Would a lawsuit to throw out late ballots have merit?

A Texas POA had a recent annual meeting where three directors were elected. The elections were done as three separate ones, with the pool of candidates remaining sans previous winners. A then-current and still sitting director, who controlled 6 to 10 proxies, out of total voting membership of 56, added all of his proxies and his own 2 votes (he owns 2 lots), after all other ballots were in and counted. Right as the two vote counters had declared the next winner amongst themselves and were ready to announce it, that director yelled out for them to wait for him to give them all his votes, which changed the outcome.

Assuming those two vote counters would give affidavits stating what I described above, do you think a lawsuit asking a JP court to overrule that election would have any merit? be successful?

Didn't the presider announce when balloting was "closed?" didn't you write previously that an attorney would be present? Was one? What did the attorney say about voting after balloting was closed?

I did not attend. I am just trying to get an idea if such a lawsuit would have merit as other parties are considering it. Again. Assuming those vote counters would give evidence it happened that way, would such a lawsuit have merit, or would it likely be doomed and not worth pursuing.

Sure it has merit. But it also has a price tag.........

I would rather not get into because it is not relevant to the question would that situation, adding vote late after the counters were ready to announce the winner, have merit for a suit, but since you stated the above, I would like to state that is the heart of some of the why.

The way you described voting is how the Association always had its elections when more than one position was being run over its 30 year history. What changed - the director, who voted his pad of proxies late, is the single person who pushed for the way it was done. Also the single person who hired a proctor (who by the way, was hired and not a member nor live in the POA yet that proctor openly, loudly and full throated endorsed the management company BEFORE the vote on that management company), attorney and an off duty police officer to attend the meeting, three things never done in the 30+ year history of the Association. The ingle person, who before getting on the Board, would attend every Board member to harass those boards. The single person who, right after getting on the Board, caused three directors to quit after two meetings and a fourth months later. The single person who orchestrated striping the a month ago President from that officer position because she would not give up her by-law stated authority to conduct all meetings to the proctor. The single person who canceled a year long committee of 5 people who spent a whole year in the re-writing of the CCRs to insert his, not an attorney from the HOA oriented law firm the Board had been using, attorney's prepare CCRs a month from last year annual meeting followed by a string of emails warning members if it did not pass the POA would be in a mess.

And yes, there are other directors on the Board, so I am sure people reading this will opine that that person could not do all that alone, but he hand picked the Board after shouting and picking on others who quit, to have a bunch of passive people, and one in league with him, allowing him to operate as a one person board. He shouts, belittles and in most cases gets the rest of the Board to do what he wants, and the few times they didn't, he does what he advocated outside of the board anyway.

Now what could not be proved is why he was late with his big batch of votes that "he pulled from under a folder" as witnessed by others. He likely had stacks of proxies filled-out for different candidates so he could swing the election to one of them who had enough votes outside of his to prevent the person who really won from winning. I say this because people have told me, one of the vote counters, who is in league with him, was body-language-arguing-and-pleading with him, in a panic, before he finally turned in the votes. Again speculation, but it would explain their body language argument and why he was late - he was not sure what stack to present.

Now, I and several others have a string of emails, and journal noted conversations, over the last few years with that person that would show many examples of his scheming in any discovery phase.

I am re-posting the following statements to help my (and maybe others') focus, at least as I see the situation:

1) By-laws on elections:

"Election and Term of Directors.

All Directors will be elected by the Members. At the first election meeting held following the effective date of these Bylaws, the existing terms of the Board of Directors will be carried over. Terms of Directors should be staggered so that at least one (1) Director should be elected each year. Thereafter, at each annual meeting, the Members will elect the number of Directors necessary to fill the positions on the Board of Directors that expire as of such annual meeting, each to serve a term of three (3) years. If Members elect Directors for an unexpired three year term, then those Directors will only serve the remainder of the unexpired term. The Secretary shall document in the minutes of the Association the terms of the Directors elected or appointed by the Board of Directors. If the number of positions on the Board of Directors is increased by an amendment to these Bylaws, the terms of the additional positions must be staggered in a consistent manner. In all elections, the candidates receiving the highest number of votes will be elected to fill such positions, regardless of the number of votes cast.

