WRITE IN CANDIDATES ON BALLOTS

The question often arises as to whether an association may, or must, offer blanks for write in candidates on a ballot for the board elections.

 The general answer is that an association is not required to do so, but it may.There are some specifics though that might affect the decision.

 If the rules adopted by the board provide for write in candidate blanks then they need to be put on the ballot. The question of whether a requirement for write in candidates should be put in the rules depends on a number of factors.

 Here are some pertinent questions to consider:

 Do the CC&Rs or Bylaws require that blanks for write in candidates be included on the ballots? If not, then no legal requirement arises here.

 Are there generally more candidates than open positions? If the answer is yes then there is not a concern that the board has to “troll” for more candidates. If people want to run they should answer the solicitation for candidates in whatever form it is offered, which there definitely should be. Any qualified member of the association can run (qualified being the key word, meaning meeting the qualifications to serve – whatever are stated in the governing documents) but it is important to pay attention to cut off dates for getting the name of and candidate papers in because the board’s goals involve having to meet statutory timelines for sending out the ballots and allowing sufficient time for the election.

 Is the association legally allowed to declare an election by acclamation if the number of candidates equals the number of open positions? This depends on a number of factors and it isn’t a right that just falls out of the air. One has to consider what the association documents do or do not offer in the way of support of this and how the motion or decision to decide to declare the election by acclamation occurs. Legal counsel should be consulted.

 Here’s a recent question that was sent to me:

 “Recently the association members received our ballots for election of officers. There are two positions vacant with three candidates. I questioned the manage company as to whether there should be a write-in space and was told no. I was told because there are more candidates than vacancies, there is no requirement for a write-in candidate.

Everything I have read indicates that a write-in candidate(s) is permitted on the ballot regardless of the number of vacancies and candidates.

This is a what I believe is the relative part of the CA Civil Code that pertains to a write-in candidate: CIVIL CODE SECTION 1363.03-1363.09 (3) Specify the qualifications for candidates for the board of directors and any other elected position, and procedures for the nomination of candidates, consistent with the governing documents. A nomination or election procedure shall not be deemed reasonable if it disallows any member of the association from nominating himself or herself for election to the board of directors.

Am I interpreting this correctly that a ballot should shall have a space for a write-in candidate(s)?”

 My answer is this: one needs only to read a little further in the applicable law which is Civil Code Section 1363.03 to get the answer because the statute goes on to say:

 “(j) Notwithstanding any other provision of law, the rules adopted pursuant to this section may provide for the nomination of candidates from the floor of membership meetings or nomination by any other manner. Those rules may permit write-in candidates for ballots.”

Aha, there it is, “those rules may permit write-in candidates for ballots.” It doesn’t say they have to.

As to taking nominations from the floor, it becomes an exercise in futility for candidates that want to nominate themselves from the floor so they don’t try to get their name on the ballot. In most cases the ballot has already gone out and if there is no write in space, the wanna-be candidate is not going to have a place on the ballot to be checked. Furthermore, many owners will probably have already sent in their ballots by the time of the annual meeting.  There are ways to set up the election that allows for nominations from the floor, and some association boards want to do this because their experience is that they generally have to recruit people from the attendees to serve. Being a board member in an association is not always (due to rampant apathy of the membership in associations across the country) perceived to be a coveted position.

 

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2 Responses to WRITE IN CANDIDATES ON BALLOTS
  1. LInda Davis
    January 21, 2013 | 4:17 pm

    If a homeowner of an HOA is behind on HOA dues and insurance payments are the able to vote?

    • Beth Grimm
      February 1, 2013 | 4:56 am

      Many association documents have provisions that allow the board to suspend member’s rights to vote – and other rights as well, such as using the association facilities, if they don’t pay assessments or are violating the association documents or rules of the association. Under California law a hearing would be required and there are certan tining requirements in the law. Many documents also outline the hearing requirements. But bottom line, owners should pay assessments to earn the right to participate in association matters.