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Homeowners Association Ballots Not Confidential in Texas Court Case

In re Keenan is a recent case where a party was successful in obtaining a review of ballots for a homeowner’s association vote to amend its architectural rules. Keenan was a member of a Homeowner’s Association (HOA) in her neighborhood, and was sued by the HOA over improvements that she had made to her property. According to the HOA, Keenan’s improvements exceeded a limit on impervious cover in violation of an HOA rule amendment enacted by a vote in 2006. Keenan believed the rule was not properly enacted and questioned whether there were a sufficient number of votes to approve the HOA rule amendment.

Keenan requested copies of the votes from the 2006 vote through discovery, but the trial court would not permit her to review them on the grounds that the ballots were confidential under Property Code 209.00594(c) which states that only a person qualified to tabulate votes in a property owners’ association election “may be given access to the ballots.” The court did allow  Keenan’s lawyer to review the ballots, but in order for Keenan’s lawyer to testify about the accuracy of the vote, he would have to be a witness, which is a violation of the Texas Disciplinary Rules of Professional Conduct.

Since Keenan was prohibited by a court order from seeing the 2006 HOA vote ballots and submitting them as evidence to prove there had been an insufficient vote, and her lawyer was prevented by the court from testifying about the ballots by professional ethics, Keenan sought a writ of mandamus from the Texas Supreme Court.

The Texas Supreme Court  reasoned that the trial court was correct in exercising its discretion of issuing a court order that restricts Keenan concerning the evidence she is requesting, especially due to the confidential nature of voting ballots, but there are reasonable restrictions and unreasonable restrictions. For example, it would be reasonable to protect the confidentiality of the ballots by admitting them as evidence in a scrubbed state (i.e., voter identification information removed from the ballots), or putting the ballot evidence under order of seal. Similarly, limiting access to the ballots as evidence would also be reasonable. The Court also relied on Property Code 209.00594(d) that states that the Property Code “may not be construed to affect a person’s obligation to comply with a court order for the release of ballots or other voting records.”

The Court held that the ballots were important evidence in the Keenan case and should be accessible for the purposes of discovery, subject to reasonable restrictions by the trial court such as “…redaction of names of the voters or require the ballots to be filed under seal, or impose some other appropriate protective order to protect confidentiality”.