In the event of a tie in an election, the winner of the election will be chosen by lot. The names of the candidates will be written on separate pieces of paper by the presiding officer of the meeting, folded, and placed in a container. The presiding officer will then ask a volunteer Member from the audience to pick one (1) piece of paper from the container. The person whose name is picked will be declared the winner of the election. "

2) you asked "-- were the only ballots that counted in each of the three elections (all at the same meeting) those submitted via an in-person vote or by a proxy form? In other words, absentee ballots were not offered to owners. Owners only had the option of giving another owner a proxy."

Proxy were general proxies giving the proxy holder the right to vote anyway, on any vote, the proxy voter so chose. In fact, the Board turned down several requests by residents to allow directed proxy or an absentee ballot. Note: general proxies have been the norm for this Association. General proxies was an issue this year because of covid-19 concerns by some who normally attend but the Board refused any remote option, requiring everyone to be in-person to attend the meeting.

3) you asked "-- Did the notice for the election explain how the election for the three board seats would be run?"

No. The agenda/annual meeting announcement stated there would be three directors elected, two 3 year term positions and one 2 year term position.) It did not state how they voting would be conducted, but again the historic norm would be one vote, not X separate ones for each position as was done in this case. Note: I attended the board meeting where the director in question stated he "wanted" it to be done as three separate elections. There was no vote by the board, unless done later in executive session, and there was a little static from one or two other directors because it was not the norm, but they quickly bought his excuse (different terms 3 years for two and 2 years but note that has happened before and the higher vote getter just chose term preferences from available pool etc.) or instead of bought protested no more which was the norm for any static against him - passive people.

Additional note on this: candidates for the positions as well as several residents were confused about the three separate positions as it was not the norm. There were numerous discussions over the last few weeks with both candidates and non running members being confused. The person, who I think rightfully won, actively went visited withy members over the last few weeks asking for their votes. She said many were confused about the different term positions and if there would be one vote for all positions as was the norm or whether there would be three separate votes - no one really knew which until it happened.

Some else of note: The POA is a 501c, so Texas non-profit corporate law would apply. That law requires a eligible voting list be prepare and published at the meeting and available for inspection by anyone before and after the meeting. This was not done, and to be fair it has not been done previously either but is a possible technicality to asert.

Here is that law:

"Sec. 22.158. PREPARATION AND INSPECTION OF LIST OF VOTING MEMBERS. (a) After setting a record date for the notice of a meeting, a corporation shall prepare an alphabetical list of the names of all its voting members. The list must identify:

(1) the members who are entitled to notice and the members who are not entitled to notice of the meeting;

(2) the address of each voting member; and

(3) the number of votes each voting member is entitled to cast at the meeting.

(b) Not later than the second business day after the date notice is given of a meeting for which a list was prepared in accordance with Subsection (a), and continuing through the meeting, the list of voting members must be available at the corporation's principal office or at a reasonable place in the municipality in which the meeting will be held, as identified in the notice of the meeting, for inspection by members entitled to vote at the meeting for the purpose of communication with other members concerning the meeting.

(c) A voting member or voting member's agent or attorney is entitled on written demand to inspect and, at the member's expense and subject to Section 22.351, copy the list at a reasonable time during the period the list is available for inspection.

(d) The corporation shall make the list of voting members available at the meeting. A voting member or voting member's agent or attorney is entitled to inspect the list at any time during the meeting or an adjournment of the meeting.

https://statutes.capitol.texas.gov/Docs/BO/htm/BO.22.htm

RogerJ1,

Was voting by secret ballot?

If voting was not by secret ballot, was each ballot signed by the owner who voted or the proxy for an owner who assigned a proxy to another owner?

Since the HOA would have to hire an expensive corporate lawyer, since it is a corporation, not an individual I would assume the final outcome would be this........

HOA wins = dues go up $100 month
HOA loses = dues go up $100 month

Whatever money that is paid to the lawyers gets paid by the HOA. And the HOA is YOU......

I recall from one or more previous postings of yours that you would attend the meeting by Zoom. Why didn't you? everything you written seem to be second-hand info.

