Breaking a tie vote in an election of directors can be done by one of three methods. The ultimate decision on how to proceed should be made by the inspector of election, who has the responsibility under Civil Code section 5110(c)(8) to “[p]erform any acts as may be proper to conduct the election with fairness to all members in accordance with this article, the Corporations Code, and all applicable rules of the association regarding the conduct of the election that are not in conflict with this article.”
If the Association’s governing documents specify a method for breaking a tie, then that method should be utilized (provided, of course, that the applicable provision is enforceable).
Flipping a Coin.
If the candidates agree, the winner of the seat can be determined by flipping a coin for two-way ties. In a three-way tie, the candidates (if they agree) can either draw straws or draw a name to determine the winner. As noted above, any such agreement by the candidates must be approved by the inspector of election.
A run-off election may be held between only those candidates who were tied for the open seat. Nominations are not reopened.
Until the tie is resolved, the other newly elected directors should immediately begin serving their terms (if it can be determined which seats the winners are entitled to).
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