DIRECTED PROXIES: How To Defeat HOA Board Voter Suppression Tactics

In the dispute over the election on 12/5/23, President Lora Ballweber argued that the reason my vote was not counted was because my self-nomination was not received (by email).

Of course, this was very easy to defeat, as the email from 10/14/23 was acknowledged as received on 11/30/23, nearly a week before the election. So, President Ballweber and the Board pivoted to disputing the nomination because it had not been made “from the floor”.

Now, there’s a long list of reasons why the Board’s position is objectively incorrect, not the least of which is the fact that the POHOA Documents are actually silent on the matter of nominations. And, this is why there’s an effort to apply this rule retroactively by having a vote to Amend the POHOA Bylaws on 3/19/24 to be what the Board asserted was the actual practice in their 1/11/24 email applying even farther backwards in time to the 12/5/23 election.

This is now how this works.

The fact that there’s going to be a vote is actually evidence that no such rules previously existed, and therefore, the attempt to disqualify not just our vote, but the other proxy vote we were carrying that evening (2 votes) from being counted in the election of an open seat on 12/5/23. The fact of the matter is that the nominations are irrelevant because the proxy submitted on 12/5/23 was a Directed Proxy.

The term is not taught to homeowners when they buy a home. They are sent a form, and presume that the Board would never omit valid options because they are always acting in good faith – and don’t wish to control or manipulate elections to take or preserve power or control. But, its often the opposite that is true – which is why Directed Proxies exist.

When I asked the POHOA Board for a Directed Proxy Form, they responded with the email below:

But, the claim by the Board that there is an “implication” of a need to physically hand a proxy to another member who then attends the meeting in person. They reference the Owner Proxy Policy which was a change implemented only in September of 2022 when there was significant comment from homeowners in opposition to this policy.

This policy, which was neither drafted by an HOA Attorney nor reviewed by one (I was on the Board at the time, and Lora Ballweber was coy about who wrote it, which you can listen to in the recording of the meeting), creates a new conflict between the Policy and our Bylaws, and it also creates a conflict with Colorado State Law (The Non-Profit Act).

The POHOA Bylaws allow for a Directed Proxy to be given to The Association, which is a non-profit corporation.

The third line makes it clear that a proxy can be sent TO THE ASSOCIATION. The POHOA Board was no in a position to take away this option with their 2022 policy change – which no one asked for.

This mirrors what we find in CRS 7-127-203 Paragraph 2(b):

It’s nearly word for word identical between the POHOA Bylaws and CRS 7-127-203. So, in spite of an attempt by Lora Ballweber to make changes to our Policies without seeking legitimate HOA attorney advice, there is no escaping the fact that HOA homeowners have a right to submit votes directly to the corporation via directed proxies – bypassing the antiquated practice of physically handing a form to another member who then has to show up at the meeting with the piece of paper. Our documents literally have Bylaws describing how a proxy may be sent electronically.

So, we then have to look to CRS 7-127-204 to find the language that addresses rules adopted by non-profit corporations that may be inconsistent with the law:

We don’t need to go to court, which is also, by the way how our Bylaws say such disputes are ultimately resolved. The state law trumps any effort to limit how proxies are transmitted to the Association, and the underlying votes counted. A Directed Proxy bypasses the attempt by Lora Ballweber and the current POHOA Board to keep us operating like it’s 1979.

In other words, the Owner Proxy Policy is inconsistent and unenforceable. It is a failed attempt to suppress voting by making it more difficult to vote – which is a problem in America overall. In effect, a homeowner at POHOA is allowed to create a Directed Proxy Form (because POHOA will not supply one), and submit it as an email attachment. Because the Directed Proxy can name The Association (a non-profit corporation, which is a person or non-living entity), the Association is then placing the vote on behalf of the Homeowner. The Board is not in any position to reject the proxy beyond the requirement to verify signatures – because that too would be inconsistent with CRS 7-127-204 Section 2 as well.

So, for this upcoming election, I’ve created a Directed Proxy Form which can be downloaded below. This will allow any homeowner to simply fill out the form and send it in to the Association (by mail or email) in advance of the meeting, and the ballot would then be filled out by the Association – which is the Board or Chair of the Meeting. Such ballots cannot be withheld or rejected, so long as the signature is valid. Or, at least they shouldn’t be – but I fully expect the POHOA Board to try to invent some new reason.

Now, this wrinkle, ironically, isn’t actually part of the original dispute in the 12/5/23 election. My wife and I showed up at the meeting in person. We held an undirected proxy from our neighbors, and then we had one filled out as well – because we were leaving the meeting early. We made clear to Lora Ballweber and Walker Flanary (both seated at the welcome table) that we were giving John Tunna a Directed Proxy in order to place our votes when the time came to vote on the open seats.

We were issued valid ballots, and on both of them we wrote “Andrew Mowery”.

The attempt to block the acceptance of the ballots on the premise of there being a lacking “floor nomination” is irrelevant. Directed Proxy votes are counted regardless of any nominations, particularly because the existing bylaws contain zero information about nominations.

As a result, we had to make clear that voting in this election with this Directed Proxy does not waive rights to pursue remedy for the invalid 12/5/23 election. We just hope the Board realizes they can’t defend an open seat in this manner because they don’t like me. They too have to follow the rules – all of them. And, once again, this Board proceeded without seeking actual competent legal advice, and instead relied upon homeowner-attorneys who have led us astray again and again.

In the meantime, anyone who is interested in participating without having to jump through the hoops of having to find someone to go to the meeting for them is welcome to use the same form. The download link is at the bottom of the document.