You Also wrote that an attorney would be present at the meeting. Was one?

With Ben and to repeat my above: Was balloting "closed" by the presider of the meeting? Does the agenda for the meeting show that at some point balloting would be closed? I think it will help us to see the actual meeting agenda. Please show it.

It appears that there might be more relevant info about HOW elections are conducted in the non-profit corporate code. Take another look, Roger.

Would you please give that "single person" a name who seems to dominating everything in your HOA? Perhaps it's time, given what you say about the membership being unhappy, to recall this person.

I have read, then skimmed the by-laws couple of times and I do not recall anything about adopting rules.

Do you know general context where something like that would be so I can pinpoint it easier?

Note: the document is not searchable. It is presented as an image, not any text that can be searched. Previously, it was a hypertext, easily navigable document. Guess who made it where it is not searchable. I can convert it to a google doc then search it - that is how I copied and pasted the election part, but the conversion gets some things wrong, so it is not a foolproof tool. I mainly noted this as an example of this person's behavior.

Roger, 'I feel your pain,' regarding non-searchable docs and scanned docs that miss much. I'd be skimming the documents looking for stuff referring to the powers of the board.

Was voting done by secret ballot? If so, TPC 209 requires all secret ballots to be signed.

Else I think your only shot is to write a formal letter to the board describing your eyewitness account of what the director did; explain how this can change the outcome of the election; and ask for a new election that includes notice with an explanation of the new rules (involving three separate elections). You must leave out stuff that is just gossip, venting, suspicion et cetera. Why? Because this is not persuasive. Stay factual and unemotional.

At least two hard facts are that (1) the owners did not know in advance what the procedures for voting were; and (2) voting had never before been done this way. The law does say a lot about 'course of conduct' more or less establishing a new bylaw. To stop using this 'new bylaw' is not fair.

I do not think a lawsuit would be wise here. For one thing, a judge may very well say, "Well why didn't you and your friends go collect proxies, RogerJ1?"

Else:
I will retract my contention that three separate elections is patently unfair. As long as all owners have notice that this is how the election will proceed, and as long as Director Dick Dastardly has to submit his ballots at the same time as the rest of the owners, I think it's fair.

I think it would be considered based on how it was done but I do not know: Here is how it was done two years ago, the last in-person, and based on how this one was described to me I think it was done the same way.

Peoples' ballots where given symbols like A-6, or K-5, and then one would have to cross-reference those symbols to another list that showed the lot number associated with those symbols. I think there were no signatures on the actual ballots but instead on some third list that references lot numbers - I think that last list is the only place that members signed.

My bad. For an election for directors, I do not think TPC 209 requires that the ballots be signed.

Post back if you want help with a letter you could write the Board, concerning Director Dick Dastardly's cheating and the lack of notice about how the election(s) would be run. This is the only reasonable first step to take, in my experience.

A somewhat funny story, and it highlights how our Board is being run:

Go over the by-laws, I recently noticed that the by-laws had a missing page on its publication on the Association's website. The missing page covered spending restrictions on the Board including dollar limits requiring an the President's signature in addition to the Treasurer. After seeing that page missing, I checked on the county record filing to see if it was missing there also.

The county filing was complete, so maybe it was just an error in the scanning for the one shown on the Association site. Although the page dealing with spending limits is a curious one to forget because it turns out the Treasurer did pay amounts over the threshold that required Board vote and President signature throughout the year. When that spending was brought up at the annual meeting, and after it was confirmed by the Treasurer and President that amounts over the threshold were spent without the President signing nor the Board voting, the Treasurer quipped, "quit nitpicking on me, you cannot expect me to know every rule."

I completely agree. That is how they had always been done but three separate elections is what the director, who controls everything, wanted, and as the pattern always goes, he gets what he wants. Three separate election took more time, but it gave a large proxy holder, especially one who can see the votes before casting all the proxies, control over the election as explained in the hypothetical above.

Latest: many neighbors are talking, saying they voted for the person who was cheated. They are doing this organically, amongst themselves because so many of them did vote for her they are confused how she did not win.

The person who was cheated knew either 16 or 18 votes (I forgot which she said) before others also said they voted for her. The POA has a total of 56 lots, so 56 votes, and zero chance all 56 voted. Highest in the POA's history is 46.

