LASTER, Vice Chancellor.
On February 24, 2015, Red Clay Consolidated School District ("Red Clay") sought approval from voters to increase the school-related property taxes paid by owners of non-exempt real estate located within the school district. The referendum passed with 6,395 residents voting in favor and 5,515 against.
The plaintiffs are residents of Red Clay who opposed the tax increase but did not vote because they were unable to access the polls. They contend that to secure a favorable outcome, Red Clay encouraged and facilitated voting by families with children, who Red Clay believed would support the tax increase because of their desire to fund the schools that their children attended. At the same time, Red Clay discouraged and raised impediments to voting by elderly and disabled residents, who Red Clay believed would oppose the tax increase because many of them live on fixed incomes. Framed as legal claims, the plaintiffs assert that Red Clay deprived them of their right to vote without due process of law and denied them equal protection under the laws as guaranteed by the Fourteenth Amendment of the United States Constitution. They separately argue that Red Clay violated Article I, § 3 of the Delaware Constitution, which states that "[a]ll elections shall be free and equal."
Red Clay has moved to dismiss the complaint for failing to state a claim on which relief can be granted. This decision denies Red Clay's motion. This ruling does not mean that the plaintiffs ultimately will prevail on the merits, only that they have pled sufficient facts to move beyond the pleading stage.
In the course of analyzing the plaintiffs' claims, this decision concludes that the plaintiffs would not have been able to state a claim for relief if Red Clay only had engaged in certain limited types of election-related conduct. This ruling creates an opportunity for Red Clay to address this litigation by calling a new special election and limiting the scope of its electoral interventions during that election. If Red Clay's voters ratify the result of the February 2015 special election by again voting in favor of the tax increase, then this litigation would be moot.
The facts for purposes of the motion to dismiss are drawn from the verified supplemental and amended complaint (the "Complaint") and the documents it incorporated by reference. At this stage of the case, the Complaint's well-pled allegations are assumed to be true, and the plaintiffs receive the benefit of all reasonable inferences.
Under Delaware's statutory scheme for funding public schools, a portion of each school district's funding comes from property taxes paid by owners of non-exempt real estate located within the district. See 14 Del. C. § 1902. The Delaware Code empowers the school board for each district to set the amount of the tax that property owners must pay, but the school board cannot levy the tax unilaterally. The school board first must "call a special election to be held at the polling place or places designated by the Department of Elections conducting the election." Id. at § 1903. The outcome of the special election determines whether the tax can be levied: "If the majority of the votes cast at
The Board of Education of Red Clay (the "Board of Education") is the school board that oversees Red Clay. The Board of Education called for a special election that took place on February 24, 2015 (the "Special Election"). The purpose of the Special Election was to obtain authority to raise the tax rate on non-exempt real property in the district by a total of 35 cents per $100 of assessed value. The proposal called for the rate to increase over a three-year period, rising by 20 cents in 2016, 10 cents in 2017, and 5 cents in 2018. At the time, the average assessed value of a taxable parcel of real estate in Red Clay was $80,100, resulting in the owners of an average taxable parcel paying $1,419 per year in school-related property tax. After the three-phase in, the owners of an average parcel would pay approximately $280 more per year, or roughly $23 more per month. The proposal thus contemplated an approximately 20% increase in the school-related taxes paid by the average property owner. The first year increase alone would generate an incremental $15 million per year for the schools in Red Clay. Compl. ¶ 14. When fully implemented, the increase would generate an incremental $26 million per year.
Obtaining approval for the tax increase was important to Red Clay. Patti Nash was a Red Clay employee who acted as a spokesperson for the district in connection with the Special Election. On April 9, 2015, after the referendum passed, she told a news reporter from NBC10 that without a successful vote, Red Clay "would not have had the money to pay [its] teachers." Compl. ¶¶ 20-21.
Going into the Special Election, Red Clay had particular reason to be concerned about whether the referendum would pass. Governor Jack Markell's proposed budget for the 2015-16 fiscal year reduced the credit that Delaware provides to senior citizens for school-related property taxes. Under the status quo, Delaware provided a credit for 50% of the school-related taxes paid by a property owner 65 years of age or older, up to a cap of $500. The proposed budget contemplated either lowering the percentage to 25% or reducing the cap to $250. A news article submitted by Red Clay reported that even though the Governor's budget was only a proposal, supporters of public schools were worried that senior citizens would be anxious about the change, which would make it "harder to get the votes to approve tax increases" and "harder for school districts to pass tax referendums." Matthew Albright, Markell Proposal Could Make School-Tax Votes Tougher, News J. (Feb. 6, 2015). The article quoted Yvette Johnson, identified as the co-chair of Red Clay's steering committee for the Special Election, as saying she was "not thrilled" about the proposed budget. Id. She was further quoted as saying, "If a senior citizen reaches out, I think we just have to explain to them [sic] what's at stake .... If this referendum doesn't pass, we could lose after-school activities, the police officers in our schools and other things that are really important." Id. According to the article, "Johnson said she was confident Red Clay's referendum would still pass because of the efforts its supporters have made." Id.
To enhance the likelihood that the Special Election would be successful, Red Clay engaged in what its personnel described as "get-out-the-vote" efforts. Red Clay has engaged in similar get-out-the-vote efforts
On February 18, 2015, Red Clay's superintendent, Mervin B. Daugherty, sent a letter to families with children living in Red Clay. It stated:
Compl. Ex. B. Superintendent Daugherty sent his letter to all families with children living in Red Clay, even if the children were not yet old enough to attend school. Superintendent Daugherty did not send his letter to other voters in the district.
On the day of the Special Election, Superintendent Daugherty used Red Clay's School Messenger notification service to remind families of children attending Red Clay schools to vote in favor of the Special Election. At least some principals of schools in Red Clay used their schools' automated phone systems to make similar appeals to families to vote. Red Clay has twenty-eight public schools other than charter schools. The plaintiffs have not yet taken discovery, and they do not presently have a factual basis to make allegations about multiple schools, but the Complaint alleges specifically that families of children attending Henry B. du Pont Middle School received a pre-recorded call from the principal asking them to vote in favor of the tax increase. At the pleading stage, it is reasonable to infer that this was not an isolated incident.
All of Red Clay's twenty-eight non-charter public school buildings served as polling places for voting in the Special Election. During the school day, Red Clay took steps to facilitate the ability of older students to vote. At McKean High School, administrators called students who were eighteen years of age or older out of class and took them to the polling location. At Alexis I. du Pont High School, administrators approached students who looked old enough to vote, asked if they were eighteen years of age or older, and encouraged them to vote if they were.
To draw parents and guardians to the schools where voting was taking place,
Nash told the NBC10 news reporter that the Family-Focused Events were "get-out the vote events." Compl. ¶ 23. She noted the events technically were open to voters without children as well, but she qualified her statement by observing, "I don't know that they [i.e., voters without children] would have a desire to come to family bingo night." Id. at ¶ 24. At the pleading stage, it is reasonable to infer that Red Clay designed the Family-Focused Events to appeal to families with children, believing that the events would bring them to the polls, and that they comprised a demographic group that would vote in favor of the tax increase.
Red Clay took other steps to encourage voters to vote in favor of the tax proposal. When voters entered Austin D. Baltz Elementary School, signs encouraged them to vote in favor. Id. at ¶ 29(e). One sign near the voter entrance stated, "Support the Baltz Bear by voting yes." Id., Ex. C. For its Family-Focused Event, Baltz held a pajama dance party with pizza. Parents stood outside the exit to the polling place and offered voters a check-off card. The card had three boxes labeled, respectively, "I ate," "I voted," and "I danced." Once the "I voted" box was checked off, the holder was entitled to pizza, popcorn, and sodas. Id. At A.I. DuPont Middle School, parents stationed at desks by the entrance told prospective voters that if they did not vote in favor, students would not have after-school activities. Id. at ¶ 29(f). The Complaint alleges, and it is reasonable at this stage to infer, that these were not isolated incidents but rather representative of activities conducted throughout the school district.
The Complaint alleges that Red Clay took action to make it difficult or impossible for people with disabilities or reduced mobility to vote. Plaintiff Rebecca Young is a resident of Red Clay. She tried to bring her elderly parents, plaintiffs Elizabeth H. Young and James L. Young, to one of the schools to vote. Rebecca's parents have disabilities that limit their mobility, but she could not park in the spots at the school reserved for handicapped persons, because empty school buses were blocking the spaces. Rebecca and her parents wanted to vote against the tax increase. Ultimately, Rebecca and her parents did not vote because Rebecca was not able to park close enough for her parents to access the polling place, and she did not feel comfortable leaving her parents unattended in her vehicle while she voted.
Other voters encountered similar access issues. See Compl. Ex. C. The Complaint alleges that these issues arose because Red Clay scheduled the Family-Focused Events to draw families with children to the schools. The cars driven by attendees of the Family-Focused Events filled up the school parking lots, and the attendees remained at the Family-Focused Events longer than voters would if they were simply stopping by the polling places to vote. The large volume of cars in the school parking lots caused the types of access issues faced by the plaintiffs. They also created the misimpression that the voting lines were long, which dissuaded individuals with mobility issues from voting.
The Complaint alleges generally that Red Clay staff removed from school property signs urging residents to vote against the tax increase. Red Clay staff allegedly left in place signs urging residents to vote in favor of the tax increase.
Red Clay achieved its goal for the Special Election. The tax increase passed by a vote of 6,395 to 5,515. The winning margin of 880 votes represented approximately 7% of the residents who voted.
The outcome of the Special Election in Red Clay contrasted with the results of a special election conducted on the same day in the Christina school district, which is adjacent to Red Clay. The Christina school board did not engage in get-out-the-vote activities or other types of electoral interventions. Although the Christina school district has slightly more eligible voters than Red Clay, its special election had two-thirds of the turnout that Red Clay achieved: approximately 8,000 residents voted in Christina compared to approximately 12,000 residents who voted in Red Clay.
The Christina school board had proposed two tax increases. Both failed. On the first, 6,076 voters opposed it, and 2,119 voters favored it. On the second, 6,348 voters opposed it, and 1,826 voters favored it. Notably, the number of voters opposing the tax increases in the Christina school district was roughly the same as the number that opposed the tax increase in Red Clay: the special elections in both districts generated approximately 6,000 "no" votes. But in Red Clay, there were many more residents who got out and voted "yes."
The New Castle County Department of Elections received complaints about the conduct of the Special Election both on the day of the vote and afterwards. So did State Senator Karen E. Petersen. Approximately forty residents of Red Clay, including plaintiff Rebecca Young, contacted Senator Petersen to express their concerns.
The complaints were sufficiently numerous that Senator Petersen and several other members of the General Assembly wrote Superintendent Daugherty to question Red Clay's activities. By letter dated March 9, 2015, Superintendent Daugherty provided his answers. Pertinent questions and answers appear below:
Compl. Ex. A. at 1-3.
The Complaint disputes the accuracy of Superintendent Daugherty's responses. At this procedural stage, it is not possible to weigh the evidence and determine whether one side or the other is correct. The truth may well lie somewhere in between.
On March 27, 2015, the plaintiffs filed a verified complaint and moved for an expedited
On April 13, 2015, the plaintiffs filed the Complaint. Red Clay moved to dismiss it for failing to state a claim on which relief could be granted. Red Clay attached to its reply brief various news articles and a letter in which the Attorney General informed the Department of Elections that the Office of Civil Rights and Public Trust would not be bringing any criminal proceedings relating to conduct that allegedly took place during the Special Election. Dkt. 27, Ex. A. At oral argument, the plaintiffs referenced a subsequent email exchange between the Attorney General and Senator Petersen. Dkt. 33. In that exchange, Senator Peterson expressed her dissatisfaction with the Attorney General's decision, and both Senator Peterson and the Attorney General debated the applicable law. Both sides agreed that the court could consider the news articles, the Attorney General's letter, and the email exchange without converting the motion to dismiss into a motion for summary judgment.
Red Clay has moved to dismiss the Complaint pursuant to Rule 12(b)(6) for failing to state a claim on which relief can be granted. When considering such a motion,
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002) (footnotes and internal quotation marks omitted).
