Wise Counsel: Avoiding Election Fraud in Condos

Special to the BHA News Winter 2015 by Rosa de la Camara, BHA General Counsel: We have all heard stories for years that election fraud is commonplace in elections where votes have been cast by deceased citizens and residents without citizenship. Two years ago our own State of Florida election officials discovered that the state’s voter polls had more than 50,000 deceased voters still registered to vote. The humorous adage of “vote early and vote often” unfortunately is not so funny anymore.

What happens when this pattern of voter fraud trickles down to condominium elections?

Condo Election Fraud–No Laughing Matter

Condominium voter fraud seems to be the hot topic of this season. There have been many complaints about alleged – and in some cases proven – voter fraud.

If a manager or board member suspects that the election may be compromised and that fraudulent votes might be cast, it is their responsibility to ensure that preventive measures are taken before any votes are allowed. Section 61B-23.0021, Florida Administrative Code, requires the following process be followed before ballots can be accepted and counted.

  • Maintain accurate, updated records showing the current owners of all the units.
  • The signature and unit identification on the outer envelope shall be checked against a list of qualified voters by the impartial election committee.
  • Where voting certificates are required for multiple or corporate owners, the voting certificates must be on file and the person signing the ballot envelope can only be the person who was designated on the voting certificate as the eligible voter.
  • Any exterior envelope which is not signed by the eligible voter shall be marked “Disregarded” and shall not be counted.

There may be situations where an unscrupulous person forges another owner’s name on the ballot envelope or, worse yet, where a person walks into the election carrying handfuls of envelopes with ballots which the person copied, filled out and signed. With many absentee owners in Miami, it’s an easy situation to envision.

Preventive Measures

Some Associations have implemented extra protocols to avoid opportunities for fraud. For example, an Association can mandate that the ballot paper contain a special watermark which will prevent copying without detection. This would stop someone from using copied ballots to cast votes for his neighbors. If a situation occurs where a ballot is legitimately lost, a replacement watermarked ballot would only be issued to the unit owner in person, and it would be checked off against the master list of owners to document that one more ballot was issued.

The Florida Administrative Code provides that all ballot forms used must be uniform in color and appearance, so requiring colored watermarked paper would not be in violation of this rule. In the Arbitration case of O’Reilly v. Treetops at North Forty Homeowners Association, Inc., Arb. Case No. 95-0046 (Final Order, October 25, 1995), a unit owner submitted a non-conforming ballot which was disregarded by the Association. The Arbitrator concluded that the Association had the authority to disregard the ballot which was non-conforming to the form and color adopted by the Association for use in the election. Additional security measures designed to avoid fraud include:

  • Using an outside P.O. Box for receiving ballots so they are not easily accessible to anyone on site.
  • Requiring proof of I.D. for those owners who cast a vote in person.
  • Assigning each owner a coded, numbered outer envelope which must correspond with the coded, numbered ballot envelope the owner delivers.

While these types of security steps have not been tested, they are not contrary to any statute or administrative code rule so, if challenged, they will likely be enforceable. Indeed, taking such steps should be encouraged if there is even the slightest concern that fraud will occur. •

Rosa de la Camara is shareholder with the law firm Becker & Poliakoff where she has worked for 27 years concentrating her practice on representing community associations and addressing complex issues involving Boards, unit owners, managers and state and local policymakers. She is renowned for her well-honed skills and serves as General Counsel to many boards, including BHA. She has been appointed to numerous offices and boards at the State and local levels.