Notwithstanding the secret balloting requirement in Section 5100, or any contrary provision in the governing documents, when, as of the deadline for submitting nominations provided for in subdivision (a) of Section 5115, the number of qualified candidates is not more than the number of vacancies to be elected, as determined by the inspector or inspectors of the elections, the association may, but is not required to, consider the qualified candidates elected by acclamation if all of the following conditions have been met:
(a) The association has held a regular election for the directors in the last three years. The three-year time period shall be calculated from the date ballots were due in the last full election to the start of voting for the proposed election.
(b) The association provided individual notice of the election and the procedure for nominating candidates as follows:
(1) Initial notice at least 90 days before the deadline for submitting nominations provided for in subdivision (a) of Section 5115. The initial notice shall include all of the following:
(A) The number of board positions that will be filled at the election.
(B) The deadline for submitting nominations.
(C) The manner in which nominations can be submitted.
(D) A statement informing members that if, at the close of the time period for making nominations, there are the same number or fewer qualified candidates as there are board positions to be filled, then the board of directors may, after voting to do so, seat the qualified candidates by acclamation without balloting.
(2) A reminder notice between 7 and 30 days before the deadline for submitting nominations provided for in subdivision (a) of Section 5115. The reminder notice shall include all of the following:
(A) The number of board positions that will be filled at the election.
(B) The deadline for submitting nominations.
(C) The manner in which nominations can be submitted.
(D) A list of the names of all of the qualified candidates to fill the board positions as of the date of the reminder notice.
(E) A statement reminding members that if, at the close of the time period for making nominations, there are the same number or fewer qualified candidates as there are board positions to be filled, then the board of directors may, after voting to do so, seat the qualified candidates by acclamation without balloting. This statement is not required if, at the time the reminder notice will be delivered, the number of qualified candidates already exceeds the number of board positions to be filled.
(c)
(1) The association provides, within seven business days of receiving a nomination, a written or electronic communication acknowledging the nomination to the member who submitted the nomination.
(2) The association provides, within seven business days of receiving a nomination, a written or electronic communication to the nominee, indicating either of the following:
(A) The nominee is a qualified candidate for the board of directors.
(B) The nominee is not a qualified candidate for the board of directors, the basis for the disqualification, and the procedure, which shall comply with Article 2 (commencing with Section 5900) of Chapter 10, by which the nominee may appeal the disqualification.
(3) The association may combine the written or electronic communication described in paragraphs (1) and (2) into a single written or electronic communication if the nominee and the nominator are the same person.
(d)
(1) The association permits all candidates to run if nominated, except for nominees disqualified for running as allowed or required pursuant to subdivisions (b) to (e), inclusive, of Section 5105.
(2) If an association disqualifies a nominee pursuant to this subdivision, an association in its election rules shall also require a director to comply with the same requirements.
(e) The association board votes to consider the qualified candidates elected by acclamation at a meeting pursuant to Article 2 (commencing with Section 4900) for which the agenda item reflects the name of each qualified candidate that will be seated by acclamation if the item is approved.
Related Links
AB 502 Signed! Board Elections by Acclamation Available to all California HOAs –Published on HOA Lawyer Blog (October 2021)
SB-432 (Wieckowski) Common interest developments.
Would allow for board term limits and would require that persons assisting Inspector(s) of Elections satisfy the criteria of an independent third party.
Current Status: Chaptered
FindHOALaw Quick Summary:
**UPDATE: SB 432 was signed by the Governor on October 7, 2021. Its changes to the law take effect January 1, 2022.
View more info on AB 432
from the California Legislature's website
Related Links
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:
- 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;
- 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
Corporations Code Section 7614. Inspectors of Election.
(a) In advance of any meeting of members, the board may appoint inspectors of election to act at the meeting and any adjournment thereof. If inspectors of election are not so appointed, or if any persons so appointed fail to appear or refuse to act, the chairman of any meeting of members may, and on the request of any member or a member’s proxy shall, appoint inspectors of election (or persons to replace those who so fail or refuse) at the meeting. The number of inspectors shall be either one or three. If appointed at a meeting on the request of one or more members or proxies, the majority of members represented in person or by proxy shall determine whether one or three inspectors are to be appointed. In the case of any action by written ballot (Section 7513), the board may similarly appoint inspectors of election to act with powers and duties as set forth in this section.
(b) The inspectors of election shall determine the number of memberships outstanding and the voting power of each, the number represented at the meeting, the existence of a quorum, and the authenticity, validity and effect of proxies, receive votes, ballots or consents, hear and determine all challenges and questions in any way arising in connection with the right to vote, count and tabulate all votes or consents, determine when the polls shall close, determine the result and do such acts as may be proper to conduct the election or vote with fairness to all members.
(c) The inspectors of election shall perform their duties impartially, in good faith, to the best of their ability and as expeditiously as is practical. If there are three inspectors of election, the decision, act or certificate of a majority is effective in all respects as the decision, act or certificate of all. Any report or certificate made by the inspectors of election is prima facie evidence of the facts stated therein.
