Witnessing the Count Defined

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)) 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: observers must be allowed to be close enough to observe the process, not the actual votes on the ballots. It means that observers cannot stand over a ballot counter’s shoulder. 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 of votes. Lawyers representing candidates do not qualify. (Civ. Code § 5120(a))

Remote Observation of Ballot Count

A meeting where ballots are counted and tabulated pursuant to Section 5120 cannot be entirely virtual. It must be conducted (i) entirely at a physical location or (ii) as a hybrid meeting with virtual elements plus a physical location. (Civ. Code § 4926(b)) What remains unclear is where the ballot tabulation occurs. There is a split of opinion in the legal community. Following are the two interpretations:

Onsite Tabulation. Those who argue for the Inspector of Elections to physically attend the meeting and count ballots cite Civil Code 5120(a), which states: “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 . . .”

Offsite Tabulation. Because an inspector's in-person appearance is costly, others favor an interpretation that allows the inspector to appear virtually, provided the camera clearly shows the inspector counting and tabulating votes. They argue that "in public" means being viewed or witnessed, i.e., not hidden, which a wide-angle camera showing the counting satisfies. (Civ. Code 5120(a))

Disruptive Observers

Anyone who disrupts the election process may be ejected from the area. The person may also be fined, if the association’s rules allow 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.

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