Conducting an Association Election by Mail

By Robert C. Griffin, Esq. March 24, 2020 Posted in Community Association Law Share

Ordinarily, the Association’s election process will contain the following essential elements:

1. The Association will send out an initial letter identifying the number of Board seats open for election. The letter will call for the nomination of candidates to compete for the open Board seats.

2. The period for nomination must remain open for at least 30 days, pursuant to the Radburn Law. Thus, when planning to hold an election the Property Manager should review the notice procedures for meetings of the membership (usually at least 15 days) and work backward, giving the Manager enough time to stuff envelopes, make copies, and get Notices out in the mail.

3. Usually, Management will send a blank voter profile form to proposed candidates to fill out, allowing the candidates to explain to the community their qualifications.

4. Candidates nominated must be association members (Unit Owners). Unless the governing documents otherwise allow, spouses of Unit Owners may not run. Management should determine the best way to assure that the candidates are record owners. Some associations have the candidates file a certification that they are record owners of a unit, or require submission of the candidates’ deeds. Others simply ask the candidates.

5. If a candidate is nominated by someone other than themselves, they must accept the nomination before being placed on the ballot. Placement on the ballot means that members can start voting by absentee ballot or proxy. Having a candidate find out that his/her spouse (for example) nominated in the middle of the absentee ballot and proxy period, and withdrawing, can have the effect of disenfranchising certain votes.

6. Once the pool of candidates has been identified by nomination, it is time for Management to send out the official Notice of Election and its accompanying Agenda, Proxies and Absentee Ballots. The absentee ballot, and the ballot form used for those voting in person at the meeting must list the candidates in alphabetical order. The Radburn Law requires this, so that incumbents do not get an advantage. Thus, saying in your Notice of Election that the positions held by incumbents (eg. Jane and Charlie) are up for election is improper. The Notice should simply say that two positions are open for election.

7. The purpose of the Radburn Law is transparency and notice. We view the Radburn Law as eliminating write-in ballots. The Radburn Law provides for a 30-day period for nominations and then a publication of the identity of the candidates on the ballots. Allowing someone to come in and get friends to vote for him on the date of the election, who has not previously been identified to the Unit Owners, is not in keeping with the spirit of the Radburn Law.

8. The Notice of Meeting must advise the membership of the date, time and place of the election, and deadlines for the return of ballots and proxies. Generally, the By-Laws contain a “record date”, which is the date by which a person must be in good standing in order to vote. This should be adhered to.

9. At the time of the annual meeting, the election of candidates is achieved by in-person votes, proxy votes and absentee ballots.

10. A quorum must be established in accordance with the By-Laws. Generally, (but not always) a quorum is established by taking the total number of Units, subtracting those who are delinquent, and dividing that number by the amount necessary to establish a quorum. So, for example, if the total number of units is 100, quorum is 30% and there are 10 people not in good standing, you take 100 units, subtract the 10 people who are not in good standing (100-10 = 90) and multiply by 30% (i.e. .30). The quorum is 27.

11. Those in good standing, based upon the Radburn Law, include those who are in a bona-fide dispute with the Association over the amount due, whether in Court or in ADR (alternate dispute resolution). Those in good standing also include those who are in a payment plan with the Association.

12. A maintenance fee payment that is not strictly due cannot be used to keep a member from voting. So, for example, if the election is held on the 5^th day of the month of May, and a grace period is in effect until the 15^th of the month, the Association cannot keep a person from voting if he/she has abided by the grace period established by the Association. This is true unless there has been a specific notice that the Association will be going by the first of the month, despite the grace period, and even then, a challenge may be brought on the basis that the Unit Owners did not receive enough notice to change their finances to meet the May 1 deadline.

13. Management should avoid, where possible, creating new procedures during the course of an election. The lack of consistency from year to year reduced the credibility of the election process. The time for election reform is after the election has occurred and everyone can give feedback when the stakes are not so high and all candidates are seeking an advantage. It often occurs that during an election a Unit Owner will think of a better way of doing things. That’s great, but a new system should not be initiated during the election process, as the new system will undoubtedly have to be approved by the Board, and the Board members are at the least objective times in their Board membership during an election. In addition, the change will most often benefit one candidate or another and give one or more candidates an advantage over others.

14. Judges of election are generally required and those judges must decide issues having to do with whether to count votes that are, perhaps, not submitted exactly correctly. The judges may receive advice from the Association’s attorney, but it is not the attorney’s decision as to whether to disqualify a vote; it’s for the judges to decide.

15. The recent Coronavirus outbreak has thrown a monkey wrench into Association election procedures of late, because gatherings such as generally occur at membership meetings are prohibited by law. As the Center for Disease Control, the State of New Jersey and the White House have mandated social distancing, Associations have had to adjourn annual meetings and find ways to facilitate Board elections. While some Associations have previously amended their By-Laws to allow members to vote by electronic means, in accordance with the Radburn Law, many have not.   Those that have not are left to come up with an immediate solution.

Our position on the issue is that State and Federal Mandates supersede Association governing documents, and Associations are justified under such circumstances in holding elections entirely by mail. The Judges of Election should be appointed in advance, and the Association should set up a fashion in which ballots, absentee ballots and proxies may be submitted and counted. The Judges should glove up to open the ballots or at least wash their hands immediately after the process.

According to the New Jersey Department of Consumer Affairs, the election results, including how many members voted each person received, must be reported to the Community.

For Associations that have the authority to hold elections by electronic means, there are a number of companies that can assist in holding such elections. The advantage of these companies is that they generally continue to email each member who did not vote, until the vote is submitted. That procedure alone might be worth the money invested in the company to hold your election, especially if your community usually has trouble.

The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances.  Each legal matter is unique, and prior results do not guarantee a similar outcome.

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