Homeowner association e-voting?
The unlikely future

Daily Business Review
By Jason M. Vanslette,
22 August 2016

One of the biggest problems with both large and small communities is their governing bodies' inability to execute meaningful improvements due to a lack of quorum (i.e. attendance by a majority) of its members.

Active participation by a majority of the owners is pivotal to a board's success. Otherwise the community board and their planned elections or votes quickly turn into a sounding board of rants and wishful thinking. Owners who simply do not have the time or the interest to attend their condominium or homeowner association meetings make it very difficult for boards to take action and make the necessary changes needed to promote a better living environment.

Florida allows e-voting

In July 2015, the Florida Legislature codified a resolution for low participation and quorum issues, among other reasons, by enacting legislation that allows community association members the ability to electronically vote. More than a year has passed since the legislation became effective, but very few associations are utilizing what seems to be an answer to all of their problems. In fact, odds are many of us who are owners within a community association haven't even heard of this seemingly genius idea. But why?

requirements that are simply too stringent

As the old adage goes, "one hand giveth, the other taketh away." The Florida Legislature enabled community associations to implement electronic voting but did so under requirements that are simply too stringent to comply with for the average association governing body. For example, before electronic voting can be utilized, the association must have an online voting system that is:

Able to authenticate the member's identity,

Able to authenticate the validity of each electronic vote to ensure it has not been altered,

Able to transmit a receipt of a vote to each member who casts a ballot,

Able to make each vote anonymous despite the requirement of authenticating the indemnity of each voter and

Able to store and keep the electronic ballots accessible for recounts and inspections.

These seemingly simple requirements are undoubtedly necessary to ensure the integrity and reliability of each electronic vote. However, the average community association does not have the technical abilities or resources to formulate an online voting program for its residents that complies with the legislation.

For instance, requiring the voting system to have the ability to authenticate the voter's identity, although crucial for the integrity of the voting process, is a monumental task both technologically and financially. It is also the very reason our own state and federal government does not allow electronic voting as authentication is nearly impossible to achieve without the possibility of manipulation and/or voter fraud.

How can a computer guarantee the identity of a voter over the internet? Other than a sci-fi type retina-fingerprint scan or a similar identity authentication, giving each owner a personal passcode, as proponents will suggest, to access the voting system is easily susceptible to tampering and misconduct.

Alternatively, this same system, which is to keep each vote permanently anonymous, must also simultaneously give out a receipt to each voter and store each vote in the event of a recount or audit by the board at a later time — hardly a system of anonymity.

What's On Offer?
Within weeks of the legislation passing, several entrepreneurs and startup websites began flooding the online market offering voting systems and services that claim to comply with the Legislature's guidelines. Catering to the multitude of associations within Florida, these private companies are betting on the association's inability to create an independent electronic voting system themselves, and offering their own services at a premium rate — all at the expense of the association's owners and members.

Though these private websites and voting services may be helpful and compliant with the legislation requirements, their costs exponentially outweigh their convenience for most average-sized associations who are looking for a simple quorum fix.

Additionally, even if an association had the technical abilities or the financial resources to implement the online voting system, there is a larger issue at stake — not all members of an association have access to a computer or the technological savviness to electronically vote. South Florida, in particular, has a large population of residents who have not been trained in the technologies and electronic advancements that this type of legislation contemplates.

the cost of having both paper and electronic voting

Would it be fair to allow computer-savvy individuals the luxury of voting from home, while others have to trek to an off-site management company to place their ballot or go through the confusing proxy system in place? Even if it is a fair option, the cost of having both paper and electronic voting available at the same time defeats the purpose of the statute (i.e. the convenience for making quorum).

Putting aside the electronic voting system itself, the Legislature has also prescribed conditions on the actual associations before they can execute an online voting system. For example, the board must have consent in writing from the owner before they can opt to electronically vote. Interestingly, once the consent is in place, the owner is considered present for quorum purposes indefinitely, whether or not they actually vote on an issue, until they opt-out of the e-voting. This can be a powerful, unintended consequence at the expense again of the owners who may not understand what that entails.

Finally, there is no current regulation as to whether or not an association's voting system is truly compliant with the legislative requirements. The same board that may implement a compliant e-voting process also has the ability to access the required system's "stored" voting data for uses that are not necessarily within the scope of the legislation.

It should be noted that e-voting is used in many major organizations and companies throughout the United States to streamline the voting process. The possibility of voter fraud and manipulation is simply a cost-benefit analysis that has to be considered when trying to bring a voting system to a modern era.

However, associations throughout Florida should be mindful of the economic costs and possible consequences of implementing a seemingly benevolent convenience. Simply because the Florida Legislature permits the ability for e-voting should not prompt associations to get rid of their "archaic" ballot boxes for a modern quick fix.

Jason M. Vanslette is a partner in the Fort Lauderdale office of business law firm Kelley Kronenberg. He defends and assists condominium and homeowner associations and may be reached at jvanslette@kelleykronenberg.com.

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