Mail-in Ballots

California: Is it proper/legal to have the "Election Material" outer envelop sent to association members for secret ballot voting postmarked?

Can you expand on your question a bit, Stan? Items that are sent USPS must be postmarked, right? I can't look it up right no, but I believe that in CA, ballot materials must be sent to Owners via USPS and not, for instance, hand delivered.

They can be delivered, if not mailed

Civil Code §5115. Voting Procedure.

(a) Ballots and two preaddressed envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the association to every member not less than 30 days prior to the deadline for voting. In order to preserve confidentiality, a voter may not be identified by name, address, or lot, parcel, or unit number on the ballot. The association shall use as a model those procedures used by California counties for ensuring confidentiality of vote by mail ballots, including all of the following: [Old: Civ. Code §1363.03(e)]

Like what?

Why would that matter?

We always mail our proxy cards to homeowners which must be RECEIVED by the property manager the day before the annual meeting date (or you can turn them in personally at the meeting). A self-addressed envelope is enclosed for mailing and when the property manager receives them, they're placed in a box (unopened) and the box bought to the meeting and opened in front of everyone by designated homeowners. They count the number of proxies and add that to the number of people attending to see if we have a quorum to even hold the meeting. If so, the envelopes are opened when the election begins to see if the homeowner nominated someone for a board position or authorized the Board president to cast the vote in his/her behalf.

I was on the board for 10 years and we never had an issue with people knowing who voted for who - most of the time, board members stayed on the board until they stepped down, like I did.

My point being that by using a postmarked return envelope to the inspector could lead to election fraud. A postmarked envelope would indicate who the member (return address) is but not where the envelope was mailed from. Checking postmark mailing location would be an important verification if a member did not live locally as one example.

As long as the ballot is signed and dated by the homeowner, does it matter? Suppose the homeowner is on a business trip and mailed the ballot to whatever he or she happens to be at the time because there was no time to go to the local post office? If an owner lives out of town, one would expect the postmark to show from where and when the Post Office received it, so it can begin processing delivery (that's what postmarks are for). This is also why my community considers it on time of the property manager receives it by close of business on the deadline date.

The homeowner should also make sure the ballot, proxy or whatever it is, is mailed to meet the deadline so the vote can be counted. Sometimes the time you put it in the mailbox can be a factor (that's why you should read the box listing the last time mail is picked up). Occasionally, weather can be a factor (e.g. if there's a hurricane, mail delivery will probably be delayed). We give homeowners 30 days to return our proxies, so I assume they know how to use calendars.

I'd be more worried about (1) the homeowner using the proper form (2) checking that the homeowner is eligible to vote (current with all assessments), (3) is the homeowner's signature and signature date original (no stamps)the homeowner eligible to vote (that is he/she is current with all assessments, so the name on the form should be checked against an official homeowner list), (3) is the signature and signature date original (we don't allow stamps in our community) and (5) was the form turned in on time?

If you're still worried about the postmark, have you expressed your concerns to your board? If so, what was the response? If not, why not?

For your information, other members can make a list of who voted in your election, just not how they vote. For example, a member can go to the person who handle the envelopes and write down every person's name who vote, before or after the ballots are counted.

Wait! Is this some kind of goofball spam??

You are against metered mail. Thanks for sharing.

Maybe there is a subtlety we’re missing?

As long it meets basic requirements of timeliness and process, why would there be an issue?

And, in CA, as I wrote above, the owner's name, signature & HOA address are required on the outer envelope that comes back to the HOA. The HOA will accept only one ballot envelope per household.

As pointed out, it doesn't matter where the ballot envelope comes from as long as it gets to the designated place by the deadline. We have 25% absentee owners and about another 12% who live here part time. Some of them have 3-4 homes. Ballots come from everywhere!

I'm still not sure what Stan thinks will happen that's crooked.....

To encourage a strong turnout, I've heard of HOAs stamping or metering the return envelope. This is pretty common for voting where a super majority is needed to, for example, amend CC&Rs.

My understanding, NpS is that as ballot envelopes arrive, the signature is checked with what's on file and the ballot is accepted and checked as such. Haven't seen it with my own eyes. In our case, the ballots are mailed to the PM, or dropped off in her office, checked off and kept in a locked box until annual meeting night.

