Elections and Write-in Candidates

All,

My first post on this board but I have been active on other sites that discuss HOA issues. I'm trying to get some assistance/advise on the following:

I introduced directed proxies to my Association on Friday through my non-association newsletter (made up a form and attached it). On these proxies, in addition to providing a list of known nominees, I included spaces for write-in candidates. Saturday morning I had e-mails from our Association President. The Association had no problem accepting the directed proxy but are having issues having the proxy possibly be directed to vote for someone who has not declared their intent to run. The Association said that if a vote was cast for someone who was not nominated (either by the committee or from the floor) that the Association would not count that vote.

After many, many e-mails back and forth along with a phone conversation with the President the real issue has been identified as follows:

We agree that the write-in ability on the ballot is for the purpose of casting a vote for someone who's name is not printed on the ballot (i.e. nominees from the floor). Our ballots do properly display a place to cast a vote for a write-in candidate (and always have). The dispute is who's name can be written in and have the vote legally count. The Association is of the opinion that only nominees may be written in on the ballot. I say that any name, be they a nominee or someone else not nominated, may be written in.

There concern is that if anyone could be written in on the ballot and if they achieved enough votes to be elected, why should they put someone on the board who doesn't want it and/or won't serve. I counter with the fundamental right of the voter to cast their vote for anyone they wish. If they believe Mickey Mouse would be a better Director then those nominees offered they can write-in Mickey on the Ballot. If Mickey wins, then the seat is vacant (obviously it would be filled by appointment but you get the point).

I was unable to locate any law (searched Corporate and HOA laws) to support my position. They were also unable to find any law to support their position. I am located in Virgina, so I will need a Virginia or Federal Law to clear this up.

Truthfully, I can't believe that this is even a topic of discussion. However I would appreciate your help.

Thanks,

Tim

Tim, could you tell us of those sites, please?

Mike,

There really wasn't that big of an issue on the operation and running of the HOA. Sure they made mistakes, like all HOA's do, but nothing to have the community up in arms. Last year there were various issues that were brought to membership through my newsletter and those issues were resolved. This last issue of the newsletter was pretty much just informative rather than conflict.

Our Association has never used or offered directed proxies in the past. Since there is a vote for various bylaw amendments on the agenda this year, I wanted to give members the opportunity to actually vote the way they want vs. sending a general proxy into the Association and being cast by the current Board. I really think the Board is just doing a knee jerk reaction and don't really know how to handle it.

As far as links to various resources I used, they are:

VA Property Owners Act:
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC55000000026000000000000

VA Non-Stock Corporation Act:
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC13010000010000000000000

Fairfax County Community Association Manual:
http://www.fairfaxcounty.gov/consumer/community_assn_manual.htm

Susan and Mike,

I agree that this is something that really shouldn't need to be a discussion. My Association has never turned down a nominee from the floor (we love volunteers). Other than what I posted earlier, I am unclear what the Presidents real issue or concern is or the basis of his thinking. My reasoning for fighting the issue is that on a fundamental level it is declaring a ballot/vote invalid based solely on who the vote was for.

If the Association actually did this, the thinking of the current Board (some of whom may be re-elected) any challenge to the vote could bankrupt the Association in legal fees. Even though the expressed opinion by the board on this topic seems ridiculous, they are actually open to discussion and will abide by the law. However, I need to show them the actual law to nip this situation in the bud.

Right now, the discussion is between the Board and myself, as I was included on the discussion because I am a declared candidate. As Susan said, the probability of someone who hasn't expressed and interest in running actually receiving enough votes to win is very, very remote. Therefore, in my opinion, this issue is almost a non-issue. Currently, my newsletter is accepted by the members and I don't want to risk messing that up by bringing this "non-issue" forward to the membership is it can be logically resolved behind the scenes.

Tim

IMHO The votes should be counted as long as they are for someone meeting the requirements to hold office if a person is elected by write-in votes and doesn't want to serve, they can decline and the next highest vote holder would be elected.

I do however disagree with your analogy of:

Since I would assume there is no one in your HOA with the name Mickey Mouse, those votes would simply be invalid and not counted.

Tim,

I think you are fortunate to not have electoral and operational conflict in your HOA. I think you are wise to keep your news-letter interesting. Since the BoD decided to keep the write-ins, there's really not much news beyond the new directed proxies.

