If your association’s annual election is approaching, you likely have questions about how the COVID-19 pandemic and the resulting governmental restrictions will affect your ability to hold your election. Should we reschedule the election? What if we have already sent out the request for nominations? What if there are no more candidates than there are open seats? What if we’ve already sent out the ballots? The answer is…it depends.
First and foremost, in compliance with existing state and federal restrictions during this state of emergency, all in-person meetings must be cancelled. So, if your association’s governing documents require an in-person meeting in order to conduct an election, that meeting cannot be held. If, however, your governing documents provide for “ballot/voting by mail” (also known as “absentee ballot”) and/or an electronic voting method, it is still possible to conduct the election, but only by way of mail-in or electronic ballots. If you haven’t considered amending your bylaws to authorize electronic voting, this is a good time to do so.
- If the election isn’t scheduled for several more months, there is no compelling reason to act now in as much as no one knows how long these restrictions will remain in place.
- If the election is scheduled soon but you haven’t yet sent out requests for nominations, it would be reasonable under the circumstances for your board to reschedule the election for later in the year. Or, if the board prefers to move forward with the election as scheduled, it may do so, but only with voting occurring by way of ballot/voting by mail and/or electronic voting as noted above.
- If the election is scheduled soon and you’ve already received nominations and sent out ballots, again it would be reasonable under the circumstances for the board to reschedule the date of the election, or as noted above, hold the election as scheduled but only if the members are notified that votes may only be cast by mail or electronically, not at an in-person election meeting.
If your governing documents do not provide for mailing or electronic voting, it’s likely they do provide for the submission of proxies as a means of “attending” and voting at an election meeting of the members. If this is so, the recent “Radburn” law addressing, among other things, election procedures in common interest communities in New Jersey, requires that if an association’s documents provide for proxy voting, it must also provide for the ability to vote by absentee ballot. So, even if your governing documents do not expressly provide for voting by absentee ballot, if they do provide for proxy voting, then the association must also utilize mail-in ballots for its election or any other issue on which the membership has the right to vote.
Finally, as for uncontested elections (that is, if the number of qualified and announced candidates equals or is less than the number of open board seats up for election), it is recommended that in such cases the board either postpone the election and appoint the announced candidates to fill the vacancies, or declare that unless there is written opposition by a majority of owners, the announced candidates will be deemed “elected by acclamation”, leaving no reason to delay or complete the election process.