Board Elections, Quorums and Proxies

An association election is a small piece of corporate law wrapped in statutes written because the corporate rules produced bad results. The problems those statutes address are always the same three: nobody knew nominations were open, nobody came to the meeting, and the ballots were counted by the people whose seats were at stake.

Two notices, both on a clock

The first notice is about running. A representative statute requires the association to give general notice of the procedure and deadline for submitting a nomination at least thirty days before that deadline, with individual notice to any member who has requested it. This applies to director elections and to recall elections.

The second notice is about voting. At least thirty days before ballots are distributed, the association must give general notice of the date, time and physical address by which ballots must be returned or handed to the inspector, and where electronic voting is permitted, the deadline and preliminary instructions for casting an electronic secret ballot.

Both periods run backward from a fixed event, which means an association that discovers the omission late cannot cure it by sending the notice and proceeding. The usual remedy is to move the election, and boards that press ahead instead give any losing candidate a straightforward challenge.

Secret ballots and the inspector

Statutes that mandate secret balloting usually apply it to more than director elections: removal of directors, amendments to the governing documents, assessments legally requiring a vote, and grants of exclusive use of common area. The mechanics are double envelope. The ballot goes inside an unmarked inner envelope, which goes inside an outer envelope bearing the member's name, address and signature.

An inspector of elections, independent of the board and of the candidates, receives the envelopes, verifies eligibility from the outer envelope, separates the inner envelope unopened, and counts in public. The separation is what makes the ballot secret while still allowing eligibility to be checked.

The inspector also resolves disputes about eligibility and about whether a ballot is valid, and in most schemes the inspector's determination stands unless a court says otherwise. Choosing an inspector connected to the incumbent board is the single most common source of a contested result.

Eligibility on both sides of the ballot

The right to vote generally belongs to the owner of record, allocated by the declaration. Where a unit is owned by two people, most documents give the unit a single vote to be cast by either, with a mechanism for resolving a split. Where it is owned by an entity, the entity designates a representative in writing, and an association is entitled to insist on that designation before accepting a ballot.

Candidate eligibility is a separate list. Bylaws commonly require a candidate to be an owner of record, to be current on assessments, and to be free of a felony conviction that would bar bonding. Statutes in several states codify some of these and add procedural protections, including notice of the disqualification and a chance to respond.

Disputes about eligibility have to be raised before the count, not after. An inspector who accepts a ballot without objection has generally resolved the question, and a challenge afterwards faces both the inspector's determination and the practical difficulty of unwinding a completed election.

Why proxies disappeared in several states

A proxy transfers discretion. A holder collecting proxies from thirty absent owners can vote them as a bloc, which is how a small group entrenched itself in many communities. Statutes responded by replacing the proxy with a ballot that carries no discretion at all.

One state's provision is explicit. Notwithstanding any provision in the community documents, an association for a planned community may not permit voting by proxy, and instead must use absentee ballots or another authorized delivery method. The ballot must set forth each proposed action, provide an opportunity to vote for or against each, be valid for only one specified election or meeting, state the delivery deadline, contain the voter's name, address and signature, and expressly not authorize another person to cast votes on behalf of the member.

Where proxies remain lawful, they are usually limited: valid for a stated term, revocable, and often required to identify the meeting. Condominium statutes in some states permit limited proxies that direct the holder how to vote on specified questions while allowing discretion on others.

Quorum, adjournment and the reduced threshold

Quorum comes from the governing documents unless a statute supplies a default. One planned community statute sets thirty percent of total voting interests unless the bylaws provide a lower number, and provides that decisions requiring a member vote are made by a majority of those present in person or by proxy at a meeting where quorum was attained.

Many bylaws include an adjournment clause: if quorum is not reached, the meeting may be adjourned to a later date at which a reduced quorum applies, sometimes half the original. That clause is worth locating before an election rather than after, because using it requires the adjournment to be announced and noticed in the manner the bylaws prescribe.

Elections are also the vehicle for other decisions with their own thresholds, including assessments beyond the board's authority, covered in the article on the vote threshold for an assessment outside the budget, and changes to the recorded documents, covered in the article on amending the declaration and the bylaws. Once elected, directors are judged by the standard described in the article on the standard a volunteer board is held to, and they must conduct business in open session except for the matters listed in the article on board business done behind closed doors.