Can uncontested elections be done by acclamation? 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.
1. Argument Against Acclamation. 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. Arguments For Acclamation. Those who believe that balloting is not necessary point out that 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.) Moreover, 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. The purpose of secret balloting is to protect voting privacy in contested elections not uncontested elections.
Under Robert's Rules of Order, if there is no opposition there is no need for a formal vote. The matter is decided by "acclamation" or by "unanimous consent." However, unanimous consent or acclamation cannot be used if the governing documents require the election to be by ballot. (Robert's Rules, 11th ed., p. 443.) Therefore, if an association's documents require (i) that membership meetings be held in accordance with Robert's Rules of order and (ii) that its election be done by balloting, the governing documents should be amended to dispense with balloting in uncontested elections. In other words, the association's governing documents should be amended to authorize elections by acclamation if the seats are uncontested.
Term of Office: If counting the ballots affects the outcome in some fashion, i.e., it determines who receives a 1-year term and who receives a 2-year term, then ballots should be mailed and counted so as to determine who receives which seat.
Approved for 6,000 Units. Ambiguity on the issue has been removed for associations with 6,000 or more units. Beginning January 1, 2020, associations of that size can dispense with balloting when the number of director nominees at the close of the nomination period is not more than the number of vacant director positions on the board, that the director nominees be considered elected by acclamation, subject to board's satisfaction of specified notice requirements to provide individual notice of the election and the procedure for nominating candidates at least 30 days before the close of nominations. (Civ. Code §5100(g).)
Recommendation: Dispensing with balloting in uncontested elections makes the most economic sense. To remove any ambiguities, 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).
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.