By: David Bendoff, Attorney
Kovitz Shifrin Nesbit
Mundelein | Chicago | Naperville
Question: Our association utilizes mail in ballots for elections to the board. The association’s accounting firm (which also tallies our election results) opened the ballot box before last year’s election with only their personnel present in order to ensure a quorum before the annual meeting. Shouldn't that ballot box be sealed until, and only opened at, the election?
Answer: One of the purposes of having an independent third party act as an election inspector is to ensure a fair election; this involves maintaining the security of the ballots and ballot box. The practice of opening the ballot box, and the actual ballots prior to the annual meeting, can jeopardize that purpose and may give rise to an appearance of impropriety.
And even the most unintended of consequences can result when ballots are removed from the ballot box prior to the election. For example, a ballot can be inadvertently lost or misplaced.
The Condominium Property Act (Section 18(e)) does provide that “a candidate for election to the board of managers or such candidate's representative shall have the right to be present at the counting of ballots at such election.” The Illinois General Not for Profit Corporation Act (Section 107.35) authorizes the appointment of election inspectors, and provides in relevant part:
“…..the chairman of the meeting may, or upon the request of any members shall, appoint one or more persons as inspectors for such meeting……” Such inspectors shall ascertain and report the number of votes represented at the meeting, based upon their determination of the validity and effect of proxies; count all votes and report the results; and do such other acts as are proper to conduct the election and voting with impartiality and fairness to all the members.”
I infer from these statutes that the ballots are to be opened, for all purposes, at the annual meeting, and not before.
Other states do have regulations in place that expressly provide that no person shall open or otherwise review any ballot prior to the time and place at which the ballots are counted and tabulated.
Many associations adopt, or their governing documents expressly require them to follow, Robert’s Rules of Order. The 11th Edition provides that “(t)he person designated as addressee for the returned ballots should hold them in the outer envelopes for delivery, unopened, at the meeting of the tellers where the votes are to be counted.”
Moreover, a quorum is determined at the annual meeting, not prior to the annual meeting. There may be some administrative convenience of having the election inspector review ballots before the annual meeting. However, I don’t believe it is the best practice, and may open the door to attacks on the election procedure by those that might claim that this practice involves a nefarious purpose. It just doesn’t seem like a practice whose benefit is outweighed by the risk. The inspector could certainly keep a count of the ballots received as they are placed in the ballot box, and this would give a general sense of whether there is quorum. However, I would not suggest opening the ballot box and reviewing any ballots prior to the annual meeting.
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