The plaintiffs' theories divide neatly into a claim under federal law and a claim under state law. As their federal theory, they contend that Red Clay violated their rights to due process and equal protection under the law as guaranteed by the Fourteenth Amendment of the United States Constitution.
This statutory section "protects citizens and persons within the jurisdiction of the United States against the deprivation of rights, privileges or immunities secured by the Constitution and laws of the United States by persons acting under color of state law."
As their state law theory, the plaintiffs contend that Red Clay violated Article I, § 3 of the Delaware Constitution, which states that "[a]ll elections shall be free and equal." Del. Const. art. I, § 3 (the "Elections Clause"). As sources of authority to imbue this clause with meaning for purposes of the particular violations claimed in this case, the plaintiffs point to the prohibitions on electioneering found in 14 Del. C. § 1087, and 15 Del. C. §§ 4933 and 4942.
Red Clay has not argued that a private right of action is unavailable, that the Remedies Clause is not applicable, or that the Elections Clause is not self-executing. This decision consequently does not engage those issues.
As the primary basis for its motion to dismiss, Red Clay relies on a two-punch combination. To knock out the federal claim, Red Clay argues that it had a constitutionally protected right under the First Amendment to engage in the election-related activity because all of its activities were traditional speech or expressive conduct. To knock out the state law claim, Red Clay contends that the Elections Cause should be interpreted in lockstep with federal law. Red Clay's alleged First Amendment right to engage in electoral activity ends up disposing of both causes of action.
To the extent these arguments do not succeed, Red Clay has two fallback positions. First, Red Clay contends that the Complaint only can state a claim for relief if its allegations support a reasonable inference that the misconduct influenced the outcome of the election. Red Clay argues that the Complaint does not meet this standard. Second, Red Clay contends that the Attorney General already investigated the substance of the plaintiffs' allegations and decided not to bring criminal charges. Red Clay contends that the Attorney General's decision disposes of plaintiffs' civil claims.
This decision starts by identifying the overarching public policy issues raised by
Before addressing Red Clay's specific arguments for dismissal, it is helpful to step outside the confines of legal doctrine and frame broadly the public policy questions that this case presents. As a general matter, governments must be able to govern effectively, which includes having the ability to express their views about government programs and what constitutes the government's view of the public good. If a government believes it needs more money to govern or to support a particular program, it should be able to inform its citizenry of that fact and explain why.
At the same time, the legitimacy of our republican form of government rests ultimately on the consent of the governed. That consent is renewed regularly through elections. The ability of a government to intervene in an election stands in tension with the election as the legitimizing source of government power. If the government effectively determines the outcome, then the legitimacy of the election is obviously undermined. At the extreme, a government that intervenes to establish and maintain an electoral majority by force, coercion, intimidation, or fear is not a republican form of government. It is totalitarian.
The good news for those living in stable Western democracies is that their governments do not currently establish and enforce electoral majorities through heavy-handed means. But a government that could achieve the same result indirectly by distorting public opinion and manipulating the composition of the voter base would not be any more legitimate, just more savvy and subtle.
It should be obvious that government involvement in the electoral process does not automatically equate to totalitarianism. Government involvement is a matter of degree. A government that intervenes in elections to protect electors and prevent private parties from using force, coercion, bribery, or intimidation does not undermine the legitimacy of the election. That type of government activity enhances the electoral process by making it possible for more electors to participate freely and express their views. Different and more difficult issues arise if a government uses its powers to encourage or facilitate voting by electors who might be thought to favor the government's positions, or to discourage or interfere with voting by electors who might be thought to oppose the government's views. Along similar lines, a government that provides factual information to voters acts in an election-enhancing capacity. The potential for concern grows as the tenor, volume, and extent of the government's advocacy increases. Whether listeners object may well depend on whether they agree with the substance of the government's views. What one voter might call helpful information, another might label propaganda.
The nature of the decision is also important. Voters generally participate in two types of elections. In one type, voters choose among candidates to determine who comprises the government. In the other type, voters express approval for or disapproval of a referendum or ballot initiative that has been presented to them for decision. In my view, government intervention in the first scenario raises more
As I see it, Red Clay's activities involved at least three gradations of involvement in the electoral process. The least serious is what one scholar has called "government campaign speech." Norton, Campaign Speech, supra, at 213. This term refers to
Government campaign speech takes a wide variety of forms. "Examples include not only government officials' statements and press releases critical or supportive of pending ballot or legislative measures, but also government agencies' reports and analyses, as well as flyers, pamphlets, newsletter articles, online postings, and print and broadcast advertisements communicating their views of such measures to the public." Id. This decision draws a further distinction between government campaign speech that is directed broadly to the electorate as a whole and targeted government campaign speech, which is directed to identifiable groups within the electorate.
Reasonable minds can disagree about legitimacy of government campaign speech. "[C]ontroversies over such speech include those over the Eisenhower Administration's advocacy on behalf of its proposed health care legislation, state human rights agencies' communications in support of the Equal Rights Amendment, and local school boards' expressive support for school bond measures." Id. (footnotes omitted). Critics of government campaign speech point to risks of coercion, the chilling effects on opposition behavior, the potential for the government's louder microphone to drown out or otherwise unfairly
Proponents of government campaign speech identify a countervailing informational benefit. Non-threatening government speech that transparently identifies its source "facilitate[s] participation in democratic self-governance by informing voters of their government's priorities and encouraging the discovery of truth and dissemination of knowledge by adding to the marketplace of ideas." Id. at 241. In some situations, such as when voters consider referenda relating to government services, the government agency may be "particularly knowledgeable" and able to provide a "valuable new perspective." Id. at 245. In other situations, government speech may counterbalance a disproportionate volume of speech from wealthy private voices. Id. at 251. Proponents discount the risks of coercion, observing that individuals are often skeptical of government views. They also question whether the government really possesses the ability to drown out other voices or is uniquely susceptible to error. They point out that all speakers have interests, and any powerful speaker can drown out others. Id. at 248.
According to the Complaint, Red Clay engaged in government campaign speech that was broadly directed to the electorate as a whole. Examples include:
• Mailings of the Red Clay Record and postings on the district website.
• Public meetings and workshops.
• Statements to the media.
• Signs in and around the schools, such as the sign at Baltz Elementary that stated, "Support the Baltz Bear by voting yes."
• Parents stationed at schools on the day of the Special Election to encourage voters to support the tax increase, such as the parents at A.I. DuPont Middle School who sat at desks by the entrance and told prospective voters that if they did not vote in favor, students would not have after-school activities.
According to the Complaint, Red Clay also engaged in government campaign speech that was not directed to the electorate as a whole but rather to identifiable groups within it. Targeted government campaign speech raises different issues than broadly directed government campaign speech precisely because it involves the government making distinctions among identifiable portions of the electorate. The example cited in the Complaint that falls into this category was Superintendent Daugherty's letter to families with school-aged and pre-school-aged children urging them to vote in favor of the tax increase. Red Clay targeted families with school-aged and pre-school-aged children,
Moving beyond government campaign speech, a second type of government intervention seeks to affect the outcome of the election by shaping the demographic characteristics of those who vote. A government can encourage and facilitate voting by identifiable groups that the government believes will favor its position, or the government can discourage and raise impediments to voting by identifiable groups that the government believes will oppose its position. In my view, this type of intervention is more serious than government campaign speech because it goes beyond attempts to educate and persuade by seeking instead to skew the result that an unaffected turnout would produce. Like targeted campaign speech, it involves the government discriminating among identifiable groups of voters by choosing to favor some and disfavor others. Recent scholarship and litigation involving this type of government intervention has focused on voter identification statutes.
In this case, Red Clay engaged in selective get-out-the-vote efforts that encouraged and facilitated participation by families with school-aged and pre-school-aged children, an identifiable group that Red Clay believed would favor the tax increase. The Family-Focused Events were the most powerful of the selective get-out-the-vote techniques. Red Clay held these events on the day of the Special Election at all of the schools where there were polling places. They drew parents of children to the polls by providing the families with a tangible reward in the form of food and activities. Although the events nominally were open to everyone, Red Clay recognized that parents without children would not have a desire to attend. See Compl. ¶ 24 (Red Clay representative observing that "I don't know that they [i.e., people without children] would have a desire to come to family bingo night"). Because the Family-Focused Events functioned as rewards for voting, this decision analyzes them as a separate category of electoral intervention.
Other selective get-out-the-vote efforts did not operate by providing rewards to an identifiable category of voters. They simply targeted an identifiable group and encouraged them to vote. Examples cited in the Complaint included
• Superintendent Daugherty's use of Red Clay's School Messenger system to remind parents of Red Clay students to vote in favor of the tax increase.
• School principals' use of their schools' automated phone systems to encourage families of students to vote in favor of the tax increase.
• The steps taken at Red Clay high schools to call students who were eighteen or older out of class and have them vote.
The third category of electoral intervention raised in this case is when a government provides rewards for voting to an identifiable group that it believes will support its policies. In my view, this type of electoral incursion is the most serious, because it moves beyond persuasion and encouragement
Through the Family-Focused Events, Red Clay provided rewards for voting to families with children. The clearest example of a reward for voting was the paper chits at Baltz Elementary School. Voters exiting the polling place encountered individuals handing out check-off cards. The cards had three boxes labeled, respectively, "I ate," "I voted," and "I danced," with the "I voted" box checked off. Once all three boxes were checked, the holder was entitled to pizza, popcorn, and sodas. See Compl. Ex. C. Through this system, Red Clay provided something of value (a voucher for food) in return for the act of voting.
The other Family-Focused Events similarly provided something of value in return for voting. For only marginally less straightforward examples, consider the free dinner at Heritage Middle School or the carnivals at other schools. Instead of hosting the dinner and carnivals themselves, the schools could have given families coupons to a local restaurant, arcade, or family fun park. Or in lieu of providing coupons, the schools could have handed out money and encouraged families to spend it at a local restaurant, arcade, or family fun park. If the schools had handed out coupons or money, then the exchange of something of value for the act of voting would have been readily apparent. By hosting the dinner and carnivals themselves, the schools simplified the exchange by providing the benefits directly.
Interestingly, one could argue that it would have been less problematic if Red Clay had distributed coupons or money. Anyone can use cash, so a direct payment would have incentivized greater overall participation by all voters, including those who might oppose the tax increase. Transferable coupons would have had a similar effect. An elderly couple might not want to go to an arcade or family fun park themselves, but they might appreciate
By discussing these issues as matters of public policy, I hope to have illustrated the competing values at issue. The role of a court, however, is not to address contestable propositions based on one judge's subjective assessment of the preferred outcome. The role of a court is to evaluate conduct against extant sources of legal authority. To the extent a court interprets authorities in light of public policy, the court's task is to look externally for legitimate sources of guidance, such as constitutional and legislative enactments, or established lines of common law authority.
The remainder of this decision undertakes these tasks for purposes of a pleading-stage analysis of the plaintiffs' claims. For reasons it will discuss, if Red Clay only had engaged in broadly directed government campaign speech, then the Complaint would not state a claim under federal law. The challenges to certain categories of Red Clay's campaign speech state a claim under state law, but only because they were conducted on the day of the election in close proximity to the polling places where voting was taking place, and because it is reasonably conceivable that the tone, manner, and content of these communications crossed a line established by the Delaware Supreme Court in Brennan v. Black, 104 A.2d 777 (Del. 1954).
For similar reasons, although targeted government campaign speech presents closer questions under federal and state law, it seems unlikely to me that Superintendent Daugherty's letter ultimately will be proven to be problematic. For pleading purposes, however, the plaintiffs' challenge to Superintendent Daugherty's letter states a claim under federal and state precedent.
Red Clay's targeted get-out-the-vote efforts also present close questions under federal and state law. As with Red Clay's targeted government campaign speech (which it resembles), it seems unlikely to me that Red Clay's use of established methods of communicating with parents, such as the School Messenger system or the automated phone calls, ultimately will be proven to violate state and federal law, and it seems reasonable that Red Clay gave voting-aged students an opportunity to vote during the school day, rather than requiring them to vote after school was over. At the pleading stage, however, the plaintiffs have stated a claim.
