If a voter fails to sign the outer envelope, the votes are not counted. For an envelope to be valid, voters "shall" sign their names in the upper left hand corner of the outer envelope. (Civ. Code §5115(a)(1).) An invalid or illegible owner address on the outside of the envelope can also invalidate a ballot. A proper address and signature allows the Inspector to verify a voter's eligibility.
Quorum. When an envelope is unsigned, the Inspector sets it aside and does not count it toward quorum since an unsigned ballot envelope is invalid. This is modeled after the California County Absentee Ballot process which does not accept an absentee ballot that is unsigned. At the Inspector's option, the member may be contacted so he/she can sign the envelope.
Signed in Inspector's Presence. Members who forget to sign their ballot envelope may go to the Inspector's office, show I.D. and sign the envelope in the Inspector's presence. Unfortunately, this creates administrative costs for the association and may be inconvenient or impossible for owners to accomplish if the Inspector's offices are out of town.
Attend the Meeting. Another solution is for the voter to attend the annual meeting and cast a ballot.
Ballots Excluded. In Clark v. McCann, the Registrar of Voters excluded ten ballots because the voters failed to include a valid residence address. The plaintiff argued that the Registrar should have taken extra steps to validate residences so as to count the ballots. The court disagreed. It noted that requiring voters provide a current address is not burdensome and verifies a voter’s eligibility to vote. The Registrar did not need to employ additional methods to confirm a voter's address. When applied to HOA elections, the court’s holding confirms that homeowners must comply with statutory requirements and ratify their eligibility to vote by providing a valid separate interest address on the outer envelope. (See sample envelope.)
Recommendation: Inspectors should not discard any ballots or outer envelopes. Although the Davis-Stirling Act only requires preservation of ballots, all election materials should be kept for at least one year.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.