Kerry, what prevents someone from doing the following: Ballot receiving Inspector noticed that "Member A" didn't submit their ballot again. To support a specific candidate, a ballot was prepared voting for specific candidate(s) of interest. Ballot was placed in a Metered Envelop and Member A's return address was added. On election day, an appointed inspector checks mailing envelope to determine if "Member A" qualifies to vote by checking return address, etc. All is verified, however, Member A's ballot became suspicious since it is known by some that "Member A" hasn't voted in years. Checking the postmark on the envelope would remove some doubt, especially if "Member A" lives some distance away.

The above could happen if, for example, management is the receiving inspector and some members are use to count ballots.

Exactly as I thought. If you don't have a signature on file to check against, then you have nothing to verify that the envelope was signed by the owner.

I suggest that maybe you should change your system though:

1. In addition to signatures, keep a file of all post marks for mail-in ballots.
2. If an envelope does not come from the same mailing address as you have on file, discard the vote - it could be a fake.
3. Send a notice to all owners that all mailing addresses must be on file for their votes to count. If they have 2 homes, but only have one address on file, only that address will be recognized as legitimate. A ballot sent from the other address will be discarded.
4. If anyone is unhappy with your new system, have them send a note to Stan - But make sure it's from the address Stan has on file.

Are elections actually this contentious? I've managed dozens of properties over the course of the last decade or so and I've seen maybe two elections where there were more candidates than open seats on the board.

Sorry, there is no statue that requires any HOA in California to maintain a signature file, nor it is a requirement to cross check signatures on a outer envelope with a signature you may or may not have on file.

If you also look closely at California statues on HOA elections, it says te HOA's should follow examples that counties in California use to conducts elections. Owners living in an HOA can the power to know who in the HOA has voted, just not have they votes. If properly conducted, the identities of the actual ballots are secret, although I have seen people actually write their name on a ballot. THEY then gave up their secrecy of their ballot, but that is extremely rare.

In addition, anyone in the United States can learn the identity of anyone that has voted in a public election that was conducted by their respective parish or county, just NOT how they voted.

Mark….it’s nice to know that I’m not the only one that may be experiencing possible fraud

KerryL1……..review my post 12/10/2019 10:54 PM & 12/11/2019 12:10 AM. Also, you stated to Barbara: “We had 120 ballots submitted this year, which is unusually high.” Unusually high ballots submitted should make you say….Hmmm, possible fraud? Normally, we have 30-40 out of 60 submitted. A few yrs ago, we had 54 ballots submitted….. unusually high!

KerryL1: Are your ballot return outer envelopes metered or are members required to use their own stamp?

Stan

You are looking for the "hanging chad".

Kerry

We need 20% (of 112 owners) for a Quorum and without Proxies, we would not make it. Some call it apathy. I call it happy owners......LOL

Point? to your question & statement

KL: It took nine months of factual flyers about the (now) old Board's, um, errors, and then very positive campaigning. Our HOA is proof that if owners find like-minded neighbors, band together and put out a strong, honest, positive message, bad boards can get voted out. Didn't cost us much $, but DID take a lot of time & effort.

Stan: >>>>>> Unfortunately my 55 min age complex of 60 units has a ~50% non-residency. Of the 30 remaining, about 2-5 attend 1/4ly meetings.

Stan: ***** I wish I had the time to respond to the above. Simply put…..CA HOA members need a Sheriff to report / rectify abuse vs using the courts. Congratulations to your members!

KL: My turn to be clearer. So far as I know, the board majority was not doing anything illegal that I know of. Its abuse was in the form of handling some business that should have been in open meetings, in executive session; writing lengthy board messages in our monthly newsletter that were hyperbolic and sometimes actually false, being rude to owners at monthly open board meetings. The prez dominated these meetings and some directors were mute month after month. I'm not saying that all attorneys on HOA boards are arrogant yet ignorant, but the two on ours were and were able to persuade a couple of other directors that they, the attorneys, were always right, when they often were wrong and knew nothing about CA HOA laws not to mention our own governing documents. Once the 2nd attorney got on th board, everything went south and secrecy and lack of transparency & openness prevailed for two years.

