Virginia Board Member Elections, On-line and Mail-in Ballot

I have been told that mail-in ballots are not allowed in VA and cannot count toward quorum.I don't know if this is true. I have also been told that a proxy form is required. I don't know if this is true either. I doubt both claims because I have found many HOAs in Northern VA that use ballots, which can be dropped off or mailed, and that count toward quorum. I have also found several HOAs that use on-line voting systems (HOA Now is one) that allows each vote cast to be counted toward quorum. VA laws are very vague on the matter. The laws talk a lot about proxies (directed or undirected), and about ballots. MY QUESTION: If an HOA amends their bylaws to allow mail-in ballots and to count those ballots toward quorum, is there any reason this bylaw would be against VA laws? If so, how are so many other HOAs electing officers using mail-in ballots and on-line voting?

BH5,

Sounds like you have some research ahead of you.

I would be surprised if Virginia is vague on the topic.

Type in a few words - "virginia mail in ballots hoa" - 10 seconds - a discussion on the topic - https://www.vahoalaw.com/association-meetings-and-proxies/making-sure-every-proxy-vote-counts

Thank you SheliaH. I have done much research. Nothing addresses what I see happening in actual practice in most medium to large (5000 member) HOAs. Smaller HOAs are struggling to follow outdated rules that are really not practical. Larger HOAs have paid staff while smaller ones are all volunteer. Lawyers are all over the map on the subject, it seems. I also notice that larger HOAs have made many modifications to their bylaws over the years. Smaller HOA are still working with whatever boilerplate the developer (they all used the same language) threw in 20 or 30 years prior before the HOA was fully formed and the developer was still the majority member.

Thanks for your suggestion.

Here's a link to a blog by a Virginia HOA law firm on the subject - it was posted in January 2019, so you may as well start here:

https://www.vahoalaw.com/association-meetings-and-proxies/making-sure-every-proxy-vote-counts

Some or all of this may have changed, as Tim noted, so you'll have to keep reading. In the meantime, here's one person's opinion and thoughts (for what they're worth since I don't live in Virginia)

The size of the community isn't as important as making sure the proxies you decide to use are compliant with Virginia law and are easy to understand and use. If your documents don't discuss proxies AT ALL, you may as well use what's out there as a guide. If you'd like to use them permanently, you could talk to your association attorney about drafting an amendment to your Bylaws so the homeowners can review it and vote to approve the change. I suspect there's language on changing Bylaws and CCRs in your documents, so keep reading.

If you're able to use proxies without amending the documents, the Board can vote to adopt a formal resolution stating how and when the proxies will be used. Either way, something needs to be documented so there's no confusion on how they're to be used. Personally, I would put something in the Bylaws because they typically address how the association is run and Board elections are a big part of that.

I assume you're asking this because your community's wondering if they can/should be used, so start there. First, what do you want to use the proxy for - will this be only for annual meetings or other types of special homeowner meetings? If using for an annual meeting, it appears from the blog that you can use it to establish quorum and vote in the board election. Next, work with your association attorney to come up with language that will meet that need. In my community, the homeowner can either (1) designate someone to show up at the meeting and vote however he/she wants, (2) vote according to the owner's wishes, (3) use it to help establish quorum and nothing else or (4) authorize the board president to cast the vote on the owner's behalf.

I would also require that the owner sign and date the document in blue or black ink (no signature or date stamps) and set a deadline to submit them - the day before the meeting is nice, or you can have the owner walk in with the proxy, drop it off and leave. If he/she decides to stay and cast a vote, the proxy can be canceled.

Our property manager receives the proxies and they're placed in a box or large envelope to be opened at the meeting in front of everyone. They're checked to ensure the person signing them is listed on the eligible homeowner list (those who are listed as owners AND assessments are current). If we get 10% or more of the total number of owners in signed proxies plus the number of homeowners who show up (they must sign in and also be listed as eligible), we have quorum for our annual meeting, and the vote takes place at the appropriate time (usually near the end of the meeting). It's one vote per unit, so if there are co-owners, they must decide among themselves who will cast the vote.