In my view, the targeted rewards for voting do not present close questions for pleading-stage analysis under federal or state law. Whether or not the plaintiffs can prevail at a later stage will depend on what discovery reveals and the defenses that Red Clay presents. For present purposes, the challenge to this type of conduct states a claim.
The plaintiffs contend that Red Clay's interventions in the Special Election violated both the United States Constitution and the Delaware Constitution. Red Clay has responded with the equivalent of an affirmative defense: the Complaint should be dismissed as a matter of law because all of the conduct it identifies involved Red Clay engaging in constitutionally protected speech.
The Free Speech Clause famously states that "Congress shall make no law... abridging the freedom of speech, or of the press." U.S. Const. amend. 1. By its plain terms, the Free Speech Clause imposes a limit on the government; it does not grant protection to the government.
To justify its assertion of constitutionally protected speech, Red Clay relies on cases applying the "recently minted" government speech doctrine. Summum, 555
The decision in Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), provides an example of the government speech doctrine operating to defeat a viewpoint-discrimination claim. The Secretary of Health and Human Services adopted regulations pursuant to Section 1008 of the Public Health Service Act, which forbade the use of federal funds "in programs where abortion is a method of family planning." Id. at 178, 111 S.Ct. 1759 (citing 42 U.S.C. § 300a-6). The petitioners challenged the regulations as "impermissibly discriminating based on viewpoint" in violation of the Free Speech Clause. Id. at 192, 111 S.Ct. 1759. The United States Supreme Court disagreed.
The decision in Johanns v. Livestock Marketing Association, 544 U.S. 550, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005), provides an example of the government speech doctrine operating to defeat a compelled-subsidy claim. The plaintiffs challenged a USDA program that spent funds raised through an assessment on cattle sales on generic advertising for beef products.
Federal and state decisions have relied on the government speech doctrine to reject Free Speech Clause challenges to government campaign speech.
The United States Court of Appeals for the Sixth Circuit affirmed the entry of summary judgment against the plaintiffs. As to the viewpoint-discrimination claim, the court noted that the plaintiffs had not shown that they had asked for and been refused access to the town newsletter or that any other private group was permitted access. The court rejected the plaintiffs' argument that they could access the town newsletter by relying on a United States Supreme Court case which held that "[w]hen government property is not dedicated to open communication the government may — without further justification — restrict use to those who participate in the forum's official business." Id. (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 53, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). The court likewise rejected the argument that the town treasury was a public forum and held that the city's advocacy had not converted it into one: "To hold that Union's advocacy converts its treasury to a public forum ... would be tantamount to a heckler's veto, where the government could not speak for fear of opening its treasury to the public." Id. at 624.
As to the compelled-speech claim, the court relied on the government speech doctrine as articulated in Livestock Marketing. The Kidwell opinion acknowledged that "elections raise unique constitutional issues because they are the very foundation of a democratic system [and that] where the government uses its official voice in an attempt to affect the identity of the people's elected representatives, it can undermine its legitimacy as a champion of the people's will and thereby subvert one of the principles underlying democratic society." Id. at 625. The court nevertheless held that the plaintiffs could not mount a compelled-subsidy challenge:
Id. at 625-26 (footnotes omitted). As this discussion of Kidwell shows, the court of appeals addressed claims that invoked the Free Speech Clause itself as a limitation on government speech, not claims that relied on other sources of law.
To the same effect is Page, a decision rendered in 2008 by the United States Court of Appeals for the Fourth Circuit. A school district in South Carolina used its "website, e-mail, and other forms of communication" to lobby the state legislature against granting a tax credit to families who home-schooled their children or sent them to private schools. 531 F.3d at 277. An individual who supported the tax credit asked the school district to allow him to use its "informational distribution system" to speak in favor of the bill. Id. After the school district denied his request, he filed suit alleging that the school district had violated his rights under the Free Speech Clause by engaging in viewpoint discrimination. Id. at 278.
Reasoning that the school district was engaging in government speech, the court of appeals affirmed a grant of summary judgment against the plaintiff. The court held that the school district had a justifiable interest in "defend[ing] public education in the face of pending legislation that it views as potentially threatening of public education." Id. at 287. Elaborating, the court stated, "just as we accept that government may adopt policies for all of the people, even if a policy is against the wishes of some, it may also advocate in favor of those policies." Id. at 281. The court cautioned, however, an allowance for government campaign speech "does not suggest that government can suppress opposing views." Id.
As exemplified by Kidwell and Page, the government speech doctrine responds to Free Speech Clause claims. It "does not mean that there are no restraints on government speech." Summum, 555 U.S. at 468, 129 S.Ct. 1125. The questions posed by this case are whether Red Clay has violated (i) federal limitations imposed by the Due Process and Equal Protection Clauses or (ii) state limitations imposed by the Elections Clause. Red Clay cannot respond to those claims by arguing that it has a constitutionally protected right to speak. Whether the Complaint states a claim must be analyzed under the provisions in the federal and state constitutions that the plaintiffs have invoked.
Having argued that its electoral interventions were protected by the government speech doctrine, Red Clay next contends that the plaintiffs do not possess a separate claim under state law that is distinct from their claim under federal law. Red Clay reaches this conclusion by contending that the Elections Clause in the Delaware Constitution should be interpreted in lockstep with federal jurisprudence applying the government speech doctrine. To support the argument for constitutional equivalency, Red Clay relies on a single decision from the Pennsylvania Supreme Court that embraced the lockstep approach.
In my view, Red Clay is trebly wrong. The equivalency argument fails initially because the government speech doctrine
Commentators have identified several models that state courts use when analyzing the relationship between state and federal constitutional protections.
Id. at 864-865 (alterations in original; quoting State v. Hunt, 91 N.J. 338, 450 A.2d 952, 965-66 (1982) (Handler, J., concurring)). Continuing to quote from Justice Handler's concurrence, the Delaware Supreme Court noted that these factors "share a common thread — that distinctive and identifiable attributes of a state government, its laws and its people justify recourse to the state constitution as an independent source for recognizing and protecting individual rights." Id. at 865 (internal quotation marks omitted).
Depending on the clauses in question and the situation presented, a Delaware court may well hold that a provision of the Delaware Constitution should be interpreted in lockstep with a similarly worded federal provision.
Dorsey v. State, 761 A.2d 807, 814 (Del. 2000) (footnote omitted); see Sanders v. State, 585 A.2d 117, 145-46 (Del. 1990) ("If we were to hold that our Constitution is simply a mirror image of the Federal Constitution, we would be relinquishing an important incident of this State's sovereignty. In a very real sense, Delaware would become less of a State than its sister States who recognize the independent significance of their Constitutions.").
Underlying this skepticism is a coherent judicial philosophy based on federalism and dual sovereignty.
In this case, a review of the factors suggested in Jones leads me to conclude that the Elections Clause should not be interpreted in lockstep with the federal jurisprudence that has developed under the Fourteenth Amendment. The Elections Clause has independent content that is more protective of electoral rights than the federal regime.
As the Jones court observed, "[a] state constitution's language may itself provide a basis for reaching a result different from that which could be obtained under federal law." 745 A.2d at 864. The Elections Clause fits within the first category provided by the Jones court: "distinctive provisions ... [that] recognize rights not identified in the federal constitution." Id.
Unlike the Delaware Constitution and those of forty-eight other states, the United States Constitution does not explicitly provide an individual with a right to vote.
It is true that the United States Supreme Court has recognized an implied right to vote, but the Court derived that right from a combination of (i) the Due Process and Equal Protection Clauses of the Fourteenth Amendment
The United States Constitution also does not contain an explicit guarantee of
Unlike the United States Constitution, the Delaware Constitution contains the Elections Clause. "There is a dearth of case law addressing [the Elections Clause]," but the few decisions that have addressed it appear to have regarded the provision as having substantive content.
The constitutions of twenty-five other states include a constitutional provision stating that elections shall be "free," "free and equal," or "free and open."
745 A.2d 856, 866-67 (Del. 1999) (footnote omitted). In this case, the "jurisprudence of sister states" supports giving the Elections Clause independent content, as numerous other state courts have done.
By citing decisions from other jurisdictions, this opinion does not mean to suggest that they uniformly support relief on the facts presented in this case. As one might expect, the various state courts that have interpreted and applied their Elections Clauses agree on some issues and differ on others. Further complicating matters, courts in jurisdictions that have given independent meaning to their states' Elections Clauses sometimes hold that the protection provided by state law parallels the federal law regime as to a particular issue.
As its sole authority for asserting that Delaware's Elections Clause has no independent meaning, Red Clay relied on Erfer v. Commonwealth, 568 Pa. 128, 794 A.2d 325 (2002), which Red Clay interprets as holding that Pennsylvania always applies a lockstep approach to its Elections Clause. Because the drafters of Delaware's Elections Clause used Pennsylvania's as one of their models, see infra Part C.2.b, Red Clay contends that Delaware's Elections Clause should be interpreted in lockstep with federal law. Unlike Red Clay, I read Erfer as an example of a court holding that the protection provided by state law as to a particular issue parallels the federal law regime, not as an expansive ruling that Pennsylvania's Elections Clause lacks independent meaning.
The petitioners in Erfer claimed that a reapportionment scheme constituted illegal gerrymandering that violated Pennsylvania's Elections Clause. 794 A.2d at 328. The Pennsylvania Supreme Court rejected this argument. Because Erfer is Red Clay's only authority for the lockstep approach, it is worth quoting the decision at some length.
Id. at 331-32 (internal citations omitted). As this extended quotation shows, the thrust of Erfer was to stick with the method for analyzing gerrymandering claims that the Pennsylvania Supreme Court adopted in 1991 Reapportionment. The court declined to switch to a new analytical methodology, whether as a matter of due process, equal protection, or the "free elections" clause. To the extent Erfer declined to give independent meaning to Pennsylvania's Elections Clause, it was in this context.
Outside of a claim for gerrymandering, the Pennsylvania Supreme Court has given independent meaning to the Commonwealth's Elections Clause. Over a century before Erfer, a more venerable decision recognized that the clause had independent content in the course of rejecting a claim that a statute calling for a secret ballot violated it:
De Walt v. Bartley, 146 Pa. 529, 24 A. 185, 186 (1892).
Ten years after Erfer, the Pennsylvania Supreme Court again gave independent content to the Commonwealth's Elections Clause. See Applewhite v. Commonwealth of Pennsylvania, 617 Pa. 563, 54 A.3d 1, 3-4 (2012). In Applewhite, various plaintiffs sought an injunction against a recently implemented voter identification law, arguing that it would prevent qualified and eligible electors from voting in violation of the Elections Clause because the voters would not have enough time to learn about the law's requirements and obtain the necessary identification. Id. The plaintiffs accepted that the voter identification law was valid in the abstract, but argued that it was being implemented in a manner that denied Pennsylvanians their fundamental
Id. at 5. On remand, the trial court entered a limited injunction. See Applewhite v. Pennsylvania, 2012 WL 4497211, at *8 (Pa.Commw.Ct. Oct. 2, 2012). The Applewhite decision undercuts Red Clay's claim that Erfer irrefutably embraced a lockstep interpretation. Applewhite instead supports the view that Erfer's lockstep approach applied only to political gerrymandering claims.
Regardless, what matters most for present purposes is that Erfer did not conduct the type of multi-factor analysis mandated by the Delaware Supreme Court in Jones. The two-sentence adoption of a lockstep approach in Erfer effectively accomplished for purposes of Pennsylvania law what the Delaware Supreme Court has told me I cannot do for purposes of Delaware law: "Delaware judges cannot faithfully discharge the responsibilities of their office by simply holding that the Declaration of Rights in Article I of the Delaware Constitution is necessarily in `lock step' with the United States Supreme Court's construction of the federal Bill of Rights."
In my view, the presence of the Elections Clause in the Delaware Constitution provides powerful support under Jones for giving it meaning independent of federal law.
