When an association’s election requires the use of secret ballots in accordance with Civil Code Section 5100, an association is required to “select an independent third party or parties as an inspector of elections.” (Civ. Code § 5110(a).) The number of inspector(s) must either be one (1) or three (3). (Civ. Code § 5110(a).)
“Independent Third Party” Defined
An independent third party allowed to serve as an association’s inspector of elections includes, but is not limited to, the following: (Civ. Code § 5110(b))
- A volunteer poll worker with the county registrar of voters;
- A licensee of the California Board of Accountancy (CBA);
- A notary public; or
- A member of the association, provided that the member is not a director, a candidate for director, or related to a director or to a candidate for director.
Professionals – an independent third party allowed to serve as an association’s inspector of election may not include any “person, business entity, or subdivision of a business entity who is currently employed or under contract to the association for any compensable service unless expressly authorized by [the association’s election rules]” adopted pursuant to Civil Code Section 5105(a)(5). (Civ. Code § 5110(b).)
Prohibited Persons – as referenced above, an association’s inspector of election may not include any person who is a member of the board, a candidate for the board, or related to a member of the board or a candidate for the board. (Civ. Code § 5110(b).)
The association’s election rules must specify a method for selecting one (1) or three (3) independent third parties as inspector(s) of elections utilizing one of the following methods:
- Appointment of the inspector(s) by the board; (Civ. Code § 5105(a)(5)(A))
- Election of the inspector(s) by the members of the association; (Civ. Code § 5105(a)(5)(B)) or
- Any other method for selecting the inspector(s). (Civ. Code § 5105(a)(5)(C).)
Most associations utilize the first method (appointment by board) for the selection of its inspector(s) of elections.
Additional Persons Assisting Inspector(s) – The association’s election rules must also allow the inspector(s) to appoint and oversee additional persons to verify signatures and to count and tabulate votes as the inspector(s) deem appropriate, provided that the persons are also independent third parties in accordance with the above. (Civ. Code § 5105(a)(6).)
Duties of Inspectors
An association’s inspector(s) of elections are required to do all of the following: (Civ. Code § 5110(c))
- Determine the number of memberships entitled to vote and the voting power of each;
- Determine the authenticity, validity, and effect of proxies, if any;
- Receive ballots;
- Hear and determine all challenges and questions in any way arising out of or in connection with the right to vote;
- Count and tabulate all votes;
- Determine when the polls shall close, consistent with the governing documents;
- Determine the tabulated results of the election; and
- Perform any acts as may be proper to conduct the election with fairness to all members in accordance with the required secret balloting procedures, the Corporations Code, and all applicable election rules of the association.
All of the above must be performed “impartially, in good faith, and to the best of the inspector of election’s ability, and as expeditiously as practical.” (Civ. Code § 5110(d).)
Decisions & Reports
If there are three (3) inspectors of elections, the decision or act of a majority of the inspectors is effective “in all respects” as the decision or act of all the inspectors. (Civ. Code § 5110(d).) Any report made by the inspector(s) is prima facie evidence of the facts stated in the report. (Civ. Code § 5110(d).)
Custody of Ballots
The sealed ballots must at all times be in the custody of the association’s inspector(s) of election or at a location designated by the inspector(s) of elections until after the tabulation of the vote, and until the time allowed by Civil Code Section 5145 for challenging the election has expired (one year). (Civ. Code § 5125; See also “Legal Challenge to Election.”) Once that time has expired, the custody of the ballots must be transferred from the inspector(s) of elections to the association. (Civ. Code § 5125.) If there is a recount or other challenge to the election process, the inspector(s) of elections must, upon written request, make the ballots available for inspection and review by any member of the association or the member’s authorized representative. (Civ. Code § 5125; See also “Inspection of Ballots.”)
- Civil Code Section 5125. Custody of Ballots.
- Civil Code Section 5120. Counting Ballots.
- Civil Code Section 5115. Ballot and Voting Procedure.
- Civil Code Section 5110. Inspector of Elections Required.
- Civil Code Section 5105. Election Rules Required.
- Civil Code Section 5100. Elections Held by Secret Ballot.
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.