Elections Requiring Secrecy. As required by Civil Code § 5100(a), the following matters must be voted by secret ballot, regardless of any provision to the contrary in an association's governing documents:
- special assessments over 5% (see exceptions) or regular assessments over 20% ( see Civ. Code § 5605),
- election and removal of directors,
- amendments to the governing documents (see exception), and
- grant of exclusive use of common area property (see exceptions).
Member surveys do not require a secret ballot.
No Identifiers on Ballots. To preserve confidentiality, voters may not be identified by name, address, or lot, parcel, or unit number on ballots. The ballot itself is not signed by the voter, but is inserted into an envelope that is sealed. (Civ. Code § 5115(c)(1).) If the owner inadvertently signs the ballot, it does not invalidate the ballot.
Signed Outer Envelope. This envelope is inserted into a second envelope that is sealed. The upper left hand corner of the second envelope must contain the voter's name and a separate interest identifier such as an address, lot, parcel or unit number that entitles him/her to vote. The envelope must also be signed by the voter. (Civ. Code § 5115(c)(1).) The statute states that owners "shall sign" his/her name. Accordingly, a typed name by itself is not sufficient. Typed names can be fraudulently applied to the envelope by anyone. A handwritten signature is distinctive and difficult to forge. In addition, signatures should be in ink so they cannot be erased. The signature must be an owner of the property, i.e., a member, not non-member spouses. Failing to sign the outer envelope voids the ballot.
Identity Theft. For those who are concerned that signing the envelope may lead to identity theft, see Signature Identity Theft.
Valid Owner Address. An illegible or invalid owner address also invalidates the ballot. The second envelope is addressed to the Inspector of Elections (See sample envelopes.)
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