SB 323 revised Civil Code section 5145(a) to provide that, "[i]f a member establishes ... that [association election law was] not followed, a court shall void any results of the election unless the association establishes ... that the association’s noncompliance ... did not affect the results of the election."
"Did not affect the results of the election" is ambiguous. First, what are "the results of the election?" Since Civil Code section 5145 controls all causes of action in regards to Article 4 (Civil Code §§ 5100-5145), "the results of the election" encompasses each and every right afforded under Article 4. For example, if a member's free speech or inspection rights are violated, arguably such illegality affected "the results of the election" even if it had no effect on the proposition put to the members.
(If this interpretation does not stand, then SB 323's burden-shift will apparently not apply except in regards to actual voting claims under Article 4. For example, if a member sues under Section 5145(a) for violations of their right to inspect association election materials, such post-hoc noncompliance could not be deemed as having "affect[ed] the results of the election," much less in a rebuttable manner.)
Second, "affect" is not qualified. If an association's non-compliance with association election law "affected" the results in any manner, would this constitute grounds for voiding? For example, if an association impermissibly barred an otherwise unelectable candidate, or unlawfully stifled political speech in regards to a no-hope position, would such non-compliance nevertheless be grounds for voiding if a challenger was not rebutted after showing any change, such as one less vote for a candidate who lost by a landslide? By the plain language of the statute, apparently so.
If these interpretations are correct, this change represents a potent new tool for political minorities to challenge association actions. Indeed, one can imagine even the threat of a challenge as a powerful tool to deter a vote, such as whether to levy a much-needed special assessment. The fact that delinquents and scofflaws can now vote only heightens this risk.
(If this interpretation does not stand, then SB 323's burden-shift will apparently not apply except in regards to actual voting claims under Article 4. For example, if a member sues under Section 5145(a) for violations of their right to inspect association election materials, such post-hoc noncompliance could not be deemed as having "affect[ed] the results of the election," much less in a rebuttable manner.)
Second, "affect" is not qualified. If an association's non-compliance with association election law "affected" the results in any manner, would this constitute grounds for voiding? For example, if an association impermissibly barred an otherwise unelectable candidate, or unlawfully stifled political speech in regards to a no-hope position, would such non-compliance nevertheless be grounds for voiding if a challenger was not rebutted after showing any change, such as one less vote for a candidate who lost by a landslide? By the plain language of the statute, apparently so.
If these interpretations are correct, this change represents a potent new tool for political minorities to challenge association actions. Indeed, one can imagine even the threat of a challenge as a powerful tool to deter a vote, such as whether to levy a much-needed special assessment. The fact that delinquents and scofflaws can now vote only heightens this risk.