So if she had a set 18 votes, and at least 10 others say they voted for her, then at minimum, if history was broken and all 56 voted, there was a tie which mean drawing lots per the by-laws, and in almost all cases with 28 she won by a large margin.

If we could get people, representing 28 votes, to say they voted for her, would that be enough evidence for district attorney, or other authority, to look into it? Note the POA is a 501C. I would hope authorities would take possible fraud in a non-profit seriously.

The guy is worse than I thought. Many neighbors are upset because he visited with an elderly lady, who lost her husband in the last year or so, and scared her into giving him her proxy that she was going to give to her immediate neighbors who check on her on a daily or weekly basis.

Gossip.

Irrelevant to getting anything done.

Relaying gossip as a supposed means of motivating people is a bad idea, afaic.

Without reviewing the entire thread, Roger, I think your Assn. must use Robert's Rules of Order for meetings of the members, e.g., elections. I ran into this today related to a question I & some other poster (from TX?) had asked. Did the presider close balloting? If so, that evil one should not have been allowed to cast any votes or proxies.

Many associations that meetings of the membership meeting, "be conducted in accordance with a recognized system of parliamentary procedure. (Civ. Code §5000.) As provided in Robert's Rules of Order, the chair of the meeting closes the polls. 'When everyone appears to have voted, the chair inquires, 'Have all voted who wish to do so?' If there is no response, he says, "If no one else wishes to vote . . . [pause], the polls are closed." (Robert's Rules, 11th ed., p. 415.).

Citation: davis-stirling.com, Elections. while a CA web site, many aspects of it are useful for any assn. Note cited RONR ed. may be out of date.

Update: Looking up Texas nonprofit corporate law, and is the case in much corporate law, and is the case in Texas for both for profit corporate law Chapter 21 and nonprofit corporate law Chapter 22, unless a corporation's certificate expressly allows for it, voting three different times cannot be done because it would lead to cumulative voting, as opposed to statutory voting*. Also, if certificate do allows for it, which is very rare and not the case for this Association, any member planning to vote for the same person more than once must give written notification to the Association's Secretary at least a day before the election stating those plans.

Texas nonrpofit law on this (note: for-profit Corporate Texas law is the same on corporate election except it uses term shareholder instead of member as the basic difference between the two)

Sec. 22.161. ELECTION OF DIRECTORS.

(a) A member entitled to vote at an election of directors is entitled to vote, in person or by proxy, for as many persons as there are directors to be elected and for whose election the member has a right to vote.

(b) If expressly authorized by the corporation's certificate of formation, the member may cumulate the member's vote by:

(1) giving one candidate a number of votes equal to the number of the directors to be elected multiplied by the member's vote; or

(2) distributing the votes on the same principle among any number of the candidates.

(c) A member who intends to cumulate votes under Subsection (b) shall give written notice of the member's intention to the secretary of the corporation not later than the day preceding the date of the election.

Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.

*Primer on statutory vs cumulative voting: https://www.investopedia.com/terms/s/statutoryvoting.asp

I suspect Roger is the one who ran for a spot and lost, and is concerned the election wasn’t fair (note he has another conversation on finding people who would serve as election judges). That’s fine and if you really think you were cheated, you SHOULD talk to an attorney about your options. A lawsuit will take time and money, and in the end the attorneys are the only ones who win because they get paid regardless. You can ask that your expenses be awarded if you win, but remember, that’ll come out of your neighbors’ pockets if you win. Do you think they will turn around and vote for you after all that? Maybe, maybe not.

That’s why answering Cathy’s questions are critical – it’s really not about what we think because we don’t live in your community and won’t have to live with the outcome, whatever it is. You want to start this, be crystal clear about your end game. People sue for everything these days and nothing is guaranteed (it never is, and sometimes that includes the stuff you just know will go a certain way because the facts of the dispute are so compelling).

This really belongs up at the beginning of this discussion thread.

(I’m at least temporarily awed that AugustinD managed to pull this signal out of the noise!)

Also, this has a certain delightful “Mathematical Games” flavor to it.

BillD