Bill Text: CA AB1360 | 2013-2014 | Regular Session | Amended
Bill Title: Common interest developments: electronic voting.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Engrossed - Dead) 2014-06-24 - In committee: Set, first hearing. Failed passage. [AB1360 Detail]
Download: California-2013-AB1360-Amended.html
BILL NUMBER: AB 1360 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 15, 2014
AMENDED IN SENATE JUNE 24, 2013
AMENDED IN ASSEMBLY MAY 2, 2013
AMENDED IN ASSEMBLY APRIL 25, 2013
INTRODUCED BY Assembly Member Torres
(Coauthor: Assembly Member Gordon)
FEBRUARY 22, 2013
An act to amend Sections 5110 and 5110,
5120, 5125 , and 5260 of, and to add Section
5117 5116 to, the Civil Code, relating
to common interest developments.
LEGISLATIVE COUNSEL'S DIGEST
AB 1360, as amended, Torres. Common interest developments:
electronic voting.
Existing law, the Davis-Stirling Common Interest Development Act,
defines and regulates common interest developments, which include
community apartment projects, condominium projects, planned
developments, and stock cooperatives. These provisions require that a
common interest development be managed by an association and that
elections related to the governance or administration of the common
interest development conform to specified requirements, including,
among other things, the requirement that the association adopt rules
to allow one or more inspectors to appoint or oversee independent 3rd
parties to verify signatures and count and tabulate votes. Existing
law authorizes a secret paper ballot to be distributed and voted upon
by the membership without a meeting, and imposes other requirements
relating to proxies and secret ballots. Existing law authorizes a
member of an association to bring a civil action to enforce his or
her rights and authorizes a court to impose a civil penalty of up to
$500 for a violation of the provisions governing elections. Existing
law requires that the sealed ballots remain in the custody of the
inspector or inspectors of elections or at a location designated by
the inspector or inspectors until after the tabulation of the vote,
and until the time allowed for challenging the election has expired,
when custody is required to be transferred to the association.
This bill would authorize an association to conduct elections by
electronic voting, as specified, and would enact related provisions.
The bill would require an association, if electronic voting is to be
conducted, to provide each member with an opportunity to indicate
that he or she will be voting electronically and to provide ballots,
as specified. The bill would require the electronic balloting service
provider to retain the electronically submitted ballot
data until the time allowed for challenging the election has expired.
This bill set forth minimum requirements of an electronic voting
system for an association's election. The bill would also authorize
the Secretary of State to study and adopt regulations governing the
use of electronic voting systems to determine whether the systems are
capable of complying with these requirements.
The bill would also declare the Legislature's intent in this
regard.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Common interest development association elections are subject
to specific procedures which are more restrictive than the procedures
for other nonprofit corporations that may conduct balloting by
electronic means under Section 7510 of the Corporations Code.
(b) The procedures set forth in the Davis-Stirling Common Interest
Development Act do not permit the use of electronic voting. The act
requires the use of paper ballots and double envelopes enclosing
those ballots.
(c) The statutorily prescribed paper ballot voting procedure
failed to increase voter participation. Therefore, common interest
development membership meetings often fail for lack of quorum.
(d)
(c) Election quorums would be more easily achieved using
electronic balloting.
(e)
(d) Under existing law, the entire election process
must be repeated until quorum is achieved, which costs the
association significantly more money.
(f)
(e) Authority for the use of electronic voting would
give associations and their members an option that could save postage
and paper costs while preserving natural resources.
(g)
(f) Electronic transactions are already commonly used
in California to conduct state voter registration, vehicle
registration and driver's license renewals, payment of local real
property and state income taxes, banking transactions, travel
reservations, and corporation elections, because they are
technologically secure and provide users with confirmation of their
transaction.
(h)
(g) Senate Bill 820 (Chapter 428 of the Statutes of
1999) created the Uniform Electronic Transactions Act (Title 2.5
(commencing with Section 1633.1) of Part 2 of Division 3 of the Civil
Code), which provides that a record or signature may not be denied
legal effect or enforceability solely because it is in electronic
form, that a contract may not be denied legal effect or
enforceability solely because an electronic record was used in its
formation, and that if a law requires a record to be in writing, or
if a law requires a signature, an electronic record satisfies the
law.
SEC. 2. Section 5110 of the Civil Code is amended to read:
5110. (a) The association shall select an independent third party
or parties as an inspector of elections. The number of inspectors of
elections shall be one or three.
(b) An independent third party may be a member, but shall not be
a director or a candidate for director or be related to a director or
to a candidate for director. An independent third party shall not be
a person, business entity, or subdivision of a business entity who
is currently employed or under contract to the association for any
compensable services, unless expressly authorized by rules of the
association adopted pursuant to paragraph (5) of subdivision (a) of
Section 5105.
