AB 1360, as amended, Torres. Common interest developments: electronic voting.
Existing law, the Davis-Stirling Common Interest Development Act, defines and regulates common interest developments, which include community apartment projects, condominium projects, planned developments, and stock cooperatives. These provisions require that a common interest development be managed by an association and that elections related to the governance or administration of the common interest development conform to specified requirements, including, among other things, the requirement that the association adopt rules to allow one or more inspectors to appoint or oversee independent 3rd parties to verify signatures and count and tabulate votes. Existing law authorizes a secret paper ballot to be distributed and voted upon by the membership without a meeting, and imposes other requirements relating to proxies and secret ballots. Existing law authorizes a member of an association to bring a civil action to enforce his or her rights and authorizes a court to impose a civil penalty of up to $500 for a violation of the provisions governing elections.
This bill would authorize an association to conduct elections by electronic voting, as specified, and would enact related provisions. The bill would require an association, if electronic voting is to be conducted, to provide each member with an opportunity to indicate that he or she will be voting electronically and to provide ballots, as specified.
The bill would also declare the Legislature’s intent in this regard.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
The Legislature finds and declares all of the
2following:
3(a) Common interest development association elections are
4subject to specific procedures which are more restrictive than the
5procedures for other nonprofit corporations that may conduct
6balloting by electronic means under Section 7510 of the
7Corporations Code.
8(b) The procedures set forth in the Davis-Stirling Common
9Interest Development Act do not permit the use of electronic
10voting. The act requires the use of paper ballots and double
11envelopes enclosing those ballots.
12(c) The statutorily prescribed paper ballot voting procedure
13failed to increase voter participation. Therefore, common interest
14development membership meetings often fail for lack of quorum.
15(d) Election quorums would be more easily achieved using
16electronic balloting.
17(e) Under existing law, the entire election process must be
18repeated until quorum is achieved, which costs the association
19significantly more money.
20(f) Authority for the use of electronic voting would give
21associations and their members an option that could save postage
22and paper costs while preserving natural resources.
Section 5110 of the Civil Code is amended to read:
(a) The association shall select an independent third
25party or parties as an inspector of elections. The number of
26inspectors of elections shall be one or three.
P3 1(b) An independent third party may be a member, but shall not
2be a director or a candidate for director or be related to a director
3or to a candidate for director. An independent third party shall not
4be a person, business entity, or subdivision of a business entity
5who is currently employed or under contract to the association for
6any compensable services, unless expressly authorized by rules of
7the association adopted pursuant to paragraph (5) of subdivision
8(a) of Section 5105.
9(c) The inspector or inspectors of elections shall do all of the
10following:
11(1) Determine the number of memberships entitled to vote and
12the voting power of each.
13(2) Determine the authenticity, validity, and effect of proxies,
14if any.
15(3) Receive ballots, or receive the voting results from an
16electronic balloting service provider.
17(4) Hear and determine all challenges and questions in any way
18arising out of or in connection with the right to vote.
19(5) Count and tabulate all votes, including the
voting results
20received pursuant to paragraph (3).
21(6) Determine when the polls shall close, consistent with the
22governing documents.
23(7) Determine the tabulated results of the election.
24(8) Perform any acts as may be proper to conduct the election
25with fairness to all members in accordance with this article, the
26Corporations Code, and all applicable rules of the association
27regarding the conduct of the election that are not in conflict with
28this article.
29(d) An inspector of elections shall perform all duties impartially,
30
in good faith, to the best of the inspector of election’s ability, and
31as expeditiously as is practical. If there are three inspectors of
32elections, the decision or act of a majority shall be effective in all
33respects as the decision or act of all. Any report made by the
34inspector or inspectors of elections is prima facie evidence of the
35facts stated in the report.
36(e) As used in this section:
37(1) “Electronic balloting service provider” means a business
38that meets all of the following requirements:
39(A) Isbegin delete an independent third party that isend delete
not affiliated with the
40association management or members.
P4 1(B) Is insured for liability.
2(C) Protects the secrecy of ballots.
3(D) Protects the anonymity of the voter by ensuring that
4members’ names are not listed when the votes are tallied and
5submitted to the association by the electronic balloting service
6provider.
7(E) Produces a record verifying dates and times that votes were
8cast.
9(F) Provides to a member a secure confirmation of the member’s
10electronically cast vote.
11(2) “Independent third party” includes, but is
not limited to, a
12volunteer poll worker with the county registrar of voters, a licensee
13of the California Board of Accountancy, or a notary public.
Section 5117 is added to the Civil Code, to read:
Notwithstandingbegin delete subdivision (a) ofend delete Section 5115,
16subdivision (a) of Section 5120, or Section 5125, the association
17may conduct elections by electronic voting conducted pursuant to
18subdivision (a) of Section 7510 of the Corporations Code. If
19electronic voting is to be conducted in accordance with this section,
20the association shall provide each member with an opportunity to
21indicate that he or she will be voting electronically. For a member
22who indicated that he or she will be voting electronically, not less
23than 30 days prior to the voting deadline, the association shall
24provide to the member the ballot and any related material by
25electronic transmission. Member responses
shall be returned to
26the association by electronic transmission by the voting deadline.
27The association, for a member who did not indicate that he or she
28would be voting electronically, shall provide the member with a
29ballot pursuant to Section 5115.
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