I raise this issue once more as a result of an Arizona Administrative Law Judge’s recent holding that voting delegate systems are proxies, and are prohibited by the 2005 Arizona law prohibiting HOA proxies. (See Voting Delegates). The law was adopted to curtail elections abuse by HOA boards that control the proxy process, from preparing and mailing proxies to vote counting.
The answer to this question requires an answer to another question: What makes a government a democracy? Just because member/citizens are allowed to vote does not qualify as the sole ingredient of a democracy. Just look at Cuba, China and other totalitarian dictatorships. What does, then?
Professor Robert H. Dahl (Political Science department, Yale University) asked the question, “How well does the constitutional system perform?” (How Democratic is the American Constitution?, Yale University Press, 2002) and offered the following criteria for his research:
To what extent does a constitution (HOA Declaration in our instance) help:
- protect fundamental democratic rights;
- maintain the democratic system;
- ensure democratic fairness among citizens;
- encourage the formation of democratic consensus; and
- provide for effective problem-solving?
Applying these criteria to HOA governing documents, it is clearly evident that the corporate form of governance and the oppressive and unconscionable adhesion document, the Declaration, without any explicit statement of homeowner/member rights or the protection of fundamental constitutional rights, does not create nor foster a democratic community.
However, in an attempt to create the illusion of democracy, the Arizona HOA declaration in question set up a voting delegate system, created by Wayne Hyatt, whereby members voted for delegates from their “political area” who were the only persons allowed to vote on HOA board matters and elections. The CAI member firm and HOA attorney attempted to claim an unconstitutional interference by the administrative hearing, to which the judge responded,
Respondent [HOA] also argues that prohibiting delegate voting would be an unconstitutional impairment of the contractual rights of the Association and its Members. Setting aside the obvious fact that an association’s governing documents are hardly products of the typical give-and-take contract negotiation that ordinarily occurs between a buyer and seller, it is nevertheless difficult to argue that a ruling that expands a member’s right to participate in his association impairs the contractual rights of either the association or its members. The association is its members. The association and its members both possess the same rights and, presumably, the same interests. How could those rights and interests be compromised by requiring important association decisions to be based on a vote of all of its members?
It is important to keep in mind that the consideration of a complex issue, as is this question of a democratic institution, is not to look solely at one isolated aspect of the question, but to look at the total picture. As exists in HOA governance, the HOA is the government of the subdivision and community. It fails the criteria set forth by Professor Dahl, and by any other reasonable definition of a democracy. Yet, the CAI and the proponents keep proclaiming HOAs as democratic institutions reflecting the will of the local community. And as demonstrated by this Arizona decision, will make every futile effort to protect the illusion of the HOA democracy.
HOA Constitutional Government 