How Not to Conduct a Board Election
Connecticut Court Recognizes the Concept of “Majority Rules”

by Adam J. Cohen, Esq.

Condominium bylaws typically state that most votes by unit owners must be decided by a simple majority.  Each unit is usually assigned either one equal vote or a weighted vote proportionate to its percentage of interest in the community’s common elements (hence the term “majority-in-interest”).  This includes elections to the community’s executive board, such that every one of its members must be supported by over half of the voting units.  This concept reflects the essence of democracy: the will of the majority should prevail, especially in choosing elected representatives.

A Connecticut superior court recently held that a condominium violated these ideals by conducting an election in such a way that less than a majority determined its outcome. The condominium had a five-member board and a total of 39 units with one vote each.  Four people ran for two open board seats.  Thirty-seven units participated in the election in person or by proxy.  Each unit was given two ballots, one for each open seat.  All of the ballots were counted together – a total of 74 – and the candidates with the highest and second-highest numbers of votes were declared the winners.  The other two candidates were declared defeated.

The third-place candidate sued.  The ballots were anonymous, but there was no dispute that the four candidates had respectively received 29 votes, 21 votes, 20 votes, and 4 votes.  At the trial, the owners of fourteen units, including two who also served as proxyholders for five more units, testified that they voted identically as a block.  Each cast one ballot for the candidate who came in second and the other ballot for the candidate who came in third; none of them voted for the other two candidates.  In other words, coupled with the one additional vote which the parties agreed that the third-place candidate received, a total of 20 out of 37 units (54%) voted for her and against her opponent who was declared the winner.

The Court ruled that the outcome as declared by the association was legally impossible.  “From the remaining seventeen units that participated in the election, [the first-place candidate] could only properly receive seventeen votes….  There is no possible way that she could have properly received the twenty-nine votes credited to her.”  Mathematically, most of those seventeen units must therefore have cast both of their ballots for the same person.  This is a technique called “cumulative voting,” and it allows a minority block to concentrate their votes so as to outvote the majority for a few board seats.  Connecticut law prohibits cumulative voting unless it is specifically authorized in the condominium’s incorporation certificate or declaration.  In this condominium, neither .

“The numbers do not lie,” the Court observed.  The first-place candidate could not have won either seat without the votes of a majority of the units, and not merely the cumulated votes of the minority.  “Impermissible cumulative voting in these circumstances,” the Court admonished, “is tantamount to stuffing the ballot box.”  The Court held that the candidate who received the most votes was not entitled to the board seat since those votes came from only a minority of the units.  Although the candidate who sued had received the third-highest total number of votes, those votes nonetheless came from a true majority of the units, and she was therefore validly elected.  She has since asked the Court to order the association to reimburse her attorney’s fees incurred during her successful lawsuit.

The lesson to be learned is that when your association elects its board members, you must be sure to follow your governing documents very closely.  If, like most communities, your bylaws say that the vote of a majority of the unit owners is binding, then each candidate must individually receive the votes of a majority-in-interest of the units (voting in person or by proxy) in order for the election to be legitimate.  This means the units should be given only one vote each, weighted as the documents may provide; voting should take place separately for each available seat; and runoffs are appropriate until a candidate wins a simple majority for each seat.  Simply getting more votes than the other candidates is not enough; unless your documents recognize a plurality vote, a candidate must actually win a majority of the quorum.  Finally, never give unit owners multiple votes to cast for multiple candidates at the same time unless your documents specifically allow cumulative voting. Paying close attention to the election procedures required by law and your documents is essential, because conducting the vote the wrong way is definitely the right way to end up in court.

        
The author represented the successful plaintiffs in the lawsuit, which is Fosco v. Hickory Woods Association, Inc., FBT-CV-10-6006457-S (Levin, J.).

Adam J. Cohen is an attorney with the Law Firm of Pullman & Comley, LLC headquartered in Bridgeport, Connecticut.  As the Chair of its Community Law Section, he represents and gives seminars to condominiums, tax districts, and other communities in matters ranging from revenue collection strategies to commercial disputes.  He is also the author of regular newsletters with circulations throughout Connecticut called Special District Update and Condominium Update.