(c) The inspector or inspectors of elections shall do all of the
following:
(1) Determine the number of memberships entitled to vote and the
voting power of each.
(2) Determine the authenticity, validity, and effect of proxies,
if any.
(3) Receive ballots, or receive the voting results from
an electronic balloting service provider including
those submitted through an electronic voting system pursuant to
Section 5116 .
(4) Hear and determine all challenges and questions in any way
arising out of or in connection with the right to vote.
(5) Count and tabulate all votes, including the voting
results received pursuant to paragraph (3) those
submitted through an electronic voting system pursuant to Section
5116 .
(6) Determine when the polls shall close, consistent with the
governing documents.
(7) Determine the tabulated results of the election.
(8) Perform any acts as may be proper to conduct the election with
fairness to all members in accordance with this article, the
Corporations Code, and all applicable rules of the association
regarding the conduct of the election that are not in conflict with
this article.
(d) An inspector of elections shall perform all duties
impartially, in good faith, to the best of the inspector of election'
s ability, and as expeditiously as is practical. If there are three
inspectors of elections, the decision or act of a majority shall be
effective in all respects as the decision or act of all. Any report
made by the inspector or inspectors of elections is prima facie
evidence of the facts stated in the report.
(e) As used in this section: section, an
"independent third party" includes, but is not limited to, a
volunteer poll worker with the county registra r of
voters, a licensee of the California Board of Accountancy, or a
notary public.
(1) "Electronic balloting service provider" means a business that
meets all of the following requirements:
(A) Is not affiliated with the association management or members.
(B) Is insured for liability.
(C) Protects the secrecy of the votes.
(D) Protects the anonymity of the voter by ensuring that members'
names are not associated with the votes when the votes are tallied
and submitted to the association by the electronic balloting service
provider.
(E) Produces a record verifying dates and times that votes were
cast.
(F) Produces a list of members who voted electronically.
(G) Provides to a member a secure confirmation of the member's
electronically cast vote.
(2) "Independent third party" includes, but is not limited to, a
volunteer poll worker with the county registrar of voters, a licensee
of the California Board of Accountancy, or a notary public.
SEC. 3. Section 5116 is added to the
Civil Code , to read:
5116. (a) Notwithstanding subdivision (a) of Section 5115, the
association may conduct elections by electronic voting conducted
pursuant to this section. If electronic voting is to be conducted,
the association shall provide each member with an opportunity to
indicate whether he or she will vote electronically. For a member who
indicates that he or she will vote electronically, not less than 30
days before the voting deadline, the association shall provide to the
member the ballot and any related material by electronic
transmission. Member ballots shall be returned to the association by
electronic transmission by the voting deadline. The association, for
a member who did not indicate that he or she would be voting
electronically, shall provide the member with a ballot pursuant to
Section 5115. The inspector of elections, or the designee of the
inspector of elections, may verify the authenticity of a member's
request to vote electronically.
(b) The association may conduct elections by electronic voting
only if all of the following requirements are met:
(1) In accordance with subdivision (a), the association receives
confirmation from at least one member that he or she will be voting
electronically.
(2) The association, or an electronic balloting service provider
acting on behalf of the association, provides each member that will
be voting electronically with all of the following:
(A) A method to securely authenticate the member's identity to the
electronic voting system.
(B) A method to secure a member's electronic voting platform from,
among other things, malicious software and the ability of others to
remotely monitor or control the electronic voting platform.
(C) A method to securely communicate with the electronic voting
system.
(D) A method to securely review an electronic ballot prior to its
transmission to the electronic voting system.
(E) A method to securely transmit an electronic ballot to the
electronic voting system that ensures the secrecy and integrity of
each ballot.
(F) A method to allow members to verify the authenticity of
receipts sent from the electronic voting system.
(G) A method to confirm, at least 14 days before the voting
deadline, that a member's electronic voting platform can successfully
communicate with the electronic voting system.
(H) In the event of a disruption of the electronic voting system,
the ability to vote by mail pursuant to Section 5115 or to deliver a
ballot in-person, notwithstanding the 30-day requirement in
subdivision (a) of Section 5115.
(3) The association, or an electronic balloting service provider
acting on behalf of the association, ensures that the electronic
voting system meets all of the following requirements:
(A) The electronic voting system is accessible to members with
disabilities.
(B) The electronic voting system is secure from, among other
things, malicious software and the ability of others to remotely
monitor or control the system.
(C) The electronic voting system is able to securely authenticate
a member's identity.
(D) The electronic voting system is able to securely communicate
with each member's electronic voting platform.