The second factor identified by the Jones court was legislative history. 745 A.2d 856, 864 (Del. 1999). The legislative history of the Elections Clause is largely coterminous with the development of the Delaware Constitution. See id. at 865-66.
Delaware has had four constitutions, adopted respectively in 1776, 1792, 1831, and 1897. The last continues in force today. They are not separate and independent, but rather linked. After the adoption of the first constitution in 1776, "[e]ach subsequent Delaware constitution has provided for a revision of the existing government rather than making a fundamental change." Maurice A. Hartnett, III, Delaware's Charters and Prior Constitutions, in First One Hundred Years, supra, 23, 23 [hereinafter, Delaware's Charters]. The current Delaware Constitution reflects "a `layering' of the concerns of successive generations." Holland, Purpose & Function, supra, at 19 (quoting Robert F. Williams, State Constitutional Law: Cases & Materials 19 (2d ed. 1993)). In some cases the layering is explicit. For example, the current Delaware Constitution addresses trial by jury by stating that it "shall be as heretofore." Del. Const. art. I, § 4.
The antecedents of the Elections Clause can be seen in Delaware's first constitution. "In May of 1776, the Continental Congress passed a resolution that advised the colonies to form new governments." Holland, Purpose & Function, supra, at 5. The general sovereignty exercised by the English monarchy became vested in the former colonies, and as new sovereign entities, the states drafted their own constitutions. Id. "A widespread concern before the Declaration of Independence had been a desire for popular control over the process of governing." Id. at 6. The Constitutional Convention that convened in New Castle in August 1776 began by drafting a Declaration of Rights and Fundamental Rules of the Delaware State (the "Declaration of Rights"), which the delegates adopted on September 11, 1776. The Declaration of Rights emphasized the role of the people and the importance of elections. Section 1 stated that "all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole." Section 6 contained a predecessor to the Elections Clause and stated that "the right in the people to participate in the Legislature, is the foundation of liberty and of all free government, and for this end all elections ought to be free and frequent."
Delaware's first constitution, adopted on September 20, 1776, incorporated the Declaration of Rights by reference. Hartnett, Delaware's Charters, supra, at 28. Affirming the continuing significance of the Declaration of Rights, Article 30 of the Constitution of 1776 stated: "No article of the declaration of rights and fundamental rules of this state, agreed to by this convention,... ought ever to be violated on any pretence whatever." Del. Const. of 1776 art. 30. The Constitution of 1776 also included a specific provision to preserve free elections:
Id. art. 28.
The Elections Clause that appears in the current Delaware Constitution took shape in the Constitution of 1792. This constitution "became the basic framework for Delaware's government for more than a century, until the adoption of the current constitution in 1897." Holland, Delaware State Constitution, supra, at 11.
After the ratification of the United States Constitution, states began the process of re-writing their own constitutions. Delaware's Constitutional Convention took place in two sessions, one in 1791 and a second in 1792. Id. at 10-11. The final product "resembled in some ways the federal constitution because of the presence of John Dickinson and Richard Bassett, who had served as members of the Philadelphia Convention, and because the members were familiar with the federal constitution."
Most significantly for present purposes, the drafters of the Constitution of 1792 prepared a new declaration of rights. They drew on the new federal bill of rights. Hartnett, Delaware's Charters, supra, at 37. They also drew on the Constitution of Pennsylvania of 1791. Jones, 745 A.2d at 866. "Almost every aspect of the 1792 Bill of Rights has a corresponding provision in the Pennsylvania constitution. Eighteen of the nineteen provisions of Delaware's 1792 Bill of Rights are nearly identical to provisions in Pennsylvania's 1790 Declaration of Rights." Rodman Ward Jr. & Paul J. Lockwood, Bill of Rights Article I, in First 100 Years, supra, 75, 77 [hereinafter Bill of Rights]. The Elections Clause is one of those provisions.
We jump next to the Constitution of 1897. The intervening Constitution of 1831 made relatively minor changes to the Constitution of 1792, which principally involved reorganizing the judiciary. Holland, Delaware State Constitution, supra, 12-13. That 1831 Constitution is thus "better seen as a modification of the 1792 Constitution." Id. at 15. It was the Constitution of 1897 that established the framework for Delaware's current system.
After the Civil War, there was renewed interest in the structure and operation of state government. "Between 1864 and 1879, thirty-seven new state constitutions were written and ratified." Holland, Purpose & Function, supra, at 18. Concern about the legitimacy of state and local elections played a significant role in the prompting Delaware to convene a constitutional convention in 1896.
Despite their focus on electoral issues, the delegates did not make changes to the Elections Clause. They revered the Declaration of Rights, and they "had no intention of altering a bill of rights that was by then nearly one hundred years old" and which they acknowledged to have developed "out of the long and unique heritage of the English common law and the history of Delaware."
4 Debates and Proceedings of the Constitutional Convention of the State of Delaware 2386 (1958). Rather than changing the Declaration of Rights, the delegates addressed elections elsewhere in the new constitution.
Two key provisions became §§ 7 and 8 of Article V of the Constitution of 1897.
Del. Const. art. V, § 7 (amended 1999) (the "Anti-Bribery Clause").
The breadth of the Anti-Bribery Clause reflected the "practices of early nineteenth-century politicians who roused their followers to partisan enthusiasm with plentiful and free liquid requirements." Munroe, supra, at 173.
Id. Another path for corruption was the Voters' Assistant Law of 1891, which was intended to provide a legitimate service for illiterate or otherwise handicapped voters by authorizing each political party to provide a voters' assistant in a polling place who could help a voter who asked in marking his ballot. In practice,
To address these practices, the Anti-Bribery Clause made it a constitutional criminal offence to use "money or other valuable thing" to "influenc[e]" voting or as a "compensation, inducement or reward" for voting. Del. Const. art. V, § 7
As discussed in the next section, statutes proscribing bribery in elections already existed in Delaware. The Anti-Bribery Clause elevated those prohibitions to a constitutional offense. At the same time, Article V, § 8 removed the right of jury trial for the constitutionalized criminal offenses. "Although it seems to be little more than a historical anecdote today, Article
Ward & Lockwood, Bill of Rights, supra, at 80 (footnotes omitted) (citing 1 Debates and Proceedings of the Constitutional Convention of the State of Delaware 503 (1958)). In addition, Section 1 authorized the General Assembly to "prescribe the means, methods and instruments of voting so as best to ... prevent fraud, corruption and intimidation thereat." Del. Const. art. V, § 1.
Viewed as a whole, the evolution of the Delaware Constitution from 1776 until 1897 evidences consistent concern for the integrity of the electoral process. Particularly during the Constitutional Convention of 1896-97, the delegates sought to re-establish free and open elections. Although the delegates did not revise the Elections Clause, which was part of the Declaration of Rights, they added other provisions to the Delaware Constitution that evidence a heightened sensitivity to outside influences on voters. The history of Delaware's Elections Clause supports giving it independent meaning.
As its third factor, the Jones court referred to "[p]reviously established bodies of state law," which may "suggest distinctive state constitutional rights" and "can help define the scope of the constitutional right later established." 745 A.2d 856, 864 (Del. 1999). For purposes of this case, this decision looks to Delaware law at the time of the Constitutional Convention of 1896-97, when the Elections Clause was last considered and the Anti-Bribery Clause introduced.
When the delegates gathered for the Constitutional Convention of 1896-97, Delaware already banned forms of electioneering, including providing items of value in returns for votes. The pre-1897 anti-bribery statute stated:
If any person shall give, offer or promise any money, goods, chattles [sic] or other thing or matter ... by way of bribe, gift, benefit or reward, for the purpose, or with the object of influencing any elector in giving his vote, or in refusing to vote, or in absenting himself from the polls at any election [or candidate ... shall, for every such offense, forfeit and pay the sum of two hundred dollars, one-half thereof to be for the use of the State, and the other half thereof for the person who will sue for the said penalty; and further, any person or candidate so offending, shall be deemed guilty of a misdemeanor.
Del. C. 1852, § 313. The statute notably authorized a private right of action and incentivized enforcement by providing a successful litigant with the ability to split the $200 penalty with the State.
Another relevant pre-1897 statute was titled, "An Act Further to Protect the Free Exercise of the Elective Franchise." Section 1 of that state stated
12 Del. Laws ch. 487, § 1 (1864). This statute also contemplated a private right of action. Of particular interest, the statute of limitations for a claim under the act was set at a quite-lengthy ten years, allowing plenty of time for post-election challenges. Id. at § 3. Both provisions were part of a broader statutory scheme that sought to ensure the integrity of elections.
Despite the existence of these statutes, the delegates to the Constitutional Convention of 1896-97 regarded the integrity of elections as a serious problem. Through the Anti-Bribery Clause, they made it a constitutional criminal office to provide "any money or other valuable thing" as a "compensation, inducement or reward" for voting. Del. Const. art. V, § 7. But for their reverence for the Declaration of Rights, they might well have expanded on the Elections Clause itself. The fact that the delegates to the Constitutional Convention of 1896-97 sought to promote the integrity of elections notwithstanding the statutes already on the books suggests that they intended for the Delaware Constitution to provide distinctive protections for voting.
For its fourth factor, the Jones court observed that "[d]ifferences in structure between the federal and state constitutions" may provide a basis for interpreting a state constitutional protection differently. 745 A.2d at 864. Unlike the United States Constitution, which is "a grant of enumerated powers to the federal government," the Delaware Constitution "serves only to limit the sovereign power which inheres directly in the people and indirectly in their elected representatives." Id. Consequently, "the explicit affirmation of fundamental rights in our Constitution can be seen as a guarantee of those rights and not as a restriction upon them." Id.
In this case, the structural distinction has particular salience in light of the important role that the declarations of rights in state constitutions long played in protecting
Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 247-48, 8 L.Ed. 672 (1833). "[F]rom the Declaration of Independence until the Civil War, state declarations of rights were the primary guarantors of individual rights and civil liberties against infringement by the state government." Holland, Purpose & Function, supra, at 13.
The crucible of the Civil War and the post-war adoption of the Fourteenth Amendment would, of course, "fundamentally alter[] the original balance of power in the United States constitution by expanding federal power at the expense of state autonomy." Id. at 16. But in 1897, when Delaware adopted its current constitution, "the federal Bill of Rights was relatively unimportant compared to the bills of rights of the individual states." Ward & Lockwood, Bill of Rights, supra, at 82. "[T]he understanding of the Fourteenth Amendment in 1897 was that it did not apply individual federal rights against state governments. The first case in which the Due Process Clause of the Fourteenth Amendment was held to apply to state action was decided that very year-1897." Id. at 82-83 (citing Chi. B. & Q. Railroad Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897)). When delegates during the Convention of 1896-97 decided to maintain the Declaration of Rights without change and add provisions elsewhere to the Delaware Constitution, they understood themselves to be affecting in the most direct way possible the rights they would possess vis-à-vis their state government.
Today the United States Supreme Court has made most, but not all, of the protections in the federal Bill of Rights applicable to the states through the Due Process Clause of the Fourteenth Amendment. Despite their increased importance, federal constitutional standards continue "set only a minimum level of protection." Holland, Purpose & Function, supra, at 17.
Id. (footnotes omitted). Although state law must comport with federal liberties, "state constitutions often can provide an independent and adequate basis for the adjudication of certain claims." Id.
Delaware's Declaration of Rights remains an "organic body of law." Sanders v. State, 585 A.2d 117, 146 n. 25 (Del. 1990). In my view, the "[d]ifferences in structure between the federal and state constitutions" provides another strong reason to give independent meaning to the Elections Clause.
The final three Jones factors do not necessarily point in favor of a distinct and separate Delaware approach to voting rights and elections. The fifth Jones factor noted that a state constitution may "address matters of peculiar state interest or local concern." 745 A.2d at 865. Although elections and voting certainly are matters of paramount interest and concern in Delaware, they are not peculiarly or uniquely so. "When Americans are surveyed about what rights are most valued under their Constitution, the responses inevitably include the right to vote.... In short, the right to vote is part of our ethos for what it means to be an American."
