Tag Archives: Inspector of Election

Inspectors of Elections

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 other than serving as inspector of elections.”  (Civ. Code § 5110(b).)

Prohibited Persons – as referenced above, an association’s inspector of elections 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, nor may it include any person or business entity that is employed or under contract with the association for any service other than serving as inspector of elections. (Civ. Code § 5110(b).)

Selection Methods
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:

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;
  • 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,  to the best of the inspector of election’s ability, as expeditiously as practical, and in a manner that protects the interests of all members of the association.” (Civ. Code § 5110(d).)

Correction of Errors on Candidate List and Voter List
If a member or the association reports an error on the voter list or candidate list to the inspector of elections, the inspector must make the corrections within two (2) business days. (Civ. Code § 5105(a)(7).)

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, Envelopes, Voter List & Candidate List
The sealed ballots, signed voter envelopes, voter list, and candidate list 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.”)

Related Links

The New State of HOA Election Laws – Article published by Tinnelly Law Group

Balloting Requirements & Procedures

Where a matter to be voted on by the association’s members requires the use of a secret ballot, the following balloting procedures must be utilized in order to preserve the confidentiality of the vote and to comply with other legal requirements contained in the Davis-Stirling Act:

Ballot with 2 Preaddressed Envelopes
Ballots and two (2) preaddressed envelopes must be mailed by first class mail or delivered by the association to every member not less than thirty (30) days prior to the deadline for voting. Instructions on how a member may return his/her ballot must also be included. (Civ. Code § 5115(a).)

  • First Sealed Envelope – The ballot itself is not signed by the voter, but is inserted into the first envelope that is sealed. (Civ. Code § 5115(a)(1).)
  • Second Signed & Sealed Envelope – the first sealed envelope is inserted into a second envelope that is sealed. In the upper left hand corner of the second envelope, the voter must sign and indicate the voter’s name, as well as indicate the address or separate interest identifier that entitles the voter to vote. (Civ. Code § 5115(a)(1).) The second envelope is addressed to the association’s inspector(s) of elections who ultimately tabulates the votes. (Civ. Code § 5115(a)(2).) The envelope may be mailed or delivered by hand to a location specified by the inspector(s) of elections, and the member may request a receipt for delivery. (Civ. Code § 5115(a)(2).)

Proposed Governing Document Amendment
If the vote is being conducted to approve amendments of the association’s governing documents (i.e., a CC&R amendment), the text of the proposed amendments must be delivered to the members with the ballot. (Civ. Code § 5115(g).)

Quorum
If a quorum is required by the governing documents, each ballot received by the inspector(s) of elections must be treated as a member present at a meeting for purposes of establishing quorum. (Civ. Code § 5115(b).)

Counting Ballots & Tabulating Votes

Meeting Required – Even if the election is being conducted entirely by mail, all ballots must be counted and tabulated by the association’s inspector(s) of elections, or by the designee of the inspector(s) of elections, in public at a properly noticed open board meeting or membership meeting. (Civ. Code § 5120(a).) No person, member of the association, or employee of the association’s management company may open or otherwise review any ballot prior to the time and place where the ballots are being counted and tabulated. (Civ. Code § 5120(a).) The inspector(s) of elections, or the designee of the inspector(s) of elections, may verify the member’s information and signature on the outer envelope prior to the meeting where the ballots will be counted. (Civ. Code § 5120(a).)

Observing the Counting – Any candidate or member of the association may witness the counting of the ballots and tabulation of the votes. (Civ. Code § 5120(a).)

Ballots are Irrevocable
Once a secret ballot is received by the association’s inspector(s) of election, the ballot is irrevocable. (Civ. Code § 5120(a).)

Reporting Results
Once the votes are counted, the tabulated results must: (Civ. Code § 5120(b).)

  • Be promptly reported to the board;
  • Recorded in the minutes of the next board meeting; and
  • Be available for review by the association’s members.

Within fifteen (15) days of the election, the board must also give general notice of the tabulated results. (Civ. Code § 5120(b).)

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.”)

Related Links

The New State of HOA Election Laws – Article published by Tinnelly Law Group