E-Voting Basics and Common Hurdles

In my never ending endeavor to please our valued clients, this month’s article will address a request received from a client concerning the basics of electronic voting and common hurdles.

This brief article will provide an outline of the basic procedure and highlight common issues which may prompt the Board to seriously consider amendments to its governing documents.

Steps in the Process

Step 1 – Review governing documents

Consideration of electronic voting should begin with a thorough review of the governing documents with the guidance of Association legal counsel. The common issues which will be discussed below could indicate the need to amend the governing documents to ensure that electronic voting is consistent with any specific requirements contained in the Association’s Bylaws.

Step 2 – Select online voting provider

The statute requires specific technological capability for the online voting system to ensure various things including authentication of the member’s identity, verification that a member’s electronic device can successfully communicate with the online voting system, as well as safe and secure transmission of the vote itself and storage for potential later use. These technological requirements are most effectively accomplished by identifying a reputable and experienced third-party online voting service with familiarity with the requirements of Florida statutes and a history of implementing electronic voting systems for community associations. The contract with the vendor should specifically provide for a new election at the vendor’s expense where the vendor’s system is not able to successfully complete the election in compliance with the statute.

Step 3 – Procedures and notifications

A Board resolution must be adopted with 14 days’ notice to the homeowners of the Board meeting at which the resolution will be considered by the Board. The Board resolution must provide reasonable procedures and deadlines for members to consent in writing and to opt out of online voting after giving consent (homeowners must consent to e-voting in writing and may also opt-out at any time). The notice must be mailed\delivered and posted conspicuously on property at least 14 days before the meeting.

Common Hurdles to E-voting

As indicated in the statute, the online voting system must be consistent with the election and voting procedures in the Association’s Bylaws. Nominations from the floor, proxy voting, and a specific requirement that the election be held at the annual meeting will arguably be inconsistent with online voting and may require an amendment or amendments to the Bylaws. A specific requirement in the Bylaws that the votes be cast at the meeting would certainly present issues for online voting and would most likely require an amendment to the Bylaws. Online voting necessarily involves absentee voting which also creates issues with respect to voting by proxy and nominations from the floor.

A proxy necessarily assumes that the proxy holder will be present and will vote at the meeting on behalf of the homeowner. However, proxy voting is not necessarily inconsistent with online voting as there is nothing that prohibits voting in an absentee fashion while also allowing votes to take place at the meeting itself.

Nominations from the floor can also arguably be reconciled with online voting by simply including a disclosure in the meeting notice which clearly indicates that homeowners will still be permitted to nominate themselves from the floor and any homeowners who wish to consider candidates who nominate themselves from the floor should not participate in online voting and should instead attend the meeting and vote in person. This would likewise be consistent with proxy voting.

Notwithstanding, it may be most prudent to pursue an amendment or amendments to the Association’s Bylaws to specifically provide for an absentee election process which also eliminates nominations from the floor with a specific procedure for nominations to be made in advance, including a deadline for candidacy similar to that which applies to condominium elections. Please consult with your Association’s legal counsel to properly implement an Internet-based online voting system.