Real Estate & Property Law

Ballot Revocation - Is it Legal in California?

Here is an elections question commonly asked: "Based on the new [California] election law, how can a homeowner change his ballot selection AFTER it was mailed?"

The new law found at Civil Code Section 1363.03(f) which states: "Once a secret ballot is received by the inspector of elections, it shall be irrevocable."

However, that is not necessarily the end of the inquiry. If the governing documents allow for proxies, and a proxy giver revokes the proxy before the election, then there is a dilemma that needs to be solved, because proxies are revocable. So I think at that point the issue is whether the proxy holder obtained a ballot for the proxy and sent it in, or not. Civil Code Section 1363.03(3) on proxies says: "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." So there is a period where the proxy giver can revoke the proxy (although it should be done in writing) and obtain and send in their ballot or deliver it as specified by the Board.

This is not revoking a ballot, but needs to be explained because of confusion in the new law relating to proxy use and how it fits with the new double envelope secret ballot procedures.

And there are other pertinent questions that might be appropriate. Were the owners mislead or was incorrect or inadequate information provided on the measure when they got their ballots? Is that why they want to revoke?

Maybe there is a good reason to consider allowing owners a second chance at the apple. If "damage control" is needed to head off an election challenge or additional steps are needed in the election process to be fair to those who are voting, then I say, consider the facts and circumstances before giving an opinion as to what to do in any given situation.

Full post as published by California Condo & HOA Law on December 10, 2007 (boomark / email).