So don't do a lot of overthinking on this. If you know of other HOA communities in your area and someone who lives there, why not ask how they do it to get some ideas? Maybe they can show you a sample proxy with the appropriate language you can adapt to your community.

I’m sorry, I don’t understand the question.

BH5. If you know of a lot of HOAs that use mail-in or absentee ballots that count both towards quorum and to, say, elect directors, why not ask one of their owners to send you the wording in their bylaws. Surely they are not thumbing their noses at VA statutes. How is it, by the way, that you know so much about how numerous other HOAs conduct their elections??

What DO VA statues say that is "vague?" I'm not the only one asking you this question. There's something about your inquiry that strikes me as "off," but I can't say what that is. Have you asked your HOA attorney for an opinion on your question? Are you on the board?

In CA, owners may mail in, drop off or bring their secret ballots in double envelopes to the annual meeting. Since this was approved back in '06, no one in our HOA uses proxies anymore. And reaching quorum is never a problem. I personally think this is better than a pro system for a number of reasons, but just having that opinion does not justify changing your bylaws if this oppose VA statutes.

Hmmmm.... I'd expect to hear from Diedre on this topic.

Our process:

members sign in at the meeting.
proxies are presented when people sign in and the proxy representative signs for those individuals.
Secretary, Treasurer or Bookkeeper identify if the proxy or individual signing in is of good standing.
Good standing in our Association is dues are less then 90 days behind.
Ballots are provided to the member.
If the member had directed proxies, ballots are given for those proxies as well, but marked as the proxy directed before being given to the member.
If a quorum is met, an election is held at the meeting, ballots turned in and counted.
Results are announced at the meeting (for anyone who stays) and published in our next newsletter.

The sign-in sheet, proxies, ballots, agenda and any written reports are kept as attachments to the meeting minutes.


Our "loop-hole" was to use directed proxies vs. the general proxies that were being used.
Something I incorporated several years back over the same concerns you express here.

TimB4, I can see your point. But one can't force people to attend these meetings. If they sent a secret ballot using the two envelope procedure, I think we can count them towards quorum. Our Bylaws say: "Election to the Board of Trustees shall be by secret written ballot. At such election the members or their proxies may cast...votes..." It does not say proxies are required, but an option,IMO. We send the proxy form out. It implies this is the method that you should vote, period. So the way I see it, most people would never ask for a proxy if they have a ballot in their hand. We would only mention that proxies forms would be sent upon request, or something like that.

Proxy abuse is happening. Proxies are collected, then agendas and floor nominations are made by "friends" of the proxy holders. It appears to be all planned in a separate group of people in on the, well, scam.

As people walk into the meeting (in a very large school) greeters, instruct friendly faces as to what is planned, and how they are to vote when motions are made. This is just extra insurance, because, with the proxy holders having more votes than the people in attendance, all they need to do so as not to not look too obvious, are to enlist a few friends to make motions and nominate candidates from the floor.

It doesn't really register with a lot of people what's going on. If they are too busy to attend, they are too busy to figure this scam out. And, frankly, I don't think most people expect such subterfuge.

Bottom line, hoping lawyer says secret mail-in ballot with double envelope method is OK and BOT can get it done. We have 7 BOT members. Two working the proxy scam got on last year. Two seats open this year. Do or die time.

As do I.

Did not intend to offend you. Yes, perfectly legal. But why not just vote. Mail-in your secret ballot and let it count toward quorum for board elections. It's not that proxies as they were originally conceived are bad, it's that the representation of the community is held in the hands of 3 or 4 people. Everyone else at the meeting has no vote. There's no point in even going. And the idea that it is the only way to break up an entrenched group is saying that voting (one vote one person) does not work. It is so hard to get people to step up for these volunteer and difficult jobs. Trading one entrenched group for another entrenched group is not really solving the problem. If 100% of the people think a group needs to be unseated, then the vote will reflect that. Never does 100% think that way. When one relative small group decides another should be unseated, then collects proxies from uninformed members, the rest of the voting members are closed out of the election. Again, no personal offense intended. I don't know your situation.

Because you live in a State that hinders that from happening.

Again, The work around is directed proxies (which tells the representative how to cast the vote).