Election season is nearly upon us, and many associations are considering whether to adopt online voting (or “E-Voting”).  On July 1, 2015, legislation took effect enacting Section 718.128, Florida Statutes, permitting condominiums, cooperatives and homeowners’ associations to conduct elections and other owner votes through the use of “an Internet-based online voting system.”  This article will discuss how to do so and what the advantages are.

 

The first step is for a Board to decide if they wish to offer electronic voting to their members. Florida Statutes 718.128 requires associations to adopt a board resolution approving electronic voting before they can utilize this type of voting process.  The resolution must determine the manner in which online voting will be conducted such as procedures, deadlines, opportunities to consent to and participate, or opt out.  The resolution must be considered at a board of directors meeting on 14 days of notice.  A copy of the resolution must be provided to owners.

 

The resolution must provide that:

1. All unit owners receive notice of the opportunity to vote through an online voting system prior to each election or other unit owner vote in which the association authorizes online voting;
2. The deadline to consent, in writing, to online voting must be no less than 14 days before the election or other unit owner vote;
3. A method to authenticate the unit owner’s identification to the online voting system;
4. A method to transmit an electronic ballot to the online voting system that ensures the secrecy and integrity of each ballot; and,
5. A method to confirm, at least 14 days before the voting deadline, that the unit owner’s electronic device can successfully communicate with the online voting system.

 

The first of these requirements will ensure continual notice under circumstances in which online voting is conducted on an ongoing basis, avoiding situations where new owners are unaware of their right to opt in, and the latter prevents issues arising from last minute consents, and protects against fraud.

 

The following are other significant requirements contained in the legislation: 

1. The e-voting system must provide the owner with a receipt, including the specific vote cast, the date and time of submission, and the user identification.
2. The e-voting system must also produce an official record for the association identifying the specific votes cast on each ballot and the date and time of the receipt of each electronically submitted ballot. The association must then maintain this record.
3. Votes in an election of directors shall not be accessible to the association prior to the scheduled election. Failure to comply will void the election.

 

In associations where voting participation is an issue, online voting can greatly increase participation and generate enthusiasm for the voting process.  Online voting can also lessen the risk of fraudulent elections.  While the costs for use of online voting software are likely to exceed mail out costs in many associations, such costs can be mitigated over time, and associations have flexibility in determining whether particular meetings will utilize online voting (i.e. – it is not an all or nothing decision).

 

Associations choosing to move forward must take care to confirm that they are using a vendor that understands and complies with the technical requirements.  Like all other vendor contacts, it is critical to discuss the terms with legal counsel, who can also determine whether the system to be utilized is compliant.  As meetings approach where online voting will be conducted, the use of online voting will require certain additional disclosures and instructions to members in relation to the process.  Contact an attorney with experience in condominium and homeowners association (HOA) law with any questions.