A Review ofA Review ofDelawareDelaware’’s News New

Municipal Election LawMunicipal Election LawHB 410HB 410

HistoryHistory

Until 2004, the Delaware law was unclearUntil 2004, the Delaware law was unclearabout whether Title 15, Delawareabout whether Title 15, Delaware’’sselection laws, applied to municipalelection laws, applied to municipalelectionselections

History (continued)History (continued)

In the case of In the case of Mullen v. SchaefferMullen v. Schaeffer, 2005, 2005WL 3250010, Plaintiff Mullen claimed thatWL 3250010, Plaintiff Mullen claimed thatMayor Schaeffer violated the absenteeMayor Schaeffer violated the absenteeballot provisions of Title 15 in the Smyrnaballot provisions of Title 15 in the Smyrnaelectionelection

Smyrna moved to dismiss the caseSmyrna moved to dismiss the casearguing that Title 15 does not apply toarguing that Title 15 does not apply tomunicipal electionsmunicipal elections

History (continued)History (continued)

The Superior Court held that because TitleThe Superior Court held that because Title15 does not apply to municipal elections,15 does not apply to municipal elections,the absentee ballot provisions did notthe absentee ballot provisions did notapplyapply

The election case against Smyrna wasThe election case against Smyrna wasdismisseddismissed

History (continued)History (continued)

In reaction, the General Assembly passedIn reaction, the General Assembly passedHB 410, which is a major overhaul ofHB 410, which is a major overhaul ofmunicipal election lawmunicipal election law

HB 410HB 410

This law applies to all municipal electionsThis law applies to all municipal electionsthat occur after July 1, 2007that occur after July 1, 2007

Municipalities are not permitted to adoptMunicipalities are not permitted to adoptordinances inconsistent with the lawordinances inconsistent with the law

Municipalities must enact optionalMunicipalities must enact optionalprovisions of the law at least 60 days priorprovisions of the law at least 60 days priorto the first electionto the first election

Must contract with Department ofMust contract with Department ofElections at least 60 days prior to theElections at least 60 days prior to theelection for election serviceselection for election services

15 Del. C. 15 Del. C. §§ 7551 7551 –– Board of Board ofElectionsElections

Board must be set as provided by charterBoard must be set as provided by charter If the charter does not provide for a BoardIf the charter does not provide for a Board

of Elections, the Board must be providedof Elections, the Board must be providedby ordinanceby ordinance

Board must sign oathBoard must sign oath Oversee absentee ballot procedureOversee absentee ballot procedure Must post the members of Board ofMust post the members of Board of

Elections at town hall and on town websiteElections at town hall and on town website

15 Del. C. 7552 15 Del. C. 7552 –– Complaint ComplaintProcedure (Pre-Election)Procedure (Pre-Election)

Board to handle complaint promptly, asBoard to handle complaint promptly, assoon as practical after a complaint is madesoon as practical after a complaint is made

Board must make decision within 24 hoursBoard must make decision within 24 hours Appeal within 2 days of BoardAppeal within 2 days of Board’’s decision tos decision to

the Commissioner of Electionsthe Commissioner of Elections Appeal goes to Superior Court and appealAppeal goes to Superior Court and appeal

must be filed no less than 48 hours beforemust be filed no less than 48 hours beforethe start of the electionthe start of the election

15 Del. C § 7553 - Notices15 Del. C § 7553 - Notices

Must post notice of election 20 days priorMust post notice of election 20 days priorto electionto election

Posting must include:Posting must include:•• Date of electionDate of election•• Time and location of electionTime and location of election•• Candidates for each officeCandidates for each office•• Qualifications to voteQualifications to vote•• Absentee ballot procedureAbsentee ballot procedure•• Must post as required by FOIA, on website,Must post as required by FOIA, on website,

and provide a copy of the notice toand provide a copy of the notice toDepartment of ElectionsDepartment of Elections

