AB 61; Election Procedures. This law amends various sections of the Davis-Stirling Common Interest Development Act (Civil Code) by mandating that all homeowner and industrial associations adopt certain election rules and procedures. The mandatory rules are stated below.
Access to Media
The law mandates that, upon the written request of any candidate or member advocating a point of view, the candidate or member must be provided access to the association’s media, newsletters, or internet web sites, if any, during a campaign, as long as that candidate or member is using them for purposes reasonably related to that election. Equal access must be provided to all candidates and members advocating a point of view, whether endorsed by the board or not, as long as their purposes are reasonably related to the election. An association may not edit or redact any content from these communications, but may include a statement specifying that the candidate or member, and not the association, is responsible for that content.
Access to Meeting Space
An association must allow all candidates free access to any common area meeting space during a campaign, including those who are not incumbents, and to all members advocating a point of view, regardless of whether or not they are endorsed by the board, for purposes reasonably related to the election. Qualifications for the Board. The qualifications for candidates for the board of directors must be stated in an association’s election rules. The bylaws require that all board members be members or owners within the development, and that candidates be current in the payment of dues or assessment. Additional qualifications may be stated in the CC&Rs or bylaws of the association.
Nominations for a director may be made by any member of the association. A member may nominate himself or herself as a candidate for a directorship. Other nomination procedures must be stated in the election rule. The bylaws specify the additional nomination procedures and allow nominations from the floor.
Qualifications for Voting
The qualifications for a member to vote must be stated in the election rules. Members are required to be “in good standing” (HOA Dues paid up in full).
Written ballots must be sent to every member at least 30 days prior to the date set to count votes. The rules must state when and where ballots must be returned. The ballots must be secret and confidential and must be counted in an open meeting of the association.
Inspector of Election
The law requires that either one or three inspector(s) of election be appointed and requires that the procedure for appointing the inspector of election be set forth in the election rules. Inspectors of election cannot be board members, candidates for the board, or related to any candidate or board member. The Board, however, may serve as the appointing authority for the Inspector or Elections.
Duties of Inspectors of Election
The duties of the Inspector(s) of Election include: Determining the number of memberships entitled to vote and the voting power of each;
* Determining the authenticity, validity, and effect of ballots and proxies, if any;
* Receiving ballots. The sealed ballots must be in the custody of the inspector(s) of election until after the tabulation of the vote, at which time custody must be transferred to the association;
* Hearing and determining all challenges and questions in any way arising out of or in connection with the right to vote;
* Counting all votes in an open meeting of the association; and
* any other duties listed in the law.
Confidentiality of Ballots
The board must deliver (cause to) or send by first-class mail the written ballots and two pre-addressed envelopes, with instructions on how to return the ballots, to every member at least 30 days before the date of the annual election. In order to preserve confidentiality, voters may not be identified by name, address, or lot, parcel, or unit number on the ballot. The association must use the procedures of the California counties for ensuring confidentiality of voter absentee ballots, including all of the following:
A. The ballot itself is not signed by the voter, but is inserted into an envelope that is sealed. This envelope is inserted into a second envelope that is sealed. In the upper left hand corner of the second envelope, the voter prints and signs his or her name, address, and lot, or parcel, or unit number that entitles him or her to vote.
B. 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) or delivered to the inspector(s) at the meeting where the election is held. The member may request a receipt for delivery.
Proxy instructions must be set forth on a separate, detachable page of the proxy that can be given to the proxy-holder to retain. The proxy-holder must cast the member’s vote by secret ballot.
The results of the election must be promptly reported to the board and recorded in the minutes of the next meeting of the board. These results must be available for the members to review and publicized within 15 days of the election in a communication directed to all members.
Storage of Ballots
After tabulation, the association must store the election ballots in a secure place for at least one year after the date of the election. If there is a recount or other challenge to the election process, the association must make the ballots available for inspection and review by the members or their authorized representatives if they make a written request. Recounts must, of course, be conducted in a manner that preserves the confidentiality of the vote.
The association’s election rules may not conflict with AB 61 or the bylaws.
1. If ballots are mailed out, nominations may still be taken from the floor, but are not required to be taken from the floor.
2. A proxy-holder vote does not trump a previously-mailed ballot if said ballot is mailed to the Board.