By Kathy Danforth / Published Nov 2015
When can we vote electronically?’ is a question we hear every year,” says David Podein, attorney with Haber Slade, P. A. in Miami. This year, Florida Statute 720.317 enables HOAs to proceed with that agenda in accordance with the specified requirements (F.S. 718.128 for condominiums and 719.129 for co-ops). “On paper, this should be much easier than dealing with the somewhat archaic notices in a large and small envelope that can be slow to deliver or get lost in the mail,” says Podein, “though the electronic set-up appears a little burdensome.”
“Now, the possibility exists that associations previously unable to obtain a quorum for the election of directors, or to obtain sufficient votes to waive reserves, or adopt amendments will be able
to do so by means of Internet-based voting,” observes Michael Chapnick, attorney with SRHL Law. “However, as wonderful as it will be to finally have a means to overcome the once almost-insurmountable challenge of obtaining a quorum, the implementation and practical application of electronic voting will not be without obstacles.”
“The Division of Condominiums, Timeshares, and Mobile Homes [in the Florida Department of Business and Professional Regulation] will not be reviewing or approving vendors or systems for electronic voting,” according to Megan DeBello in the Office of Communications. This means communities will need to do their own homework in reviewing options, vendors, and compliance. However, communities are in such different positions regarding their bylaws, residents’ characteristics, and even mail delivery that no one solution will be the best from start to finish for every community.
James Claiborne with Vote-Now.com, LLC, an independent election provider based in Jacksonville, Florida, comments, “We have provided elections since 2003 for students, faculties, professional organizations, homeowner associations, and other groups. Typically, our elections are hybrid, so members can vote electronically, by touch-tone phone, or by paper ballot. The participation rate rises significantly above just using a paper ballot alone. We’ve had groups go from 10 percent up to 50 percent participation, and some professional organizations now have up to 90 percent of its members voting. Almost all of the increase is from electronic voting because it is so convenient.”
John Bodin with Election Trust, LLC, a third-party authority established in 2003, which provides hybrid voting to both public and private entities, shares, “The advantage of hybrid voting is convenience, especially for disabled or absentee residents. There will also be a budget savings as people move from paper ballots to online voting since that reduces paper, printing, and postage costs. The challenge is to ensure that the system is voter-friendly yet compliant with requirements in integrating the opt-in electronic voting as part of the hybrid election platform,” says Bodin.
“Several other states are just ahead of Florida in passing new electronic voting laws for HOAs,” reports Claiborne. “States such as Georgia and Virginia have had electronic voting for HOAs for several years. Arizona recently added electronic voting, and Texas just started.
“For one group in Arizona that is just starting electronic voting, we’ve set up a voter registration page for members to log in with their name, address, and member identification number,” Claiborne explains. “Then, they can opt-in to electronic voting. We record their e-mail address and send a confirmation. When the election starts later in the fall, the association can save on postage and printing for the whole process, since those opting in will not need to be mailed a paper ballot.
“There are probably 10–15 companies offering electronic voting in various forms now,” says Claiborne, “though there were just two or three when Vote-Now.com started 13 years ago. Quite a few new Internet-based companies popped up during the recent economic slowdown because you can download a public domain software package, set up a server, and say you’re ‘doing voting.’ The difference in companies is their experience, which enables a customized process for a community.”
Both Vote-Now.com, LLC and Election Trust, LLC provide hybrid systems—a combination of electronic and paper ballots—that they feel comply with the law’s dictates. “Part of the challenge is to integrate those opting in to online voting with the folks retaining access to a paper ballot,” Bodin notes. “That requires an ‘emerge and purge’ process to ensure no one votes twice. For those associations that require in-person voting at an annual meeting, we can provide a list of those members who have already voted remotely to ensure that only those members voting at the meeting are eligible to cast a paper ballot or vote by laptop or by smartphone. The latter option enables us to provide remote, third-party, and ‘real time’ results within minutes once in-person voting closes. Given an association’s bylaws allow for it, this is becoming a popular option for our HOA and condominium clients.
“I believe the law is fairly well-written because it addresses four critical points of failure: secure voter authentication, a secret and anonymous ballot, pre-election system testing, and a digital ballot receipt,” observes Bodin. “We’re comfortable performing to the specifications of the law and believe we can provide
a challenge-free election.”
