Electronic Voting: What Do Your Documents Say?

Through “electronic voting,” or “e-voting,” association members can take action without attending an in-person meeting and/or without the need for paper ballots. Instead, voting takes place electronically, via telephone, videoconference, email, or web-based software. E-voting benefits members and associations in many ways. By using electronic programs, associations can cut costs for itself and, as the use of technology increases, encourage participation from members with technological abilities. Additionally, electronic mediums can easily and permanently store tangible records of voting results, a luxury not always available with in-person meetings and paper voting.

While e-voting seems to be a hot trend, an association should refrain from participating in e-voting until the governing documents — both the Declaration and Bylaws — are specifically amended to allow for it. The governing documents must include details describing the technological methods that will be used for e-voting, the percentage of votes required when voting electronically, and an opt-out or alternative method of voting for those who choose not to vote electronically, for whatever reason (e.g. lack of equipment or lack of skills required to vote electronically).

Also, the electronic means used to conduct voting must be reliable. Video streaming, for instance, should be set up to minimize technological hiccups throughout a meeting. When setting up a system of voting through email, safety precautions should be taken to ensure that viruses do not corrupt the votes in any way, and suspicious intermediaries should not be able to gain access to information.

In order to set up an e-voting system, associations can choose from a number of electronic voting vendors who currently have programs and services in place. These vendors typically do the following: (1) work with the association to verify that the association’s governing documents contain the appropriate language to allow for e-voting; (2) set up goals with the association (e.g. to increase voter participation, to cut costs, etc.); and (3) install electronic voting systems specific to the association. We remind and encourage associations to have attorneys carefully review contracts with e-voting vendors. If you would like recommendations for vendors with e-voting services, please feel free to contact us.

Associations must create and follow procedures when engaging in e-voting.

For instance, during a telephone or videoconference session, all members must be able to hear and identify each other for the voting process to take place properly. When submitting a vote via email, members must abide by pre-determined language agreed upon by the members. For example, to vote in favor of an action, members may be required to respond with “Yes,” or “I agree,” as opposed to other ambiguous language.

To allow members to opt out of the e-voting process and submit written votes, associations must provide language in the governing documents allowing for this. Associations can provide a form for a member to submit to opt out of the electronic voting system, for example, and then the association can create an alternative voting methodology (e.g. mailed ballot). In addition to the need to participate electronically in real-time as a substitute for in-person meetings, members can also take advantage of electronic voting when real-time voting is not necessary, for example, members can also take advantage of when voting to amend the governing documents. Ballots and voting do not always have to take place in person. In fact, governing documents typically do not require in-person voting for amendments. That being said, an association must check for requirements in their governing documents about whether or not votes for amending documents must be given in person. Absent language mandating a real-time, in-person vote, members may vote on amendments electronically (so long as the governing documents allow for electronic voting, of course).

If your association would like to implement an electronic voting system, it should diligently research the electronic programs already available that are specifically designed for voting. Associations should discuss the pros and cons of implementing such a program, and, hopefully, can take advantage of the voting capabilities that technology provides.

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