My HOA handles that as a Ballot on the same page as the General Proxy. (It is directed as to Director elections and general as to all other votes that may take place at the Meeting.) Are you going to handle it the same way?

Do you have secret ballots? Are you going to use the two-envelope system for the directed proxies? What (if anything) do you do for secret ballot for Members voting in person at meetings?

Donna,

I read Tim's post as saying he researched and drafted directed proxies as a service to the HOA, working with the Board, and the details involve an extended discussion he had with the Board (the President) about this. He contributed to these discussions, rather than simply acting in a clerical capacity, but he did not take independent action in conflict with the Board. I don't think these proxies have been issued yet, but I saw nothing in Tim's post to suggest he expected to issue his own, independently of his Board

I believe Members can issue and distribute their own proxies, particularly if they believe the Board is acting improperly and denying Members their rights to run or otherwise participate in election of Directors. This amounts to a proxy fight, and I suspect it is explicitly permitted in most or all states in one form or another. I and other homeowners did exactly that in our last election, and I have posted about that elsewhere. But that's not what Tim described, nor is it germane to his situation.

I read Tim's post as saying his Board has suggested that write-ins must come from the list of nominees (which doesn't make sense, because they would already be on the ballot), and he believes open write-ins should be allowed, and he is looking for input on this discussion from us. I don't think he suggested he was considering going it alone in conflict with a decision his Board might end up making.

Maybe he would, and there's nothing preventing us from discussing that scenario if some of us like; but for clarification, I don't think that's what he said or asked of us.

I think what you said about only writing in people who agree to serve makes sense, but so does what Tim said about accepting all write-ins in any case. I didn't read Tim's post as saying the President has made a "ruling", nor do I think that Tim would be required to follow it if he disagreed strongly. That could be matter for discussion at the Meeting, if any Member present thought it was a worthwhile issue.

The names of the nominees make up the slate of candidates which should be listed on the ballot. IMO, the board is wrong in saying a nominees name can be shown as a write-in candidate.

Whether or not write-in candidates are allowed, should be stated in the bylaws. A write-in candidate should agree to have their name written on the ballot, just the same as a person nominated from the floor has the right to accept or decline the nomination b/4 voting takes place.

What I don't agree with is the use of a directed proxy, which is akin to an absentee ballot, but instead of the member mailing it in he gives it to another member to carry to the meeting. Why not just allow mail-in ballots and let the members cast their own votes? The ballot mailed to each member can either be mailed-in or handcarried to the meeting and should contain a line for write-in candidate, if authorized in the bylaws. IMO, your directed proxie is a wasted effort.

"I think the reason for using these proxies instead of ballots, is they also serve as general proxies for any motions that may be voted on at the Meeting. I suspect this may be more common than has been suggested in this forum."

I believe no one should sign a general proxy giving the board the freedom to conduct any business they wish. A proxy for the purpose of establishing a quorum at an election is reasonable. But giving the board a blank proxy is dangerous. All proxies should say what they are for before any homeowner signs it and should also have a space for having someone other than a board member control the proxy.

Jeanne

All,

Thanks for the replies and boy is it taking off in many different directions. Let me try to answer all of them and then try and bring it back on track.

Proxies:

Per VA corporate law, proxies do not need to be on any special form. They may be printed or electronic providing the give enough information to prove that the person assigning a representative to vote for them is authorized to vote and is the person assigning the representative.

"A member or the member's agent or attorney-in-fact may appoint a proxy to vote or otherwise act for the member by signing an appointment form or by an electronic transmission. An electronic transmission shall contain or be accompanied by information from which one can determine that the member, the member's agent or the member's attorney-in-fact authorized the transmission.
§ 13.1-847"

Directed Proxies:

Per Fairfax County Community Association Manual:

"Two types of proxies, “instructed” and “uninstructed”, are commonly used. An
instructed proxy authorizes the assigned person to cast the member’s vote in a designated way on each specific issue, e.g., to vote for/against a specific slate of nominees, or for/against proposed change(s) in the documents, etc.. An uninstructed proxy does not designate how the authorized person is to vote on each issue." [Chapter 2, page 43]

Proxy Summary:

Per VA law and Association Governing documents, proxies are allowed. General proxies have always been used in the past. Directed proxies, although authorized, have not been used or encouraged. The Board of Directors did not have any issues with my directed proxy form itself and accepted any that were submitted. Since any VA law allows any instrument to be a proxy, my directed proxy form was as legitimate as the Associations or a simple memo or e-mail.

