California law now allows homeowner associations to conduct member votes electronically.
Civil Code Sections 5105, 5115, 5120 and 5125 of the Davis-Stirling Act, a California law that regulates how community associations operate, have been amended to give HOAs the choice, but HOAs must know the requirements to exercise this very helpful option.
A new Civil Code Section 5105(i) allows HOAs to adopt election rule changes providing for electronic voting, despite any language in the by laws or covenants, conditions and restrictions (CC&Rs) requiring only paper ballots. However, votes on regular or special assessments may still not be electronic — that one topic of membership voting must still be by the “old school” paper ballot method.
To avoid confusion, next time your HOA is pursuing bylaw or CC&R amendments, consider including amendments conforming to the law revisions.
The new election rules must require the HOA to notify members of the following:
- Their right to opt out of electronic voting;
- Their current chosen voting method;
- If they have selected electronic voting, the email address to be used;
- An explanation that they can opt out of voting and how they can do so; and
- The deadline to opt out. This notification must be sent to each member at least 30 days before the deadline to change their preferred voting method, and that deadline in turn must be at least 90 days before the election. So, it means HOAs wanting to use electronic voting will need to start the process at least 120 days ahead of the actual voting.
The HOA must send paper ballots to members who have timely opted out of electronic voting or to members on which the HOA does not have an email address, and must keep a list of how members have opted to vote. Members opting to vote electronically must provide a valid email address to the HOA. If the HOA uses electronic voting, its election rules must ban nomination of candidates from the floor.
At the same time as ballots are normally mailed out (30 days before the voting deadline), electronic voting instructions must be sent to members voting electronically. Just as with paper ballots, which are irrevocable once sent to the Inspector Of Elections, electronic votes are also irrevocable. Electronic votes are counted toward the membership meeting quorum as if the voter were present.
Per amendments to Civil Code Section 5110(b), electronic voting must be conducted by the Inspector Of Elections, who must ensure that their system protects the secrecy of votes, authenticates member identity and that ballots are not altered in transit, transmits receipts to voting members, and separates the voter’s identity from the vote cast. So as a practical matter, this requires the electronic voting service provider to act as the Inspector Of Elections.
One wonderful aspect of the new law is the new Civil Code 5115(g)(2), which says that in governing document amendment elections, the proposed amendments can be sent electronically. Until now, a complete copy of the amendments had to be sent along with the ballots, which often added great expense.
Just as with paper ballots, under Civil Code 5120 the electronic vote tally sheet may not be viewed by anyone, including the manager and HOA members, until the time for opening and counting of ballots.
Also, HOAs can amend their CC&Rs to provide for an automatic “opt in” of members to email communications. Has your HOA done this?
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Submit questions to Kelly@roattorneys.com.
