Electronic Voting is Finally Here!

California has finally joined the ranks of a majority of other states and has passed legislation to allow for electronic voting in HOA elections. This was accomplished via a pair of bills which were passed by the Legislature in 2024, namely AB-2159 (Maienschein) and AB-2460 (Ta). Those bills have been signed by the Governor and will be in effect on January 1, 2025.

There is no shortage of online Inspectors of Elections who will be ready and willing to conduct your association’s election electronically in lieu of the current double-envelope paper system, but in order to take advantage of this new opportunity there are some steps that we need to take first. Primarily, the new provisions of the Civil Code require that each association must update their Bylaws or Election Rules to allow for electronic voting.

Those updates must include the following:

• Members must be permitted to change their preferred method of voting from electronic secret ballot to written ballot, or from written ballot to electronic secret ballot, no later than 90 days before an election.
• A requirement that any electronic secret ballot and any written ballot must contain the same list of items being voted on.
• A requirement that the association must mail a written ballot to any member who has opted out of voting by electronic secret ballot and to any member for whom the association does not have an email address.
• If a member must opt into voting by electronic secret ballot, the rules must require the association to send an electronic secret ballot only to a member who has opted into voting by electronic ballot.
• A requirement that the association must maintain a voting list identifying which members will vote by electronic secret ballot and which members will vote by written ballot.
• A requirement that the association must include information on the procedures to either opt out of or opt into voting by electronic secret ballot, as applicable, in its annual policy statement.
• Members who vote by electronic secret ballot must provide a valid email address to the association prior to the election.
• A prohibition on the nomination of candidates from the floor of membership meetings.
• A requirement that, if the association does not have a member’s email address required to vote by electronic secret ballot by the time at which ballots are to be distributed, the association shall send the member a written secret ballot.

In order to take advantage of electronic voting, the association must deliver individual notice of the electronic secret ballot to each member at least 30 days before the election. That notice must contain instructions on how to obtain access to the internet-based voting system and how to vote by electronic secret ballot.

If members are permitted to opt out of voting by electronic secret ballot, then the association must provide individual notice at least 30 days before the deadline to opt out of voting by electronic secret ballot, of all of the following:

1. The member’s current voting method.
2. If the member’s voting method is by electronic secret ballot and the association has an email address for the member, the email address of the member that will be used for voting by electronic secret ballot.
3. An explanation that the member is required to opt out of voting by electronic secret ballot if the member elects to vote by written secret ballot.
4. An explanation of how a member may opt out of voting by electronic secret ballot.
5. The deadline by which the member is required to opt out of voting by electronic secret ballot if the member elects to exercise that right.

All votes made by electronic secret ballot are effective when they are electronically transmitted to the Inspector of Elections and are then irrevocable. Please note that, while electronic voting is allowed for the election of directors, recall elections, and for amendments to the governing documents, it may not be used for any vote to increase the regular assessments or to levy a special assessment.

Members who cast an electronic secret ballot are counted towards quorum, and once quorum is established, a substantive vote of the members may not be taken on any issue other than the issues specifically identified in the electronic ballot. The Civil Code also requires that no person, including a member of the association or an employee of the management company, may open or otherwise review any tally sheet of votes cast by electronic secret ballot before the time and place at which the ballots are counted and tabulated.

There are additional requirements for the Inspector of Elections to follow in order to ensure that the electronic vote is properly authenticated and secure. The Civil Code also now includes the tally sheet of votes cast by electronic secret ballot as part of the “Association Election Materials” which must be maintained by the association and be subject to inspection by the membership.

If your community would like to take advantage of the new electronic balloting and voting procedures, then you must adopt new Bylaws or Election Rules which allow for the same. Our office is happy to provide those rules for a low flat fee. Please contact us for assistance in updating your governing documents in time for your next election.