by Ashley Moscarello, Esq.
Goodman Law Group, LLP
These days, you can do almost anything online—buy groceries, look for a job or even find love. But what about voting on issues that affect your community?
Electronic voting certainly has its appeal. It’s no secret that almost every board has to battle through owner apathy and encourage as much participation as possible. This is especially true in a world that’s always busy and constantly moving. Electronic voting could be the answer to many boards’ prayers.
Arizona law is attempting to catch up to the times to address electronic voting. You might be surprised to learn that it wasn’t until this most recent legislative session that the Arizona legislature added language to the Arizona Nonprofit Corporation Act specific to electronic voting. Specifically, the legislature added a paragraph to A.R.S. § 10‐3708, which went into effect in August 2016.
The new language adds guidelines for nonprofit corporations to follow if the corporation wants to offer electronic voting into its voting options. The first requirement is that the nonprofit provide notice to its members that a vote will be conducted by electronic means. The notice must comply with the Act’s notice requirements for action by written ballot, which means the notice must include a reasonable procedure for members to obtain and cast their ballot.
Second, the statute describes requirements for the online voting system itself. The system must (1) authenticate the member’s identity; (2) authenticate the validity of each vote to make sure that the vote is not altered in transit; (3) transmit a receipt to each member who casts a vote online; and (4) store the electronic votes for recount, inspection and review purposes. If the online voting system meets these four requirements, the nonprofit corporation can vote via electronic voting.
Note: The legislature made this addition to the NonProfit Corporation Act but has not yet addressed this issue for homeowners associations specifically. Both provisions of the Arizona Condominium Act (A.R.S. § 33‐1250) and the Planned Community Act (A.R.S. § 33‐1812) still state, “The Association shall provide for votes to be cast in person and by absentee ballot.” There is nothing in either the Condominium Act or the Planned Community Act that addresses electronic voting specifically.
The Planned Community Act at A.R.S. § 33‐1812 and Condominium Act at A.R.S. § 33‐1250 do mention that the association may allow for voting by “some other form of delivery, including the use of e‐mail and fax delivery.” Therefore, electronic voting is considered a valid form of absentee voting for planned communities and condominiums. The legislature may make clarifications specific to electronic voting in the coming years.
The association should also make sure that it complies with the other requirements in these sections for absentee ballots, such as setting forth what each proposed action is, providing an opportunity to vote for or against each action and specifying the time and date by which the ballot needs to be submitted.
Now that electronic voting is being recognized as a valid method of voting, hopefully associations will have more owners participating in elections and weighing in on issues that affect the community.
Find out how a community management company can help your association run its meetings and elections, as well as ensure that you are complying with Arizona law. Contact FirstService Residential, Arizona’s leading community management company today.
Tuesday November 08, 2016