By Ben Solomon, Esq. / Published October 2019
Associations are discovering huge advantages by implementing electronic voting for their members pursuant to Florida Statutes §718.128 (for condominiums) and §720.317 (for homeowners associations). Among other benefits, voting online saves costs to associations, increases member participation, eliminates dishonesty and human errors associated with paper votes, decreases meeting times, and greatly improves the process of inspections, as well as potential recounts. Consenting owners in Florida can also receive notices by electronic (email) transmission, which significantly reduces costs associated with printing, envelopes, postage, copies, and administrative time.
Voting online and sending electronic notices by email is instantaneous and costs much less to associations. Due to less actual counting of physical ballots, meeting times are also shortened through the use of electronic voting, and associations can therefore reduce unnecessary expenses for attorneys, monitors, and other staff having to attend longer meetings. Instead of inspecting and counting ballots for hours, the electronic results are displayed and confirmed in just seconds. Most importantly, members can vote conveniently from their computers or mobile devices anywhere in the world.
Online voting in Florida, however, must be done in strict compliance with the applicable statutes. As such, it is imperative that associations use a reliable, proven, secure, and legally compliant electronic voting system. Associations should not take risks with software that intermittently fails, only has a limited number of users, or was not created by a qualified lawyer.
Under Florida Statute §718.128 (for condominiums), an association must provide each owner with (a) a method to authenticate the unit owner’s identity to the online voting system; (b) 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; and (c) a method to confirm, at least 14 days before the voting deadline, that the unit owner’s electronic device can successfully communicate with the online voting system. Moreover, Florida law only allows associations to conduct elections and other unit owner or member votes through an internet-based online voting system if a unit owner or member consents, in writing, to online voting and such software system meets certain legal requirements. Note that the applicable homeowners association statute, §720.317, is substantially similar.
The law also requires associations to use an online voting system that is (a) able to authenticate the unit owner’s identity; (b) able to authenticate the validity of each electronic vote to ensure that the vote is not altered in transit; (c) able to transmit a receipt from the online voting system to each unit owner who casts an electronic vote; (d) for elections of the board of administration, able to permanently separate any authentication or identifying information from the electronic election ballot, rendering it impossible to tie an election ballot to a specific unit owner; and (e) able to store and keep electronic votes accessible to election officials for recount, inspection, and review purposes.
There are also legal and technical requirements to getting started with online voting. For example, in order to implement electronic voting, associations must formally adopt a (one-time) board resolution authorizing an online voting system and establish procedures and guidelines for unit owners to consent in writing to online voting and opt out later, which is often accomplished using promulgated forms prepared by an attorney. Written notice of the meeting at which the resolution will be considered must be mailed, delivered, or electronically transmitted to the unit owners and posted conspicuously on the condominium property or association property at least 14 days before the meeting. A unit owner’s consent to online voting is valid until the unit owner opts out of online voting according to the procedures established by the board.
It is often critical for associations to achieve certain votes, such as for capital improvement projects, elections of directors, and waiver of reserves. Electronic voting increases member participation, in large part, due to the convenience of members being able to vote online from any device with internet access as well as the ability to send electronic reminder notifications. On average, online participation is often as high as 60–80 percent compared to many associations that struggle to achieve 20–30 percent participation from physical balloting. Although some owners will prefer to continue using physical votes (and may do so by law), the online votes help associations achieve quorum requirements and/or certain required percentage votes.
Online voting is also beneficial as it may eliminate cheating and human errors because owners can only submit one secure, verified ballot. Good online voting systems can also cross-reference, detect, and prevent duplicates where owners may also try to vote in person. Additionally, owners cannot make mistakes in casting their electronic ballots like they do with physical ones where, for example, they may forget to sign the outer envelope properly or fail to include the sealed inner envelope; in both these instances for condominiums, the votes must be disregarded. Once an online vote is received, it is automatically counted correctly by the electronic voting system.
Some of the best online voting software systems also offer associations other communications tools and features, such as the ability to live stream and record meetings, send verified (tracked) emails, and survey members. Streaming and recording association meetings to the members in a password-protected portal is a new best practice standard that can provide maximum transparency and accountability for boards. Online surveys can also be a great way to get the community involved and provide members’ input without taking an official vote.
More and more associations are implementing electronic voting for their members every day, and this trend will inevitably increase. Some things to look for when selecting the right electronic voting software provider include whether the company (a) provides software that is 100 percent legally compliant and was created by a qualified attorney; (b) has a cyber insurance policy with a well-rated carrier to protect against data breaches; (c) has an effective method for cross referencing physical and online ballots (in order to prevent any duplicates); (d) has in-house legal counsel; (e) has a program that is proprietary, and does not utilize other third-party features which are more susceptible to problems and security risks; and (f) has a large enough support staff to provide all technical and other support your association needs.
The benefits of electronic voting are limitless! Has your board implemented it for your association members yet?
Ben Solomon, Esq.
Managing Partner, Association Law Group (ALG)
Ben Solomon is the managing partner of Miami-based Association Law Group (ALG) and serves as general counsel to hundreds of condominiums and homeowners associations throughout Florida. Mr. Solomon is also the majority owner and CEO of Voting Portals at www.votingportals.com, a proprietary software development company specializing in electronic voting and running online elections for some of the largest associations in the nation. Mr. Solomon can be reached at firstname.lastname@example.org.