ELECTION RULES, ELECTRONIC VOTING & UNCONTESTED ELECTIONS

Election Rules Required

Beginning July 1, 2006, all associations are required to adopt election rules. (Civ Code § 5105(a).) Failure to do so may result in costly legal challenges that could void election results. Beginning January 1, 2020, significant changes were made to the Davis-Stirling Act related to director elections. The changes require all homeowner association election rules in California to be amended. Election rules should contain the following:

• nomination procedures,
• director candidate qualifications,
• a method of selecting independent third parties as inspectors of election,
• rules for access to association media and meeting spaces during campaigns,
• secret balloting procedures,
• procedures for uncontested elections,
• recall election procedures, and
• retention of election materials

Applicable Elections. As provided for in Civil Code § 5100, applicable elections include:

• election of directors
• removal of directors
• special assessments
• amendments to the CC&Rs and bylaws
• grants of exclusive use common areas

Amending Election Rules

Election rules can be amended, but associations must follow the rule amendment process required by the Davis-Stirling Act. Election rules cannot be amended less than 90 days before an election. (Civ. Code § 5105(h).) With the separate mandatory 28-day notice period for membership review of proposed rule changes (Civ. Code § 4360(a)), the waiting period for updating election rules is extended to 118 days (4 months) since the board cannot approve the change until the end of the 28 days. Unfortunately, the statute does not define the starting point for an election, which has created disagreement regarding the 90-day period. Boards should consult legal counsel on this issue.

Electronic Voting Allowed

Beginning January 1, 2025, associations can conduct elections use electronic secret ballots for the election of directors, recall elections, and approving amendments to governing documents, but not for votes on regular or special assessments. (Civ. Code § 5105(i).) To utilize electronic voting, associations must amend their election rules (see above). 

Owners Can Choose Electronic or Paper. If an association adopts electronic voting, owners can choose to use written paper ballots. To complicate matters, they can switch from electronic to paper ballots or vice versa, if they do so at least 90 days before an election. (Civ. Code § 5105(i)(1)(A).) To opt into electronic voting, owners must provide their association with a valid email address. (Civ. Code § 5105(i)(1)(E).) Paper ballots must be delivered to members who choose to vote by paper and to those members who do not provide a working email address to the association. (Civ. Code § 5105(i)(1)(C).) 

Annual Statement. An association's annual statement must include information on the procedures to either opt out of or opt into voting by electronic secret ballot. (Civ. Code § 5105(i)(1)(D).) 

Voting List. Associations must maintain a voting list identifying which members will vote by electronic secret ballot and which members will vote by written ballot. (Civ. Code § 5105(i)(1)(D).) 

No Floor Nominations. If electronic voting is used, floor nominations are prohibited.  (Civ. Code § 5105(i)(1)(F).) 

Election Notice Requirements. Associations must deliver individual notice of the electronic secret ballot to each member 30 days before the election along with instructions on (i) how to obtain access to that internet-based voting system and (ii) how to vote by electronic secret ballot. (Civ. Code § 5105(i)(3).) 

Opt Out Notice Requirements. At least 30 days before the deadline to opt out of voting by electronic secret ballot (Civ. Code § 5105(i)(4)), associations must provide members with notice of: 

• The member’s current voting method.
• The email address of the member that will be used for voting by electronic secret ballot.
• An explanation that the member is required to opt out of voting by electronic secret ballot if the member elects to vote by written secret ballot.
• An explanation of how a member may opt out of voting by electronic secret ballot.
• The deadline by which the member is required to opt out of voting by electronic secret ballot if the member elects to exercise that right.

No Email Address. If the association does not have a member’s email address required to vote by electronic secret ballot by the time at which ballots are to be distributed, the association shall send the member a written secret ballot. (Civ. Code § 5105(i)(7).) 

Quorum. For purposes of determining a quorum, a member voting electronically pursuant to this subdivision shall be counted as a member in attendance at the meeting. Once the quorum is established, a substantive vote of the members shall not be taken on any issue other than the issues specifically identified in the electronic vote. (Civ. Code § 5105(i)(8).) 

Vote is Irrevocable. As with paper elections, a vote cast electronically is irrevocable. (Civ. Code § 5105(i)(6).) 

Acclamation Allowed for Uncontested Elections

Beginning January 1, 2022, associations can declare the outcome of uncontested elections without the need for balloting. Qualified candidates can be elected by acclamation if the following conditions are met:

• The association holds a director election at least once every four years. (Civ. Code § 5100(a)(2).) [The association held a regular election for directors in the last 3 years. (Civ. Code § 5103(a).)]
• The number of qualified candidates is not more than the number of vacancies to be elected. (Civ. Code § 5103.)
• Notice for submitting nominations is given at least 90 days before the deadline for submitting nominations. The notice must include the number of open board positions, the deadline for submitting nominations, how nominations can be submitted, and a statement informing members the seats can be filled by acclamation without balloting. (Civ. Code § 5103(b)(1).)
• A reminder notice is sent between 7 and 30 days before the deadline for submitting nominations. (Civ. Code § 5103(b)(2).)
•  The association provides, within 7 business days of receiving a nomination, acknowledgment of the nomination (i) to the member who submitted the nomination and (ii) to the nominee that they either qualify or do not. If disqualified, the reason for disqualification and a right to appeal must be included. (Civ. Code § 5103(c).)
• The vote by acclamation takes place at a duly noticed meeting with the name of each qualified candidate seated by acclamation on the agenda. (Civ. Code § 5103(d).)

Seating the Candidates. Some might argue that permissive language in the statute means the board can seat some candidates but not others. In Civil Code § 5103(b)(1)(D) and (E), “may” is intended to modify the phrase “seat the qualified candidates by acclamation without balloting.”  It means they may seat them by acclamation after a vote to do so, OR they may send out the ballots despite there being only enough nominees to fill the open seats when the election results are a foregone conclusion. But the choice is there because, in some cases, a board may want to avoid the acclamation process and send out the ballots anyway; the word “may” is not intended to refer to whether the board may seat all or only some qualified candidates. Subsection (e) does not indicate any discretion by the board to choose which qualified candidates may be seated. It mandates that the name of “each qualified candidate that will be seated” be indicated on the agenda, so that the membership knows who their new board will be once election by acclamation is announced.

Amend Election Rules. Associations do not need to amend their bylaws or election rules to take advantage of elections by acclamation. The Davis-Stirling Act allows associations to employ this feature regardless of anything to the contrary in their governing documents. (Civ. Code § 5103.) Even so, boards should, at some point, amend their election rules to include this provision. Doing so will eliminate any confusion by members regarding the propriety of elections by acclamation. When amending documents, boards should eliminate write-ins, floor nominations, quorum requirements, proxies, and cumulative voting. When amending election rules, boards should follow proper amendment procedures.

Election Timeline

Boards must pay attention to the extended election timeline when preparing director elections. For more information, see "Election Menu."

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