The recently enacted Radburn statute changes how Community Association elections are conducted in New Jersey, impacting thousands of common interest communities. Community Associations in New Jersey must comply with the Radburn statute and potentially revise their voting systems and update their policies and procedures to comply with relevant law.
A key section in the Radburn statute provides that Community Associations shall not prevent electronic voting where the Community Association Board authorizes electronic voting and an Association member (or voting-eligible tenant) consents to voting electronically. Thus, while the Radburn statute allows electronic voting, implementing an electronic voting system requires the approval and authorization of the Association Board and the individual homeowner’s consent.
Voter Fraud in Community Associations
Following the enactment of the Radburn statute, the potential implementation of electronic voting in Community Associations has raised concerns about voter fraud.
Voter fraud generally encompasses the following conduct:
- Paying people for their vote
- Intimidating people to vote a certain way
- Casting multiple ballots under the same name, which may be double/triple counted
- Voter impersonation – casting ballots on behalf of a voter who did not vote
- Registering of ineligible voters who then vote
- Providing false identification
- Willful misconduct by election officials, including misrecording of votes.
- Using someone else’s email to vote electronically
- Logging into an electronic voting system as someone else to vote
Steps Community Association Boards Can Take to Protect Against Voter Fraud
Many of the protections in place to counter voter fraud in a paper ballot system also protect against voter fraud in an electronic voting system. If the Board is concerned about voter fraud, it may adopt rules (which must comply with the Radburn statute) to address the issue, which may include:
- Require that an individual present a driver’s license or other picture ID when he or she votes in person;
- Establish a secure electronic voting system which requires the use of pin numbers to vote;
- Require that proxy ballots cast by other members on behalf of a member contain the voting members signature;
- Require individuals to register an “approved voting email address” in advance of the election; email votes will not be counted unless the unit owner has registered his or her email in advance;
- Prohibit voting by phone or email;
- Adopt and impose penalties, fines, and/or revocation of membership rights for any owner who is involved in voter fraud, including casting fraudulent ballots and/or intimidating or bribing voters;
- Require the judges of election to sign certifications confirming that they have counted the votes, monitored for fraud, etc.;
- Address misconduct by voting officials, such as ballot tampering, by imposing penalties, fines, removal from office and revocation of membership rights;
- Online authentication processes can be used to help ensure that the person casting the electronic ballot is who he or she claims to be;
- Implement adequate cybersecurity measures to prevent identity theft, safeguard privacy, and protect personal identifying information;
- Have procedures in place to address system malfunctions, which are not unique to electronic voting systems.
Community Association Boards should keep in mind that the Radburn statute also impacts some of the notice requirements and timelines for certain community association elections, meetings, and votes. The use of electronic notice of elections, meetings, votes, and other actions is subject to certain restrictions, including the consent of the unit owner to receiving notice electronically.
Concerns About Compliance with the Radburn Statute
To ensure compliance with the Radburn statute, Boards should consider both the rules and procedures they currently have in place, and whether additional action is required, as well as whether to update their rules in advance of the next election.
Some Boards feel that establishing rules and procedures to ensure accurate and truthful identification of the voter is essential to prevent voter fraud, whether a paper or electronic voting system is used. Opponents of voter ID laws argue that these types of rules keep voters away from polls and impermissibly restrict their rights. Implementation of voter ID rules in association elections has not been tested since the enactment of the Radburn statute.
Community Associations should contact experienced attorneys for guidance in drafting and/or amending their policies, rules, and procedures to comply with the Radburn statute. We can also help the community implement an electronic voting system, including measures to counter voter fraud.