“Though there are areas in the law that associations may interpret differently, our system complies with all of the fundamental statutes,” states Claiborne. “We assign a unique, random code to each voter on record. The system validates the code before the voter gains access to the electronic ballot. Results are calculated by the software whether the vote is entered by computer, tablet, paper, or telephone, and the software ensures one submission per voter.
“The election ballot can be set up so it has biographies, candidate statements, photographs, wording of bylaws, and even an audio file linked to the ballot,” notes Claiborne. “What can be done depends on the association’s bylaws. The online ballot uses 256-bit encryption with the same standards as banks and credit cards, and our servers verify the voter ID so no one can vote who shouldn’t. The vote is recorded and the code is marked as used, so it is then useless. If our telephone voting method is used, the voter is actually connected to a secure Web server via their touch-tone telephone. We also have the option for voters to receive confirmation of their vote by text message and e-mail.
“Our system stores the voter code with the ballot cast for an audit and challenge period,” says Claiborne. “However, the election can be set up so the code is not stored with the vote; then it’s analogous to a paper ballot placed in a box, and you can’t pull your ballot out again. The new Florida law could be clarified as to when the separation of the code from the voting record has to happen.”
Podein adds, “In the old system, you didn’t receive a confirmation that your vote had been received. We’ve added a new wrinkle—what happens if someone doesn’t get a receipt? Can they vote again? For each layer of protection you add, there’s the question, ‘What if that doesn’t happen?’ to address. I suggest that communities take a reverse engineering approach: if a step doesn’t work, how will the association respond or verify?”
“There have been 10–15 times over the years when it was very useful that we could pull up records after a vote,” recalls Claiborne. “There have been a few challenges from someone who lost, but we are able to pull up anonymous ballots with a time and date stamp to do a recount, and that satisfied their questions. We’ve had elections that came down to a vote or even a fraction of a vote. Another positive aspect of electronic voting is that it’s accurate—computers are quite good at counting. Once a challenger sees the voting record, there’s really nothing to challenge. None have ever gone to legal proceedings that I know of.”
Chapnick observes, “While there is no statutory requirement that a commercial Internet service be utilized to conduct an electronic vote, any online voting system that is utilized must, among other things, be able to authenticate the unit owners’ identity, be able to authenticate the validity of each electronic vote to ensure that the vote is not altered in transit, and be able to transmit a receipt from the online voting system to each unit owner who casts an electronic vote. Because of these requirements, it is somewhat impractical to expect that associations will come up with their own systems of electronic, Internet-based voting. Consequently, associations desiring to utilize online voting run the risk that the voting service they choose will not meet the statutory requirements, and that any vote conducted electronically will be subject to challenge.”
Podein advises, “The main problem would be having to re-do an election; I haven’t seen a situation where a unit owner would be entitled to monetary damages for an election challenge, though there could always be some crazy combination of situations. However, electronic voting could potentially make challenges and responses to challenges more expensive. Verifying electronic records would involve ESI (Electronic Stored Information) and could potentially involve additional services from vendors as opposed to the association and community manager just keeping copies of physical records.”
Using a vendor does provide an important additional element: impartiality. “Our real value is that we’re a third party not under the influence of the organization or management,” says Bodin, “with the experience, technology, and protocol to back that up. While there are cheaper, do-it-yourself voting tools, they give no assurance against insider tampering…real or imagined. As anyone who’s conducted elections knows, the perception of integrity is as important as the actual integrity of the election process. There are some contentious homeowner elections out there!” remarks Bodin. “We’re in business because HOAs and condominiums have tried running elections themselves and, given a challenged election, can encounter headaches and legal costs that make our service a real bargain.”
Adding online voting to residents’ options will take preparation—authorization by the board, amendment of regulations if needed, identification of a desired procedure, vendor review and selection, and required testing. Podein recommends, “Get familiar with vendors and test systems well in advance of the election.”
From those who have gone before, though, Claiborne relates, “I don’t think we’ve ever had a client go back to just paper, because there is such an improvement in the participation rate and the satisfaction of the homeowners. They get more bang for their buck.” The results are out, but paper ballots may be starting down the route of the typewriter; some people still love them, but the new methods certainly have their advantages. So, take new steps, but keep the old as well!