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Can You Go Door To Door and Collect Ballots in an HOA?

There is a lot of confusion these days about how/whether anyone can go door to door and collect anything from owners which would enable them to vote on behalf of the owners in an HOA election.

Remember the "olden" days when people who had a cause for or against a measure proposed by the Board or who wanted to get elected ... or prevent someone from getting elected ... went door to door and collected proxies? "Proxy wars", ahhhhh yes, that is what they were called. If someone crept through this process, it could take an election by surprise!

It still goes on, and still works (or should) in HOAs that have not amended their governing documents to eliminate proxies. In other words, if the docs allow proxies, an owner can give or receive one.

For some, the thought of eliminating proxies was just too big a change, so they clung to the concept and did not advocate amending their docs to eliminate them. Proxy use complicates elections considerably today, because of changes in the HOA elections law that took place in 2006, but if the HOA docs still allow for proxies, then the Board has to honor a legal proxy ... but not as a ballot.

This means that HOA Boards need to proactively determine how the election will work so that proxies, if any owner attempts to present one or more for the purposes of voting in an election, will be honored. Very simply, the Board should disclose in its election rules or in response to any question raised about the question of whether and how to vote a proxy, how the member holding the proxy can get ballot packages for those who gave the proxy or proxies.

If the proxies are sent to the HOA and they say the "Board" is to vote them, the "Board" like anyone else, has to get a ballot package and submit the ballot package to the inspector for that proxy.

So with this preamble, when you read the answer below to the real question (can you still go door to door but collect ballot packages instead of proxies), you will understand where I am coming from.

Here are the questions posed to me:

"Our questions are about this law:
California Elections Code §18371. Electioneering Disallowed
(a) No candidate or representative of a candidate, and no proponent, opponent, or representative of a proponent or opponent, of an initiative, referendum, or recall measure, or of a charter amendment, shall solicit the vote of an absentee voter, or do any electioneering, while in the residence or in the immediate presence of the voter, and during the time he or she knows the absentee voter is voting.
(b) Any person who knowingly violates this section is guilty of a misdemeanor.
(c) This section shall not be construed to conflict with any provision of the federal Voting Rights Act of 1965, as amended, nor to preclude electioneering by mail or telephone or in public places, except as prohibited by Section 18370, or by any other provision of law.

The questions are: Does this law only pertain to absentee voters? Or is this a law that stops all direct discussions with homeowners - which would not seem part of a Democratic process and shut down "freedom of speech".
We don't know if homeowners will be absentee voters nor when they will be voting, Is this law is meant to help stop undo influences when voting or to stop face to face discussions with homeowners. Please help clarify. You help is greatly appreciated...Thank you!"

Well, I am going to give you my take on things. However, keep in mind that this may cause some attorneys to roll over in their sleep (if they are not in the grave so to speak).

This law does not apply to HOAs! It relates to public elections.

That said, some are claiming that by analogy (since the solons of Sacramento have professed that HOA laws should be conducted like public elections) the law does or should apply.

I do not agree. I have seen HOA rules propounded by attorneys and boards that (I assume are making a viable) attempt to avert riots driven rowdy and riotous seniors from distracting the residents from other more "relaxing" endeavors. I use "seniors" because I have seen this only in seniors developments so far. I will clue you in that it is an inside joke among attorneys (and maybe other service providers like contractors trying to do work in light of self appointed resident supervisors) that in these developments - people just tend to have too much money to spend or too much time on their hands. Some rules say residents cannot go door to door, cannot talk in the common areas about the candidates (in board elections), cannot have signs or any indications of who their favorite is in their windows, on their cars or ... blah blah blah... . And certainly in such a scenario someone might be shunned from going door to door to collect ballots.

I believe people should still be able to talk to their neighbors, on the street, in the clubhouse or in their homes about elections, candidates and the like. And I think that neighbors being willing to carry in ballot packages for others is fine. I believe that an owner can give their ballot package to another owner in the development and let them fill out the ballot and turn it in if there is a meeting where there will be a presentation and the choice is to be withheld till then (although the owner has to sign the outside envelope to validate it because without giving a proxy, the right cannot be transferred - it would confuse the process considerably).

So there, I said it, electioneering in HOAs is not yet banned. But inappropriate behavior or undue influence, fraud or dishonesty is, or at least should be.

Full post as published by California Condo & HOA Law on January 14, 2009 (boomark / email).