HOA Elections: Is Proxy Stacking Illegal?

Many community associations hold their annual meetings and elections during the fall. Proper election procedures are essential to the successful operation of a community. In-person voting and, more recently, online voting typically cover the election process, but proxy voting also may come into play.

A proxy is the written authorization that allows one person to appoint another to vote on their behalf. State law and the association’s governing documents specify whether an association can use proxy voting, and they may address the type (general or directed), form, and content of the proxy.

In some communities, homeowners have presented enough proxy votes at the annual meeting to allow certain candidates to win and take over the board — a strategy called proxy stacking.

This approach might create a red flag, but it is not illegal, explains Scott D. Weiss, an attorney with Kaman & Cusimano in Brentwood, Tenn.

“If someone shows up at a meeting with a handful of proxies, it will be important to look at the signatures and determine if they are all originals and if each of them appears to be different so there is little question about their authenticity,” adds Weiss, a fellow in CAI’s College of Community Association Lawyers.

In Tennessee, the Nonprofit Corporation Act includes a section that says unless the organization’s charter or bylaws provide otherwise, a nonprofit corporation (such as a community association) can collect votes using a mail-out ballot versus in-person. Most states have a nonprofit corporation act. The law normally requires certain things to be in the ballot such as the required quorum and the issue being voted on (i.e., majority vote, two-thirds vote, etc.) As long as the ballot includes all the information required by law, the ballot can be used in lieu of in-person voting.

Homeowners sometimes turn to proxy voting because they can’t attend the in-person election. Another option is electronic voting, which also may increase homeowner participation. Regardless of how associations conduct their elections, communities still need to hold open meetings to communicate with homeowners.

“An HOA will need to get individual homeowners to participate in meetings,” says Weiss, suggesting communities offer in-person and virtual meetings to broaden their reach. “Conducting meetings electronically makes it very easy for people to participate because they can be anywhere in the world and still attend.”

The Foundation for Community Association Research’s data on community association meetings is a great resource for associations on this topic.  

For more information on virtual meetings and electronic voting, visit CAI Press.