There is a new trend rising within condominium and homeowners’ associations across the country, including Florida: online association voting. The reason for this trend is simple – it solves two major problems that associations constantly face: 1) the expense of utilizing physical forms; and, 2) poor voter turnout among the associations’ members. Online voting for associations takes the hassle out of the voting process, which improves overall turnout. It appears that allowing association to perform online voting seems a no-brainer. However, not every state legislature has kept pace with technology in this area of law. Florida is one state in which the law is lagging technology as Florida law is currently silent on the issue of association online voting. This presents a problem for a Florida association that wishes to improve the experience of its members while also ensuring it is abiding by the law.
Many states are similar to Florida in that they also remain silent on the legality of association online voting. On the other hand, several states have taken the lead on this issue and have embraced technology in this area. In at least ten states, legislatures have either amended existing statutes, or created new statutes, allowing associations to participate in online voting. These states include Texas, Washington, Delaware, Maryland, Minnesota, Oregon, South Carolina, Nevada, New Jersey and Virginia. Nearly every other state, however, has failed to address this issue.
Does this mean that online voting for associations is prohibited in Florida? Not necessarily. Just as association online voting is not specifically allowed, it is also not expressly prohibited. Because the Florida statutes are silent on this issue, Florida law is up for interpretation. One thing is for sure, however—if an association wishes to participate in online voting, current Florida law governing association voting must be followed no matter the medium used to cast votes.
Chapter 718, Florida statutes, governs condominium associations. Section 718.112(2)(d)2, Florida Statutes, states that, “Unless the bylaws provide otherwise, a vacancy on the board caused by the expiration of a director’s term shall be filled by electing a new board member, and the election must be by secret ballot." Section 718.112(2)(d)4, Florida Statutes, explains that, “The members of the board shall be elected by written ballot or voting machine." Because online voting can be conducted through a randomly provided user name, individual log in and password, it could satisfy the secret ballot requirement. However, it is up for interpretation whether online voting would be considered a form of either “written ballot" or “voting machine."
Chapter 720, Florida statutes, governs homeowners’ associations. Section 720.303(2)(c)3, Florida Statutes, requires that secret ballots be used in the election of officers. As mentioned above, it seems that online voting could allow for the casting of secret ballots. However, section 720.303(2), Florida Statutes, also mandates that the election of officers is to take place at “board meetings" where the members “have the right to attend" including “the right to speak at such meetings with reference to all designated items." Fla. Stat. § 720.303(2)(b) (2012). It is also up for interpretation whether an online meeting forum, where people are able to voice their concerns online, would satisfy the statutory requirement of a “board meeting."
These are just a few examples of the voting requirements currently mandated under Florida law for condominium and homeowners’ associations. There are other statutorily required rules and procedures. However, the few examples provided above demonstrate how Florida law can be interpreted to either allow for, or preclude, online voting for Florida’s associations.
At the end of the day, it simply comes down to the association’s articles of incorporation, by-laws and declarations. In Florida, associations are considered governing bodies in and of themselves, meaning they are able to create their own rules as long as such rules do not conflict with the Florida Statutes. In other words, the Florida legislature can amend the Florida Statutes to provide for association online voting, but the association’s governing documents must also allow for it. If an association’s governing documents allows for online voting, or at the very least, does not expressly prohibit it, then a court or arbitrator may find the association is entitled to conduct online voting. Yet, under current Florida law, the fact remains that until the Florida legislature catches up with technology and expressly allows for association online voting, there is no guarantee that an association’s online voting results will be upheld even if its governing documents allow for it.