| All votes shall be counted and tabulated by the inspector or inspectors of elections, or the designee of the inspector of elections, in public at a properly noticed open meeting of the board or members. Any candidate or other member of the association may witness the counting and tabulation of the votes. (Civ. Code § 5120(a).) |
Witnessing the Count Defined
Unfortunately, the Davis-Stirling Act does not define what "witnessing the counting and tabulation of votes" means. Since the statute does not define "witness," we can turn to California's election code for guidance. State and county guidelines are relatively uniform in that observers must be allowed sufficiently close to observe the process, not the actual votes on the ballots. It means that observers cannot stand over the shoulder of a ballot counter. Instead, they must sit or stand at a reasonable distance and observe the counting process.
Who May Witness the Counting of Ballots
Candidates and association members are the only persons with a legal right to observe the opening of ballots and counting votes. Lawyers representing candidates do not qualify. (Civ. Code § 5120(a).)
Disruptive Observers
Anyone who disrupts the election process may be ejected from the area. The person may also be fined, provided the association's rules provide for it. Using the guidelines found in Election Code § 15104(e), observers may not:
- touch any voting materials or equipment;
- touch election personnel;
- assist in the tabulating of votes;
- talk to ballot counters while they are processing ballots;
- make loud noises or distract ballot counters;
- use cellular phones, pagers, two-way radios, cameras, audio or video recording devices, or camera phones during the balloting;
- eat or drink while votes are tabulated; or
- interfere in any way with the conduct of the election.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with community association issues, subscribe to the Davis-Stirling Newsletter.