elections
Procedures. There are very few statutes relating to how elections are to be conducted, therefore an association's governing documents are the primary source for conducting elections. Otherwise, beyond the requirements stated specifically in CC&Rs, bylaws and articles of incorporation, the board may determine in advance what fair and reasonable procedures are to be used. At meetings, the person that presides over the meeting is the person that enforces the rules and designates who is to speak at any given time. This person is called the chair (the presiding officer). The chair may be appointed specifically for the meeting by the board, or more commonly, the person is the president of the association. For more information, see Index, meeting procedures.
Board Member Terms. The Nonprofit Act requires all directors to be elected at each annual meeting, unless the CC&Rs, bylaws or articles specify something different. In other words, board member terms are one year, unless otherwise provided in the CC&Rs, bylaws or articles of incorporation. See Utah Code § 16-6a-804(1)(b) and 805(1).
How Many Votes Needed to Elect? Unless the bylaws provide something different, the candidate receiving the highest number of votes is elected. See Utah Code § 16-6a-717(3). This is called a "plurality" vote and is significant in that it is very different and much more practical than a straight majority vote. If the bylaws require that candidates are elected by a majority of the members represented in person or by proxy at a meeting, (which is unfortunate but not entirely rare), then a candidate must receive the vote of a majority of such members in order to be elected.
In a straight majority process, if no candidate receives a majority, balloting continues until one does, retaining on the ballot all candidates who do not voluntarily withdraw. If no candidate receives a majority after repeated attempts, the director continues to serve until such time as a new director is elected or properly appointed. In that case, such a director may wish, at the director's option, to step down which would then allow the board to appoint a successor (unless the bylaws require that only the members can appoint a successor when a board member resigns).
However, if the bylaws require a candidate to receive majority approval to be elected, the association should consider using a ranked choice voting process, where votes are counted in rounds if no candidate initially receives a majority of the votes. Voters pick a first-choice candidate and have the option to rank backup candidates in order of their choice: second, third, and so on. In an election for a single board seat, if a candidate receives more than half of the first choices, that candidate wins, just like in a straight majority (or plurality) election. However, if there is no majority winner after counting first choices, the race is decided by an "instant runoff." The candidate with the fewest votes is eliminated, and voters who picked that candidate as ‘number 1’ will have their votes count for their next choice. This process continues until a candidate wins with more than half of the votes. The process changes a little bit for elections with two or more open seats. For more information, see here.
Tie Vote. In the event of a tie vote, balloting continues until a winner emerges. The board determines how long balloting continues in light of what is reasonable in the circumstances. In an unbroken tie, no candidate is elected and the incumbent board member continues to serve until a successor is eventually elected or properly appointed.
Election by Acclamation. If only one candidate has been nominated for a position and there is no possibility for another candidate to be nominated (for instance, nominated from the floor, or a write-in candidate), the president, or chair, may declare the nominee elected, thus effecting the election by unanimous consent, or "acclamation." See Robert's Rules of Order Newly Revised In Brief, 2004, p. 79.
Example: The Green Acres bylaws provide that the president determines the procedures for meetings, except as otherwise specified in the bylaws. The bylaws provide that nominations for election to the board may be made from the floor at a meeting. By the time the annual meeting starts, only one candidate for the board has volunteered and been nominated. The president may not declare the nominee elected by acclamation until a period to make nominations from the floor has been provided.
Cumulative Voting. Cumulative voting is where a member cumulates (combines) the votes the member is able to cast and uses them for just one candidate (or fewer than all the candidates). For example, if there are three positions up for election, and a member has one vote for each position (as is typical), cumulative voting would allow that member to cast all three of the member's votes for just one candidate and no votes would be cast for the other two positions.
Cumulative voting is only allowed if the bylaws specifically authorize it. In addition, cumulative voting is only authorized at a particular meeting if either (1) the meeting notice states that cumulative voting will take place, or (2) a voting member gives notice during the meeting and before the vote is taken of the member's intent to cumulate votes. If one voting member gives this notice, all other voting members participating in the election are entitled to cumulate their votes without giving further notice.
Cumulative voting is subject to strategic voting and therefore is often disfavored. For instance, it can allow a small fringe group, by coordinating its effort in voting for only one candidate who is a member of the group, to secure the election of that candidate. However, it can also achieve results that more fairly represent the desires of the members. In any event, ranked choice voting is a much better system and should be considered before cumulative voting.
Written Consent. Directors may not be elected by written consent without notice (except when done unanimously). Action by written consent without notice is described in § 16-6a-707. The section is misleadingly titled "Action without meeting," when in fact it deals with action without meeting and without prior notice. A petition circulated among certain members or taken door-to-door are common examples of such action and the action is deemed taken once the necessary number of approvals is obtained, even if the petition was not given to all members of the association (notice must be given after the fact, however). Section 16-6a-709 addresses action without a meeting but with prior notice (by written ballot). Nothing in the statute prevents an election by written ballot without a meeting.
Recommendations:
- Remember, voting and notice procedures in the governing documents and the law must be followed strictly, unless mere substantial compliance would afford full protection to the party the statute seeks to protect. See Levanger v. Vincent, 2000 UT App 103, 3 P.3d 187 (holding that because voting procedures protect the members' interests, they are mandatory rather than directory and therefore strict compliance is required). A common mistake for associations is to ignore requirements in the bylaws or other governing document or law. This greatly increases an association's risk of infringing on the rights of its members and the risk of a lawsuit. This is in fact one of the top reasons associations are sued.
- If the governing documents require the association to follow Robert's Rules of Order, the documents should be amended to remove that overly burdensome and impractical requirement. An association isn't the House of Lords. To comply with the arcane and inordinate number of procedures and requirements of Robert's Rules of Order is a burden no association needs.
- If the governing documents require a board member to be elected by majority vote, the documents should be amended to require a much more realistic and practical plurality vote instead.
- If there is frequently only one nominee for a board position and the association wants to cut out the unnecessary time or cost of an election in such cases, any provisions in the governing documents that inhibit or prevent that should be amended.
- If an association desires to utilize cumulative voting and the bylaws don't currently authorize it, the bylaws must be amended to allow for it (and then the notice of each meeting should include notice that cumulative voting will take place).
- If an association's governing documents have no procedures for elections, the association may want to consider amending the bylaws to include at least some basic provisions to help avoid disputes down the road.