BALLOT SOLICITATION

QUESTION: Our association adopted new election rules as required by the Davis-Stirling Act which mandates secret ballots. Are owners allowed to collect ballots from other owners, mark their ballots, and mail or deliver them to the Inspectors of Election?

ANSWER:  No. Although owners may solicit proxies, it is improper to solicit ballots, to mark other owners' ballots, or to engage in electioneering when a voter is casting a ballot.

Fair Elections. The goal of the new election rules is to ensure fair elections in homeowners associations. The Davis-Stirling Act requires that associations use a secret ballot system and use as a model the same procedures used by California counties for ensuring the confidentiality of the balloting process. Civil Code §1363.03(e) Therefore, it is instructive to find out what California election laws say about absentee ballots.

Electioneering. Persons may conduct normal campaign activities such as mailers, campaign speeches, and the like. What the Election Code prohibits is soliciting votes or electioneering at any time a voter may be casting a ballot.

No candidate or representative of a candidate, and no proponent, opponent, or representative of a proponent or opponent, of an initiative, referendum, or recall measure, or of a charter amendment, shall solicit the vote of an absentee voter, or do any electioneering, while in the residence or in the immediate presence of the voter, and during the time he or she knows the absentee voter is voting. Elections Code §18371(a)

As provided for in the Election Code, any solicitation or attempt to influence a voter under these sections is guilty of a misdemeanor. The same rules against solicitation and electioneering should apply to associations so that members can vote without intimidation or undue influence.

Diverting Ballots. Homeowners campaigning for or against special assessments, election of directors, removal of directors, or the like cannot induce owners to divert ballots away from the Inspectors of Election. Both the Election Code and the Davis-Stirling Act require that voters either mail or deliver their ballots in person to election officials. Elections Code §3017, Civil Code §1363.03(e)(2). Alternatively, a voter may vote an absentee ballot in person on the day of the election before the close of the polls. Elections Code §3018. The voter must vote the ballot either in the presence of an election official, or in a voting booth at the official's discretion, "but in no case may his or her vote be observed." The same standards apply to association elections (see more about absentee voting).

Exception for Illness. If voters are unable to return the ballot due to an illness or other physical disability, they may designate another person to return the ballot for them. Elections Code §3017. However, the statute specifically limits the acceptable group of eligible persons to family (spouse, child, parent, grandchild, brother, or sister,) or a person residing in that household.

Updated by ADAMS KESSLER 5/7/2008