Vote Recounts
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)) one or more candidates can request a recount. In the event of a tie vote, a recount should be automatic. 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. 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.
- The request must be in writing. (EC § 15620.)
- The request be lodged within five days of the announcement of the election results. (EC § 15620.)
- 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.)
- The recount shall be conducted under the supervision of the elections official. (EC § 15625.)
- 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.)
- A notice stating the date and place of the recount must be posted and all candidates notified. (EC § 15628)
- The recount must be conducted publicly. (EC § 15629.)
- Ballot may not be touched or handled without the express consent of and under the supervision of the elections official. (EC § 15630.)
- The results of the recount shall be posted. (EC § 15633.)
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.
The Cost. As a rule, the person asking for a recount bears the cost. Until last year, not even the State of California had a policy for state-funded recounts. The cost will depend on the size of the association (the number of ballots cast) and whether the recount is done by machine or by hand.
Recommendation: Boards should amend their election rules to address recounts and tie votes.
Tie Vote: Coin Toss and Runoff Elections
The Davis-Stirling Act does not address how associations should handle elections when two or more candidates receive the same number of votes. If there is a tie vote, the inspector can immediately recount ballots and tally votes. As provided in Civil Code 5110(c), inspectors have the authority to determine the tabulated results of the election and to perform any acts as may be proper to conduct the election with fairness. In addition, the board could authorize a recount since it would be less expensive than a run-off election.
If the association’s governing documents specify a method for breaking a tie, that method must be used. If the bylaws or election rules are silent, the winner can be determined by flipping a coin for two-way ties, but only if both candidates agree. In a three-way tie, the candidates can either draw straws or draw a name from a bowl to determine the winner, but only if all agree. If one or more candidates demand a runnoff election, one must be held. For guidance, we can turn to California's Elections Code. It states a special runoff election must be held not less than 40 nor more than 125 days after the tie vote. (Elections Code § 15651.)
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