Ways to Nominate Candidates
Self-Nominations. Provided they meet director qualifications, members can nominate themselves for election to the board of directors. (Civ. Code § 5105(a)(3)) The Davis-Stirling Act does not require that nominations be written. However, an association's governing documents or election rules may require it. If a name is placed into nomination by someone other than the candidate, the candidate should be contacted to verify their willingness to be on the ballot.
Nominating Committees. Although most bylaws provide for nominating committees to screen individuals for service on boards, such committees were rendered moot by Civil Code § 5105(a)(3). Boards can still appoint nominating committees and can still solicit candidates, but they can no longer reject qualified candidates. Nominating committees and boards can promote the candidates they select. However, they must do so at their own expense. They cannot advocate for or against candidates in the ballot materials. (Civ. Code § 5135)
Floor Nominations. Nominations from the floor are not required by the Davis-Stirling Act, but may be used if provided for in the election rules. (Civ. Code § 5105(f)) They can also be dispensed with in elections by acclamation.
Procedure for Nominations. Once a quorum has been established, the chair of the meeting will, at the appropriate point on the agenda, open the floor for nominations. Members in good standing may nominate any qualified individual as a candidate for election to the board. A member does not need the chair's recognition to make a nomination, and no second is required. Members may nominate themselves or nominate others. There is a limit on the number of nominations any one individual can make. (RONR (12th ed.) 46:6)
Ballots Already Cast. If owners have already mailed in their ballots, they are precluded from voting for floor nominees because their ballots are irrevocable once cast. (Civ. Code § 5120(a))
Eliminate Floor Nominations. If an association's bylaws or election rules allow for floor nominations, it forces a full election, even if the election is uncontested. To avoid unnecessary election expenses, bylaws and election rules should be amended to drop any requirement for floor nominations.
Write-In Candidates. The Davis-Stirling Act states that associations can adopt election rules that permit nominations from the floor and write-in candidates. (Civ. Code § 5105(f)) By implication, unless an association's bylaws or election rules provide for write-in candidates, they are not allowed. If that is the case, members cannot write in candidates on their ballots. If they do, the inspector of elections can deem votes for write-in candidates invalid. Any votes cast for announced candidates on the ballot would still be valid.
Verification. If write-ins are allowed, the nomination need not be made in advance to be valid. Even so, the write-in candidate will need to be contacted to verify he/she is willing to accept the nomination (in the event a sufficient number of votes are cast to elect the write-in candidate).
Eliminate Write-Ins: Associations should amend their election rules to clarify whether write-in candidates are permitted. If they are allowed, blank lines should be added to the ballot. If they are not allowed, the restriction should be stated on the ballot as well as in the election rules. If there is any uncertainty about whether write-in candidates are allowed, the board should seek a legal opinion on how best to proceed.
Notice of Candidates. Civil Code § 5115(b)(3) requires 30 days' notice to the membership of all candidates that will appear on the ballot. Obviously, this requirement does not apply to write-in candidates since they will not be added to the ballot by individual owners during the balloting process.
Close of Nominations
If the governing documents do not establish a cutoff for nominations, the board may set a reasonable date before the mailing of ballots to close nominations. If the association's governing documents require nominations from the floor, the board may close nominations to prepare and mail ballots, then reopen them at the annual meeting to add additional candidates to the ballot. Obviously, members who have already voted will not be aware of the nominations. Additionally, this requirement does not apply to write-in candidates, as they will not be added to the ballot by individual owners during the balloting process.
Review for Accuracy. At least 30 days before the ballots are distributed, the association must prepare a list of candidates and make it available to them so they can verify the accuracy of their information on the list. The inspector of elections must then change and correct lists within two (2) business days of any error or omission being reported. (Civ. Code § 5105(a)(7))
Excluding Candidates
All nominees, provided they meet the qualifications to serve on the board and submitted their names before the close of nominations, must be placed on the ballot mailed to the membership, i.e., written ballots must specify a choice between approval and disapproval of each matter (or candidate) known at the time the ballot is distributed. (Corp. Code § 7514(a))
Boards should not use minor technical violations in the nomination process to exclude qualified candidates from running for the board. For example, associations should not exclude a qualified candidate for submitting a photocopy of their application rather than the original. Examples of substantive violations are (i) missing the deadline for submitting their nomination, and (ii) failing to meet director qualifications.
Qualifications to Serve on the Board
See "Qualifications to Serve on the Board"
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