Proxy/Ballot:

Our Association requires a secret ballot for directors. It also requires that the ballot be cast at the annual meeting. Although I believe an argument could be made and accepted for mail-in ballots different rules apply for accepting ballots vs. proxies. Our Association has never used a mail in ballot and I suspect never will. As Jeanne said, the proxies allow the representative to vote on any motions presented by the floor.

Nominees:

Our Association does have a nominating committee and properly does their duties. The solicit volunteers, recruit volunteers and prepare the ballot with those names. Are Association documents also allow for nominations from the floor (we usually get one or two). As the nominating committee does not have the authority to reject any nominee from the floor - all nominees from the floor are accepted. However, their names are obviously not printed on the ballot. Therefore, several write-in spaces are provided. There is zero dispute within the Association on this practice/procedure.

Proxies vs. Ballots:

A proxy authorizes a person to vote in place of someone else. A general proxy allows that person to vote anyway they wish even if it is different then the desires of the person who gave the authorization. A directed proxy instructs that person to vote a specific way, protecting the desires of the person who gave the authorization.

A ballot is the actual vote. The representative must complete an actual ballot based on the proxy (general or directed) for the vote to be cast and counted.

My Newsletter and Directed Proxy form:

My directed proxy form was created using the same information contained on the Associations general proxy form. However, I also included the instruction:
"I further direct this person to register my vote in the following manner:" I then listed each issue to be brought forward with a space to indicate Yea, Nay or As you think is best. For the candidates: I listed each individual candidates name that was identified by the nominating committee and provided the same options. Similar to the ballot, I also placed spaces for write-ins with the same options. I did not add any names that were not already known through the nominating committee. If this works, I've attached a copy [minus the names/issues and Association] for you to see.

I am involved in the Association. I attend board meetings as a homeowner and I serve on committees. The Association knows that I publish the non-sanctioned newsletter as my name and e-mail is printed in each and every issue as well as a disclaimer that it is not the official word of the Association. Although I did not receive permission prior to printing a directed proxy form, the Board know I preferred directed over general proxies. Additionally, they had zero issue with the form or how it is used.

Inappropriate Actions:

I'm going to be a little defensive here and I apologize in advance for it. However, just because a question can make you defensive doesn't mean that the question isn't valid and/or that it doesn't deserve an answer.

Did I muddy the water? I don't think so. However, I may have stirred it up a bit. This action protects the right of the member to vote as they wish and the Board had zero issue with this action. My newsletter informs the members on what actions the Board takes. I never mention actual names, I use positions or just "a board member". I stick to documented facts and I provide references and quotes to Association minutes, State laws and other documents that support those facts. I even explain where those documents can be located on the web (minutes and other Governing documents are on the Association web site) so these statements can be verified. I try to point out both sides of the issue and I re-print any letters to the editor so various points of view are shown.

The Association presents one point of view to the membership. My actions present a different view. Sometimes in agreement with the Board and sometimes in disagreement. I give credit where credit is due and point out things that could have been done better (like asking for volunteers before hiring an employee, without advertising the position, who happens to be a friend of a board member). I have received many compliments from the membership about the newsletter. I have always been welcomed at board meetings and asked to participate in the discussion and to present ideas.

Bottom line, I do not think my actions were inappropriate and based on my relations with the Board, I do not believe that they think so either. The may prefer some issues aren't brought forward but they don't hate me if I do bring it forward.

Write-in's (my initial question):

By definition, a write-in on a ballot is to enable the casting of a vote for someone not printed on the ballot. Everyone involved agrees of this fact. Everyone also agrees that the write-in space should be on the ballot.

The issue is who's name can be written in?

Can it only be those nominated (via the committee or the floor) or can it be anyone else (Mickey Mouse was used before as an extreme example so lets just say it's Neighbor Joe)?

Why am I asking:

I am asking because the opinion of some is that if you use neighbor joe vs. a nominee the vote will be disqualified. This effectively is invalidating a ballot based solely on who you voted for.

Granted, a vote for neighbor joe is probably a wasted vote. However, the ballot should still be counted.

