Ballots and two pre-addressed envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the association to every member no less than 30 days prior to the voting deadline. (Civ. Code § 5105(g)(4) and Civ. Code § 5115(a).) Election Rules require the inspector or inspectors of election to deliver, or cause to be delivered, ballots to each member. (Civ. Code § 5105(h)(4).)
Associations and owners can affix a mailing label instead of writing the member's name and address by hand. If the mailing address is a post office box or it goes to offsite owners, the label needs to contain enough information for the inspector of elections to sufficiently identify the owner as a member entitled to vote.
John Douglas
123 Quail Lane, Unit 206
Meadows, CA 90000 |
Signed:______________________________
ATTENTION: Above must be signed or your vote will not be counted.
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INSPECTOR OF ELECTIONS
Address
City, State Zip
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If an association does not use a mailing label, it needs to provide the following so members can fill in the information by hand. (Civ. Code § 5115(c)(1).)
Member's name:________________________
Address of unit entitling you to membership: _____________________________________
Signed:_______________________________
ATTENTION: The above must be completed and signed, or your vote will not be counted.
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INSPECTOR OF ELECTIONS
Address
City, State Zip
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Mailbox Rule Regarding Ballots
Associations do not need to allow additional days for mail delivery. Under the mailbox rule, delivery is deemed complete upon deposit of the election package into the United States mail.
Proposed Action. If balloting is done entirely through the mail without a meeting (except to count the ballots), the ballots must set forth the proposed action by the membership, provide an opportunity for members to specify approval or disapproval of any proposal, and provide a reasonable time within which to return the ballot to the association. (Corp. Code § 7513(a), Corp. Code § 7514(a).)
Quorum. Ballots must also indicate the number of responses needed to meet the quorum requirement and, with respect to ballots other than for the election of directors, must state the percentage of approvals necessary to pass the measure submitted. The solicitation must specify the time by which the ballot must be received in order to be counted. (Corp. Code § 7513(c).)
How to Return. Ballots must also contain information on how to return them to the inspector of elections. (Civ. Code § 5115(a).)
Identifying Incumbents. "Incumbents" is a term is used to refer to the current holder of a position on the board, i.e., a sitting director. Some associations note the status next to candidates' names, and other associations do not. The matter is one of preference. Being designated as an incumbent does not violate Civil Code § 5135. Although such designations can be helpful to incumbents if people like the current directors, the designations can also be harmful if owners are unhappy with directors and want new representation.
Verifying Ballots
No Identifiers on Ballots. To preserve confidentiality, voters may not be identified by name, address, lot, parcel, or unit number on ballots. The ballot 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 it.
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. Anyone can fraudulently apply typed names to the envelope. 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 of the owner of the property, i.e., a member, not a non-member spouse. Failing to sign the outer envelope voids the ballot.
Valid Owner Address. An illegible or invalid owner address also invalidates the ballot. The second envelope is addressed to the inspector of elections.
Official Ballots Only
As with municipal, state, and federal elections, voters cannot substitute their ballots for official ballots by the association. To ensure owners are aware of this restriction, boards should include this in their election rules.
Irrevocable. Once the Inspector of Elections has received a ballot, the ballot is irrevocable. (Civ. Code § 5120(a).)
Replacement Ballots. If a member has not yet voted and has lost or misplaced his/her ballot, he/she can obtain a replacement ballot, provided it's done prior to the cutoff date for balloting.
Keeping Ballots Secure. Ballots must remain secure and unopened until the official vote-counting meeting. No person, including a member of the association or an employee of the management company, may open or otherwise review any ballot before the time and place at which the ballots are counted and tabulated. (Civ. Code § 5120(a).)
Delivery to the Inspector. To avoid ballot tampering, the sealed envelope containing a ballot may be returned to the inspector of elections by mail or by hand delivery to a location specified by the election inspector. (Civ. Code § 5115(c)(2).)
Third-Party Delivery. Nothing in the Davis-Stirling Act prohibits a third party from delivering ballots to the Inspector of Elections. The mode of delivery to the Inspector is unimportant as long as the ballot is delivered without any signs of tampering. To safeguard against ballot tampering, associations should adopt restrictions similar to those the state uses. If voters cannot return their ballot due to an illness or other physical disability, they may designate another person to return the ballot. (Elections Code § 3017(a)(2).) The statute specifically limits the acceptable group of eligible persons to family members (spouse, child, parent, grandchild, brother, or sister) or a person residing in that household. The following should be prohibited: "No candidate or representative of a candidate, and no proponent, opponent, or representative of a proponent or opponent, of an initiative, referendum, or recall measure, or of a charter amendment, shall solicit the vote of an absentee voter, or do any electioneering, while in the residence or in the immediate presence of the voter, and during the time he or she knows the absentee voter is voting."
For more information, see "Election Menu."
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