Homeowner can’t re-vote mail-in ballot after candidate withdraws

Question: Our cooperative homeowners association has an election for two of seven board members next month. As members we all received ballots recently, which we are instructed can be voted by mail (appropriate envelopes for secret ballot were enclosed) or handed in at the annual meeting.

I mailed my ballot, with a vote for a candidate who then announced that he is withdrawing his candidacy. In light of that, I would like to re-vote.

The board says that it is probably illegal and not practical to pull my original ballot and give me a new one. Is this fair or correct? Wouldn’t this invalidate this round of voting?

Answer: Once a ballot is submitted in a secret vote, it is illegal to pull your ballot because the Davis-Stirling Act, which also applies to stock cooperatives like yours and to standard residential condominium common interest developments, prohibits it. Civil Code section 1363.03(f) says “once a secret ballot is received by the inspector of elections, it shall be irrevocable.” This candidate’s name would remain on the ballot and as far as the vote is concerned, should be treated as a write-in candidate.

California’s Corporations Code section 7224 provides that if a vacancy occurs on the board, and the members have not approved a provision in their governing documents allowing the board to fill that vacancy, a new election must be held. If that candidate receives enough votes to be elected, that person is deemed to be elected — but resigned — and a new election may have to be held to fill that seat.

You should read your governing documents for the procedures to be followed when a director resigns or is unable to serve.

Inspectors of elections are required to report the count for every vote cast. There is no provision in the Davis-Stirling Act for invalidating an election merely because one of the candidates has withdrawn his or her name.

Under these narrow circumstances, invalidating the entire election disenfranchises the other candidates and the other votes without good cause.

The late Stephen Glassman, an attorney specializing in corporate and business law, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.