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 bylaws require the election to be by ballot. (Robert's Rules, 11th ed., p. 443.) Therefore, (i) if an association's governing documents require that membership meetings be held in accordance with Robert's Rules of order and (ii) if the association's bylaws require that its election be done by balloting, the bylaws should be amended to dispense with balloting in uncontested elections.
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.
Recommendation: Dispensing with balloting in uncontested elections makes the most economic sense. To remove any ambiguities, associations should amend their bylaws to dispense with balloting in uncontested elections (along with write-ins, floor nominations, quorum requirements, proxies and cumulative voting).
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