Stan: >>>>>> This is why the “Good” Board needs to decrease set voting rules to hopefully reduce chances of voting fraud. In the above, the Board & attorneys more than likely did whatever they could to keep things status quo. I’ll re-post postal meter vs postmarked below.

As you probably know, CA has changed the election law (SB 225) again beginning Jan. 1, 2020. Our current election laws are obsolete and have to be redone. This will keep lawyers busy!

Stan wrote: "***** Without going into depth…… to assure board members were re-elected after initial ballot mailing and members returning ballots, members were approached and convinced to redo their vote. Management was in charge of voting material, etc."

KL: As you know, ballots in CA are irrevocable and this is clearly written in the ballot materials that go to Owners. The PM you speak of is putting their job at a huge risk by engaging in such disguising behavior. How did the PM know how each voter voted so as to ask them to redo their votes? In our hOA, the PM could sometimes guess how someone voted, but in this recent election (end of Oct.), voters were very committed to their candidates. I can't believe any would have "changed" their vote and one or more would have reported the PM to her MC's boss, whom many of us know.

Stan: >>>>> When you look at the whole picture, PM is not really risking anything. If the Board and PM are working together, it’s your word against theirs. The only recourse you have is to sue. It doesn’t take much to change the mind of elderly or helping those that don’t know what they’re doing. On another note…did you know that if PM gives Board advice and advice is incorrect, PM cannot be held liable. In CA it’s the Boards responsibility to make sure advice was correct.

Stan: ***** Kerry, my position is NOT to have envelopes metered. Sorry if I wrote something that caused a misunderstanding.

KL: Other than expense, why not?

Stan: >>>>> LOL….OK…You win…..Here Goes…..Kerry, this assumes that PM (inspector) are working together.

Ballot receiving Inspector noticed that "Member A" didn't submit their ballot again. To support a specific candidate, a ballot was prepared voting for specific candidate(s) of interest. Ballot was placed in a Metered Envelop and Member A's return address was added. On election day, an appointed inspector checks mailing envelope to determine if "Member A" qualifies to vote by checking return address, etc. All is verified, however, Member A's ballot became suspicious since it is known by some that "Member A" hasn't voted in years. Checking the postmark on the envelope would remove some doubt, especially if "Member A" lives some distance away or possibly never votes.

The above could happen if, for example, PM is the receiving inspector and some members are used to count ballots.

A HOA could use their PM, only IF they had properly adopted election rules that allowed such arrangement. Starting in 2020, that WILL NOT be allowed and it will throw elections into turmoil.

As far as a postmark, if I live in Orlando or Tampa and mail something in those cities, there is NO guarantee that it will be postmark in either one of those cities. So, your argument hold absolutely no validity.

Stan says it is the Board's responsibility to make sure the attorney advice is correct. IF they knew what was correct in the first place, why did they go the attorney?

Can association's cheat? Absolutely, and I have witnessed it first hand. It is much easier than you think to get away with.

Mark

A HOA could use their PM, only IF they had properly adopted election rules that allowed such arrangement. Starting in 2020, that WILL NOT be allowed and it will throw elections into turmoil.

Stan: ***** I agree. In addition, uncontested elections by acclamation is history for the majority of HOAs

As far as a postmark, if I live in Orlando or Tampa and mail something in those cities, there is NO guarantee that it will be postmark in either one of those cities. So, your argument hold absolutely no validity.

Stan: ***** Why are they not postmarked? A postmark is required at the time item was delivered into the care of the postal service.

Stan says it is the Board's responsibility to make sure the attorney advice is correct. IF they knew what was correct in the first place, why did they go the attorney?

Stan: ***** Mark, I didn’t state attorney. PM = Property Management…… “On another note…did you know that if PM gives Board advice and advice is incorrect, PM cannot be held liable. In CA it’s the Boards responsibility to make sure advice was correct.”

Can association's cheat? Absolutely, and I have witnessed it first hand. It is much easier than you think to get away with.

Stan: ***** That's why the law is being changed (1/2020) and disallows anyone that is compensated monetarily from acting as Inspectors.