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5100 - 5145 Member Election

SECTION 5100-5145

Member Election

5100.  (a) Notwithstanding any other law or provision of the
governing documents, elections regarding assessments legally
requiring a vote, election and removal of directors, amendments to
the governing documents, or the grant of exclusive use of common area
pursuant to Section 4600 shall be held by secret ballot in
accordance with the procedures set forth in this article.
   (b) This article also governs an election on any topic that is
expressly identified in the operating rules as being governed by this
   (c) The provisions of this article apply to both incorporated and
unincorporated associations, notwithstanding any contrary provision
of the governing documents.
   (d) The procedures set forth in this article shall apply to votes
cast directly by the membership, but do not apply to votes cast by
delegates or other elected representatives.
   (e) In the event of a conflict between this article and the
provisions of the Nonprofit Mutual Benefit Corporation Law (Part 3
(commencing with Section 7110) of Division 2 of Title 1 of the
Corporations Code) relating to elections, the provisions of this
article shall prevail.

5105.  (a) An association shall adopt rules, in accordance with the
procedures prescribed by Article 5 (commencing with Section 4340) of
Chapter 3, that do all of the following:
   (1) Ensure that if any candidate or member advocating a point of
view is provided access to association media, newsletters, or
Internet Web sites during a campaign, for purposes that are
reasonably related to that election, equal access shall be provided
to all candidates and members advocating a point of view, including
those not endorsed by the board, for purposes that are reasonably
related to the election. The association shall not edit or redact any
content from these communications, but may include a statement
specifying that the candidate or member, and not the association, is
responsible for that content.
   (2) Ensure access to the common area meeting space, if any exists,
during a campaign, at no cost, to all candidates, including those
who are not incumbents, and to all members advocating a point of
view, including those not endorsed by the board, for purposes
reasonably related to the election.
   (3) Specify the qualifications for candidates for the board and
any other elected position, and procedures for the nomination of
candidates, consistent with the governing documents. A nomination or
election procedure shall not be deemed reasonable if it disallows any
member from nominating himself or herself for election to the board.
   (4) Specify the qualifications for voting, the voting power of
each membership, the authenticity, validity, and effect of proxies,
and the voting period for elections, including the times at which
polls will open and close, consistent with the governing documents.
   (5) Specify a method of selecting one or three independent third
parties as inspector or inspectors of elections utilizing one of the
following methods:
   (A) Appointment of the inspector or inspectors by the board.
   (B) Election of the inspector or inspectors by the members of the
   (C) Any other method for selecting the inspector or inspectors.
   (6) Allow the inspector or inspectors to appoint and oversee
additional persons to verify signatures and to count and tabulate
votes as the inspector or inspectors deem appropriate, provided that
the persons are independent third parties.
   (b) Notwithstanding any other provision of law, the rules adopted
pursuant to this section may provide for the nomination of candidates
from the floor of membership meetings or nomination by any other
manner. Those rules may permit write-in candidates for ballots.

5110.  (a) The association shall select an independent third party
or parties as an inspector of elections. The number of inspectors of
elections shall be one or three.
   (b) For the purposes of this section, an independent third party
includes, but is not limited to, a volunteer poll worker with the
county registrar of voters, a licensee of the California Board of
Accountancy, or a notary public. An independent third party may be a
member, but may not be a director or a candidate for director or be
related to a director or to a candidate for director. An independent
third party may not be a person, business entity, or subdivision of a
business entity who is currently employed or under contract to the
association for any compensable services unless expressly authorized
by rules of the association adopted pursuant to paragraph (5) of
subdivision (a) of Section 5105.
   (c) The inspector or inspectors of elections shall do all of the
   (1) Determine the number of memberships entitled to vote and the
voting power of each.
   (2) Determine the authenticity, validity, and effect of proxies,
if any.
   (3) Receive ballots.
   (4) Hear and determine all challenges and questions in any way
arising out of or in connection with the right to vote.
   (5) Count and tabulate all votes.
   (6) Determine when the polls shall close, consistent with the
governing documents.
   (7) Determine the tabulated results of the election.
   (8) Perform any acts as may be proper to conduct the election with
fairness to all members in accordance with this article, the
Corporations Code, and all applicable rules of the association
regarding the conduct of the election that are not in conflict with
this article.
   (d) An inspector of elections shall perform all duties
impartially, in good faith, to the best of the inspector of election'
s ability, and as expeditiously as is practical. If there are three
inspectors of elections, the decision or act of a majority shall be
effective in all respects as the decision or act of all. Any report
made by the inspector or inspectors of elections is prima facie
evidence of the facts stated in the report.

