Condo Law Watch

Legislative Update Briefs: Electronic Voting

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Electronic Notice and Voting Revolution Starting January 1, 2015, here are the basic points to know:

Through PA 98-1042, electronic voting and notice comes to both types of associations.  This will allow associations to use “technological means” to issue notices and collect votes from owners, provided rules and regulations are amended and owners request electronic notice.

Here are some basics to know:

  1. Acceptable technological means” is defined to include, without limitation, “electronic transmission over the Internet or other network, whether by direct connection, intranet, telecopier, or electronic mail.”
  2. Electronic transmission” means “any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient and that may be directly reproduced in paper form by the recipient through an automated process.”
  3. This allows for a more flexible approach to association notices, as contained in the CICAA amended Section 1-85 (similar to Condo Section 18.8):
    1. General form of statutory change: “(a) Any notice required to be sent or received or signature, vote, consent, or approval required to be obtained under any community instrument or any provision of this Act may be accomplished using the technology generally available at that time.  This Section governs the use of technology in implementing the provisions of any community instrument or any provision of this Act concerning notices, signatures, votes, consents, or approvals.”
    2. Does this mean that we can use electronic signatures for things like declaration amendment consents?  Probably so: “(c) A verifiable electronic signature satisfies any requirement for a signature under any community instrument or any provision of this Act.”
    3. Does this mean we can send 30 day notices via email for collections and foreclosures?  No.

How will voting work, using CICAA changes as a case study.

  1. Changes to 1-25(i) of CICAA: “The association may, upon adoption of the appropriate rules by the board, conduct elections by electronic or acceptable technological means.  Members may not vote by proxy in board elections.  Instructions regarding the use of electronic means or acceptable technological means for voting shall be distributed to all members not less than 10 and not more than 30 days before the election meeting.  The instruction notice must include the names of all candidates who have given the board or its authorized agent timely written notice of their candidacy and must give the person voting through electronic or acceptable technological means the opportunity to cast votes for candidates whose names do not appear on the ballot.  The board rules shall provide and the instructions provided to the member shall state that a member who submits a vote using electronic or acceptable technological means may request and cast a ballot in person at the election meeting, and thereby void any vote previously submitted by that member.”
  2. Electronic voting would be permissible, but the statute does not set standards for the process and procedures.
  3. Boards should review any electronic voting process or vendor proposal with counsel to determine if the suggested means are sufficient.

How will voting work for Condominiums as a case study:

  1. Changes to 18(b)(9)(B-5) add and state: “(B-5) that if a rule adopted at least 120 days before a board election or the declaration or bylaws provide for balloting as set forth in this subparagraph, unit owners may not vote by proxy in board elections, but may vote only (i) by submitting an association-issued ballot in person at the election meeting; or (ii) by any acceptable technological means as defined in Section 2 of this Act; instructions regarding the use of electronic means for voting shall be distributed to all unit owners not less than 10 and not more than 30 days before the election meeting, and the board shall give unit owners not less than 21 days’ prior written notice of the deadline for inclusion of a candidate’s name on the ballots; the deadline shall be no more than 7 days before the instructions for voting using electronic or acceptable technological means is distributed to unit owners; every instruction notice must include the names of all candidates who have given the board or its authorized agent timely written notice of their candidacy and must give the person voting through electronic or acceptable technological means the opportunity to cast votes for candidates whose names do not appear on the ballot; a unit owner who submits a vote using electronic or acceptable technological means may request and cast a ballot in person at the election meeting, thereby voiding any vote previously submitted by that unit owner;”
  2. Electronic voting would be permissible, but the statute does not set standards for the process and procedures.
  3. Boards should review any electronic voting process or vendor proposal with counsel to determine if the suggested means are sufficient.

As boards change their rules starting in the new year, keep these bullet points in mind for a quick summary of the major issues.  We will discuss more in the new year.

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