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“IN ORDER TO ACTUALLY USE ELECTRONIC VOTING IN AN ELECTION, ASSOCIATIONS MUST FIRST AMEND THEIR ELECTION RULES TO ALLOW IT.”


Votes on Regular or Special Assessments Will Not Be Eligible for Electronic Voting


All secret ballot elections, except for votes on regular or


special assessments, will be eligible for electronic voting. This means the following types of elections can be conducted electronically, once an association has adopted electronic voting rules: elections of directors, recall elections, votes on amendments to governing documents, and votes on the grant of exclusive use of common area. Votes on regular or special assessments must still be conducted in the conventional manner with paper ballots and the two-envelope system.


All Homeowners are Affected When an Association Adopts Electronic Voting


One of the features of AB 2159 is that if an association


requires electronic voting in its election rules, then from that point on, all association members will vote electronically in all secret ballot elections (with the exception of votes on regular or special assessments). There are two exceptions: (1) homeowners must be given the opportunity to opt out of electronic voting in advance of every election, in which case they will vote conventionally by paper, and (2) homeowners who do not have an email address on file with the association must be mailed a paper ballot.


Electronic Voting is More Complicated than Just Sending an Email


AB 2159 preserves key tenets of election integrity embodied in the Davis-Stirling Common Interest Development Act: authentication, anonymity, and auditability. Communication by email is incompatible with the principle of anonymity, so electronic voting will not be as simple as a member dashing off an


AB 2159 requires electronic


email with their voting selections. voting


record their vote anonymously, transmit a receipt to the voter once they have voted, and keep a record of the electronic votes for purposes of recount and review.


to take place with


an internet-based voting system. The internet-based voting system must have the capability to authenticate each member’s identity


(for example, with a password),


The system must “permanently separate any authenticating or identifying information from the electronic secret ballot, rendering it


impossible to connect an election ballot to a


specific member.” Associations will need to carefully evaluate election service providers to make sure they meet these stringent criteria.


Time to Get Started!


There are a number of steps associations can take now to get ready for electronic voting:


• Adopt the necessary election rules that authorize electronic voting. Given the complexities of the new statute, the association’s attorney should help with this task.


• Designate the board secretary, or another individual, to maintain a list of the homeowners who vote electronically and the homeowners who vote by paper. This list should be maintained in an electronic format, such as Excel, so it can be easily used by an Inspector of Elections.


• Modify the association’s Annual Policy Statement to include instructions on how to opt into or out of electronic voting.


• Prepare to send out any notices required by the process selected, such as a notice at least 120 days before the election date, informing homeowners of their email address on file, their current voting method, and how to change it.


• Develop criteria for selecting an Inspector of Elections whose voting system can handle both paper ballots and electronic voting, while adhering to the legal requirements for authentication, anonymity and auditability.


—Abigail Padou is the founder and Chief Election Inspector of Pro Elections LLC, an election services provider that has handled almost 2,000 elections for California homeowner associations since 2020. Email: info@pro-ei.com or call 209.559.1448.


24 November | December 2024


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