so that management can continue to receive ballots on the inspector’s behalf. Again, this should be done in writing, and the writing saved in case there is a challenge to the election questioning the election process and why ballots where to be returned to management.
• Assisting in counting ballots. While tallying the ballots is the responsibility of the inspector of elections, the inspector can designate others to assist in the process. While legally permissible, given the prohibition on anyone under contract to the association acting as the inspector, management should carefully consider whether it will undertake this task, even at the direction of the inspector of elections. It is relatively easy to find other volunteers to assist the inspector in tallying the ballots and avoid any potential challenges that may arise out of management’s role in assisting in the tallying of the ballots.
CONCLUSION
While the great majority of association elections occur without incident or challenge, it is often difficult to predict when an election challenge will arise. With the new law, a court can invalidate an election if the person challenging the election establishes by a mere preponderance of the evidence (this is the lowest evidentiary standard in the law and simply means it is more likely than not) that the association did not follow its election
“With the new law, a court can invalidate an election if the person challenging the
election establishes by a mere preponderance of the evidence that the association did not follow its election process.”
process. While the association can rebut that presumption by showing, again by a mere preponderance of the evidence, that even if there was an irregularity in the election process it did not affect the outcome of the election, establishing that something did not have an impact on the election will not always be easy to prove. Given how easy it may be to successfully challenge an election under the law as amended by SB 323, boards may want to consider budgeting for professional inspectors of elections instead of appointing volunteer members to serve in that role. This is especially true if there is any risk of a challenge known at the outset of the election process. While it may be an additional expense, it may prove to be valuable insurance in protecting the election process from potentially costly legal challenges.
—Robert M. DeNichilo, Esq., is the Managing Partner of Nordberg | DeNichilo
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