Section 5200(c) of the Davis-Stirling Act defines “association election materials” as the “returned ballots, signed voter envelopes, [voter list], proxies, and … candidate registration list.”
Section 5125 provides that association election materials “shall at all times be in the custody of the inspector … or at a location designated by the inspector … until after the tabulation of the vote, and until the time allowed by Section 5145 for challenging the election has expired, at which time custody shall be transferred to the association.” Section 5145 requires election challenges to be brought within one year, so Section 5125 is generally interpreted as requiring inspectors to maintain custody for one year then transfer the association election materials to the HOA.
Section 5125 provides that association election materials “shall at all times be in the custody of the inspector … or at a location designated by the inspector … until after the tabulation of the vote, and until the time allowed by Section 5145 for challenging the election has expired, at which time custody shall be transferred to the association.” Section 5145 requires election challenges to be brought within one year, so Section 5125 is generally interpreted as requiring inspectors to maintain custody for one year then transfer the association election materials to the HOA.
Senate Bill 432, however, amended Section 5200(c) to provide that “[a]n association shall maintain association election materials for one year after the date of the election.” None of SB 432’s published analyses address this apparent statutory conflict with Section 5125, or indeed the purpose of the change.
Arguably, one could read amended Section 5200(c) as clarifying that association election materials must be preserved for at least one year, but Section 5120(a) currently provides that they must be retained “[f]or the current fiscal year and for each of the previous two fiscal years.”
Another potential reading is that inspectors should “designate” a location under Section 5125 and HOAs maintain custody, but that interpretation would conflict with Section 5125’s requirement that, “[i]f there is a recount or other challenge to the election process, the inspector … shall, upon written request, make the ballots available for inspection and review by [members].” Without custody, it is difficult to imagine how inspectors can adjudicate inspection requests. This interpretation would also seemingly conflict with Section 5125’s requirement that inspectors "transfer" association election materials to the HOA.
On a practical level, this statutory conflict is likely moot so long as someone promptly makes association election materials available for inspection by election challengers and ensures they’re competently preserved for the current fiscal year and for each of the previous two fiscal years, but yeah. The last thing HOA elections need right now is more conflict and ambiguity.
Arguably, one could read amended Section 5200(c) as clarifying that association election materials must be preserved for at least one year, but Section 5120(a) currently provides that they must be retained “[f]or the current fiscal year and for each of the previous two fiscal years.”
Another potential reading is that inspectors should “designate” a location under Section 5125 and HOAs maintain custody, but that interpretation would conflict with Section 5125’s requirement that, “[i]f there is a recount or other challenge to the election process, the inspector … shall, upon written request, make the ballots available for inspection and review by [members].” Without custody, it is difficult to imagine how inspectors can adjudicate inspection requests. This interpretation would also seemingly conflict with Section 5125’s requirement that inspectors "transfer" association election materials to the HOA.
On a practical level, this statutory conflict is likely moot so long as someone promptly makes association election materials available for inspection by election challengers and ensures they’re competently preserved for the current fiscal year and for each of the previous two fiscal years, but yeah. The last thing HOA elections need right now is more conflict and ambiguity.