Board election can proceed with write-in candidates
Q. Several years ago, our condominium board adopted a “Mail-in-Ballot Rule” for our annual elections. This year, we have two open board seats up for election. Our board mailed the required candidate submission forms to all the owners. Unfortunately, the deadline for candidate submission has come and gone and no owners submitted their name as a candidate. Does the board have to postpone its annual election? If not, what are the next steps the board should take if no candidates come forward?
A. First, some background regarding mail-in balloting for Illinois condominium associations. The “Mail-In Ballot Rule” is contained in Section 18(b)(9)(B) of the Illinois Condominium Property Act. This section outlines the specific adoption and implementation process necessary for boards to follow. The statute only authorizes a condominium board to adopt mail-in balloting and does not require a board to do so. Importantly, mail-in balloting eliminates proxy voting altogether.
The purpose of mail-in balloting is twofold: (1) make it as easy as possible for unit owners to vote in an association’s annual election; and (2) avoid the common pitfalls associated with election proxies. Even though the Illinois General Assembly enacted the Mail-in Ballot Rule more than 10 years ago, many condominium associations have not adopted the process. As a result, these communities often experience election conflicts. It is commonly alleged that proxies were obtained under false pretenses or under pressure exerted by proxy holders and this leads to many disagreements. The best way to avoid these situations is for the board to adopt the mail-in balloting process. Therefore, we strongly encourage condominium boards to adopt mail-in balloting.
If your board wishes to adopt mail-in balloting, we suggest that the board start the adoption process approximately six months before the next annual election. This should give the board (and management) enough time to meet the adoption deadlines outlined in the statute.
With regard to this particular situation, if no owners submit their candidacy by the deadline, the board does not need to suspend their annual meeting. The mail-in ballot statute requires the ballot form to contain space for write-in candidates. Therefore, a write-in candidate(s) could be elected even though nobody else submitted their name in advance as a candidate. It is important to remind the condominium owners that in order to legally conduct an annual election, 20% of the ownership must participate in person or via mail-in ballot. So, even if an owner does not have a write-in candidate, they should be instructed to mail-in their blank ballot or attend the annual election in person for quorum purposes.
Q. What is the difference between noncumulative voting and cumulative voting in a condominium board election?
A. Voting in a board election is by noncumulative voting unless the declaration or bylaws provide otherwise. In noncumulative voting, an owner has one vote per candidate for each of the seats on the board to be filled at the election. For example, if the election is for three board members, the owner can cast one vote for each of three different candidates.
Cumulative voting, on the other hand, allows a minority of condominium owners to elect a member to the board by using the power of “cumulating” or grouping their votes. In cumulative voting, an owner can cast a total number of votes equal to the number of open board seats. The owner can cast those votes in any manner they wish among the candidates. For example, if there are three open seats on the board, the owner may cast all three of their votes for one candidate, or they may distribute their three votes among the candidates in any proportion they deem fit. If there are three seats to be filled, the owner could cast three votes for one candidate and no votes for the other candidates; or two votes for one candidate and one vote for another candidate; or one vote for each of three different candidates. You can see how cumulative voting can be used to lawfully “stack” voting for a particular candidate. In a condominium, each owner’s vote is weighted by their percentage of ownership interest in the common elements regardless of whether there is cumulative or noncumulative voting.
• Matthew Moodhe is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.