15 Del. C §7553 (Continued)15 Del. C §7553 (Continued) Must post for solicitation of candidates 20Must post for solicitation of candidates 20

days prior to filing deadlinedays prior to filing deadline Notice must includeNotice must include

•• OfficeOffice•• Term of officeTerm of office•• Deadline for declaringDeadline for declaring•• Procedure for declaringProcedure for declaring•• Qualifications for holding officesQualifications for holding offices

Must post as required by FOIA, onMust post as required by FOIA, onwebsite, and provide to Department ofwebsite, and provide to Department ofElectionsElections

15 Del. C § 7554 Voter Eligibility15 Del. C § 7554 Voter Eligibility(Continued)(Continued)

Town charter governsTown charter governs Can use state voter registration system asCan use state voter registration system as

a registered voter list if an agreement isa registered voter list if an agreement isreached with Department of Electionsreached with Department of Elections

Could be difficult for towns that allow non-Could be difficult for towns that allow non-registered voters or out-of-town voters toregistered voters or out-of-town voters tovotevote

15 Del. C. § 7554 15 Del. C. § 7554 –– Voter Eligibility Voter Eligibility

If towns maintain own voter registration,If towns maintain own voter registration,municipality must municipality must ““publishpublish”” and post a and post aschedule of when eligible citizens canschedule of when eligible citizens canregisterregister

Because Because ““publishpublish”” is not defined, is not defined,newspaper publication is probablynewspaper publication is probablyrequiredrequired

15 Del. C. § 7555 - Candidates15 Del. C. § 7555 - Candidates

Candidacy established by town charter orCandidacy established by town charter orordinanceordinance

If charter does not address, theIf charter does not address, themunicipality should adopt ordinances tomunicipality should adopt ordinances toestablish procedureestablish procedure

Candidates disqualified if: (1) convicted ofCandidates disqualified if: (1) convicted offelony; (2) not a qualified elector for 1felony; (2) not a qualified elector for 1year; and (3) under 21 years oldyear; and (3) under 21 years old

15 Del. C. § 7555 15 Del. C. § 7555 –– Candidates Candidates(continued)(continued)

Candidates must file certificate ofCandidates must file certificate ofintention or statement of organizationintention or statement of organization

Certificate of intention used forCertificate of intention used for•• Salary less than $1,000; andSalary less than $1,000; and•• Campaign contributions/expenditures less thanCampaign contributions/expenditures less than

$2,000$2,000 Statement of organization for all otherStatement of organization for all other

situationssituations If these procedures are not followed, theIf these procedures are not followed, the

Department of Elections can declareDepartment of Elections can declarecandidate ineligiblecandidate ineligible

15 Del. C. § 7555 15 Del. C. § 7555 –– Candidates Candidates(continued)(continued)

1 candidate for seat, Board of Elections1 candidate for seat, Board of Electionsdeclares winnerdeclares winner

Municipalities must submit to theMunicipalities must submit to theDepartment of Elections all names ofDepartment of Elections all names ofcandidates for each seat 1 day after thecandidates for each seat 1 day after thefiling deadlinefiling deadline

Absentee Ballot ProcedureAbsentee Ballot Procedure

Must swear an affidavit stating why theMust swear an affidavit stating why theperson cannot vote because:person cannot vote because:•• The person is in public service outside the U.S.The person is in public service outside the U.S.

or is in the military (15 or is in the military (15 Del. C. Del. C. §5502(1), (2))§5502(1), (2))•• Cannot vote due to nature of occupation, sickCannot vote due to nature of occupation, sick

or disabled, on vacation, or cannot vote foror disabled, on vacation, or cannot vote forreligious reasonsreligious reasons

Absentee Ballot ProcedureAbsentee Ballot Procedure

Absentee ballots must be mailed byAbsentee ballots must be mailed byDepartment of Elections with a voucherDepartment of Elections with a voucherenvelope and a mailing envelopeenvelope and a mailing envelope

