By Jennifer L. Biletnikoff / Published November 2022
Before the 2020 pandemic, annual membership meetings were a time for owners to get together and discuss community issues while anxiously waiting for election ballots to be counted. However, COVID-19 changed the manner in which association meetings were held. With restrictions on large group gatherings and strict quarantine requirements, many associations limited in-person attendance, requiring some members to participate remotely via Zoom and other similar platforms. Now that things have returned to normal (for the most part), are the days of in-person only meetings and paper ballots/proxies a thing of the past?
Although electronic voting, or e-voting, has been an option for community associations in Florida since 2015, many associations did not implement online voting until the pandemic. During the 2015 legislative session, a law was passed authorizing condominiums, cooperatives, and homeowners associations to conduct elections and other owner votes through internet-based online voting systems in accordance with specific requirements. For those that are even somewhat tech-savvy, electronic voting offers a convenient method for voting that can be accomplished from the comfort of your living room, without a trip to the post office. So, how can you bring electronic voting into your community?
First, it is important to understand that online voting must be done in strict compliance with the applicable statutes (Chapter 718, Florida Statutes, for condominiums; Chapter 719, Florida Statutes, for cooperatives; and Chapter 720, Florida Statutes, for homeowners associations). If your board of directors decides they wish to offer electronic voting, they must first adopt a board resolution. Notice of the board meeting at which a resolution authorizing electronic voting will be considered must be mailed, delivered, or electronically transmitted (where an owner has consented in writing to receive official notices by email) to all owners, and conspicuously posted at least 14 days before the meeting. The board resolution must provide that owners will receive notice of the opportunity to vote through an online voting system, must establish the procedures and deadlines for owners to provide written consent to online voting, and must provide the procedures and deadlines for owners to opt out of online voting after giving consent.
There are some “rules” when it comes to electronic voting. An association must provide each owner with the following: (a) a method to authenticate the owner’s identity to the online voting system; (b) a method to confirm that the owner’s electronic device can successfully communicate with the online voting system at least 14 days before the deadline; and (c) for elections of the board, a method to transmit an electronic ballot to the online voting system that ensures the secrecy and integrity of each ballot. Moreover, owners are not required to participate in online voting. In fact, Florida law only allows associations to conduct elections and other member votes electronically if a member consents in writing. As such, owners who want to vote online must provide written consent, which can be made via email, to their association. However, if an owner does not consent to electronic voting, they cannot be required to vote online; they must be permitted to vote the “old-fashioned” way by using ballots and proxies. It is important to keep in mind that consenting to online voting is different than an owner consenting to receive official notices from the association electronically. If an owner consents to vote online but has not consented to receive official notices via email, the association will need to continue to deliver all official notices to the owner by their chosen method (hard copy, mailed or delivered).
Once your board of directors adopts a written resolution authorizing online voting, they must select a voting system that meets the requirements set forth in the applicable statutes. The voting system must be able to (a) authenticate a unit owner’s identity; (b) authenticate the validity of each electronic vote to ensure that the vote is not altered in transit; (c) separate any authentication or identifying information from an electronic election ballot for elections of the board; and
(d) transmit a receipt to the owners casting electronic votes. The receipt provided to the owner must include the specific vote cast, the date and time the vote was submitted, and the user identification. Additionally, the online voting system must be able to keep and store electronic votes so that they are accessible to election officials for recount, inspection, and review purposes. Essentially, the online voting system must produce a record of the vote that can be maintained as part of the association’s official records.
Electronic voting can be an attractive option for large community associations, especially those communities where a large percentage of owners are not full-time Florida residents. Because owners who vote electronically are counted as being in attendance at the meeting, online voting may make it easier for an association to attain a quorum. Votes are much easier to “count” when they are cast electronically; however, because owners have an option whether or not to consent to electronic voting, the votes cast via ballot or proxy will have to be added to electronic votes cast in order to get a final vote count. Electronic voting also helps to reduce voter errors and will eliminate judgment calls that impartial vote-counting committees inevitably face. Associations are successfully integrating electronic voting in their communities. Whether this technology will completely eradicate the groups of volunteers huddled around tables, opening envelopes and tallying votes, is still to be seen.
Jennifer Biletnikoff concentrates her legal practice on the law of community associations, primarily representing condominium, cooperative, mobile home, and homeowners associations. She represents community associations located throughout Southwest Florida including Collier, Lee, Sarasota, and Charlotte Counties. Ms. Biletnikoff is also one of only 190 attorneys statewide who is a Florida Bar board certified specialist in condominium and planned development law. In addition to her experience as a community association lawyer, Ms. Biletnikoff has litigation experience in covenant enforcement and foreclosure law. For more information, visit www.beckerlawyers.com.