The same is true with the sixth Jones factor, which notes that "[a] state's history and traditions may also provide a basis for the independent application of its constitution." 745 A.2d at 865. The historical discussion of Delaware's Constitution illustrates Delaware's consistent concern for elections, but that tradition is not unique or specific to Delaware. It is an American tradition.
Likewise, the seventh Jones factor observes that "[d]istinctive attitudes of a state's citizenry may ... furnish grounds to expand constitutional rights" under a state charter. Id. I do not believe that Delaware's citizenry has a distinctive attitude towards voting and elections that differs materially from the attitudes of other Americans. I rather believe that we as Americans care deeply about elections and voting.
Based on the factors identified in Jones, I do not believe that the Elections Clause should be interpreted in lockstep with case law addressing the implied constitutional protection for voting rights under federal law that has been developed under the Fourteenth Amendment. I rather believe that the Elections Clause has independent content which the plaintiffs can enforce. Red Clay's argument that the state law claim should be dismissed on the basis of constitutional equivalency is rejected.
As its third argument in favor of dismissal, Red Clay asserts that a Delaware court only should consider voiding an election if it appears that the electoral misconduct affected the result. For purposes of the federal claim, Red Clay relies on the following standard from an unreported decision
Samuel v. V.I. Joint Bd. of Elections, 2013 WL 106686, at *3 (D.V.I. Jan. 6, 2013) (quoting Bryan v. Todman, 1992 WL 12729455, at *1 (Terr. V.I. Dec. 17, 1992), aff'd, 1993 WL 13141075 (D.V.I. Oct. 29, 1993)). The Samuel opinion describes this passage as "[t]he standard for decertifying, or invalidating, an election in the Virgin Islands." Id. Solely to analyze Red Clay's motion to dismiss, this decision uses the Virgin Islands standard to test the sufficiency of the federal claim.
For purposes of the state claim, Red Clay relies on authority from closer to home. In Brennan v. Black, the Delaware Supreme Court stated that "minor irregularities in the conduct of an election unaccompanied by fraud or unfair dealing, and not affecting the result, will not void an election otherwise valid." 104 A.2d 777, 789 (Del. 1954).
In this case, the Complaint sufficiently pleads that Red Clay's interventions affected the result. The tax increase passed by a vote of 6,395 to 5,515. The winning margin of 880 votes represented 7% of the residents who voted. Red Clay has approximately 165,000 residents who were eligible to vote in the Special Election.
The outcome of the Special Election in Red Clay contrasted with the results of a special election conducted on the same day in the Christina school district, which is adjacent to Red Clay. The Christina school board did not engage in get-out-the-vote efforts. Although the Christina school district has slightly more eligible voters, it had two-thirds of the turnout: approximately 8,000 voters in Christina compared to approximately 12,000 in Red Clay.
Christina asked voters to approve two tax increases. Both failed. On the first, 6,076 voters opposed it, and 2,119 voters favored it. On the second, 6,348 voters opposed it, and 1,826 voters favored it. Notably, approximately 6,000 voters opposed the tax increase in both districts. But in Red Clay, there were many more residents who got out to vote in favor of the tax increase.
According to the Complaint, Red Clay affected the outcome of the Special Election by systematically encouraging and facilitating voting by residents with school-aged or pre-school-aged children who were more likely to vote in favor of the tax increase. Red Clay did not reach out to the same degree to all voters. Moreover, the Family-Focused Events reduced turnout by elderly and disabled voters by interfering with their ability to access the polls.
At a later stage of the proceeding, the evidence may establish that this pleading-stage inference is incorrect. It may turn out that there are material distinctions between the voting populations in Red Clay and Christiana such that the results in the latter say nothing about the former. Or the evidence may be insufficient to show that Red Clay's interventions had an outcome-determinative effect. It also may be possible at a later stage to distinguish among particular instances or categories of conduct and particular school locations. It then might be possible to exclude from the voting results only the returns from polling places where the most problematic conduct occurred (such as the pizza-for-votes at Baltz or the free dinner at Heritage). At that point, it might be possible to determine that Red Clay's other interventions did not affect the outcome.
At this stage of the case, however, it is reasonable to infer that Red Clay's targeted efforts changed the result of the Special Election. Red Clay's third argument for dismissal fails to carry the day.
As its fourth argument for dismissal, Red Clay asserts that the Complaint should be dismissed because Delaware provides alternative remedies for electoral misconduct. Red Clay contends that the plaintiffs' proper remedy for any electoral violations was to contact the Department of Elections on the day the Special Election took place, not to sue to invalidate the election after the fact. They also contend that the Attorney General's decision not to bring criminal charges against any individuals involved in the Special Election should dispose of the civil claims.
Failing to contact the Department of Elections on the day of the Special Election does not preclude the plaintiffs from bringing a subsequent civil suit. To suggest otherwise would mean plaintiffs could never pursue a post-election day remedy. The General Assembly has rejected that notion, as evidenced by statutory provisions that create post-election day private rights of action. One set of statutory provisions, discussed in greater detail below, creates a procedure for post-election day challenges to candidate elections. See infra Part II.G.2.a. Another statute permits twenty-five or more persons who voted in the election to petition the Department of Elections for a recompilation of the results. 14 Del. C. § 1083(e). Still another statute gives a plaintiff a private cause of action against "any person or corporation ... [that] hinders, controls, coerces or intimidates ... any qualified elector of this State from or in the exercise of the elector's right to vote." 15 Del. C. § 5162. A person who suffers intimidation on the day of an election can report it to the Department of Elections, but the victim is not foreclosed from a post-election day remedy if no report is made, just as a victim of fraud or violence who chooses not to contact the police on the day of the harm is not prevented from bringing a subsequent civil suit.
Red Clay fares no better with its contention that the Attorney General's decision not to bring criminal charges should dispose of the plaintiffs' civil claim. When deciding whether to bring criminal charges, the Attorney General makes a
Red Clay premised its motion to dismiss on the four arguments that this decision has addressed. Having disposed of them, the central question posed by a Rule 12(b)(6) motion remains: Has the Complaint stated a claim on which relief can be granted? As noted, the plaintiffs contend that Red Clay deprived them of their right to vote without due process of law. They also contend that Red Clay violated their right to equal protection under the law. Both injuries occurred because Red Clay took steps to encourage and facilitate voting by electors with children (a group that Red Clay believed would favor of the tax increase) while raising obstacles to voting by the elderly and disabled (a group that Red Clay believed would oppose the tax increase). The plaintiffs have brought their federal claim as a Section 1983 action. Red Clay does not dispute that it is a "person" within the meaning of Section 1983 who can be sued under that statute, nor does Red Clay dispute that its electoral interventions constituted state action for purposes of the Fourteenth Amendment.
"[B]ecause the right to vote constitutes a liberty or property interest, government decisions that deprive an individual of that right ... implicate the Due Process Clause." Pamela S. Karlan, Framing the Voting Rights Claims of Cognitively Impaired Individuals, 38 McGeorge L.Rev. 917, 919-20 (2007). "At least one federal court has held that infringements on the right to vote may violate the due process principles of "fundamental fairness.'" Michele J. Feinstein & David K. Webber, Voting Under Guardianship: Individual Rights Require Individual Review, 10 NAELA J. 125, 130 (2014) (citing Doe v. Rowe, 156 F.Supp.2d 35, 47 (D.Me. 2001)). Most United States Supreme Court rulings concerning the right to vote, however, frame the issue in terms of the Equal Protection Clause. Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance & Procedure § 18.31(a) (2012 & Supp. 2015).
When evaluating a claim under the Equal Protection Clause, the first step is "to determine the appropriate level of scrutiny." Belitskus v. Pizzingrilli, 343 F.3d 632, 643 (3d Cir. 2003). For purposes of this step, the distinction between a due process claim and an equal protection claim does not matter much, because "[r]egardless of whether a court is employing substantive due process or equal protection analysis, it should use the same standards of review."
Although the federal constitution does not guarantee the right to vote, the United States Supreme Court has held that voting is a fundamental right.
Plyler v. Doe, 457 U.S. 202, 233, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982).
Although the application of strict scrutiny to state action involving the right to vote was once clear cut,
Burdick, 504 U.S. at 433, 112 S.Ct. 2059 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)).
To evaluate state action under what is now commonly called the Burdick test, a court weighs the degree to which the state's intervention has affected the right to vote against the regulatory interests that the state sought to protect. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 204, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (Scalia, J., concurring). "The first step is to decide whether a challenged law severely burdens the right to vote." Id. at 205, 128 S.Ct. 1610. "Ordinary and widespread burdens, such as those requiring `nominal effort' of everyone, are not severe. Burdens are severe if they go beyond the merely inconvenient." Id. (citations omitted).
Next, the court "must identify and evaluate the precise interest put forward by the State as justifications for the burden imposed by its rule." Anderson, 460 U.S. at 789, 103 S.Ct. 1564. Having done so, the court must "must weigh the character and magnitude of the asserted injury to the rights ... that the plaintiff seeks to vindicate' against the precise interests put forward by the State as justifications for the burden imposed by its rule,' taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights.'" Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564). If the burden imposed on the right to vote is "severe," then strict scrutiny applies, and the state's intervention must be narrowly tailored to "advance a state interest of compelling importance." Id. (quoting Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698,
State interventions in elections thus confront "a sliding scale of scrutiny." Joel A. Heller, Fearing Fear Itself: Photo Identification Laws, Fear of Fraud, and the Fundamental Right to Vote, 62 Vand. L.Rev. 1871, 1876 (2009). Not surprisingly, if the burden from the state's intervention is deemed not to be severe, then the challenge is likely to be rejected and the state's action upheld, but if the burden of the state's intervention is deemed severe, then the state's justifications are less likely to carry the day. Nevertheless, no matter how slight the burden on voting may be, "it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation." Crawford, 553 U.S. at 191, 128 S.Ct. 1610 (quoting Norman, 502 U.S. at 288-89, 112 S.Ct. 698).
For pleading purposes, under Burdick, the plaintiffs have stated a claim against Red Clay based on the district's electoral interventions as a whole. For analytical clarity, this decision examines Red Clay's electoral interventions using the three broad categories presented in the public policy discussion: government campaign speech, selective rewards for voting, and selective get-out-the-vote efforts. Although this decision takes the view that certain activities by Red Clay, standing alone, would not support a claim for a violation of the Fourteenth Amendment, the Complaint does not challenge isolated, severable instances of conduct. It challenges Red Clay's interventions in the aggregate.
The first way that Red Clay intervened in the Special Election was through government campaign speech. Put simply, Red Clay advocated for the tax increase and sought to convince voters to vote in favor of it. To re-reiterate, the plaintiffs have not challenged Red Clay's campaign advocacy as a violation of the Free Speech Clause. They contend that Red Clay violated the Fourteenth Amendment. The proper test for analyzing this claim is Burdick balancing.
The Complaint alleges that Red Clay engaged in the following examples of broadly directed campaign speech:
As I see it, if these had been the only types of conduct in which Red Clay engaged, the Complaint would not state a claim under the Fourteenth Amendment.
The first step under Burdick is to decide whether the state's activities severely burdened the right to vote. In my view, Red
The next step in Burdick is to identify and evaluate the precise interest relied on by the government to justify its electoral intervention. The interest here is one that the United States Supreme Court has recognized: "There can be no question about the legitimacy of the State's interest in fostering informed and educated expressions of the popular will in [an] election." Anderson, 460 U.S. at 796, 103 S.Ct. 1564.
Based on the allegations of the Complaint, Red Clay's interest in fostering an informed electorate was sufficient to justify engaging in government campaign speech. If Red Clay only had engaged in these activities, then the Complaint would not state a claim under the Fourteenth Amendment. This observation does not mean that Red Clay's campaign speech necessarily will survive any legal challenge. It still may violate other sources of federal or state law — in this case, the Elections Clause. See infra Part II.G.