Must have an affidavit of eligibilityMust have an affidavit of eligibility Must contain instructionsMust contain instructions Must return by mail in most casesMust return by mail in most cases Must follow polling place deliveryMust follow polling place delivery

proceduresprocedures

Absentee Ballot ProcedureAbsentee Ballot Procedure

Absentee ballots must be rejected whenAbsentee ballots must be rejected whenincorrect (15 incorrect (15 Del. C. Del. C. §5502(1), (2))§5502(1), (2))

Presumably, local Board of Elections hasPresumably, local Board of Elections hasauthority to review absentee ballotauthority to review absentee ballotdecisions of election officersdecisions of election officers

15 Del. C. § 7557 15 Del. C. § 7557 –– Election ElectionOfficersOfficers

Unless otherwise provided by town charterUnless otherwise provided by town charteror code:or code:•• Must have sufficient election officers to runMust have sufficient election officers to run

electionelection•• Must have a chief elections officer (called anMust have a chief elections officer (called an

inspector)inspector)

Role of Election OfficersRole of Election Officers

Allow only qualified persons in the votingAllow only qualified persons in the votingroom (15 Del. C. § 7558(b))room (15 Del. C. § 7558(b))

Enforce challenger restrictions (15 Del. C.Enforce challenger restrictions (15 Del. C.§ 7558(d))§ 7558(d))

Hear disputes regarding challenges raisedHear disputes regarding challenges raisedby challengers (15 Del. C. § 7558(d))by challengers (15 Del. C. § 7558(d))

Take oathTake oath

Role of Election OfficersRole of Election Officers Prepare polling place for electionsPrepare polling place for elections Post required information in polling placesPost required information in polling places Verify voting machinesVerify voting machines Open the pollsOpen the polls Circle names of voters, require voter to sign theCircle names of voters, require voter to sign the

voter log, annotate voter log for disqualifiedvoter log, annotate voter log for disqualifiedvotersvoters

Announce closing of polls 30 minutes in advanceAnnounce closing of polls 30 minutes in advance Closing polls, tabulate unofficial election results,Closing polls, tabulate unofficial election results,

deliver results and absentee ballots to Board ofdeliver results and absentee ballots to Board ofElectionsElections

Voting MachinesVoting Machines

Voting machines must be usedVoting machines must be used Cost is $25.00 per machineCost is $25.00 per machine Machines must be certified by 2 membersMachines must be certified by 2 members

of town Board of Elections prior toof town Board of Elections prior tomachines being delivered to polling placesmachines being delivered to polling places(15 (15 Del. C. Del. C. §7558 (e)(3))§7558 (e)(3))

Election ResultsElection Results No person can take oath until the 7No person can take oath until the 7thth day day

following the election (15 following the election (15 Del. C. Del. C. §7559§7559(a))(a))

Board of Elections must recount absenteeBoard of Elections must recount absenteeballots if there is a .5 percent differenceballots if there is a .5 percent differencebetween the top two candidatesbetween the top two candidates

Board of Elections certifies the electionsBoard of Elections certifies the elections Board of Elections must audit electionBoard of Elections must audit election

results after certification of any election orresults after certification of any election orafter resolution of any contest to reconcileafter resolution of any contest to reconcileabsentee ballots and those who voted on aabsentee ballots and those who voted on avoting machinevoting machine

Challenge ProceduresChallenge Procedures

15 Del. C. § 5941 15 Del. C. § 5941 –– 5955 applies to local 5955 applies to localelectionselections

5941 5941 –– determines who may challenge determines who may challengeand whyand why

5945 5945 –– contest must be filed within 20 contest must be filed within 20daysdays

5946 5946 –– contest petition must be verified contest petition must be verified 5948 5948 –– expedited proceedings expedited proceedings 5953 5953 –– court may examine voting court may examine voting

proceduresprocedures