There is disagreement in the legal community about whether ballots must be sent out if the election is uncontested, i.e., the number of candidates is less than or equal to the number of open seats. Following are the arguments for and against the requirement that ballots be mailed to the membership.
1. Ballots Are Required. Those who believe that ballots must be mailed, returned, and counted, even if the outcome is already known, cite the language in Civil Code §5100(a): "Notwithstanding any other law or provision of the governing documents...election and removal of directors... shall be held by secret ballot in accordance with the procedures set forth in this article."
2. Ballots Are Not Required. Dispensing with balloting in uncontested elections is not prohibited by California law. The law does not require idle acts nor does it favor form over substance. (Civ. Code §3532; Civ. Code §3528; Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016.) Civil Code §5100(a) requires balloting only if an election requires a vote. If the election is uncontested, there is no need for a vote. No balloting is necessary in uncontested elections since the candidates are elected by operation of the association's governing documents. Robert's Rules of Order provides for uncontested elections in meetings:
If only one person is nominated and the bylaws do not require that a ballot vote be taken, the chair, after ensuring that, in fact, no members present wish to make further nominations, simply declares that the nominee is elected, thus effecting the election by unanimous consent or “acclamation. (Robert's Rules, 11th ed., p. 443.)
There is very little chance that a legal challenge would be successful since Civil Code §5145(a) allows an association to prevail if it can establish by a preponderance of evidence that “the association’s noncompliance with this article [balloting] . . . did not affect the results of the election.” If write-ins are not allowed and the number of candidates is less than or equal to the number of open seats, the outcome of the election never changes. Therefore, dispensing with balloting does not affect the outcome of an uncontested election.
Associations With 6,000 Units. The legislature removed ambiguity for associations with 6,000 or more units. Beginning January 1, 2020, associations of that size do not need to amend their bylaws to dispense with balloting when an election is uncontested. (Civ. Code §5100(g).)
Recommendation: Dispensing with balloting in uncontested elections makes the most economic sense. To eliminate any uncertainty, associations should amend their governing documents to dispense with balloting in uncontested elections (along with eliminating write-ins, floor nominations, quorum requirements, proxies and cumulative voting). Because the applicability of uncontested elections is unsettled, boards should follow the advice of their association's legal counsel.
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