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December 17, 2006
If an HOA Owner Signs A Ballot - Does That Invalidate It?
Under the new HOA elections laws in California, owners are invited to return their ballots inside an inner envelope that is unmarked. This package is intended to be returned inside a larger envelope that is addressed to the inspector(s) of election for the association. The owner is supposed to sign the outer envelope beneath his or her return address identifying the separate interest they own.
In an email I recently received, a reader asks this question: As I understand it, the new elections law says:
"In order to preserve confidentiality, a voter may not be identified by name, address, or lot, parcel, or unit number on the ballot." So, what happens if a member voluntarily signs or writes his name on a secret ballot - is the ballot still valid? "
I say the answer to that question is probably "it depends" (not an uncommon attorney answer) - in this case - on who is in charge. I would say count it. The law says that the voter "is not to be identified", not the voter "is not to identify himself or herself". This means the Association is not to have identifying marks, numbers or signature blanks on the ballot that it wants returned. The Association is not supposed to be able to identify who the voter is that voted this way or that way. The Association is only supposed to be able to identify that the person returning the ballot is indeed an owner in the development and/or the person that is entitled to vote on behalf of the owner.
However, the law does not contemplate the inability of Boards to fully explain processes to owners, or the inability of owners to follow instructions, and we all know that both scenarios occur. So, if an owner signs the ballot, it seems to me that he or she is voluntarily waiving the right to secrecy, not the right to vote. I believe the vote should be counted, unless there are other factors to be considered that might suggest further inquiry.
The secrecy offered by the statute is for the protection of the owner, and if an owner ignores that protection, then I would say it still should not trip up their opportunity to vote. The cases I have reviewed related to questions that come before inspectors of election seem to me to encourage counting votes, when it seems obvious the owner intended to vote, even if they screwed up the proper return of the package. If the owner can be identified as one with the right to vote, then he or she should be able to do so.
An additional problem that has arisen in some associations is that owners do not want to sign the outer envelopes because of the possibility of identity theft, so they sign the inner envelopes. Should their ballots be counted? Again, I believe so, as long as during the check in the inspectors can verify the owner's name and, if checking signatures (although I do not believe it necessary to do so in most elections), the signature.
Other attorneys might say something different .. and there may be more to this question than meets the eye, so do not take this as legal advice for any given situation. Some legal counsel are sticking tight to "the rules" - so tight in fact that many owners may be robbed of voting for lack of being able to read and follow instructions. Is that bad? Maybe so. Maybe not.
If you want more information on the "What Ifs" in the new election laws, or want to know what they say, visit the Guru at http://www.californiacondoguru.com, and click on the link to the information on Elections After SB 61.
Posted by Beth Grimm at December 17, 2006 7:36 PM