Many times elections are decided by a single vote. Although the Inspector of Elections determines the outcome of the election (Civ. Code § 5110(c)(7)) a losing party or homeowner may be unhappy with the results and request a recount.
Recount/Inspection/Legal Challenge Distinction. A recount is not the same as inspecting the ballots which members can request at any time per the association's record inspection policy or a legal challenge which involves going to court. A "recount" is an official count by the Inspector which may change the outcome of the original count. If the tabulation changes, the Inspector then announces the new numbers which become the official outcome of the election.
Election Code. Neither the Davis-Stirling Act nor the Corporations Code addresses recounts. Although not binding on homeowner association elections, California's Elections Code provides useful guidelines on how recounts can be handled by associations. (See summary at bottom of page.)
Written Demand. Using the Elections Code as a guideline, any member of the association can demand a recount provided (i) it is made in writing to the Inspector of Elections within five days after the election results have been announced and (ii) the member pays in advance for the cost of the recount. Monies advanced by the member shall be refunded if the outcome of the election is changed by the recount.
Recount Procedure. The recount must commence not more than seven days following the request for the recount must be supervised by the Inspector of Elections. The recount may be observed by members of the association. No election materials may be touched or handled by any person without the express consent of the Inspector of Elections and under the supervision of the Inspector.
Results Published. The results of the recount must be reported to the board of directors and the membership and must be recorded in the minutes of the next board meeting.
RECOMMENDATION: So as to minimize the potential for litigation, boards should adopt reasonable procedures for recounts similar to the above. Because Election Rules are operating rules, boards must send the proposed changes to the membership for review and comment.
CALIFORNIA ELECTIONS CODE
1. The request must be in writing. (EC § 15620.)
2. The request be lodged within five days of the announcement of the election results. (EC § 15620.)
3. The person seeking the recount must deposit with the elections official an amount to cover the cost of the recount. If the recount changes the outcome of the election, the monies shall be returned to the person. If the recount does not change the election results, any funds in excess of the cost of the recount shall be returned. (EC § 15624.)
4. The recount shall be conducted under the supervision of the elections official. (EC § 15625.)
5. The recount shall be commenced not more than seven days following receipt of the request by the elections official, weekends and holidays excepted. (EC § 15626.)
6. A notice stating the date and place of the recount must be posted and all candidates notified. (EC § 15628)
7. The recount must be conducted publicly. (EC § 15629.)
8. Ballot may not be touched or handled without the express consent of and under the supervision of the elections official. (EC § 15630.)
9. The results of the recount shall be posted. (EC § 15633.)
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.