Q. We see how combative national, state, and even local elections can be, but they still feel tame compared to some of the elections we’ve had at our association. It seems every election is contentious, and sometimes they get downright nasty. Most of the disagreements seem to be between the “old guard” who like the status quo and newer residents who want to see change. Opposing “camps” accuse each other of mishandling proxies and improper counting of ballots. As we face our next cycle, are there some good, basic rules about how ballots should be collected and counted, and how an association should handle recounts?
A. “Elections certainly can be contentious,” agrees Gary M. Daddario, partner at the Merrimack, New Hampshire, office of Marcus, Errico, Emmer & Brooks, PC. “The rights to candidacy and voting are among the most important for many unit owners. Most unit owners recognize the governing board as the largest determining factor impacting the value of their unit and/or their quality of life in the community. This is because association boards have broad and extensive powers over the operations of their communities. So, one can understand why emotions (and sometimes tempers) can run high in relation to the election process.
“In terms of election satisfaction, voters appreciate being able to have a sense of confidence with respect to the casting of their ballots. This can be achieved, in part, through educating the community about their options (the candidates). In my experience, associations have had great success with allowing candidates to address the community for a brief and specific amount of time prior to voting. Some associations even have a ‘candidates’ night’ one evening prior to the annual meeting. By doing so, the association can help the candidates deliver their message, help the voters learn their options (and gain confidence with respect to the casting of their votes), and preserve valuable time at the annual meeting by undertaking just the voting process at that meeting.
“When it comes to avoiding fraud with respect to ballots, there are several measures an association can take. First, the association should develop a form and notify owners that only the official form will be accepted. Next, the association can label each ballot with a unique control number. If a master list of control numbers and the corresponding unit to which they were assigned are kept, then the association can cross-reference the ballots received with the master list and ensure that only the proper ballots were returned and that only one ballot per unit is counted.
“As far as counting (and possible re-counting) of ballots, there is no substitute for transparency. In my 20 years of representing associations, I find that the best ballot counts are those conducted by a property manager or the association’s legal counsel, with volunteers from among the meeting attendees looking over their shoulders (literally) to ensure accuracy. It is a common misconception that voting is anonymous at associations and/or that ballots are confidential. Unless such characteristics are provided for within an association’s governing documents, neither is the case. Rather, ballots are among the association’s records. So, witnesses to the counting of the ballots should not be a problem for the voters.
“Finally, as always, I recommend making certain that any procedures employed are not only consistent with your governing documents, but also with your applicable state statute. Some state statutes actually do include details covering such topics as ballot formats, verification of the party casting a ballot for a unit, use of proxies, the length of time that ballots must be retained with the association’s records, and so on. So, checking your state statute for any provisions on these topics may reveal both requirements with which you must comply and, hopefully, avenues for maintaining the integrity of your ballots and elections.”