Collection of Ballots

Jose,

There is a big difference between a ballot and a proxy. The ballot is the actual recording of a vote. A proxy is assigning someone (or the Board) to vote in place of a member. A proxy may be a general proxy (giving the representative the authority to vote how they think is best) or directed (instructing the representative to vote a specific way).

Typically, a directed proxy form will look very similar to the actual ballot, due to a choice of instructing a vote in support or opposition of a person/proposal. Legally, they are two very - very different things.

In soliciting proxies, similar to soliciting signatures on a petition, someone will explain the issue to the member. It is highly possible that this issue will be slanted in favor of one side of an argument/proposal. This is typical politics. The member has a choice of providing a proxy to the individual, providing a proxy to someone else completely, showing up at the meeting and voting themselves or doing none of the above.

State Corporate and/or Property (HOA) laws govern proxies.

Similar to your Board soliciting proxies, if you feel strongly about an issue, you may solicit the membership for proxies.

Sometimes, ballots may be cast by mail. I do not know FL laws well enough to say if this is allowed or not. You will need to check your Associations Governing documents along with your States HOA laws and/or corporate laws (if your association is incorporated).

If you are concerned of voter fraud, then you have a right to inspect the ballots and proxies. You should submit your request in writing to your Board.

People should also remember that what is always legal isn't always thought of as the moral or correct thing to do. That decision is based on a persons character and not the law. If anyone believes that their BOD doesn't have this ability, then they should get involved either by serving on the Board or just by attending Board meetings in addition to the annual meeting.

Tim

Jose,

The right way to handle the ballots is to have a sealed, stamped envelope for the members to mail in their ballots. Proxies would not be mailed but given to the person who will be named on the Proxy. I have collected many a proxy, going door to door but they were for amendment changes, not elections.

I see nothing wrong with collecting proxies for amendments because many people don't see the importance of obtaining a nescessary number of votes to carry a vote, for or against an issue. The apathy is astounding in HOAs and whatever it takes to make the association function, then just go out and get it done. But elections should be handled with extreme caution and security of the votes.

Heather,

I agree, there is nothing wrong with collecting proxies although it sometimes angers many assn members when a candidate not to their liking is elected because he/she gathered a large number of proxies. I never could understand the anger because any member of the assn is free to gather proxies. I just don't think anyone campaigning should be collecting ballots. If a member cannot attend the meeting and deliver his own ballot then he should send it in to the mgmt co or the board sec.

I should add, the use of Excel allows the Treasurer to make periodic column entries into who is a 'member in good standing,' and who has been negligent in paying assessment dues in which case neither they nor their proxy gets a vote.

KW if he collected the ballots himself he may have been in violation: Below is a Q & A from Adams-Kessler about Ballot Solicitation:

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 Davis-Stirling Act requires associations to a use a secret balloting 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, door to door solicitations, 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.

Read more: Ballot Solicitation http://www.davis-stirling.com/ElectionCentral/ElectionLaws/ElectionProcedures/3Campaigning/BallotSolicitation/tabid/1998/Default.aspx#ixzz17uELfjUf
from Davis-Stirling.com by Adams Kessler PLC