Civil Code Section 5120. Counting Ballots.
(a) All votes shall be counted and tabulated by the inspector or inspectors of elections, or the designee of the inspector or inspectors 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. A person, including a member of the association or an employee of the management company, shall not open or otherwise review any ballot before the time and place at which the ballots are counted and tabulated. The inspector or inspectors of elections, or the designee of the inspector or inspectors of elections, may verify the member’s information and signature on the outer envelope prior to the meeting at which ballots are tabulated. Once a secret ballot is received by the inspector or inspectors of elections, it shall be irrevocable.
(b) The tabulated results of the election shall be promptly reported to the board and shall be recorded in the minutes of the next meeting of the board and shall be available for review by members of the association. Within 15 days of the election, the board shall give general notice pursuant to Section 4045 of the tabulated results of the election.
(c) A person, including a member of the association or an employee of the management company, shall not open or otherwise review any tally sheet of votes cast by electronic secret ballots before the time and place at which the ballots are counted and tabulated.
Civil Code Section 5110. Inspector of Elections Required.
(a) The association shall select an independent third party or parties as an inspector of elections. The number of inspectors of elections shall be one or three.
(b) For the purposes of this section, an independent third party includes, but is not limited to, a volunteer poll worker with the county registrar of voters, a licensee of the California Board of Accountancy, or a notary public. An independent third party may be a member, but may not be a director or a candidate for director or be related to a director or to a candidate for director. An independent third party may not be a person, business entity, or subdivision of a business entity who is currently employed or under contract to the association for any compensable services other than serving as inspector of elections.
(c) The inspector or inspectors of elections shall do all of the following:
(1) Determine the number of memberships entitled to vote and the voting power of each.
(2) Determine the authenticity, validity, and effect of proxies, if any.
(3) Receive ballots.
(4) Ensure compliance with all of the following, if the inspector or inspectors of elections conducts an election by electronic secret ballot pursuant to Section 5105:
(A) Each member voting by electronic secret ballot shall be provided with all of the following:
(i) A method to authenticate the member’s identity to the internet-based voting system.
(ii) A method to transmit an electronic secret ballot to the internet-based voting system that ensures the secrecy and integrity of each ballot.
(iii) A method to confirm, at least 30 days before the voting deadline, that the member’s electronic device can successfully communicate with the internet-based voting system.
(B) Any internet-based voting system that is utilized shall have the ability to accomplish all of the following:
(i) Authenticate the member’s identity.
(ii) Authenticate the validity of each electronic secret ballot to ensure that the electronic secret ballot is not altered in transit.
(iii) Transmit a receipt from the internet-based voting system to each member who casts an electronic secret ballot.
(iv) Permanently separate any authenticating or identifying information from the electronic secret ballot, rendering it impossible to connect an election ballot to a specific member.
(v) Store and keep electronic secret ballots accessible to elections officials or their authorized representatives for recount, inspection, and review purposes.
(5) Hear and determine all challenges and questions in any way arising out of or in connection with the right to vote.
(6) Count and tabulate all votes.
(7) Determine when the polls shall close, consistent with the governing documents.
(8) Determine the tabulated results of the election.
(9) Perform 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.
(d) An inspector or inspectors of elections shall perform all duties impartially, in good faith, to the best of the inspector or inspectors of elections’ ability, as expeditiously as is practical, and in a manner that protects the interests of all members of the association. If there are three inspectors of elections, the decision or act of a majority shall be effective in all respects as the decision or act of all. Any report made by the inspector or inspectors of elections is prima facie evidence of the facts stated in the report.
Civil Code Section 5100. Elections Held by Secret Ballot.
(a)
(1) Notwithstanding any other law or provision of the governing documents, elections regarding assessments legally requiring a vote, election and removal of directors, amendments to the governing documents, or the grant of exclusive use of common area pursuant to Section 4600 shall be held by secret ballot in accordance with the procedures set forth in this article.
(2) An association shall hold an election for a seat on the board of directors in accordance with the procedures set forth in this article at the expiration of the corresponding director’s term and at least once every four years.
(b) This article also governs an election on any topic that is expressly identified in the operating rules as being governed by this article.
(c) The provisions of this article apply to both incorporated and unincorporated associations, notwithstanding any contrary provision of the governing documents.
(d) The procedures set forth in this article shall apply to votes cast directly by the membership, but do not apply to votes cast by delegates or other elected representatives.
(e) In the event of a conflict between this article and the provisions of the Nonprofit Mutual Benefit Corporation Law (Part 3 (commencing with Section 7110) of Division 2 of Title 1 of the Corporations Code) relating to elections, the provisions of this article shall prevail.
(f) Directors shall not be required to be elected pursuant to this article if the governing documents provide that one member from each separate interest is a director.
Related Links
The New State of HOA Election Laws – Published on HOA Lawyer Blog (October, 2019)