QUESTION: What does it mean that members can "witness" the counting of ballots?
ANSWER: Unfortunately, the Davis-Stirling Act does not define what it means. It merely states that:
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).)
California Guidelines. Since the statute does not define witness, we can turn to California's election code for guidance. State and county guidelines are fairly uniform that observers must be allowed sufficiently close to observe the process but not the actual votes on the ballots. This 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 Observe? The only persons with a legal right to observe the opening of ballots and counting of votes are candidates and members of the association. 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 issues affecting community associations, subscribe to the Davis-Stirling Newsletter.