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December 3, 2006
Elections - Are "Homemade" Ballots OK?
I often get emails asking me to give my "blessing" to somethin that is being contemplated or has already been done. Of course, I cannot give unsolicited legal advice and have to be careful about unwittingly creating an attorney-client relationship, so a common answer from me is that while I cannot give specific legal advice, I will try to address the topic on the blog, in a general nature. Here is one of "those" questions from a reader:
"From what I have read it appears that the following scenario should not violate any laws. Please confirm.
Secret ballot packages have been properly mailed to all members. While an incumbent board candidate is campaigning door-to-door a member asks for another ballot package since they have misplaced theirs. Anticipating this, the candidate hands the member a new one and advises that the member should vote the ballot in private and then mail or deliver the sealed ballot package to the election inspector themselves. The candidate neither observes the voting or takes possession of the completed ballot."
It would seem appropriate to me that the Board would make arrangements for an owner who misplaces or does not ever receive their voting packet to get a replacement packet. Boards may be required to have extra ballot packets available to provide to proxy holders. The idea of control numbers for the envelopes does not really work anymore in California, at least not as to the ballot envelopes themselves, because everything has to be secret for certain elections including board elections and placing a control # on a ballot envelope of the ballot iitself would make it traceable back to the owner submitting it. And having the owners sign and identify the outer mailing envelope should be control enough.
A question I had, however, was "Why would a candidate have extra blank ballot packages and where did he or she get them?" Obviously, if one candidate gets them and another does not that could be a problem. Especially if that candidate was an incumbent.
The reader also asks: "One point I have not seen addressed anywhere regards "official" ballots versus "home-made" ballots: are "home-made" ballots void? I can't imagine that a vote would be denied because a member submitted a home-made ballot in lieu of the ballot sent by the HOA. I would think that as long as the member had the opportunity to vote secretly via HOA provided secret-ballot materials but the member chose not to use them then anything the member submitted, as long as there was a signature, name and address, would be OK. even if they submitted their ballot without any interior envelope. what do you think?
The new law says this: " Ballots and two preaddressed envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the association to every member not less than 30 days prior to the deadline for voting. In order to preserve confidentiality, a voter may not be identified by name, address, or lot, parcel, or unit number on the ballot. The association shall use as a model those procedures used by California counties for ensuring confidentiality of voter absentee ballots, ...."
If one remains focussed on the intent of the legislator to model public elections, no "homemade" ballots would be accepted. I have my frustrations with trying to work with the public model but on this point, I believe associations should be equipped to provide ballot packages if an owner loses theirs or does not receive it, or if an owner assigns a proxy and does not give the proxy holder the ballot package. It seems best to me if the inspectors receive ballot packages that are identical from the owners or in the case where a proxy has been assigned, from the proxy holder, and so it seems reasonable to me that that the Association's ballot package should be required. In a public election, I do not believe the elections officials can accept "homemade" ballots.
However, a problem is presented if a Board is unwilling to provide any means for an owner who claims not to have received their ballot package to be able to get a replacement ballot package, and in that case if an inspector accepted a "homemade" package, and it was constructed like the rest, it would not be the end of the world, in my opinion. Why? Because I believe the cases analyzing voting mistakes generally opt in favor of having a voter's intent satisfied, to the extent that is possible, and I also believe it may be unfair to refuse to provide replacement ballot packets to people who do not receive them or who misplace them. But as for any advice about what associations should do in such a case ... I will leave that up to the inspectors to make the determination as to whether such a packet should or should not be accepted.
Posted by Beth Grimm at December 3, 2006 8:31 PM