Condo Law in California

QUESTION: During an election, can owners demand from the Inspector of Elections a running tally of who returned their ballots? We want to know who voted so we can lobby owners who have not yet voted.

ANSWER: There is no requirement that inspectors provide such information. As provided for in Civil Code §1363.03(c)(3), inspectors of election must perform the following duties:

• determine the number of memberships entitled to vote and the voting power of each;
• determine the authenticity, validity, and effect of proxies;
• receive ballots;
• hear and determine challenges and questions arising out of the right to vote;
• count and tabulate votes;
• determine when the polls close;
• tabulate the results of the election; and
• perform any acts as may be proper to conduct the election with fairness.

Providing a tally of owners who cast votes is not listed as one of the inspector’s duties.

Verifying Information. Some could argue that inspectors should supply a list because they must prepare it anyway. That argument is not valid since the statute allows but does not mandate that inspectors verify voter information prior to the meeting. Civil Code §1363.03(f) They could wait until the meeting.

Extra Expense. If an association wants the inspector to prepare and disseminate a running tally of who has or has not voted, it needs to make arrangements with the inspector to provide this service. There will likely be an additional charge for the time involved in providing such information.

QUESTION: What does it mean that members can “witness” the counting of ballots?

ANSWER: Unfortunately, Civil Code 1363.03(f) does not define what it means. It merely states that:

All votes shall be counted and tabulated by the inspector or inspectors of election or his or her designee in public at a properly noticed open meeting of the board of directors or members. Any candidate or other member of the association may witness the counting and tabulation of the votes.

County Guidelines. Because the statute does not define “witness”, we can turn to California’s election code for guidance. State and county guidelines are fairly uniform that observers must be allowed sufficiently close to observe the process but not the actual votes on the ballots. This means that observers cannot stand over the shoulder of a ballot counter. Instead, they must sit or stand at a reasonable distance and observe the counting process.

Who May Observe? As provided for in Civil Code 1363.03(f) observers may only be candidates or members of the association. Lawyers representing candidates do not qualify.

Disruptive Observers. Anyone who disrupts the election process may be ejected from the area. The person may also be fined, provided the association’s rules provide for it. Using the guidelines found in Election Code §15104(e), observers may not:

• touch any voting materials or equipment;
• touch election personnel;
• assist in the tabulating of votes;
• talk to ballot counters while they are processing ballots;
• make loud noises or distract ballot counters;
• use cellular phones, pagers, two-way radios, cameras, audio or video recording devices, or camera phones during the balloting;
• eat or drink while votes are tabulated; or
• in any way interfere in any way with the conduct of the election.