Question

Can my HOA refuse to count a ballot simply because it was delivered by a courier or neighbor rather than mailed?

Short Answer

No. If the HOA's procedures do not explicitly forbid couriers and it has been past practice, they cannot reject ballots solely for lacking a postmark.

Detailed Answer

The ALJ ruled that the HOA violated its procedures by rejecting ballots placed in the ballot box prior to the election (via courier) simply because they lacked postmarks. The judge noted that the custodian of the box did not believe it was a problem and there was no reason for homeowners to believe they couldn't do so.

Alj Quote

Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to count Petitioners’ and other homeowners’ ballots that had been placed in the ballot box prior to the election… There was also no reason for Petitioners or the other homeowners to believe that they could not place their ballots in the ballot box prior to the election and have those ballots counted.

Legal Basis

Nominating and Elections Committee Mission and Procedures

Topic Tags

• elections
• ballots
• couriers
• voting rights

Question

What are valid reasons for an HOA to consider a ballot ineligible or spoiled?

Short Answer

Valid reasons typically include incorrect vote counts, unconfirmed ownership, illegibility, unsigned envelopes, or lack of good standing.

Detailed Answer

The decision outlines specific criteria for invalidating ballots found in the HOA's procedures. Arbitrary reasons not listed in the governing documents (like lack of a postmark when not required) are not valid grounds for rejection.

Alj Quote

Reasons a ballot may not be valid include incorrect number of votes, lot ownership cannot be confirmed, ballot is illegible, ballot envelope is not signed, or a member is not in good standing.

Legal Basis

Association Election Procedures

Topic Tags

• elections
• ballot validity
• rules

Question

Is the HOA obligated to try to count votes rather than looking for reasons to disqualify them?

Short Answer

Yes. If the election procedures state that every effort will be made to count votes to ensure fairness, the HOA must adhere to that standard.

Detailed Answer

The ALJ cited the HOA's own mission statement which promised to make every effort to count votes. Rejecting ballots for minor procedural issues (like lacking a postmark) when the voters are present and eligible violates this obligation.

Alj Quote

Respondent’s Nominating and Elections Committee Mission and Procedures state that 'every effort will be made to count as many votes as possible assuring a fair, open and honest election.' This was not the case at the July 5, 2022 Special Election.

Legal Basis

Nominating and Elections Committee Mission and Procedures

Topic Tags

• elections
• fairness
• HOA obligations

Question

If my mailed ballot is rejected, can the HOA prevent me from voting in person at the meeting?

Short Answer

No. If you are present at the meeting and your absentee ballot is rejected, the HOA should allow you to cast a replacement ballot.

Detailed Answer

The ALJ found a violation when the HOA refused to accept in-person ballots from homeowners whose courier ballots were rejected. The decision noted that these ballots were not ineligible for any valid reason (like lack of standing).

Alj Quote

Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to accept in-person ballots at the meeting, notwithstanding that those ballots could not be considered ineligible ballots.

Legal Basis

Voting Rights / Election Procedures

Topic Tags

• in-person voting
• ballot rejection
• elections

Question

Can the HOA enforce a voting deadline strictly against some owners but not others?

Short Answer

No. It is a violation to tell some owners they are 'too late' while allowing others to vote after the deadline.

Detailed Answer

The decision noted that while the Petitioners were told voting was closed at 6:00 PM and they were 'too late,' another homeowner was allowed to place a ballot in the box at 6:15 PM.

Alj Quote

Homeowner Jeffrey Knox personally handed in his ballot at the meeting by placing it in the ballot box at approximately 6:15 p.m., notwithstanding that voting supposedly closed at 6:00 p.m.

Legal Basis

Fair Election Practices

Topic Tags

• discrimination
• deadlines
• fairness

Question

What penalties can an HOA face if they are found to have violated election rules?

Short Answer

The HOA may be ordered to refund the homeowner's filing fee and pay a civil penalty to the Department of Real Estate.

Detailed Answer

In this case, the ALJ ordered the HOA to pay $500 to the petitioners (reimbursement) and a $500 civil penalty to the state.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00… IT IS FURTHER ORDERED that… Respondent shall pay to the Department a civil penalty in the amount of $500.00

Legal Basis

A.R.S. § 32-2199

Topic Tags

• penalties
• fines
• reimbursement

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Detailed Answer

The decision defines the evidentiary standard required for the petitioners to win their case.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent committed the alleged violation(s) by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

• legal standards
• burden of proof
• hearing process