At the other end of the spectrum is Red Clay's decision to intervene in the election by providing rewards for voting designed to appeal to families with school-aged and pre-school-aged children — a particular demographic group that Red Clay believed was likely to support the tax increase. Interventions falling under this heading included the paper chits at Baltz Elementary School that holders could turn in for pizza after they voted, the free dinner held for parents and students at Heritage Middle School, and the other Family-Focused Events that Red Clay held at its schools on the day of the Special Election. Although the rewards nominally were open to everyone, the Complaint's allegations support an inference that Red Clay understood and intended for the Family-Focused Events to appeal to a subset of the electorate that was likely to favor the tax increase, thereby rewarding that demographic group. Framed provocatively, the Family-Focused Events functioned as the opposite of a poll tax. Rather than imposing a tax on voting that was nominally neutral but actually discriminatory, Red Clay offered a reward for voting that was nominally neutral but actually discriminatory.
As in Anderson, the "identifiable political group" need not be a suspect class. "`Fencing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible."
Id. at 603, 125 S.Ct. 2029 (O'Connor, J., concurring). Where the facts suggest discriminatory intent, the state's intervention is more likely to be viewed as imposing a significant burden.
Once again, the first step under Burdick is to decide whether the state's activities burdened the right to vote. In my view, by providing rewards designed to appeal to a particular segment of the electorate, Red Clay engaged in discriminatory conduct that severely burden the right to vote. Red Clay did the opposite of what the United States Supreme Court criticized in Anderson. Rather than restricting political participation by one identifiable political group, it took steps to enhance political participation by another identifiable political group. As in Bullock, there was an "obvious likelihood" that this intervention would fall more heavily on other political groups for whom the rewards were less attractive — in this case the elderly and the disabled. The fact that the rewards were nominally available to everyone does not insulate them from scrutiny. "Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike." Jennies v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971).
Equally important, the Complaint alleges that Red Clay's selective rewards did more than just benefit the favored group. They also (allegedly) had the purpose and effect of discouraging voting by the elderly and disabled, an identifiable group that Red Clay believed would oppose the tax increase. The Family-Focused Events thus had the type of negative effect identified as problematic in Anderson.
To date, the only interest that Red Clay has advanced for its electoral interventions is its desire to provide information to the electorate about an issue within the scope of its government functions. That interest sufficiently justifies government campaign speech for Fourteenth Amendment purposes, but it does not justify selective and discriminatory interventions. Perhaps at a later stage of the case Red Clay will advance interests sufficient to justify providing rewards for voting tailored for an identifiable political group. For present purposes, the Complaint states a claim under Section 1983 and the Fourteenth Amendment based on the selective rewards for voting.
Red Clay also intervened in the Special Election through selective get-out-the-vote efforts. This category of conduct falls into a zone between government campaign speech and selective rewards for voting.
Whether Red Clay's selective get-out-the-vote efforts severely burdened the right to vote is a close call. Like the rewards for voting, the selective get-out-the-vote efforts discriminated among identifiable political groups, but the effects seem less substantial.
Regardless of whether or not the burden was severe, the only interest that Red Clay has advanced remains its desire to educate the electorate. To my mind, that interest does not justify taking students out of class to vote. Getting voters who were likely to favor the tax increase to the polls did not provide the electorate with information. It helped Red Clay get the result it wanted. For pleading-stage purposes, Red Clay has not justified that measure. Red Clay's targeted communications at least provided information to part of the electorate, but the fact that Red Clay sent its communications to only a subset of the voter base undercuts its avowed interest in educating the electorate.
For purposes of the motion to dismiss, it does not seem possible to distinguish Red Clay's selective efforts to get out the vote from Red Clay's conduct as a whole, which included the Family-Focused Events and the instances of food-for-voting at Baltz Elementary School and Heritage Middle School. The Complaint states a claim under Section 1983 based on Red Clay's conduct as a whole.
As with the federal claim, the central question posed by the Rule 12(b)(6) motion is whether the Complaint has stated a claim for violations of the Elections Clause. It does.
Analyzing the Elections Clause claim is difficult, because it remains true that there is a "dearth of case law" addressing the clause. Abbott v. Gordon, 2008 WL 821522, at *19 (Del. Super. Mar. 27, 2008). The most obvious sources of authority for applying the Elections Clause are the language of the clause itself, the Abbott decision, and decisions from other states interpreting their analogous constitutional provisions. As further sources of authority, this opinion looks to (i) the statutory framework in Title 15 that identifies bases for challenging elections involving candidates, (ii) criminal statutes that proscribe certain electoral misconduct, (iii) the Anti-Bribery Clause of the Delaware Constitution, and (iv) the Delaware Equal Accommodation Act. After discussing these sources of authority, this decision examines Red Clay's specific electoral interventions.
Any effort to apply the Elections Clause must begin with its text. The language is simple, straightforward, and mandatory: "All elections shall be free and equal." Del. Const. art. I, § 3.
The only Delaware case to touch meaningfully on the Elections Clause is Abbott. There, an unsuccessful candidate for New Castle County Council claimed that county officials had engaged in a civil conspiracy to violate the Elections Clause by attacking him and engineering his defeat in the Republican primary. The court observed
State courts in other jurisdictions have given more frequent consideration to their versions of the Elections Clause. See supra Part II.C.1 (collecting cases). Many of the cases from other jurisdictions deal with conduct by private actors. Comparably few deal with government interventions in the electoral process.
The State of Kentucky is an example of a jurisdiction with a developed Elections Clause jurisprudence. One court has described Kentucky as having "the most developed jurisprudence of any state on what [the free and equal election] clause means in relation to ballot problems." Gunaji v. Madas, 130 N.M. 734, 31 P.3d 1008, 1016 (2001).
In one of the earliest decisions interpreting Kentucky's Elections Clause, the Kentucky Supreme Court considered a challenge to a referendum where the clerk administering the vote had not printed enough ballots, leaving 448 voters unable to vote. The referendum passed by 558 votes. Interpreting the constitutional provision, the Kentucky Supreme Court stated:
Wallbrecht v. Ingram, 164 Ky. 463, 175 S.W. 1022, 1026 (1915). Continuing, the Kentucky Supreme Court explained the breadth of the protection provided by the clause:
Id. at 1026-27.
Since Wallbrecht, Kentucky decisions have applied the Kentucky Elections Clause to a wide range of situations, including (i) elections tainted of fraud, violence, and intimidation,
Summarizing the operative principles, a later decision by the Kentucky Supreme Court stated:
Asher, 132 S.W.2d at 776 (quoting 18 Am. Jur. Elections 184-85).
The State of Illinois also has a well-developed Elections Clause jurisprudence.
Hoffman, 5 N.E. at 599-60. The constitutional provision thus required a basic level of fairness, but it did not require state-wide uniformity in every administrative detail.
As in Kentucky, Illinois decisions have applied these general principles to myriad situations, including (i) the constitutionality of various legislative acts,
Moran, 179 N.E. at 531 (citations omitted).
As the preceding section demonstrates, the words "free" and "equal" are broad and expansive terms that can be applied to a variety of contexts. When imbuing terms like these with content, I believe a judge should strive to be guided by more than the judge's own subjective views about what they should mean. The judge instead should look to embodiments of those concepts that have been deeply and widely endorsed, such as indications from other provisions of the Delaware Constitution (including its overall structure), state statutes, and longstanding doctrines of common law. When construing other provisions the Declaration of Rights, the Delaware Supreme Court has looked to similar authorities.
Delaware civil statutes addressing analogous situations provide a source of content for applying the Elections Clause. For elections involving candidates, Delaware law establishes a series of statutory methods for challenging the result.
Id. at § 5941 (the "Election Contest Statute").
The Election Contest Statute is part of Title 15, the purpose of which is "to assure the people's right to free and equal elections, as guaranteed by our state Constitution." Id. at § 101A. In light of this purpose, it seems reasonable that if conduct violates the provisions of Title 15, it is inconsistent with the "right to free and equal elections." By its terms, of course, the Election Contest Statute does not apply directly to a school referendum; it only applies to an election involving candidates. It nevertheless seems logical that if misconduct would support a challenge under the Election Contest Statute, it should support a cause of action under the Elections Clause. In the current case, the analogous type of conduct would be if persons involved in the school referendum gave "to any elector ... any bribe or reward or shall have offered any bribe or
Delaware criminal statutes addressing analogous electoral situations also provide a source of content for applying the Elections Clause. Title 15 of the Delaware Code makes certain election-related conduct a criminal offense. Title 14 of the Delaware Code proscribes certain conduct in school elections. In my view, these criminal statutes reflect public policy determinations about what free and open elections should look like. One means of enforcing those expectations is through criminal proceedings brought by the Attorney General against the persons believed to have violated the laws, and that method appropriately targets individual wrongdoers who have engaged in particular acts with the requisite criminal intent. But that is not the exclusive method. Where widespread misconduct has affected the outcome of an election, the Elections Clause enables a party to pursue a civil proceeding to set aside the election.
By looking to the criminal statutes for guidance, this decision is not seeking to enforce the criminal laws as such. This is not a criminal case, the task of enforcing the criminal statutes lies with the Attorney General, and his office enjoys "broad discretion as to whom to prosecute." Albury v. State, 551 A.2d 53, 61 (Del. 1988). This court neither has jurisdiction over criminal proceedings, nor the equitable authority to involve itself in criminal proceedings. See Econ. Cleaners v. Green, 184 A. 225, 226 (Del. Ch. 1936) (Wolcott, C.) ("[A]s a general rule courts of equity have no jurisdiction to interfere by injunction with the enforcement of the criminal laws of the State by its duly constituted officers.").
Although the criminal statutes do not apply directly, they remain relevant as evidence of the floor for permissible electoral conduct. In other areas of the law, courts have used criminal statutes to inform how the civil law should apply. One example is the area of negligence, where the Restatement (Third) of Torts explains that "[a]n actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor's conduct causes, and if the accident victim is within the class of persons the statute is designed to protect." Restatement (Third) of Torts: Phys. & Emot. Harm § 14 (2010). A violation of a criminal statute operates as conclusive proof that the actor was negligent because the criminal statute reflects a "legislative judgment that acts in violation of the statute constitute unreasonable conduct." 57A Am. Jur. 2d Negligence § 675. Delaware follows this doctrine. Sammons v. Ridgeway, 293 A.2d 547, 549 (Del. 1972).
Criminal statutes have been used to flesh out constitutional parameters. When analyzing "the tension between the right which the First Amendment accords to a free press ... and the protections which various statutes ... accord to personal privacy," the United States Supreme Court relied on criminal statutes to illuminate the point where personal privacy concerns overcame First Amendment freedoms.
The Anti-Bribery Statute makes a simplified version of the Anti-Bribery Clause applicable to school elections. It states:
Id. at § 1079.
The Anti-Bribery Statute makes it a criminal violation to offer or provide "any money or other valuable thing as a compensation, inducement or reward for giving or withholding or in any manner influencing" a person's vote in a public school election. Id. at § 1079(a). This provision supports the conclusion that if a participant in a school election has engaged in widespread conduct that involved providing "any money or other valuable thing" as an inducement or reward for voting or to influence voting, then the election has not been "free and equal" for purposes of the Elections Clause. For reasons already discussed, the ability of the Attorney General to bring charges against specific individuals for violations of the Anti-Bribery Statute does not preclude reliance on the Anti-Bribery Statute as an expression of what it means to hold a free and equal election in the State of Delaware.
Section 1087 of Title 14 prohibits "[e]lectioneering as described in § 4942 of Title 15 ... in any school election." Id. at § 1087. Section 4942 of Title 15 states:
15 Del. C. § 4942. This too is a criminal statute. It applies to this case only as a means of giving content to the Elections Clause. As with the Anti-Bribery Statute, the existence of the Anti-Electioneering Statute suggests if a participant in a school election engages in widespread electioneering that affected the outcome of the election, then the election has not been "free and equal" for purposes of the Elections Clause.
A similar source of content for the Elections Clause is the Anti-Bribery Clause. See Del. Const. art. V, § 7. The delegates to the Convention of 1896-97 adopted the Anti-Bribery Clause, despite the existence of anti-election bribery statutes already on the books. Their priority was to restore the integrity of the electoral process. The drafters of the Constitution of 1897 did not revisit the Elections Clause itself because it was part of the Declaration of Rights, which they did not want to alter. See supra Part II.C.2.c.
