Electronic Voting for Community Associations

QUESTION: I heard that Community Associations are allowed to vote online for elections. How do we do that?

ANSWER: The Florida Law was amended last year to allow community associations to conduct their election voting on-line. (Florida Statutes, Sections 718.128; 719.129 ; and 720.317)

According to the law, the following conditions must be met:

1. Each Community Association member must consent in writing to using the internet-based online voting system.

2. The Association must provide each unit owner with:
   • A method to authenticate the unit owner’s identity to the online voting system.
   • 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.
   • A method to confirm, at least 14 days before the voting deadline, that the owner’s electronic device can successfully communicate with the online voting system.

3. The online voting system must be:
   • Able to authenticate the owner’s identity.
   • Able to authenticate the validity of each electronic vote to ensure that the vote is not altered in transit.
   • Able to transmit a receipt from the online voting system to each owner who casts an electronic vote.
   • 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 owner.
   • Able to store and keep electronic votes accessible to election officials for recount, inspection, and review purposes.

4. An owner voting electronically pursuant to this section is counted as being in attendance at the meeting for purposes of determining a quorum. A substantive vote of the owners cannot be taken on any issue other than the issues specifically identified in the electronic vote, when a quorum is established based on unit owners voting electronically pursuant to this section.

5. The community association must provide for and authorize an online voting system pursuant to this section by a board resolution. The board resolution must provide that owners receive notice of the opportunity to vote through an online voting system, must establish reasonable procedures and deadlines for unit owners to consent, in writing, to online voting, and must establish reasonable procedures and deadlines for unit owners to opt out of online voting after giving consent. Written notice of a meeting at which the resolution will be considered must be mailed, delivered, or electronically transmitted to the owners and posted conspicuously on the condominium property or association property at least 14 days before the meeting. Evidence of compliance with the 14-day notice requirement must be made by an affidavit executed by the person providing the notice and filed with the official records of the association.

6. An owner’s consent to online voting is valid until the owner opts out of online voting pursuant to the procedures established by the board of administration.

7. Under the Law, the association may use online voting for any matter that requires a vote of the owners for Condominiums, Cooperatives and Homeowner Associations. The Law does not apply to members of a timeshare condominium or cooperative association.

Online Voting is also governed by the Florida Administrative Code (F.A.C.) Rules. Chapter 61B-23.00211 includes the following for condominium voting (however, we should use it as a guideline for cooperative and homeowner association voting via online systems):

1. “Consent, in writing,” as used in Section 718.128, F.S., may be made via email. However, the email address of the owner consenting is not considered an Official Record, unless the owner has previously consented to receive notices via email.
2. The board resolution required by Law must provide that all owners receive notice of the opportunity to vote through an online voting system when the association utilizes online voting. The opportunity to vote online must be included in the notice of the meeting requiring the vote.
3. The electronic voting system must provide the owner with a receipt of their vote, which must include the specific vote cast, the date and time of submission, and the user identification.
4. The electronic voting system must produce an Official Record that the association must maintain, which identifies the specific votes cast on each ballot and the date and time of receipt of the electronically submitted ballot.
5. For elections, electronic votes are not be accessible to the association prior to the scheduled election. Failure to comply with this subsection will void the election and the association would have to renotice the election, and start over again, following the procedures as set forth in subsection 61B-23.0021(8), F.A.C.

At this point, there are several companies which have created the requisite software and are offering online voting systems which meet the requirements of the Statutes.

Ellen Hirsch de Haan, Esq.