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SECRET
BALLOTS By Adrian J. Adams, Esq., Vote by Secret Ballot. As provided for in Civ. §1363.03(b), community
associations in *
special assessments over 5%
or regular assessments over 20% (see exceptions) *
election of directors (see
exception) *
amendments to governing
documents (see exceptions) *
grant of exclusive use of
common area property (see exceptions) No Revocation of Ballot. Unless otherwise provided in the
articles or bylaws, a written ballot may not be revoked. Corp. §7513(d) Special Envelopes. Ballots and two preaddressed envelopes must be mailed by
first-class mail or delivered to every member not less than 30 days prior to
the deadline for voting. To preserve voter confidentiality, there must be no
signature line, dentifying
name, address, lot, parcel, or unit number on the ballot. The unsigned ballot
must be put into an envelope that is then sealed. This envelope is inserted
into a second envelope which is also sealed. In the upper left hand corner of
the second envelope, the voter must print and sign his/her name, address, and
lot, or parcel, or unit number. The second envelope is addressed to
the inspector(s) of election who will be tallying the votes. The envelope may
be mailed or delivered by hand to a location specified by the inspector(s) of
election. The member may request a receipt for delivery. Problems with Proxies. If an association uses proxies, the statute requires
that they be specially designed so as to ensure secret voting by the owner.
This creates enormous logistical problems for associations as well as opening
the door to error and election tampering. To avoid these problems, I recommend
against the use of proxies. Instead, elections should be done entirely by
ballot through the mail. Quorum Requirements. Achieving a quorum has always been a problem for
associations, which is why proxies were needed. The new election procedures resolves that problem.
If elections are conducted entirely through the mail, the ballots can be
counted at a board meeting, thereby eliminating the need to establish a
membership quorum. As provided for in Civ.
§1363.03(f), all votes must be counted by the inspectors of election in public
at a properly noticed open membership meeting or board meeting. If the counting
is scheduled for a membership meeting, achieving a quorum will be extremely
difficult--once people vote by mail, there is less incentive for them to attend
the membership meeting. No attendance means no quorum, which means no meeting. The association
would then need to reschedule the meeting until such time as it achieved a
quorum, just so it could count the votes. This would create delays, frustration
and extra expense. RECOMMENDATION. I recommend that election ballots be counted at a specially
noticed board meeting since only a quorum of the board is needed to hold the
meeting. No proxies are needed and any members interested in watching the count
Civ. §1363.03(f) can set
aside time for the meeting without fear of delays and rescheduling for lack of
a quorum. Keeping Ballots Secret. Ballots must remain in a secure place and unopened
until the official vote-counting meeting. No person, including a member of the
association or an employee of the management company, may open or otherwise
review any ballot prior to the time and place at which the ballots are counted
and tabulated. Civ.
§1363.03(f) Adrian J. Adams, Esq., is a Managing Partner of the law firm of Adams & Kessler LLP |
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