HOA / CONDO Board Does Not Send Out Ballots – Is Election Void?

Here is the question I received:

“Have tried to find the answer to this ….  our HOA nominated the entire Board for next year ….  the Board did not send Ballots out. Is the election void?”

What is “correct” under the elections law is to have the election and send ballots out, unless your bylaws or election rules provide for “acclamation” and it is done per Robert’s Rules.

But what about the waste in expense? Can a Board consider that? Does it make sense to send out ballots and go to that expense if the number of candidates is not more than the number of vacancies?

Not really. So the question really becomes – should your HOA or Condo Board take the legally required approach or the sensible approach?

Failure to send out ballots would not automatically void an election. The only way to get to a void election is to challenge the election. And if your board gave all qualified members a fair opportunity to run for  board and followed whatever nomination procedures are required by the HOA or condo docs, and there are still not enough candidates to make it a contest, and the records document this, then the risk of being challenged for not spending the money for ballots and an election is probably very small. And if the challenger had a fair opportunity to be a nominee and didn’t, I would say there is probably a small-to- zero  risk that the challenger would be successful in challenging the board for not sending out ballots.

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3 Responses to HOA / CONDO Board Does Not Send Out Ballots – Is Election Void?
  1. Don Brown
    December 26, 2009 | 4:15 am

    Not mailing out the ballots eliminates the possibility of writing in the name of the person that you want to vote for, which is always allowed in an election! Anyone can campaign secretly. Acclammation can only be done at the Annual Meeting itself, not beforehand!

    • Beth Grimm
      January 16, 2010 | 9:34 pm

      People have very strong opinions on what can be done – or not, and what should be done – or not, and what the law means. In California, the elections law for HOAs and Condo associations was really written with public elections in mind and that is not a very good fit. Robert’s Rules allows for acclamation and I believe it does describe a process that takes place at the annual meeting. However, the California elections law muddies that up by requiring double envelope ballots that are mailed ahead of time, and that has caused mucho confusion for everyone. HOAs and Condo associations are finding them selves with the quandary of what to do when no one wants to run, when they have to drag people out to even consider serving and when they do not have enough candidates for a contested election, and they they are faced with the question as to whether to spend the money to follow through with the mailed, double envelope voting process with inspectors of election, or just say “heck” we are lucky to have enough people to serve and let’s go forth without all the hub-bub and expense.

      Of course, there are still, too, some boards that put up all kinds of hurdles to people who want to serve, yes, and acclamation can be improperly used, and since the law does not allow it, can be challenged. However, to say that sending out ballots with write in blanks on it is always allowed is also contrary to the law, which makes it permissive, not a requirement. And there are association documents to consider too. If they allow use of
      Robert’s Rules, then it would be reasonable to argue that the elections law does not permit voting at a meeting, rather it requires a process, and so the use of acclamation allowed by Robert’s Rules and thee documents should still be honored in whatever practical way that would occur, all other things being done properly and aboveboard. I do not know who would win the argument over such a question should it arise. If a board uses it to effectively block viable board candidates, then it would probably lose the argument. However, if it could show that it was diligent in trying to seek out candidates from all members who would properly qualify to serve, and candidates were scarce, then the election should not be overturned and the argument that acclamation is not an option should lose. Just my two cents on this, having had much experience in trying to make the laws work in a responsible, practical way without engendering unnecessary expense. Any board should get legal advice if the question arises but even then, it still may have to decide whether to avoid the expense, or go forth and complete the balloting, counting process.

      • Beth Grimm
        January 16, 2010 | 9:37 pm

        Note, excuse my typos, I am not yet sure how to edit my own comments!