SB 1438

Overview

SB 1438 proposes comprehensive changes to Arizona law governing the voting, elections, and ballot measures for condominium and planned community associations. The bill eliminates voting by delegate, requires associations to offer in-person, absentee, and electronic/online voting options, with detailed requirements for ballot distribution, collection, and transparency, such as posting election results and making all related documents available for inspection within specific timeframes. Boards of directors and managers must ensure strict compliance with these processes, apply independent eligibility and nomination standards for candidates, and oversee the integrity of ballot handling, delivery, and counting. Substantive violations, including improper denial of voting rights or ballot tampering, will require the board of directors to invalidate and repeat tainted elections, and members may pursue legal remedies if boards of directors fail to act.

Key Changes

• Amending A.R.S. 33-1250 and A.R.S. 33-1812 as follows:
  • To prohibit voting by “delegate” after the period of declarant control;
    • Defining “delegate” as an individual established under the governing documents to cast votes on an owner’s behalf without the owner’s specific authorization;
  • Specifying that associations must provide for members to cast votes in person or by absentee ballot in connection with duly noticed membership meetings;
  • Allowing voting by a written consent process in accordance with A.R.S. 33-3704 or a written ballot process in accordance with A.R.S. 33-3708, to include an electronic or online voting process, and without a meeting, or in place of absentee ballots;
  • Allowing absentee ballots to be returned in a paper format by hand or by mail, or electronically by email, fax, or an encrypted secure electronic or online voting system;
  • Providing that if an association uses an electronic or online voting system, the association shall inform members of the right to request and use paper ballots and to make such paper ballots available;
  • Adding the following, additional requirements to membership voting:
    • If the governing documents establish eligibility for an owner to vote or sign a petition, such eligibility requirements may not be more restrictive than:
      • Requiring the person to be the record owner of the property or, if the property is owned by an entity, a designated, authorized voter for the property;
      • Requiring the association to maintain a current list of record owners and the authorized voters for each property;
      • Requiring the owner to be current in the payment of any common expense assessments;
      • Requiring that only one ballot or petition signature be counted for any individual property;
    • Ballots for the election of directors must identify the number and terms of board positions to be filled and the names of all eligible candidates who properly submitted nomination requests for the positions;
    • The governing documents may establish eligibility and nomination requirements that are objective and independent of any direct or indirect influence of the current board of directors, individual directors, community manager, or committees appointed by the board of directors;
    • The association shall provide each eligible voter with the opportunity to vote for the number of individual candidates based on the number of open seats to be filled;
    • Requiring the meeting notice or ballot initiative to specify the physical location within the community where ballots may be hand delivered, the mailing address, email address, and fax number where ballots may be sent, or a secure electronic or online voting program;
    • Requiring associations to hold open voting for at least 10 calendar days after the board delivers the unvoted ballot to the owners;
    • Establishing that ballots are considered delivered 2 calendar days after the postmark date;
    • Requiring all ballots (whether paper or electronic) to be accompanied by a separate paper or digitally linked identification form that lists the date, the name, the unit number (for condominiums) or address (for planned communities), and either the actual or secure electronic signature of the person voting;
      • Alternatively for absentee ballots, the envelope may instead contain the requisite information;
      • Defining “secure electronic signature” as set forth in A.R.S. 44-7031;
    • Prohibiting the association, the managing agent, or any individual owner from providing pre-voted ballots for other owners to submit;
    • Providing that once a ballot (whether paper or electronic) is submitted, it may not be voided, resubmitted, or changed;
    • Establishing that a simple majority of all votes cast shall decide elections or ballot measures, unless the governing documents or applicable law provides otherwise;
    • Requiring associations to maintain all completed ballots, voter identification forms, written consents, signed envelopes, or for electronic or online voting systems, the metadata for those ballots in report and migratable data format, and any other related materials, for at least 6 months after completion of the ballot action, and requiring associations to provide such materials within 3 business days of a request for the same;
      • Defining “metadata” as the date and time the ballot is electronically submitted, the unique identifier used by the association to validate the authenticity of the voter, the electronic signature, the unit number (for condominiums) or address (for planned communities) for the ballot, the internet protocol address from which the ballot was submitted, and any standard reporting options for the software program, but does not include the actual votes cast on the ballot;
    • If an association invalidates a ballot, it must mark the ballot and associated voter identification as such and retain those documents separate from the valid ballots;
    • Requiring associations to post or communicate the results and vote tallies to all owners within 48 hours after the completion of any election or ballot measure;
    • Requiring associations to either post or make the names, term end year, and official contact information for all board members available to owners upon request;
  • Requiring boards to “ensure the integrity” of the ballot process and ensure that any election or ballot measure is conducted in accordance with this law.
  • Requiring boards to “apply reasonable oversight” over the delivery, receipt, handling, and counting of ballots deemed necessary to ensure the integrity of the process;
  • Establishing the following process for members who wish to challenge the validity of any election or ballot process:
    • Any challenge must be in writing and sent by certified mail within 30 days after the election or ballot measure;
    • If the board of directors is presented with “credible evidence” of a “substantive violation” of this section, the board of directors shall invalidate the election or ballot measure and require that the election or ballot measure be repeated in compliance with this section;
      • Defining “substantive violation” as any of the following:
        • Improperly denying eligibility or opportunity to vote to a number of owners greater than the smallest margin of victory between the winning and losing candidate or ballot measure;
        • Improperly denying any eligible candidate from being listed on the ballot;
        • Improperly allowing one or more ballots to be submitted by anyone other than the eligible voter for the unit or to be altered or deleted by anyone and not correcting it before tabulation;
        • Failing to comply with certain provisions of this section;
    • If the board of directors refuses to invalidate the election or ballot measure or if the challenge period has expired, an owner may file a lawsuit against the board of directors.

Legislative Timeline

• January 29, 2026 – Senate Second Reading
• January 28, 2026 – Introduced; Senate First Reading; Assigned to Senate Government and Rules Committees

Impact

SB 1438 significantly increases the administrative burden on boards of directors and managers of community associations in Arizona. They may need to adopt new voting systems, ensure compliance with stricter rules, and maintain detailed records of voting processes. Additionally, the requirement to address challenges and potentially repeat elections or ballot measures in case of violations will demand greater oversight and accountability. ​ While these changes aim to improve transparency and fairness, they may also require additional resources, training, and operational adjustments for boards and managers.