      IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

REBECCA YOUNG, ELIZABETH H.                )
YOUNG and JAMES L. YOUNG                   )
                                           )
      Plaintiffs,                          )
                                           )
         v.                                )     C.A. No. 10847-VCL
                                           )
RED CLAY CONSOLIDATED SCHOOL               )
DISTRICT                                   )
                                           )
      Defendant.                           )


                                    OPINION

                           Date Submitted: July 10, 2015
                           Date Decided: October 7, 2015


Richard H. Morse, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF
DELAWARE, Wilmington, Delaware; Counsel for the Plaintiffs Rebecca Young,
Elizabeth H. Young, and James L. Young.

Barry M. Willoughby, William W. Bowser, Michael P. Stafford, Margaret M. DiBianca,
YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware; Counsel
for Defendant Red Clay Consolidated School District.

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


                                              1
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.

                          I.       FACTUAL BACKGROUND

       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.

A.     The Special Election

       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 election . . . shall be for additional tax, the tax shall be levied and collected as

provided in this chapter.‖ Id. at § 1911.




                                                2
        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


                                             3
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.

B.     Red Clay’s Get-Out-The-Vote Efforts

       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 for special elections in the past. Compl. ¶ 32.




                                             4
       On February 18, 2015, Red Clay‘s superintendent, Mervin B. Daugherty, sent a

letter to families with children living in Red Clay. It stated:

       I‘m writing today to make you aware of a critical upcoming vote that will
       have a very direct impact on our children. On Feb. 24, 2015, Red Clay
       residents will go to the polls and decide whether to increase the operating
       tax rate by 35 cents over a three-year period. At its height, the increase will
       mean an additional $23 per month in school taxes for the average Red Clay
       homeowner.

       You may ask, why a Referendum? Believe, us, [sic] raising taxes is about
       the hardest thing to ask any community but this is the only mechanism for a
       school district to raise local revenues. About 40% of our district‘s funding
       is based on property taxes assessed at 1983 values. It is a near fixed tax
       base and has not increased since our last referendum in 2008. . . .

       As a future Red Clay parent, you have perhaps the largest stake in this
       referendum and ensuring our schools offer the highest quality education to
       our children. The operating funds generated by this referendum pay for the
       people and programs in our schools. They fund classroom teachers and
       keep our class sizes smaller, fund after school activities and sports, reading
       and behavior specialists, arts and music programs, library and classroom
       materials, police officers and security measures in our schools and on our
       buses. Operating funds pay for the special programs Red Clay is highly
       regarded for, and so much more. They pay for the very things we are in
       danger of losing. . . .

       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!

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



                                               5
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, Red

Clay scheduled family friendly events at its schools. The events included family fun

nights, family bingo nights, activity nights, pizza parties, carnivals, dances, faculty

basketball games, and even a free dinner for parents and students at Heritage Middle

School. Compl. ¶ 29, Exs. C & F (the ―Family-Focused Events‖).

       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


                                               6
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 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


                                              7
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 felt 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.

C.     The Outcome Of The Special Election

       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


                                               8
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.‖

D.     Complaints About The Special Election

       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:




                                             9
Question 1. A number of documents presented to us indicate that school
activities may have been specifically planned to coincide with the February
24, 2015 election in an attempt to impact the outcome of the vote. We have
attached a link to a video invitation for the ―Blizzard Blues Beach Bingo‖
event at the Linden Hill Elementary School which is one such event that
constituents have brought to our attention. Is this true? If so, who covered
the cost of these events? . . .

We understand that many other schools in the district scheduled and held
similar events. We have received complaints about crowded parking lots
and other inconveniences for voters trying to reach the polls. Can you
please confirm the number of schools that scheduled similar events on
February 24? Does the Board provide additional funding for these events or
do they come out of each school‘s budget? Can you provide an approximate
district-wide cost of the events that were held in the district on February
24?

Response to Question 1: . . . Get out the vote activities were planned at our
schools on February 24 as they have been for every referendum.
Participation was voluntary and not related to whether or not a constituent
voted or how they voted. For example, February is Love to Read month and
African American History month so every year we have activities in
February celebrating these important events. School events are focused on
academic engagement or school or PTO/PTA activities like the Bingo event
you noted at Linden Hill. Family Bingo is regularly held at our schools at
various times throughout the year. Funding of such programs comes from
the building budget or the PTA/PTO as part of their normal budgets. Costs
are nominal and no additional funding sources were provided by the
district.

