Bill Text: CA AB2159 | 2023-2024 | Regular Session | Amended

California Assembly Bill 2159

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Common interest developments: association governance: elections.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed) 2024-08-05 - Read second time and amended. Ordered to third reading. [AB2159 Detail]

Download: California-2023-AB2159-Amended.html

Amended IN Assembly April 15, 2024

Amended IN Assembly April 01, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 2159

Introduced by Assembly Member Maienschein

February 06, 2024

An act to amend Section 5115 of, and to add Section 5116 to to, the Civil Code, relating to common interest developments.

LEGISLATIVE COUNSEL'S DIGEST

AB 2159, as amended, Maienschein. Common interest developments: association governance: member election.

Existing law, the Davis-Stirling Common Interest Development Act, governs the formation and operation of common interest developments. Existing law requires elections regarding specified matters concerning the governance of common interest developments to be held by secret ballot in accordance with certain procedures.

This bill would authorize an association to conduct an election by electronic secret ballot unless the association’s governing documents provide otherwise. The bill would require an association that conducts an election by electronic secret ballot pursuant to these provisions to ensure, among other things, that the electronic secret ballots provide a method to authenticate the member’s identity to the online voting system and a method for the member to confirm that their electronic device can successfully communicate with the online voting system at least 14 days before the voting deadline. The bill would require the online voting system to have the ability to authenticate the member’s identity, authenticate the validity of each electronic vote, and to transmit a receipt to a member that casts an electronic vote. If an electronic secret ballot is conducted by internet website, the bill would require individual notice of the ballot be delivered to each member and would require that notice to also include specified information, including instructions on how to vote by electronic secret ballot. The bill would specify that an electronic secret ballot is effective when transmitted and irrevocable. The bill would prohibit the use of an electronic secret ballot unless the association creates procedures that provide an opportunity for members to vote by written secret ballot. The bill would prohibit an association from using an electronic secret ballot for levying regular or special assessments.

Existing law, for elections of directors and for recall elections, requires an association to provide general notice of specified information at least 30 days before the ballots are distributed. Existing law requires the notice to include, among other things, (1) the date and time by which ballots are to be returned by mail or handed to the inspector or inspectors of elections, (2) the date, time, and location of the meeting at which a quorum will be determined, and (3) a list of all candidates’ names that will appear on the ballot.
This bill, for an association that conducts the election by electronic secret ballot, as described above, would require the notice to specify whether the ballot will be conducted by email or internet website, and would require the notice to include instructions on how to vote by electronic secret ballot.
Existing law requires an association to mail ballots and 2 preaddressed envelopes with instructions on how to return ballots by first-class mail or delivered by the association to every member not less than 30 days prior to the deadline for voting.
This bill, for an association that conducts an election by electronic secret ballot, as described above, would make this requirement to mail ballots and envelopes apply only to the members who have opted out of voting by electronic secret ballot, as specified.

Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.

Section 5115 of the Civil Code is amended to read:

5115.

(a) An association shall provide general notice of the procedure and deadline for submitting a nomination at least 30 days before any deadline for submitting a nomination. Individual notice shall be delivered pursuant to Section 4040 if individual notice is requested by a member. This subdivision shall only apply to elections of directors and to recall elections.

(b) For elections of directors and for recall elections, an association shall provide general notice of all of the following at least 30 days before the ballots are distributed:

(1) The date and time by which, and the physical address where, ballots are to be returned by mail or handed to the inspector or inspectors of elections.

(2) If the association conducts the election by electronic secret ballot as provided for in Section 5116, the election procedures pursuant to that section, whether the ballot will be conducted by email or internet website, and instructions on how to vote by electronic secret ballot.
~~(2)~~

(3) The date, time, and location of the meeting at which a quorum will be determined, if the association’s governing documents require a quorum, and at which ballots will be counted.

~~(3)~~

(4) The list of all candidates’ names that will appear on the ballot.

~~(4)~~

(5) Individual notice of the above paragraphs shall be delivered pursuant to Section 4040 if individual notice is requested by a member.

~~(5)~~

(6) If the association’s governing documents require a quorum for election of directors, a statement that the board of directors may call a subsequent meeting at least 20 days after a scheduled election if the required quorum is not reached, at which time the quorum of the membership to elect directors will be 20 percent of the association’s members voting in person, by proxy, or by secret ballot.