Neither of the people who brought these two opinions/interpretations can back it up with a law. If a law was located to support either opinion, the other person would agree that they were in error. Since I live in VA, I will need to located something from Federal or Virginia statutes.

I don't care which theory/understanding it supports. I would just like the topic settled before it becomes an issue.

Thank you.

Tim

There may also be another issue with a write-in candidate. That person may not be eligible for a variety of reasons, within your governing documents. One of those may be he or she may not be a member in good standing.

All nominees, including those written in, if your documents allow, must be eligible and that is determined after the ballots are opened and verified.

Tim, are you saying that your documents allow members not in good standing to run for and be elected to the board?!

That's surprising.

Tim,

Conceptually, how is your limited proxy write-in any different from a write-in at the meeting, where the person voted for is not present at the meeting to indicate willingness to serve if elected? For that matter, conceptually, how is it any different from the situation where someone is nominated from the floor at the meeting, but not present to indicate willingness to ser4ve if elected?

I don't see any difference and wonder what the president would say to either possibility - is the vote itself invalid, or is the election (assuming that the write-in candidate gets enough votes to be elected) declared invalid?

As a practical matter, why doesn't the person holding the proxy simply nominate the write-in candidate from the floor before votes are cast? Doesn't that solve the president's problem?

MicheleD,

That is correct. There is zero qualifications required for being a nominee for or serving as a Director. Therefore, a member who is not in good standing can still run. They can not vote, but they can be nominated and elected.

MichaelK11,

I agree with you that as a practical matter, it is only the members who have been nominated or elected to the board. Residents, be they members, family of members or renters, have always been welcomed to serve on committees. Who has run and/or been elected in the past has never been an issue and isn't one now.

EverettC,

You basically hit the nail on the head with the issue. It is confusing. The write-in space on the proxy is conceptually the same as the write-in space on the ballot. The write-in space on the directed proxy had the Board realize that in processing the directed proxy it could be possible for someone to direct their representative to vote for someone other than a nominee.

The Board had zero problem with accepting the directed proxy and even put in place procedures to ensure that the ballot would be filled out as the proxy directed. They just don't know how to handle the possible of issue of someone other than a nominee getting a vote.

Since both the directed proxy and the ballots write-in space are essentially the same, and the Board is accepting the directed proxy, why they don't want to accept the ballot is confusing to me.

Virgina Corporate Law, as I expect other States have similar laws, provide for a ballot to be declared invalid for various reasons. However, there is nothing saying that a single vote on the ballot could be declared invalid. Thus it is implied that if the Ballot is valid, all votes indicated on it are valid.

Yes, it is possible that the someone can nominate from the floor who they were told to vote for. Expecting that the motion is approved, this would address the Boards issue. This was even discussed between myself and the President. However, it doesn't address what would happen if the motion was disapproved. Then we are back to "who's name can be written in on the write-in space of the ballot"?

SusanW1,

The President and I, during our phone conversation, agreed that the probability of someone not running actually receiving enough votes to win is remote and effectively makes this issue a non-issue. However, we also agreed that the question deserves further investigation for a definitive answer. Neither the Board or I are bringing the issue to the General membership - because we don't want to make an issue out of a non-issue.

I disagree with your assessment on the validation of the ballot, at least as VA law applies. VA Non-Stock Corporation Act, § 13.1-847.1. Voting procedures and inspectors of elections, basically says that the ballot can only be considered invalid if the person casting the vote was not eligible to vote, either by being an actual member or a duly appointed proxy. It does not allow a ballot to be invalid based on who the vote was cast for.

If someone elected is then deemed not eligible then the seat would be vacant.

All,

These are good questions. The only other way I can express why I'm passionate about this issue is the following:

The Board has basically said: Even though we provide a space for a write-in candidate on the ballot, you will vote for whom we tell you to vote for or we won't count it.

Isn't this called election fraud?

I certainly do not believe that the intent of my Associations Board is to commit fraud. However, I do believe that there thinking and the procedures they want to put in place based on their thinking does create fraud. They are open to discussing it, I am open to discussing it. Neither of us wants to cause an issue of a probable non-issue. Therefore, if a law can be located to clarify either position everyone will learn something and the HOA can be governed better.

Thanks,

Tim

MicheleD,

Point taken. The documents govern and the Board administrates.

Tim