QUESTION: During the election, if a candidate wants the ballots recounted because two candidates have the exact same votes, who bears the cost of the recount?
ANSWER: Neither the Davis-Stirling Act nor the Corporations Code addresses recounts. Although not binding on homeowner association elections, California's Elections Code sometimes provides useful guidelines on voting issues.
No Automatic Recount. As a rule, the person asking for a recount bears the cost. Until last year, not even the State of California had a policy for state-funded recounts. In October 2016, Governor Brown signed Assembly Bill 44 which requires the state to pay for certain recounts. The bill allows the Governor to order a recount if the number of votes separating two candidates is razor thin.
HOA Elections. In an HOA election, if there is a tie vote, there is no mechanism for an automatic recount. The inspector can, however, on his/her own order a recount. As provided in Civil Code 5110(c), inspectors have the authority to determine the tabulated results of the election and to perform any acts as may be proper to conduct the election with fairness. In addition, the board could authorize a recount if they thought it beneficial, i.e., it would be less expensive than a run-off election.
The Cost. If neither the inspector nor the board initiates a recount, the person requesting it pays. The cost will depend on the size of the association (the number of ballots cast) and whether the recount is done by machine or by hand. If a recount is too costly and the candidates want to avoid a runoff election, they could agree to a coin toss to break the tie. Barring that, the association will need to conduct a runoff at the association's expense.
Recommendation: Boards should amend their election rules to address recounts and tie votes.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.