How HOAs Can Handle Election Solicitations?

What’s a good policy regarding election solicitations? What are the guidelines for board candidates to distribute pamphlets and other materials?

It’s very common for community associations to impose blanket bans on solicitations such as the distribution of flyers door to door. However, special free-speech related considerations may apply in the case of community association and public elections.

In Dublirer v. 2000 Linwood Ave. Owners Inc., the Supreme Court of New Jersey determined a community association cannot unreasonably restrict First Amendment activities of owners in connection with a board election. In that case, the cooperative corporation prevented a candidate from distributing written materials under doors and essentially limited candidates to mailing materials to fellow residents, posting on a bulletin board, and personally distributing materials at the annual meeting.

The court developed a test that focused on the purpose of the expressional activity in relation to the property’s use. The court struck down the house rule as applied to a board election and determined that while a “board can adopt reasonable time, place, and manner restrictions to serve the community’s interest,” such restrictions must be narrowly tailored to serve important goals; sufficient avenues of expression also must be preserved.

Associations should consult with their attorneys regarding the impact restrictions on political expressional activities may have on community associations.

The Dublirer case and other prior cases determined a blanket prohibition against the display of political signs in support of candidates for public office violated the New Jersey Constitution. In certain circumstances, community associations must permit door-to-door solicitation and campaigning in public elections, such as when the association only permits candidates from one party to campaign or when the association comprises a significant portion of the municipality’s population.

The New Jersey cases are premised upon the free speech clause of the New Jersey Constitution, which provides broader protections than those guaranteed by the First Amendment. The state constitution not only protects against governmental restrictions on free speech but also “protects against unreasonably restrictive or oppressive conduct on the part of private entities in certain circumstances.”

Associations should consult with their attorneys regarding the impact restrictions on political expressional activities may have on community associations. Several states have adopted laws permitting residents of community associations to display political signs, certain flags, and other items such as ribbons in support of troops.