(c) Ballots and two preaddressed envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the association to every member not less than 30 days prior to the deadline for ~~voting.~~ voting, unless an association conducts an election by electronic secret ballot as provided for in Section 5116, in which case only members who have opted out of voting by electronic secret ballot pursuant to subdivision (j) of Section 5116 shall be mailed or delivered the ballots and envelopes. In order to preserve confidentiality, a voter may not be identified by name, address, or lot, parcel, or unit number on the ballot. The association shall use as a model those procedures used by California counties for ensuring confidentiality of vote by mail ballots, including all of the following:

(1) The ballot itself is not signed by the voter, but is inserted into an envelope that is sealed. This envelope is inserted into a second envelope that is sealed. In the upper left-hand corner of the second envelope, the voter shall sign the voter’s name, indicate the voter’s name, and indicate the address or separate interest identifier that entitles the voter to vote.

(2) The second envelope is addressed to the inspector or inspectors of elections, who will be tallying the votes. The envelope may be mailed or delivered by hand to a location specified by the inspector or inspectors of elections. The member may request a receipt for delivery.

(d) (1) A quorum shall be required only if so stated in the governing documents or other provisions of law. If a quorum is required by the governing documents, each ballot received by the inspector of elections shall be treated as a member present at a meeting for purposes of establishing a quorum.

(2) For an election of directors of a corporation that is a common interest development, and in the absence of meeting quorum as required by the association’s governing documents or Section 7512 of the Corporations Code, unless a lower quorum is authorized by the association’s governing documents, the association may adjourn the proceeding to a date at least 20 days after the adjourned proceeding, at which time the quorum required for purposes of a membership meeting to elect directors shall be 20 percent of the association’s voting members present in person, by proxy, or by secret written ballot received.

(3) No less than 15 days prior to an election authorized pursuant to paragraph (2), the association shall provide general notice of the membership meeting, which shall include:

(A) The date, time, and location of the meeting.

(B) The list of all candidates.

(C) A statement that 20 percent of the association present or voting by proxy or secret ballot will satisfy the quorum requirements for the election of directors and that the ballots will be counted if a quorum is reached, if the association’s governing documents require a quorum.

(e) An association shall allow for cumulative voting using the secret ballot procedures provided in this section, if cumulative voting is provided for in the governing documents.

(f) Except for the meeting to count the votes required in subdivision (a) of Section 5120, an election may be conducted entirely by mail unless otherwise specified in the governing documents.

(g) In an election to approve an amendment of the governing documents, the text of the proposed amendment shall be delivered to the members with the ballot.

SECTION 1.SEC. 2.

Section 5116 is added to the Civil Code, to read:

5116.

(a) As used in this section, “electronic secret ballot” means a ballot conducted by email or internet website.

(b) Unless the governing documents provide otherwise, the association may conduct an election as provided for in Section 5100 by electronic secret ballot.

(c) An electronic secret ballot shall comply with the requirements of this article and the association’s governing documents.

(d) An association that conducts an election by electronic secret ballot pursuant to this section shall ensure that all of the following conditions are satisfied:

(1) Electronic secret ballots shall provide each member with all of the following:

(A) A method to authenticate the member’s identity to the online voting system.

(B) For an election of directors, a method to transmit an electronic ballot to the online voting system that ensures the secrecy and integrity of each ballot.

(C) A method to confirm, at least 14 days before the voting deadline, that the member’s electronic device can successfully communicate with the online voting system.

(2) The online voting system utilized by the association shall have the ability to accomplish all of the following:

(A) Authenticate the member’s identity.

(B) Authenticate the validity of each electronic vote to ensure that the vote is not altered in transit.

(D) For an election of directors, permanently separate any authentication or identifying information from the electronic election ballot, rendering it impossible to connect an election ballot to a specific member.

(E) Store and keep electronic votes accessible to election officials for recount, inspection, and review purposes.

(e) For purposes of determining a quorum, a member voting electronically pursuant to this section shall be counted as a member in attendance at the meeting. A substantive vote of the members shall not be taken on any issue other than the issues specifically identified in the electronic vote.

(f) An electronic secret ballot may be accompanied by or contained in an electronic individual notice in accordance with paragraph (2) of subdivision (a) of Section 4040.

(g) If an electronic secret ballot is conducted by internet website, individual notice of the ballot shall be delivered to each member and shall contain instructions on both of the following:

(1) How to obtain access to the internet website.

(2) How to vote by electronic secret ballot.

(h) A vote made by electronic secret ballot is effective when it is electronically transmitted to an address, location, or system designated by the inspector or inspectors of elections for this purpose.

(i) A vote made by electronic secret ballot shall not be revoked.

(j) A member’s consent to vote by electronic secret ballot shall be valid until the member opts out in accordance with the procedures established by the board.

(k) The association shall not use an electronic secret ballot unless the association establishes procedures that provide an opportunity for members to vote by written secret ballot.

(l) The association shall not use an electronic secret ballot for levying regular or special assessments, as provided for in Chapter 8 (commencing with Section 5600).