electioneering, while in the residence or in the immediate presence of the voter, and during the time he or she knows the absentee voter is voting."
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 where 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 withdraws 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 the 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 puts 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 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.
PROXIES
Defined. An election proxy is a specific power of attorney that allows one person to act on another person's behalf at membership meetings, e.g., to vote. (Civ. Code § 5130(a)(1); RONR (12th ed.) 45:70. Proxies must be signed. The person receiving the proxy is called a proxyholder. Associations are not required to prepare or distribute proxies unless required by their bylaws. (Civ. Code § 5130.)
Because ballots count toward quorum (Civ. Code § 5115(b)), proxies are no longer needed and tend to complicate electeions. They also become the center of many election court challenges. Unless an association's governing documents state otherwise, boards should not send proxies to the membership. If an association's governing documents provide for proxies, they should be amended to eliminate proxy voting. Arguments in favor of eliminating proxies include:
- Fraudulent Signatures. Proxy forms may be signed by using unverifiable signatures. By statute, signatures for proxies now include "typewriting, telegraphic transmission, or otherwise." (Civ. Code § 5130(a)(2).)
- Fraudulent Voting. The required two-page format for proxies creates the potential for election fraud. Since there is no way to verify that proxyholders vote their ballots according to the owner's instructions, the proxyholder can change an owner's vote.
- Court Challenges. Proxy misuse often result in costly court challenges and a new election.
Recommendation: To simplify elections, associations should eliminate proxies, and also consider eliminating cumulative voting and quorum requirements for the election of directors.
Kinds of Proxies
Directed Proxies. Civil Code § 5130(c) requires that “Any instruction given in a proxy issued for an election that directs how the proxyholder is to cast a vote shall be set forth on a separate page…” The first page contains the authorizing language giving the proxyholder the power to vote, and the second detachable page contains the instructions on how the proxyholder votes on each issue. (Civ. Code § 5130(c).) Once a proxyholder registers at the membership meeting, the Inspector of Elections keeps the first page of the proxy. The second detachable page of instructions on how the proxyholder is to vote is given to the proxyholder along with a ballot. The proxyholder then votes the ballot in secret.
Undirected Proxies. Proxies can be undirected, i.e., they must tell the proxyholder how to vote. Corporations Code § 7613(g) only requires that a proxy “sets forth the general nature of the matter to be voted on” for specific actions (election of directors not being one of those actions) but does not require the proxy to provide for any instructions. That means an undirected proxy allows the proxyholder to vote on issues at their discretion. There is no particular form of wording required for a proxy. (Smith v. San Francisco & N.P. Ry. Co. (1897) 115 Cal. 584.) Accordingly, the following language is sufficient to constitute a valid proxy given by one member to another: "I hereby appoint [name of a member] as my proxy to vote on my behalf." The proxy must identify the proxygiver's name and unit or lot address and be signed.
Power of Attorney as Proxy. A "power of attorney" cannot be used in place of an election proxy unless it is a general power of attorney. See "Power of Attorney."
Sample Proxies. See sample proxy for cumulative voting and for noncumulative voting.
Proxy Requirements
Who May Serve As Proxy. As required by the Davis-Stirling Act, the proxyholder must be a member of the association. (Civ. Code § 5130(a)(1).)
Proxies Must be Signed. Even though ballots cannot be signed, proxy forms must be signed. The new election law broadens the definition of signatures to include "placing the member's name on the proxy (whether by manual signature, typewriting, telegraphic transmission, or otherwise by the member or authorized representative of the member." (Civ. Code § 5130.)
Distribution of Proxies. Any proxy distributed to 10 or more members of a corporation with 100 or more members must afford an opportunity on the proxy to specify a choice between approval and disapproval of each matter to be acted upon at the meeting for which the proxy is solicited. (Corp. Code § 7514(a).)
Term and Revocation. Proxies automatically expire after 11 months unless revoked or unless stated otherwise in the proxy. The maximum term of any proxy is 3 years from the date of execution. (Corp. Code § 7613(b).) Every proxy continues in full force and effect until revoked. Proxies may be revoked by:
- Written notice from proxy-giver to the Inspector of Election stating that the proxy is revoked,
- Execution of a later-dated proxy delivered to the Inspector of Election before the vote,
- The proxygiver's appearance at the meeting requesting a ballot to vote at the meeting and before the distribution of a ballot by the Inspector to the proxyholder or
- The proxygiver sends a ballot to the Inspector of Election, which is received by the Inspector before the Inspector distributes a ballot to the proxyholder.
Proxies Assigned to the Board. In elections where members assign undirected or discretionary proxies to the board of directors, the board may vote for them as they choose. The board may (i) use them for quorum purposes only, (ii) cast votes evenly between the candidates, or (iii) vote for particular candidates (including themselves if they are candidates). The decision by the board on how to cast votes may be done in executive session. Because the election laws require secret balloting, the board is not required to discuss and decide in open session how it intends to vote its proxies.
Death or Incapacity. A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted, written notice of such death or incapacity is received by the corporation. (Corp. Code § 7613(c).)
Proxy Rules
Boards should adopt written guidelines to help election inspectors determine the validity of proxies. The following are sample rules.
- Proxyholder Must be Present. Proxyholders must be present to vote.
- Voted as Designated. Proxyholders must vote as indicated on the proxy.
- Unsigned Proxies. Unsigned proxies are void.
- Unnamed Proxies. If the proxy does not name anyone as a proxyholder, then the person who registers the proxy will be deemed the proxyholder.
- Undesignated Proxies. Undesignated proxies do not indicate how the proxyholder is to vote. The proxyholder will have the right to vote as they deem appropriate.
- Attendance by Owner. If the proxygiver attends the meeting and registers to vote, any proxies submitted on that member's behalf are automatically void.
- Multiple Proxies. In the event two or more proxies are registered for the same Unit/Lot, the following rules apply:
- dated proxies will prevail over undated proxies;
- proxies with the most recent date prevail; and
- proxies with the same date will be used for quorum purposes only.
- Alterations. Any alterations to a proxy must be initialed by the proxygiver, otherwise the altered votes or the entire proxy shall be deemed invalid.
- Non-Member Signatures. Proxies signed by a renter or any other non-member are void.
- Miscellaneous. Any issues not addressed by these rules will be decided by the election inspectors on the night of the annual meeting.
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