An HOAleader.com reader asks: “Do you see any issues with having community volunteers (presumably selected by the board president) personally presenting ballots (knocking on doors) and collecting individual votes from homeowners on a very intense community issue?
“Historically, the HOA would always send ballots out through U.S. Postal Service, but not for this particular issue. These volunteers have been instructed to not leave ballots with homeowners (if not completed), and they’re not putting the completed ballots in envelopes unless the owner requests privacy. Volunteers have been provided with a list of ‘challenging’ homeowners as well. Are there any issues (legal or otherwise) with this approach?”
Let’s first note that, as a general rule, door-to-door political canvassing is a form of speech, something that’s protected in the United States. “In general, we don’t want to impose too many restrictions on a person’s right to go door to door, at least to campaign, because of the right to free speech,” notes Andrea L. O’Toole, a community association lawyer for 15 years and the founder and shareholder at Andrea L. O’Toole PC in Lafayette, Calif.
So what can and can’t be done when it comes to canvassing? Here, our experts discuss when canvassing is OK and offer tips for how to do it with integrity.
The Nuances of Canvassing
Problems with the postal service? Our reader doesn’t mention that specifically, but it’s something experienced by Katie Anderson, PCAM, AMS, CMCA, the founding owner of Aperion Management in Bend, which manages nearly 70 condo, HOA, and townhome associations throughout Oregon.
“We’ve seen a huge impact because of delays with the USPS, whether with owners receiving communications or with them sending payments to us,” she says. “That’s probably the number-one issue we deal with as a company, and canvassing can bridge that gap in trying to engage people.
“A lot of our governing documents allow for boards to canvas to achieve quorum or thresholds of amendment votes,” adds Anderson. “It’s not uncommon.”
Nancy T. Polomis, a partner at Hellmuth & Johnson PLLC in Edina, Minn., whose clients include local and national residential builders and developers and condos and HOAs throughout Minnesota, says ballot collecting at owners’ homes isn’t permitted in her state. “In Minnesota, you can’t collect ballots door to door,” she says. “Owners either vote at a meeting or by mailed ballot. So if someone walked into a meeting with 40 ballots, those ballots wouldn’t be counted. That’s different than if they walked in with 40 proxies; in that case, they’d get 40 ballots to cast.”
In California, there are few reasons to canvass for votes because of the state’s mail-in ballot system for elections and other owner votes, says O’Toole. “When we have membership votes, they’re almost all conducted with a process similar to voting absentee; it’s a secret-ballot process. There are few situations in California where you’d have members vote that you wouldn’t use that process.”
That said, boards can encourage voting by doing canvassing. “Can the board take blank ballots to owners’ doors and try to convince people of their position and to vote?” asks O’Toole. “There’s nothing to prohibit that. But boards have to give that ability to anybody who asks. It can’t just be the board who does that. Also, some community association rules will say you can’t do that; owners can get a ballot only from the inspector of the election; the inspector won’t give a handful of ballots to anyone to go door to door.
“If it were my clients, and if this were a really political issue that’s being voted on, I’d tell them to feel free to go door to door to politic and to send out mailers, but just don’t touch the ballots,” she explains. “You can encourage people to contact the inspector to get a ballot. Doing otherwise just gives rise to potential challenges and allegations of wrongdoing. The more political the issue is, the more integrity you need infused into the process.”
Canvassing is permitted in Florida, with some restrictions, according to Alessandra Stivelman, who is board-certified in condo and planned development law and a partner at Eisinger Law in Hollywood, Fla. “Often, boards need to canvass when they need an owner to vote, and the only way to get that vote is to go door to door,” she states. “That’s different from election voting, when the board shouldn’t be involved. But where it’s something the board supports, such as an amendment, there’s nothing in the law that would prohibit it. In those cases, a board-sanctioned committee could go out to solicit votes to pass the amendment.
“Even during elections when there’s canvassing for proxies, boards can adopt recommendations that limit the time and days for that to take place,” adds Stivelman. “Perhaps you’ve eaten at the steakhouse where guests can put out signs for ordering? Green means keep the food coming, and red means stop bringing food. Some communities have given owners magnets for people to put on their door handle. Red means ‘I’m not interested in signing a proxy.’ Green means they might be interested.”
How to Ensure Canvassing Integrity
While Polomis says it’s perfectly OK to collect proxies in Minnesota, it’s not always easy to ensure that everyone is playing by the same rules. “There’s nothing to prevent a candidate from canvassing the community to collect proxies,” she explains. “I wouldn’t recommend the board as a unit do it. It smacks of bias.
“But there’s nothing to say that Susan and Mary and Justin and Patrick couldn’t go around as individual homeowners soliciting proxies, regardless of what their status is,” says Polomis. “One of the problems, frankly, when you have a contentious issue being voted on is that the two camps do go around to collect proxies—and what are they telling people as they do that?
“I’ve had situations where the camp challenging a board member for election was flat-out lying about things, and we couldn’t know that in the moment because we weren’t answering the door when they did it,” she recalls. “That’s a frustrating position to be in. You don’t want to go tit for tat, and the board couldn’t put out a memo defending one of its members running for reelection; the board has to main neutrality. If anything went out to clarify the issue, it had to go out under the signature of the defamed candidate.”
The lesson: Even if you’re not doing anything wrong, a misstep can make it look like you’re making a shady move. That’s why Anderson suggests that, as much as you can, you set policies for what’s permissible and not during in-person canvassing.
“Boards must be intentional in establishing a procedure and process for canvassing,” she asserts. “It can be seen as overstep or an overreach if the same care isn’t being taken in that same process. So boards should follow the same election procedures as if they were meeting in person or conducing the vote by mail.
“They may want to have sealed ballots they’re handing to people and encouraging them to return,” recommends Anderson. “Or if canvassers are collecting votes, they should have ballots they can seal right in front of the owner and then they should actually seal them right there. I wouldn’t want loose paper to be returned to the manager or the secretary.
“However, you wouldn’t want someone on the ballot for election going door to door to gather ballots,” she notes. “There’s an inherent conflict of interest that would be seen in that scenario. In general, the board should make sure canvassers don’t have a conflict with what’s being voted on.”
Stivelman has a similar recommendation. “In Florida, board members can individually canvass and solicit votes like any other candidate does, but they shouldn’t use their association’s resources to campaign,” she explains. “They shouldn’t be going door to door to get the existing board reelected. But an individual candidate could do that to ask people to vote for them personally.”
Polomis agrees. “Boards shouldn’t take a position on whom to vote for, but they do encourage members to vote in person or through the proper procedures,” she says. “And candidates, particularly challengers, have the right to go door to door and politic.”