When board elections roll around, candidates and residents may feel tempted to engage in HOA political canvassing. Whether or not an HOA should allow this practice ultimately depends on its own stand, though some regulatory considerations must be taken into account.
Resorting to HOA Political Canvassing
Why do some homeowners even resort to political canvassing in the first place? When the HOA announces the elections, notices typically get distributed. Not only that, but announcements often get posted on bulletin boards and online. Given all this, why is HOA political canvassing even necessary?
Unfortunately, homeowners are not always as involved as they should be. An HOA might try its best to get residents interested and participative. However, homeowners may have other priorities on their plates. They may not have time or energy to attend meetings or familiarize themselves with the candidates running for open board seats. This ultimately leads to homeowners not sending in their completed ballots.
When homeowners are not interested, an HOA will likely have a hard time establishing a quorum. Without a quorum, the elections can’t proceed as planned, leading to a whole slew of other problems. Open board seats will remain open (or existing board members will remain in their positions) until the elections can be held with an adequate quorum.
Usually, an HOA will distribute candidate information among homeowners through traditional mail. Candidates may also send out campaigns or platforms this way. However, problems with USPS can significantly deter these efforts. Delays with the mail system can cause late notices and flyers to reach homeowners.
Moreover, sending out mailers tends to be costlier than distributing flyers door-to-door. Hence, political canvassing has turned into quite a popular option.
Checking the HOA’s Governing Documents
Whether or not an HOA can or should prohibit political canvassing depends on its governing documents. The CC&Rs and bylaws should consist of information related to this activity. For instance, an HOA may prohibit all forms of solicitations. Some HOAs might allow canvassing, provided they seek permission from the association first.
Many governing documents allow boards and homeowners to canvas, especially if it’s an effort to achieve quorum. However, there is a difference between canvassing for votes with ballots in hand and canvassing to provide information.
Generally, it is best to allow canvassing to distribute information but not for balloting. Besides, many governing documents and state laws require associations to use certain types of voting, such as secret ballots and ballots by mail.
Boards must exercise caution when enacting a canvassing process. They must follow the same election procedures for canvassing as they would for in-person or mail-in voting. For instance, someone can distribute ballots door-to-door but require voters to mail them in. They could also seal the ballots in person. Otherwise, residents may view the act as the board overstepping its bounds.
Furthermore, ensuring no conflict of interest between canvassers and the election is essential. Candidates who appear on the ballot should not be involved in collecting ballots door to door.
Understanding State Laws on HOA Political Canvassing
Apart from the association’s governing documents, state laws also play a huge role in HOA election solicitations or canvassing. Some states don’t allow HOAs to prohibit political canvassing. California, with its robust regulations, is a good example.
As per Civil Code Section 4515, HOAs are not allowed to prohibit residents from assembling or meeting with others peacefully for election-related purposes, among other things. This includes board elections as well as elections to public office.
Additionally, the same provision prohibits HOAs from disallowing residents from inviting public officials, candidates, and other invitees to talk about any matter of public interest. Political purposes are covered under “matters of public interest.” Residents can also use common areas for these purposes.
That said, California law does permit reasonable restrictions. One reasonable restriction is requiring meetings to be peaceful, prohibiting any form of violence, excessive noise, or threats. Moreover, an HOA can limit the scope of the conferences and mandate that they occur during reasonable hours/manners.
Is Prohibiting HOA Political Canvassing a Violation of the First Amendment?
The First Amendment does protect political canvassing, as it is a form of expressive activity. However, the First Amendment only applies to state-level actions that interfere with free speech or expression. Homeowners associations are private organizations and not state agencies. Therefore, the First Amendment does not apply to an HOA’s regulations on political canvassing.
However, special considerations related to free speech must be taken into account. Some states have specific laws that offer protections similar to the First Amendment but at the state level.
Such is the case for Dublirer v. 2000 Linwood Ave. Owners Inc., wherein the New Jersey Supreme Court ruled that an HOA could not unreasonably restrict the owners from participating in First Amendment activities related to a board election. In this case, the association stopped a candidate from inserting written materials under doors, limiting them to distributing them via mail, through the bulletin board, or at the annual meeting.
Word of Caution on Using the HOA’s Resources
Political canvassing often involves advocating for certain candidates or simply encouraging homeowners to vote. However, the board must refrain from using the HOA’s resources for this activity. Therefore, the HOA is a neutral entity and should not get involved in political issues. It should also avoid campaigning for a specific board candidate, as that would reek of bias and potentially skew the results.
The Final Word
When it comes down to it, an association should be cautious when handling the issue of HOA political canvassing. Whether or not an HOA should prohibit it depends on state laws and the governing documents. It is important to enact reasonable restrictions to regulate the activity and prevent unwanted consequences if it allows canvassing.
Cedar Management Group offers services to community associations, including assistance with HOA elections. Call us today at (877) 252-3327 or contact us online to learn more!
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