The Anti-Bribery Clause responded to widespread nineteenth century practices in which political parties and candidates provided items of value in return for votes. The items included small sums of money, liquor, and various types of gifts. To address these behaviors, the Anti-Bribery Clause made it a constitutional criminal offence to use any "money or other valuable thing" to "influenc[e]" voting or as a "compensation, inducement or reward" for voting. See supra Part II.C.2.c. A violation of the Anti-Bribery Clause does not require a "corrupt motive."
The Anti-Bribery Clause applies to "any general, special, or municipal election." Del. Const. art. V, § 7. The Delaware Code describes a school referendum on taxes as a "special election."
The Delaware Equal Accommodation Act prohibits discrimination against the aged and disabled. It states:
6 Del. C. § 4504(a). The statute is intended "to prevent, in places of public accommodations, practices of discrimination against any person because of race, age, marital status, creed, color, sex, physical disability, sexual orientation, gender identity or national origin." Id. at § 4501. The statute "shall be liberally construed to the end that the rights herein provided for all people, without regard to race, age, marital status, creed, color, sex, physical disability, sexual orientation, gender identity or national origin, may be effectively safeguarded." Id.
As with the criminal provisions, the Delaware Equal Accommodation Act does not apply directly to this case. See supra Parts II.G.2.b-c. It nevertheless represents a legislative determination as to what it means to be equal under Delaware law. Among other things, equality means a lack of discrimination in public accommodations based on age or disability. It follows that if there was widespread discrimination based on age or disability during an election, then the election was not "equal" for purposes of the Elections Clause.
Having strived to flesh out the meaning of the Elections Clause, this decision now attempts to apply those principles to the conduct alleged in the Complaint. As with the federal claim, the plaintiffs have challenged Red Clay's electoral interventions as a whole, but for analytical clarity, this decision uses the three broad categories presented in the public policy discussion: government campaign speech, selective get-out-the-vote efforts, and selective rewards for voting.
The most straightforward claim under the Elections Clause is the contention that Red Clay provided selective rewards for voting. An election in which certain groups of citizens receive rewards for voting is neither "free" nor "equal." The rewards affect how the electors think about voting, making the vote less free. The fact that the rewards are only provided to certain groups of citizens makes the election unequal. The prohibition violates the text of the Elections Clause, as well as cases that have interpreted similar clauses as protecting the right of every voter to cast his ballot as his own judgment and conscience dictate. See supra Part II.G.1. It also contravenes the prohibition on providing money or any other valuable thing as a reward or inducement for voting that embodied in the Anti-Bribery Clause and the Anti-Bribery Statute. In a candidate election, it would provide a basis for challenging the outcome under the Election Contest Statute. More generally, addressing widespread practices involving the exchange of money and other valuable
Based on the facts alleged, the Complaint pleads a claim that Red Clay violated the Elections Clause by holding the Family-Focused Events. By structuring rewards that would appeal to voters with children, Red Clay provided something of value to that favored group to induce them to vote. The clearest examples were the paper chits at Baltz Elementary School that holders could turn in for pizza after they voted and the free dinner held at Heritage Middle School, but the analysis extends to all of the events that Red Clay held on the day of the Special Election at the schools where the polling places were located. See Smith v. Dorsey, 599 So.2d 529, 539-40 (Miss. 1992) (affirming ruling by Court of Chancery that expenditures for a "fish fry" held in support a bond referendum were improper under state law).
Next is the plaintiffs' challenge to Red Clay's government campaign speech. Unlike federal challenges under the Free Speech Clause, state law challenges to government campaign speech have succeeded.
The coincidentally named Brennan decision built on an influential opinion written by future Supreme Court Justice William Brennan while he was a member of the New Jersey Supreme Court. See Citizens to Protect Public Funds v. Board of Education, 13 N.J. 172, 98 A.2d 673 (1953). In Citizens, a school board decided to issue bonds to finance the expansion of several school buildings, which the board believed was necessary to provide adequate educational facilities for the town's children. The bond issuance required a favorable vote in a referendum. The school board spent public funds to print and disseminate an eighteen-page booklet urging voters to "Vote Yes" on the referendum, with an additional page providing a list of bleak consequences in response to the question, "What Will Happen If You Don't Vote Yes?" Id. at 674. A group that opposed the bond issue alleged that the school district had violated New Jersey law.
On these facts, the New Jersey Supreme Court held that the school board's advocacy was improper, characterizing it as unfair to citizens with different views:
Despite rejecting the school board's ability to engage in advocacy, the New Jersey Supreme Court did not insist that government agencies remain silent. The court recognized that voters need information, that a government body is well positioned to provide it, and that "it is not only the right but perhaps the duty of the body to endeavor to secure the assent of the voters."
Another leading example of this approach is Stanson v. Mott, 17 Cal.3d 206, 130 Cal.Rptr. 697, 551 P.2d 1 (1976) (en banc), which also relied heavily on Citizens. The Mott case involved efforts by the California Department of Parks and Recreation to promote a bond referendum that would authorize financing to acquire park lands and historical facilities. As in Citizens, the Supreme Court of California started by examining whether a statute authorized the expenditure of funds to "promote" the success of the bond referendum. Id., 130 Cal.Rptr. 697, 551 P.2d at 7-8. Finding no explicit authority, the California Supreme Court observed that "every court which has addressed the issue to date has found the use of public funds for partisan campaign purposes improper, either on the ground that such use was not explicitly authorized or on the broader ground that such expenditures are never appropriate." Id., 130 Cal.Rptr. 697, 551 P.2d at 8-9 (citations omitted). The court explained the rationale for this line of authority as follows:
The California Supreme Court noted that prior authorities had not distinguished "between `ballot measure' and `candidate' campaigning," and it declined to take that step. 130 Cal.Rptr. 697, 551 P.2d at 9. The Mott decision reasoned that allowing a government agency to use public funds to favor one side would compromise the integrity of a free election, and the "importance of governmental impartiality in electoral matters" meant that the state could not "distort[] the preference of participating voters." Id., 130 Cal.Rptr. 697, 551 P.2d at 10.
Of particular note, the Mott decision observed that government campaign speech ran afoul of California's version of the Elections Clause, and that this provision distinguished campaign speech from legislative lobbying:
Id., 130 Cal.Rptr. 697, 551 P.2d at 10 (citing Cal. Const. art. II, § 2).
As in Citizens, despite holding that the campaign expenditures were improper, the Mott decision cautioned that a state agency was not "without power to incur [a]ny expense at all in connection with the bond election." Id. The agency could expend funds "to provide the public with a `fair presentation' of relevant information" relating to the issue under consideration. Id., 130 Cal.Rptr. 697, 551 P.2d at 11. The California Supreme Court recognized the potential difficulties "in attempting to distinguish improper `campaign' expenditures from proper `informational' activities," but observed that with respect to some items, "the distinction is rather clear." Id.
Id., 130 Cal.Rptr. 697, 551 P.2d at 11-12 (citations omitted). The Mott court suggested that when the line was unclear, "the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast rule governs every case." Id. (footnote omitted).
This brings us to Brennan, which remains the only Delaware Supreme Court case to address government campaign speech. That case involved a challenge to various actions that a school district took to promote a bond referendum:
104 A.2d at 790. Voters who opposed the tax increase challenged these activities, arguing primarily that they violated state law, including the Elections Clause.
In ruling on the propriety of the communications, the Delaware Supreme Court generally followed Citizens, but went beyond that decision by permitting the school district to engage in limited advocacy. Recognizing that a school district must manage, maintain, and improve schools, the Delaware Supreme Court held that the district could use "reasonable publicity to bring the issues before the voters." Id. The Brennan decision cautioned, however, against advocacy that went too far:
Id. On the facts of Brennan, the Delaware Supreme Court held that the communications were not sufficient to set aside the outcome of the referendum, because there was "no showing whatever that the voters were improperly influenced in any
By authorizing "[t]he expenditure of public funds in support of one side," as long as the expenditures were "kept within reasonable limits," the Brennan decision departed from Citizens and adopted the Limited Advocacy Principle. In the decades since Brennan, the Delaware courts have yet to explore the point at which a government goes "beyond the factual presentation" to the point of "overstatement and emotional appeals." Nor have the Delaware courts addressed what it means to keep "[t]he expenditure of funds in support of one side . . . within reasonable limits." Id. Nevertheless, at present, Delaware seems to permit limited advocacy within these parameters.
In this case, the Complaint alleges that Red Clay engaged in the following examples of broadly directed campaign speech:
• Mailings of the Red Clay Record and postings on the district website.
• Public meetings and workshops.
• Statements to the press.
• Signs in and around the schools, such as the sign at Baltz Elementary that stated, "Support the Baltz Bear by voting yes."
• Parents stationed at schools on the day of the Special Election to encourage voters to support the tax increase, such as the parents at A.I. DuPont Middle School who sat at desks by the entrance and told prospective voters that if they did not vote in favor, students would not have after-school activities.
Red Clay also engaged in targeted campaign speech. The example cited in the Complaint was Superintendent Daugherty's letter to families with school-aged and pre-school-aged children urging them to vote in favor of the tax increase.
The Limited Advocacy Principle appears to permit Red Clay to engage in broadly directed government campaign speech, such as mailing the Red Clay Record, posting material on the district website holding public meetings and workshops, and making statements to the media. The Limited Advocacy Principle contemplates that "[t]he expenditure of public funds in support of one side" will be "kept within reasonable limits," but the Complaint does not support a reasonable inference that Red Clay's broadly directed government campaign speech, standing alone, resulted in an excessive expenditure of public funds. Were these the only activities in which Red Clay engaged, the Complaint would not state a claim under the Elections Clause.
Superintendent Daugherty's letter, by contrast, resembled the communications criticized by the Delaware Supreme Court in Brennan. Like the letter in that case, Superintendent Daugherty's letter was predominantly factual but contained some advocacy. It described the vote as "critical" and as having "a very direct impact on our children." Compl. Ex. B. It identified school programs dear to parents' hearts, then described them as "the very things we are in danger of losing." Id. The letter closed with an exhortation: "I urge you to come to the polls on Feb. 24 from 10 a.m. to 8 p.m. at any Red Clay school and cast a vote for your child's future. Every vote is so important!" Id. Under a strict reading of Brennan, this went too far. Superintendent Daugherty made the type of emotional appeal that the Brennan court criticized, and his word choice resembled the description in Brennan of a favorable outcome as "`a must,'" which the Delaware Supreme Court said was improper.
A caveat, however, is in order. I suspect that in today's news-and-advertisement-saturated
I also suspect that the Delaware Supreme Court would be concerned about whether litigants could mount challenges to government campaign speech too readily by arguing about largely subjective factors like word choice and tone. It seems to me that if presented with the issue, the high court would expand the degree of deference given to a school district in crafting its speech. A more flexible inquiry would require at a minimum that government statements be both accurate (in the sense of factually supported) and truthful (in the sense that the speaker subjectively believed them). Facts and circumstances like tone and timing would continue to play a role, but more important factors would include (i) whether the communication identified itself transparently as coming from a government source, so that the recipient could take into account the speaker's goals and interests, (ii) the degree to which recipients could avoid the message or access other points of view, and (iii) the vulnerability of the audience, such as whether it comprised children or youth. Cf. Norton, Government Campaign Speech, supra, at 238-39 (identifying similar factors). A government speaker still might go too far, but it would require more extreme communications.
Judged by these standards, Superintendent Daugherty's letter would not be problematic. The plaintiffs have not suggested that it was factually inaccurate or that Superintendent Daugherty did not subjectively believe the views he expressed. The letter's language was not materially different from the everyday product advertisements that bombard us or the fundraising appeals that clog our mailboxes. The letter was transparently government campaign speech, so readers could consider whether Superintendent Daugherty's employment might have influenced (and not illegitimately) the content of his message. Readers were not forced to read the letter; they could avoid it easily by throwing it in the trash can. The letter did not contain any coercive threats, nor did it suggest some way in which the government might retaliate. Only an irrational and unhinged conspiracy theorist might fear that Red Clay was monitoring whether recipients voted as the letter suggested and could retaliate against property owners or their children.
