QUESTION: Is it okay for the inspector of elections to give us a count of the number of ballots turned in? We're not asking for the names of the voters; we just want to make sure we can make quorum.
ANSWER: Yes, the inspector can provide a count of the number of envelopes submitted. The Act specifically authorizes, "The inspector of elections, or the designee of the inspector of elections, may verify the member’s information and signature on the outer envelope prior to the meeting at which ballots are tabulated." (Civ. Code §5120(a).) Doing so speeds up the registration process on the day of the annual meeting and helps determine if quorum will be met or whether the association needs to make a push for more member participation. What inspectors cannot do is open envelopes prior to the meeting, neither outer envelopes nor inner envelopes.
Who Voted. The inspector can also provide a list of who submitted ballot envelopes. Doing so does not invade election privacy since the Davis-Stirling Act prohibits knowing how members voted not who voted. In California elections, the State discloses the voting history of registered voters. Candidate Meg Whitman's voting record became an issue in the 2010 governor's race after public records showed that she had not voted in a number of years. If California makes voting records public, then it is reasonable that HOAs can do the same.
Discretionary Not Mandatory. Although inspectors can provide a list of who voted, there is no requirement that they do so. As provided in Civil Code §5110(c), inspectors of election must perform the following duties:
- determine the number of memberships entitled to vote and the voting power of each;
- determine the authenticity, validity, and effect of proxies;
- receive ballots;
- hear and determine challenges and questions arising out of the right to vote;
- count and tabulate votes;
- determine when the polls close;
- tabulate the results of the election; and
- perform any acts as may be proper to conduct the election with fairness.
Providing a list of who voted is not one of the inspector's duties. Accordingly, doing so is discretionary by the inspector.
Verifying Information. Some argue that inspectors should supply a list because they must prepare it prior to the meeting anyway. That argument is not valid since the statute allows but does not require inspectors to verify voter information prior to the meeting. (Civ. Code §5120(a).) Since inspectors might not make a list of who voted until the day of the meeting, there would be nothing to produce.
Extra Expense. If an association wants the inspector to prepare and disseminate a running tally of who has or has not voted, it needs to make arrangements with the inspector to provide this service. There will likely be an additional charge for the time involved in providing such information. In lieu of a list of who voted, a simple ballot count may be sufficient.
Voter Sign-In List. There are similar issues access with the voter sign-in list.
After the Election. After the election, the sign-in list, the list of who voted, and ballots are kept in the custody of the inspector of election and is available for inspection by members and directors under the supervision of the inspector and in a manner that preserves the confidentiality of the vote. (Civ. Code §5125.)
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.