5115.  (a) Ballots and two preaddressed envelopes with instructions
on how to return ballots shall be mailed by first-class mail or
delivered by the association to every member not less than 30 days
prior to the deadline for voting. In order to preserve
confidentiality, a voter may not be identified by name, address, or
lot, parcel, or unit number on the ballot. The association shall use
as a model those procedures used by California counties for ensuring
confidentiality of vote by mail ballots, including all of the
   (1) The ballot itself is not signed by the voter, but is inserted
into an envelope that is sealed. This envelope is inserted into a
second envelope that is sealed. In the upper left hand corner of the
second envelope, the voter shall sign the voter's name, indicate the
voter's name, and indicate the address or separate interest
identifier that entitles the voter to vote.
   (2) The second envelope is addressed to the inspector or
inspectors of elections, who will be tallying the votes. The envelope
may be mailed or delivered by hand to a location specified by the
inspector or inspectors of elections. The member may request a
receipt for delivery.
   (b) A quorum shall be required only if so stated in the governing
documents or other provisions of law. If a quorum is required by the
governing documents, each ballot received by the inspector of
elections shall be treated as a member present at a meeting for
purposes of establishing a quorum.
   (c) An association shall allow for cumulative voting using the
secret ballot procedures provided in this section, if cumulative
voting is provided for in the governing documents.
   (d) Except for the meeting to count the votes required in
subdivision (a) of Section 5120, an election may be conducted
entirely by mail unless otherwise specified in the governing
   (e) In an election to approve an amendment of the governing
documents, the text of the proposed amendment shall be delivered to
the members with the ballot.

5120.  (a) All votes shall be counted and tabulated by the inspector
or inspectors of elections, or the designee of the inspector of
elections, in public at a properly noticed open meeting of the board
or members. Any candidate or other member of the association may
witness the counting and tabulation of the votes. No person,
including a member of the association or an employee of the
management company, shall open or otherwise review any ballot prior
to the time and place at which the ballots are counted and tabulated.
The inspector of elections, or the designee of the inspector of
elections, may verify the member's information and signature on the
outer envelope prior to the meeting at which ballots are tabulated.
Once a secret ballot is received by the inspector of elections, it
shall be irrevocable.
   (b) The tabulated results of the election shall be promptly
reported to the board and shall be recorded in the minutes of the
next meeting of the board and shall be available for review by
members of the association. Within 15 days of the election, the board
shall give general notice pursuant to Section 4045 of the tabulated
results of the election.

5125.  The sealed ballots at all times shall be in the custody of
the inspector or inspectors of elections or at a location designated
by the inspector or inspectors until after the tabulation of the
vote, and until the time allowed by Section 5145 for challenging the
election has expired, at which time custody shall be transferred to
the association. If there is a recount or other challenge to the
election process, the inspector or inspectors of elections shall,
upon written request, make the ballots available for inspection and
review by an association member or the member's authorized
representative. Any recount shall be conducted in a manner that
preserves the confidentiality of the vote.

5130.  (a) For purposes of this article, the following definitions
shall apply:
   (1) "Proxy" means a written authorization signed by a member or
the authorized representative of the member that gives another member
or members the power to vote on behalf of that member.
   (2) "Signed" means the placing of the member's name on the proxy
(whether by manual signature, typewriting, telegraphic transmission,
or otherwise) by the member or authorized representative of the
   (b) Proxies shall not be construed or used in lieu of a ballot. An
association may use proxies if permitted or required by the bylaws
of the association and if those proxies meet the requirements of this
article, other laws, and the governing documents, but the
association shall not be required to prepare or distribute proxies
pursuant to this article.
   (c) Any instruction given in a proxy issued for an election that
directs the manner in which the proxyholder is to cast the vote shall
be set forth on a separate page of the proxy that can be detached
and given to the proxyholder to retain. The proxyholder shall cast
the member's vote by secret ballot. The proxy may be revoked by the
member prior to the receipt of the ballot by the inspector of
elections as described in Section 7613 of the Corporations Code.

5135.  (a) Association funds shall not be used for campaign purposes
in connection with any association board election. Funds of the
association shall not be used for campaign purposes in connection
with any other association election except to the extent necessary to
comply with duties of the association imposed by law.
   (b) For the purposes of this section, "campaign purposes"
includes, but is not limited to, the following:
   (1) Expressly advocating the election or defeat of any candidate
that is on the association election ballot.
   (2) Including the photograph or prominently featuring the name of
any candidate on a communication from the association or its board,
excepting the ballot, ballot materials, or a communication that is
legally required, within 30 days of an election. This is not a
campaign purpose if the communication is one for which subdivision
(a) of Section 5105 requires that equal access be provided to another
candidate or advocate.

5145.  (a) A member of an association may bring a civil action for
declaratory or equitable relief for a violation of this article by
the association, including, but not limited to, injunctive relief,
restitution, or a combination thereof, within one year of the date
the cause of action accrues. Upon a finding that the election
procedures of this article, or the adoption of and adherence to rules
provided by Article 5 (commencing with Section 4340) of Chapter 3,
were not followed, a court may void any results of the election.
   (b) A member who prevails in a civil action to enforce the member'
s rights pursuant to this article shall be entitled to reasonable
attorney's fees and court costs, and the court may impose a civil
penalty of up to five hundred dollars ($500) for each violation,
except that each identical violation shall be subject to only one
penalty if the violation affects each member of the association
equally. A prevailing association shall not recover any costs, unless
the court finds the action to be frivolous, unreasonable, or without
   (c) A cause of action under Sections 5100 to 5130, inclusive, with
respect to access to association resources by a candidate or member
advocating a point of view, the receipt of a ballot by a member, or
the counting, tabulation, or reporting of, or access to, ballots for
inspection and review after tabulation may be brought in small claims
court if the amount of the demand does not exceed the jurisdiction
of that court.

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