This decision does not apply this more liberal version of the Limited Advocacy Principle at the pleading stage, both because the Complaint pleads a claim under Brennan and because it is not possible presently to separate the various components of Red Clay's electoral interventions. The parties can engage at a later stage
Even under an expanded view of the Limited Advocacy Principle, the parents stationed at schools to encourage voters to "vote yes" present problems. The speech appeared to come from private speakers (parents), yet one can infer at this stage that it was endorsed and supported by Red Clay. When government speech is disseminated through private speakers, the question arises as to whether the origins of the speech are sufficiently transparent. Using parents as the medium disguised the official origins of the speech and made it more difficult for listeners to assess its content. The parental appeals were made in person and thus more direct and emotion-laden. They also occurred when voting was imminent, so voters could not readily balance them with competing views. Because of the location and timing of the encounters, they were difficult if not impossible to avoid. At the pleading stage, this combination of factors states a claim, even under an expanded version of the Limited Advocacy Principle.
The signs fall in between the parent communications and the Superintendent's letter. It seems likely that voters would recognize the signs as advocacy pieces and not be overly swayed. At the same time, the signs represent a specific category of materials that the Mott decision labeled improper. Although they likely pass muster under an expanded version of the Limited Advocacy Principle, it is best to defer any decision regarding the signs until a later stage of the case.
Based on this analysis, taking the conduct as a whole and following Brennan, the Complaint states a claim for a violation of the Elections Clause based on Red Clay's government campaign speech. At a later stage of the case, after discovery, it should be possible to parse the types of government campaign speech more finely.
In addition to stating a claim under Brennan, the plaintiffs have stated a claim against Red Clay's government campaign speech in light of the Anti-Electioneering Statute. Red Clay engaged in conduct that potentially ran afoul of that statute by (i) holding the Family-Focused Events in the school buildings where voting was taking place, and (ii) engaging in electioneering in close proximity to the voting rooms.
The Anti-Electioneering Statute states that "[n]o political headquarters or gathering shall be permitted within [the building in which the voting room is located] during the conduct of the election." 15 Del. C. § 4942. The plaintiffs contend that the Family-Focused Events were "gatherings" held within the buildings where the voting rooms were located. For pleading purposes, that contention states a claim.
A key interpretive question for analyzing this claim is whether the adjective "political" modifies only the term "headquarters" or also the term "gathering." One reasonable interpretation of the statute would be to prohibit "gatherings" in general, precisely to avoid the problem of crowded parking lots and diminished access that has been identified as an issue in this case. Another reasonable interpretation would be that the statute prohibits only "political . . . gatherings." That interpretation
There does not appear to be any Delaware case that addresses this question. The parties have not pointed to any secondary authority on voting law. Nor have they cited any cases from other jurisdictions. That is not to say there aren't any; the parties seem not to have looked. There also may be evidence about Delaware custom and practice during elections that would support a particular interpretation.
At some point, this court will have to construe the statute. "Election laws are to be construed liberally because of the importance of the public's right to vote." See Republican Party of State v. Dep't of Elections of New Castle Cty., 792 A.2d 224, 226 (Del. Super. 2001). "Election laws are not merely technical creatures creating or regulating private rights. They are of transcending public importance, touching upon — indeed giving vitality to — the most fundamental of our rights." Bartley v. Davis, 1986 WL 8810, at *9 (Del. Ch. Aug. 14, 1986) (Allen, C.), aff'd, 519 A.2d 662 (Del. 1986). It would seem that absent persuasive authority indicating otherwise, the court would err on the side of protecting voting rights against government interference.
Because the parties have not adequately briefed these issues, it would be unwise to interpret the statute at this stage. For present purposes, it is reasonably conceivable that the Family-Focused Activities violated the statutory limit on electioneering, which in turn supports a claim under the Elections Clause.
The Anti-Electioneering Statute states that no person shall engage in electioneering "within the polling place or within 50 feet of the entrance to the building in which the voting room is located . . . during the conduct of the election." 15 Del. C. § 4942. Red Clay engaged in "electioneering." Examples include the signs posted in and around the schools, such as the sign at Baltz that stated, "Support the Baltz Bear by voting yes," and the parents stationed near polling places to encourage voters to support the tax increase. The question is whether the electioneering occurred too close to the voting rooms. The Complaint's allegations support an inference that Red Clay posted signs and had parents engage in electioneering within 50 feet of the voting rooms, albeit inside the school buildings where the voting rooms were located.
As with the interpretation of "gathering," there are ambiguities in the statute's description of the area where electioneering is prohibited. The Anti-Electioneering Statute treats the terms "voting room" and "polling place" as smaller locations within a larger "building."
Similar ambiguities confront the fifty-foot, electioneering-free area that the statute appears to contemplate around the area where the voting room is located. The statute expressly prohibits electioneering "within 50 feet of the entrance to the building in which the voting room is located." It does not address what should be done if the building provides multiple external and internal points of access to the area where voting is taking place. It would seem bizarre to prohibit electioneering outside within fifty feet of an entrance, yet permit electioneering inside without any limits.
Some insight as to how the statute should be applied can be gleaned from another provision, which states that a
Id. at § 1088(b). This language seems to contemplate a fifty-foot-wide, electioneering-free zone around the polling place, including inside the building. When inside the building and within that area, individuals should not be doing anything other than "pass[ing] through," and then only in a manner that will "not interfere with the conduct of the election."
There does not appear to be any Delaware case that addresses the fifty-foot zone. Once again, the parties have not pointed to any secondary authority on voting or cases from other jurisdictions. As with the interpretation of the word "gathering," there may be evidence regarding Delaware's custom and practice during elections that would support a particular interpretation. The same principles of statutory interpretation would apply.
Without adequate briefing from the parties, this court will not attempt to provide a definitive answer at this stage. For present purposes, it is reasonably conceivable that Red Clay's activities violated the statutory limit on electioneering, which in turn supports a claim under the Elections Clause.
The final type of intervention involved selective get-out-the-vote efforts. For reasons that this decision has discussed, I consider this level of conduct to be less serious than selective rewards for voting, but more serious than government campaign speech. As to this conduct, the plaintiffs have stated a claim under the Elections Clause.
The Complaint alleges that Red Clay engaged in the following examples of get-out-the-vote activities directed towards an identifiable group:
• Superintendent Daugherty's use of Red Clay's school messenger system to remind parents of Red Clay students to vote in favor of the tax increase.
• School principals' use of their schools' automated phone systems to encourage families of students to vote in favor of the tax increase.
The first two categories seem to fall within the Limited Advocacy Principle's authorization of "expenditure of public funds in support of one side," as long as the expenditures remained "within reasonable limits." The use of the School Messenger system and the schools' automated phone systems seem particularly likely to pass muster, because they do not appear to have involved any incremental expenditure of public funds. I personally believe that a more expansive approach to the Limited Advocacy Principle is warranted and that these steps would survive review under that approach.
For pleading purposes, however, this decision hews to Brennan. That decision sought to legitimize activities directed towards the electorate as a whole. It is not clear that the Brennan Court would have endorsed targeted efforts, particularly given the general tenor of the opinion and related cases, such as Citizens and Mott, that stressed the need for the government to remain basically neutral. As with Superintendent Daugherty's letter, once the facts of this case are developed, it may be possible to reach different conclusions. It also may be possible to determine these communications did not contribute meaningfully to the electoral outcome.
Calling students out of class to enable them to vote also seems like conduct that would be upheld at a later stage. It is possible to envision conceptually similar efforts by a school district that could go too far. Red Clay easily could use its fleet of school buses and established school bus routes to bring voters from families with school-aged children to the polls. That type of intervention would present on a larger scale the same issues presented on a smaller scale by calling students out of class to vote.
The specter of such an effort calls to mind "that tritest of legal phrases — ye olde `slippery slope.'" Mercier v. Inter-Tel (Del.), Inc., 929 A.2d 786, 818 (Del. Ch. 2007) (Strine, V.C.). "Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom." Robert H. Bork, The Tempting of America: The Political Seduction of the Law 169 (1990). District-wide bussing would present an intervention that would be an order of magnitude different than taking students of class, providing a ready handhold that a court could use to arrest a precipitous descent.
I personally doubt that the plaintiffs will be able to show that taking students out of class to vote created a problem, but at the pleading stage, a judge cannot weigh evidence. Taking students out of class to vote was part of Red Clay's overall intervention, and the plaintiffs challenge Red Clay's conduct as a whole.
Finally, to the extent this decision has erred by treating the Family-Focused Events as a reward for voting, at a minimum they were selectively targeted get-out-the-vote events designed to appeal to a readily identifiable group that Red Clay believed would support the tax increase. Viewed as such, the Complaint states a viable challenge under the Elections Clause to the Family-Focused Events. The Abbott decision stated that the purpose of the Elections Clause "is to ensure that the right of citizens to vote in an election is unfettered." 2008 WL 821522, at *19 (Del. Ch. Mar. 27, 2008). Cases from other jurisdictions indicate that "[a]n election is free where the voters are exposed to no intimidation or improper influence and where each voter is allowed to cast his ballot as his own conscience dictates." Moran v. Bowley, 347 Ill. 148, 179 N.E. 526, 531 (1932). Free elections are essential because "[t]he very purpose of
Historically, the law has focused on forms of "improper influence" that have interfered with the voting rights of disfavored demographic groups by dissuading or preventing them from voting through blatant means like fraud, violence, and intimidation. A government certainly violates the Elections Clause if it skews the outcome of an election in this manner. Parity of reasoning suggests that a government can violate the Elections Clause if it skews the outcome of an election by encouraging and facilitating voting by favored demographic groups. In both situations, the government has diminished the voting rights of one portion of the electorate and enhanced the voting rights of another portion of the electorate. In neither case is the election "free and equal."
Using the Family-Focused Events, Red Clay encouraged and facilitated voting by families with school-aged and pre-school-aged children. By doing so, Red Clay made the election unequal, not through traditionally negative means, but through positive means. Whether Red Clay's conduct went too far is necessarily a matter of degree, but for pleading-stage purposes, the plaintiffs have stated a claim under the Elections Clause.
Moreover, in the current case, Red Clay's selective get-out-the-vote efforts had negative effects on the elderly and disabled. As the Abbott decision recognized, a potential violation of the Elections Clause exists if the plaintiffs allege that "their access to the polls was disturbed. . . ." 2008 WL 821522, at *20. The Delaware Equal Accommodation Act establishes that public accommodations cannot be withheld or denied "directly or indirectly" to any person based on age or disability.
The evidence ultimately may show that Red Clay did not intend to discriminate and that its activities did not have that effect. For present purposes, the plaintiffs have stated a claim under the Elections Clause.
In challenging Red Clay's electoral interventions as a whole, the Complaint states a claim on which relief can be granted under both federal and state law. Red Clay's motion to dismiss is therefore denied.
The parties will proceed with discovery. Based on the materials submitted in support of the Complaint, it seems likely that there will be questions of fact that require a trial. Developments during discovery may prove that expectation incorrect, but the parties should consider whether it makes sense to devote resources to motions for summary judgment. Efficiency likely counsels in favor of a reasonably prompt trial that will enable the court to make factual findings and apply legal principles to the resulting record.
Red Clay has the option of addressing the plaintiffs' contentions by returning to the electorate. This decision has concluded that the plaintiffs would not be able to state a claim for relief if Red Clay only engaged in certain types of conduct and avoided others, such as the Family-Focused Events and electioneering in close proximity to the voting rooms. If Red Clay called for a new special election and limited its electoral interventions, and if Red Clay's voters ratified the result of the February 2015 election by voting in favor of the tax increase, then this litigation would be moot.
Schoon v. Smith, 953 A.2d 196, 204-05 (Del. 2008) (quoting 1 John Norton Pomeroy, Equity Jurisprudence § 60 (Spencer W. Symons ed., 5th ed. 1941)).
Id. at 666-67, 86 S.Ct. 1079 (footnote, citations, and internal quotation marks omitted).