When conducting board elections, the voting process is typically conducted
by secret ballots. Secret ballot procedures can be found in the governing
documents, Corporations Code, and Civil Code. If you live in an Association,
chances are you are well aware of the secret ballot procedure, but should
these procedures always be required? That is, does the Association really
need to shell out the costs for mailing ballots and hiring an inspector
of elections when only one member is running for the open seat on the Board?
The primary code section related to election procedures is Civil Code Section
5100 and, of course, the legal community has different opinions on its
interpretation. One can look at the letter of the law or elect to be more creative.
If we look to the letter of the law, Section 5100
always requires an election regardless of the number of candidates. Civil Code
Section 5100 states, “notwithstanding any other law or provision
of the governing documents . . . election and removal of directors . .
. shall be held by secret ballot. . . .” On its face, the code’s
language is clear; associations must conduct elections by secret ballot,
period, end of discussion.
In contrast, the alternative interpretation of Section 5100 argues that
it should be read in a manner that does not require a vote for uncontested
elections. For example, Civil Code Section 3532 generally states that
the law does not require futile or pointless acts. Applied to the issue
of uncontested elections, requiring costly affirmative acts to establish
something that is already predetermined seems like an idle and fruitless
requirement, which Section 3532 was designed to prevent. Furthermore,
secret ballots serve a purpose of providing privacy and anonymity of opinion
when voting. Does this really apply when all members are aware of the
outcome regardless of opinion?
Although both arguments are viable, looking at the legislature’s
intent helps shed some light on the issue.
2016 Assembly Bill 1799 provides such insight. AB 1799 sought to amend
Civil Code Section 5100 in order to address the uncontested elections
issue. This amendment sought to explicitly establish an exception to the
mandatory elections requirement if the election is uncontested, provided
that there is a procedure to declare it as uncontested. This bill, however, did
not pass. This is important. The significance of the legislature’s attempt
to change Section 5100, and ultimate decision not to, implies that Section
5100 does, in fact, require secret ballot voting
for uncontested elections. Thus, the most prudent interpretation of Civil Code Section 5100 is that
elections are required, even when it seems futile.
Moreover, AB 1799 provides insight as to the legislature’s recognition
of this problem, and generates hope that the legislature may one-day revisit
and resolve this issue. Until then, it appears that Civil Code Section
5100 does require a vote for uncontested elections. This does not mean,
however, that associations should not prepare for a possible change in the law.
Associations may consider drafting or revising their governing documents
to address a possible future change. That is, associations should take
advantage of a current rewrite or amendment to prepare for the future
by adding provisions that permit the association to conduct elections
in any manner permitted by the Civil Code. Therefore, should the Civil
Code ever permit an alternative election procedure, the association can
put such procedure to use.