On September 22, 2024, Governor Gavin Newsom signed California Assembly Bill 2159 (AB 2159) into law, which will take effect January 1, 2025. For the first time, homeowner associations (HOAs) can conduct certain elections via electronic secret ballots. HOAs now have the ability to hold elections entirely by mail, electronically, or a combination of both, regardless of what their governing documents require. However, not all votes may be conducted electronically. Votes on regular or special assessments must still use written secret ballots, as required by Civil Code §5105(i). Members must be provided a choice to either opt in or opt out of electronic balloting.
How to implement electronic voting:
To adopt electronic voting, HOAs must amend their election rules. At a minimum, the rules must allow members to change their preferred voting method (either electronic or paper) no later than 90 days before the election. The rules shall also prohibit nominations from the floor during membership meetings. Both paper and electronic ballots must contain the same information, and the HOA must maintain a list of members voting by each method. Members who opt for electronic voting must provide the HOA with a valid email address. HOAs may choose one of two approaches: (i) electronic voting as the default, wherein members opt out of electronic voting to use paper ballots, or (ii) paper ballots as the default, wherein members opt in to electronic voting. Each method requires certain procedures to comply with the law. In either case, members must submit their opt-out or opt-in requests in writing.
Procedural Requirements:
HOAs must follow several procedural steps to ensure compliance with electronic voting, including:
- Annual Policy Statement: The HOA’s Annual Policy Statement must explain how members can opt out or opt in to electronic voting, based on the method chosen by the HOA.
- Independent Inspectors of Election: Inspectors must authenticate member identity, maintain ballot integrity and secrecy, and provide a method for members to confirm, at least 30 days before the voting deadline, that their electronic devices are compatible with the online voting system.
- Notice: Members enrolled in electronic voting must receive notice at least 30 days before the election, detailing how to access the internet-based voting system and vote electronically. This individual notice can be delivered electronically.
- Electronic Voting System: The system must authenticate voter identity, ensure ballots are not altered in transit, issue a receipt to each voter casting their ballot, separate identifying information from the ballot, and store ballots securely for recounts or inspection.
Why Act Now?
AB 2159 provides an opportunity to modernize the election process, reduce costs, and increase voter participation. However, it requires prompt action to ensure compliance as timing is key. We recommend amending your election rules as soon as possible to incorporate these changes, provide for electronic voting, and ensure compliance with the new law.
