Recount in CA

KW,

To preserve confidentiality the recount can't be a public exercise. I recommend asking the member who requested the recount to provide the name of an attorney to conduct the recount. Then turn over the ballots and wait for the attorney to announce the results. This way the vote is still private, but validated by an impartial agent. I also think that the requesting member should foot the lawyer's bill for the service.

For starters – how many ballots? Who currently has custody of the ballots? How was the vote taken? How many candidates involved? Who did the original counting?

Richard,

The ballots are still under the inspector's custody and the PM is the inspector.

My opinion: your both options are not open to all members as the recount event is not formally noticed to the membership (recount is not in the agenda of the meeting for 1st option; no prior notice to membership for 2nd option). But then, I see there is no requirement of sending notice according to d-s act.

I reckon if 1st option is taken right after a board meeting (adjourned), only the individual(s) who requested the recount, the inspector, and the president (or v.p.) are required to be present. Other members and/or directors may stay as witnesses. The inspector shall conduct the recount and allow all parties present to inspect all items (ballots, envelops, member list, etc.) Afterward, the inspector shall make a report including recount result with any dispute/discrepancy from original election/challenge to the president for a resolution at a later meeting, or a record stating the recount/inspection is completed with no discrepancy from original election and no challenge made (this record shall be noted in the minutes of next meeting).

For the 2nd option, other than no or fewer other witnesses may be present, the same required parties shall proceed as the 1st option at a time designated by the inspector.

Am I missing any?

Another question: who has the authority to grant or deny a request for inspection/recount? the inspector alone? the president? or the board? (in our case, the request is made to the inspector from an elected board member)

KW

The answer to your last question, is that any member can ask to see the ballots as inspection of records. The proper way would be for the member to send the request through the Secretary and copy the PM.

The right to inspect records does *not* include the right to look at ballots. A vote for board members is secret, and the rules for a recount specifically state that, "Any recount shall be conducted in a manner that preserves the confidentiality of the vote."

I say again, you should have the current inspector hand over all the ballots to a neutral party, such as an attorney, for the recount. Neither the board members nor the homeowners need to be present when the neutral party counts the votes -- you will be depending on the objectivity and integrity of the third party for a true count rather than an observation of the process. Having the current inspector recount the ballots is not likely to satisfy the request of a member for a validation of the process. Doing the same thing over again and expecting a different result is one definition of insanity.

Tim,

What it depends on is how the Association guarantees the validity of an election.

For a recount to have any legitimacy each ballot must be compared with a list of members that are entitled to vote, to the attendance sheet at the meeting, and any proxies that have been filed with the secretary. If this is to work each ballot *must* indicate which member cast the vote.

In a typical municipal election there is a level of indirection between the voter and the ballot, where each voter is given a sequence number to be used to identify a ballot. In this case, the sequence numbers and the ballots can be validated separately so that confidentiality is preserved, while still tying each vote to a particular voter. Most homeowners association elections are not so sophisticated. In any case it is necessary to tie each vote to a voter, even if it is done indirectly.

If the ballots have been numbered sequentially, and handed out at the meeting in a way that allows the range of sequence numbers to be certified, then the ballots can be inspected. If, however each ballot indicates the member's name, which is often the case, then they *cannot* be inspected.

Lawrence,

I hope you don't think an HOA has the same sophistication as an municipal election.

Here's a link to elections in California HOA's.

California uses a two envelope system for voting in an HOA election. This is what our educated legislators consider a "secret ballot".

Below is a procedure used in a recouint of an election. It's mentioned that the ballots must be in the custody of the "Inspector" at all times until the time when a challenge to the election has expired. I know for a fact that our ballots are not with the "Inspector" but at the management company, who I wouldn't trust with my lunch.

Inspection of Ballots - Recount
In the event of a recount or other challenge to the election process, the association must, upon written request, make the ballots available for inspection and review by association members or their authorized representatives. Records must be produced within time periods set by statute.

Voter Confidentiality. Any inspection must be conducted under the supervision of the Inspector of Elections and in a manner that preserves the confidentiality of the vote. Civil Code §1363.03(h).

Cost of Inspection/Recount. As provided for in Civil Code §1363.03(h), the ballots must be in the custody of the Inspector at all times until the time allowed by Corporations Code §7527 for challenging the election has expired, at which time custody is transferred to the Association. Any costs incurred by the association for the Inspector to oversee the inspection/recount may be charged to the person making the demand. Civil Code §1366.1. An estimate of the costs should be paid in advance by the requesting party.