Question: I read your November 18, 2012 column relative to voting in an election of directors of a homeowners’ association by secret ballot and note with interest that owners can, in fact, vote by secret ballot. It seems that an additional step may be required before we can start using secret ballots. Is an amendment of our governing documents necessary? D.B. (via e-mail)
Answer: Section 720.306(8)(b), Florida Statutes specifically provides that owners can vote via secret ballot if the “governing documents permit voting by secret ballot by members who are not in attendance at a meeting of the members for the election of directors.” Accordingly, an amendment may be necessary if none of the governing documents (Declaration of Covenants, Articles of Incorporation or Bylaws) currently recognize the right of owners to vote in elections via secret ballot. An amendment to any of the governing documents would be sufficient, though we usually see these types of issues addressed in the Bylaws.
If the governing documents, as currently written or amended, allow voting by secret ballot, it is important to note that Section 720.306(8)(b), Florida Statutes further prescribes the manner in which the ballots are to be returned, verified and counted, which is similar to the two-envelope system mandated in the Florida Condominium Act. Secret ballots must first be placed in an inner “ballot” envelope and then an outer “return” envelope. The “ballot” envelope is to contain no identifying markings, while the “return” envelope is to reflect the name of the member, the lot or parcel for which the vote is being cast, and the signature of the lot or parcel owner casting the ballot. The “ballot” envelope can be removed from the “return” envelope when the information on the outside of the “return” envelope has been verified. However, the ballot cannot be removed from the “ballot” envelope until the meeting at which the election is taking placed is called to order and the balloting has been closed. If more than one ballot is submitted for a lot or parcel, the ballots for that lot or parcel shall be disqualified. Any vote by ballot received after the closing of the balloting may not be considered.