(E) The electronic voting system is able to securely authenticate
the validity of each electronic ballot to ensure that the ballot has
not been altered in transit.
(F) The electronic voting system is able to securely transmit a
receipt from the electronic voting system to each member who casts an
electronic ballot.
(G) The electronic voting system is able to securely and
permanently separate any authentication or identifying information
from the electronic ballot, rendering it impossible to tie any ballot
to any specific member.
(H) The electronic voting system is able to securely allow members
to confirm that their ballot has been received and counted.
(I) The electronic voting system is able to store electronic
ballots in a secure manner, keeping them accessible to election
officials for recount, inspection, and review purposes as required by
Section 5125.
(4) The Secretary of State has approved the electronic voting
system in accordance with the procedures for certification of voting
systems in Article 1 (commencing with Section 19220) of Chapter 3 of
Division 19 of the Elections Code. For purposes of this subdivision,
the prohibitions contained in Section 19205 of the Elections Code
shall not apply.
(c) An electronic balloting service provider shall not provide
electronic voting services to an association pursuant to this section
unless it is both insured for liability and is not affiliated with
the association management or members.
(d) The Secretary of State may study and adopt regulations
governing the use of electronic voting systems to determine whether
they are capable of complying with paragraphs (2) and (3) of
subdivision (b).
SEC. 3. Section 5117 is added to the Civil
Code, to read:
5117. Notwithstanding Section 5115, subdivision (a) of Section
5120, or Section 5125, the association may conduct elections by
electronic voting conducted pursuant to subdivision (a) of Section
7510 of the Corporations Code. If electronic voting is to be
conducted in accordance with this section, the association shall
provide each member with an opportunity to indicate that he or she
will be voting electronically. For a member who indicated that he or
she will be voting electronically, not less than 30 days prior to the
voting deadline, the association shall provide to the member the
ballot and any related material by electronic transmission. Member
responses shall be returned to the association by electronic
transmission by the voting deadline. The association, for a member
who did not indicate that he or she would be voting electronically,
shall provide the member with a ballot pursuant to Section 5115.
SEC. 4. Section 5120 of the Civil Code
is amended to read:
5120. (a) All votes , including votes submitted through an
electronic voting system, if any, shall be counted and
tabulated by the inspector or inspectors of elections, or the
designee of the inspector of elections, in public at a properly
noticed open meeting of the board or members. Any candidate or other
member of the association may witness the counting and tabulation of
the votes. No person, including a member of the association or an
employee of the management company, shall open or otherwise review
any ballot prior to the time and place at which the ballots are
counted and tabulated. The inspector of elections, or the designee of
the inspector of elections, may verify the member's information and
signature on the outer envelope prior to the meeting at which ballots
are tabulated. Once a secret ballot is received by the inspector of
elections, it shall be irrevocable.
(b) The tabulated results of the election shall be promptly
reported to the board and shall be recorded in the minutes of the
next meeting of the board and shall be available for review by
members of the association. Within 15 days of the election, the board
shall give general notice pursuant to Section 4045 of the tabulated
results of the election.
SEC. 4. SEC. 5. Section 5125 of the
Civil Code is amended to read:
5125. (a) The sealed ballots at all times
shall be in the custody of the inspector or inspectors of elections
or at a location designated by the inspector or inspectors 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. The
(b) If an electronic balloting
service provider, as defined in Section 5110, is used in the
course of an election, this provider shall retain the
electronically submitted ballot data until the time allowed by
Section 5145 for challenging the election has expired. If
(c) If there is a recount or
other challenge to the election process, the inspector or inspectors
of elections shall, upon written request, make the ballots available
for inspection and review by an association member or the member's
authorized representative. Any recount shall be conducted in a manner
that preserves the confidentiality of the vote.
SEC. 6. Section 5260 of the
Civil Code is amended to read:
5260. To be effective, any of the following requests shall be
delivered in writing to the association, pursuant to Section 4035:
(a) A request to change the member's information in the
association membership list.
(b) A request to add or remove a second address for delivery of
individual notices to the member, pursuant to subdivision (b) of
Section 4040.
(c) A request for individual delivery of general notices to the
member, pursuant to subdivision (b) of Section 4045, or a request to
cancel a prior request for individual delivery of general notices.
(d) A request to opt out of the membership list pursuant to
Section 5220, or a request to cancel a prior request to opt out of
the membership list.
(e) A request to receive a full copy of a specified annual budget
report or annual policy statement pursuant to Section 5320.
(f) A request to receive all reports in full, pursuant to
subdivision (b) of Section 5320, or a request to cancel a prior
request to receive all reports in full.
(g) A request to vote in an association election using an
electronic voting system pursuant to Section 5116.
