Civil Code Section 5125 provides in pertinent part that:
“If there is a recount or other challenge to the election process, the inspector or inspectors of elections shall, upon written request, make the ballots available for inspection and review by an association member or the member’s authorized representative.”
This language does not explicitly address whether an association is required to permit the inspection of ballots in the absence of a recount or formal challenge to the election process brought by a member of the association. HOA industry attorneys take varying positions with respect to this issue and whether an association member has a right to inspect the ballots if there is no recount or challenge brought against the association by the member pursuant to Civil Code Section 5145. (See also “Legal Challenge to Election.”)
No Right to Copy Ballots
Civil Code Section 5200 provides an association’s members with rights to inspect and copy specified “association records.” (See “Records Subject to Inspection.”) Ballots are not included within the definition of “association records” that are subject to inspection and copying by a member. (Civ. Code § 5200.) Even where a member is entitled to inspect ballots pursuant to Civil Code Section 5125, no provision of the Davis-Stirling Act provides the member with the right to make copies of the ballots.
No Right to Inspect Proxies
The inspection rights provided for under Civil Code Section 5125 extend to “ballots,” with no mention of any right to inspect also inspect proxies. The absence of such language is likely premised upon the need to protect the privacy rights of members and the voting instructions issued by them to their proxyholders. (See Chantiles v. Lake Forest II Master HOA (1995) 37 Cal.App.4th 914.)
Fees for Inspection
The Davis-Stirling Act does not address whether a member is required to pay any fees associated with the inspection of ballots (i.e., any fees charged by the inspector of election in making the ballots available for inspection).
- Corporations Code Section 8334. Inspection Rights of Directors.
- Civil Code Section 5200. “Association Records” and “Enhanced Association Records” Defined.
- Civil Code Section 5145. Enforcement of Election Requirements.
- Civil Code Section 5125. Custody of Ballots.
- Civil Code Section 5115. Ballot and Voting Procedure.
Related Case Law
- That v. Alders Maintenance Corporation
(2012) 206 Cal.App.4th 1419
[Elections; Legal Challenges] Where a HOA prevails in an action brought against it on the basis of alleged election violations, the HOA is not entitled to recover its attorney’s fees even where the action is found to be frivolous.
- Wolf v. CDS Devco
(2010) 185 Cal.App.4th 903
[Director Inspection Rights; Former Director] A director loses his/her broader record-inspection rights upon loss of status as a director.
- Chantiles v. Lake Forest II Master Homeowners Association
(1995) 37 Cal.App.4th 914
[Director Inspection Rights; Privacy] A director’s record inspection rights may be limited by the association’s duty to protect the privacy rights of its members in their voting decisions.