Inspection of Ballots - Recount
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INSPECTION OF BALLOTS

If there is a recount or other challenge to the election process, the inspector or inspectors of elections shall, upon written request, make the ballots available for inspection and review by an association member or the member’s authorized representative. (Civ. Code §5125.)


Some take the above language to mean that an Inspector is not required to produce ballots for inspection except for a recount or challenge. That position is too restrictive and will lead to litigation that would likely result in a loss by the Association/Inspector. Moreover, a homeowner need only state that he/she intends to challenge the election so as to satisfy the above language. Accordingly, ballots should be made available for review and inspection.

Proxies. Proxies are not included in the authorizing language for inspections, only ballots are. The reason for not including proxies may be that they are personal and confidential between the member and his/her proxy and do not impact the inspection of ballots.

Voter List. Although not included in the statute, the list of members who voted can be produced for inspection at the discretion of the Inspector of Elections.

No Right to Copy. Election materials do not fall under the list of records that members have a right to copy. (Civ. Code §5200.) There is no provision in the Davis-Stirling Act, the Corporations Code or the Election Code that provides for the copying of ballots or other election materials. Hence, members have a right to inspect but not to copy ballots.

Inspection Costs. Since professional inspectors do not work for free, there will be a cost associated with the inspection. The issue of who pays for the inspection is not covered by the Davis-Stirling Act. For guidance, we can turn to California's Election Code. The Code requires the person requesting a recount to deposit monies with the election official to cover the cost. (Elections Code §15624.)

Conclusion: Accordingly, it would be reasonable to require the person demanding the inspection to bear the cost. He can either pay in advance to the inspector or reimburse the association for the cost.  The Davis-Stirling Act gives associations general authority to impose fees to defray costs (Civ. Code §5600(b)). The payment method would be at the discretion of the inspector of elections, not the homeowner.

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