Association's Duty. Notice of a membership meeting and ballots (including ballots to elect directors, to amend governing documents, to veto rule changes, to recall the board, etc.) are prepared and distributed to by the association, not by individual owners or petitioners. This is done through the inspector of elections or by the association at the direction of the inspector.
Ballots and two preaddressed envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the association to every member not less than 30 days prior to the deadline for voting. (Civ. Code § 5115.)
[Election Rules shall] Require the inspector or inspectors of elections to deliver, or cause to be delivered, [ballots]...to each member... (Civ. Code § 5105(g)(4).)
Recommendation: It is fairly common for the inspector of elections to direct the association to mail ballots to members since the management company is often better equipped to handle mailings. However, if the election is hotly contested, the inspector should take on the task of mailing ballots. It avoids claims that the board somehow tampered with the mailing.
Official Ballots Only. As provided above, ballots shall be distributed by the inspector or at the direction of the inspector to every member. As with municipal, state and federal elections, voters cannot substitute their own ballots for official ballots by the association. To make sure owners are aware of this restriction, boards should include this in their election rules.
30 Days Prior. Ballots and two preaddressed envelopes must be mailed by first-class mail or delivered to every member not less than 30 days prior to the deadline for voting. (Civ. Code § 5105(g)(4); Civ. Code § 5115(a).)
Mailbox Rule. 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.
Electronic Ballots. The Davis-Stirling Act currently requires a paper double envelope system for the following types of elections (Civ. Code § 5100):
- election of directors
- removal of directors
- special assessments
- amendments to the CC&Rs and bylaws
- grants of exclusive use common areas
If an election does not fall into one of the above categories, it can be done electronically. For example, some CC&Rs require membership approval before a lawsuit can be filed against a developer for construction defects. The voting can be done electronically. The same is true for membership surveys on painting, decorating, etc.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.