                                   ***

Question 3: We have received numerous questions regarding . . . whether
the public outreach regarding the election was limited and may not have
reached all voters who would be impacted by passage of the referendum.
Could you please detail the public outreach, including the number of
residents the District contacted during the course of the campaign?

Response to Question 3: Public outreach was community wide. In
December, 2014 we sent a Red Clay Record with notification of the
upcoming Referendum to all households within the District boundary. In
February, 2015 we sent a Red Clay Record with detailed information on the
[Special Election] again community wide – mailing to more than 74,000
addresses. All information was posted on our district web site. We followed


                                     10
      elections regulations regarding notifications at all our schools and in the
      Newspaper running consecutive weeks 2/2 through 2/23. In addition we
      held a number of public meetings and workshops related to the referendum
      over the past nine months. We answered questions from every media outlet
      to explain the District‘s needs and the purposes of the Referendum. It was
      the News Journal and other media, however, who determined the coverage
      of the information we provided.

      Question 4: Finally, constituents have expressed concern that campaign
      signs supporting the referendum were displayed well within the boundaries
      established by Delaware State Law that prohibits such activity within 50
      feet of a polling place. We have also been told that signs supporting the
      referendum were located inside the polling places. Can you confirm that
      this did not occur?

      Response to Question 4: Conduct of the election was the responsibility of
      the Delaware Department of Elections (―DOE‖). DOE has well-trained and
      professional staff that supervised and monitored the election. The DOE
      staff does not permit signs or any conduct that did not comply with
      Delaware‘s election laws and procedures.

      In addition, school staff was aware of the requirements of campaign signs
      not being within 50 feet of the polling place. If Red Clay staff saw a sign or
      other material that they believed did not comply with the election
      regulations, they brought this information to the attention of the
      Department of Elections Inspectors who monitor the polling places. We
      rectified immediately any concern reported to us by the Department of
      Elections. We were made aware of very few instances of this occurring.

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.

C.    Procedural History

      On March 27, 2015, the plaintiffs filed a verified complaint and moved for an

expedited hearing on an application for a preliminary injunction that would block the tax

increase from taking effect. I denied the motion to expedite, holding that even if the tax


                                           11
increase went into effect, a post-trial remedy could be crafted in the event the plaintiffs

prevailed. Among other possible routes, the statute governing school-related property

taxes contains a mechanism for refunding school taxes paid in error. See 14 Del. C. §

1921. A post-trial remedy also could be achieved by having Red Clay treat the payments

that property owners made as a credit against future taxes owed.

      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.

                            II.      LEGAL ANALYSIS

      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,

      (i) all well-pleaded factual allegations are accepted as true; (ii) even vague
      allegations are well-pleaded if they give the opposing party notice of the
      claim; (iii) the Court must draw all reasonable inferences in favor of the


                                            12
       non-moving party; and (iv) dismissal is inappropriate unless the plaintiff
       would not be entitled to recover under any reasonably conceivable set of
       circumstances susceptible of proof.

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.1 The first section of the Fourteenth

Amendment contains one of the most jurisprudentially significant sentences ever crafted:

―No State shall make or enforce any law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.‖ U.S. Const. amend. XIV, § 1. Within this single sentence

appear the Due Process and Equal Protection Clauses, as well as their doctrinally

emaciated and underdeveloped cousin, the Privileges & Immunities Clause. The plaintiffs

contend that Red Clay personnel violated the two more vigorous clauses. They seek to

enforce their rights by suing under 42 U.S.C. § 1983, which states:




       1
         The Complaint also cited the Due Process Clause of the Fifth Amendment, which
provides that ―[n]o person shall be . . . deprived of life, liberty, or property, without due
process of law.‖ U.S. Const. amend. V. To the extent the Complaint relies on this federal
protection, it is dismissed. The Due Process Clause in the Fifth Amendment applies only
to the federal government. Bolling v. Sharpe, 347 U.S. 497 (1954). The Complaint does
not challenge any action taken by the federal government, only action taken by Red Clay.


                                             13
       Every person who, under color of any statute, ordinance, regulation,
       custom, or usage, of any State or Territory or the District of Columbia,
       subjects, or causes to be subjected, any citizen of the United States or other
       person within the jurisdiction thereof to the deprivation of any rights,
       privileges, or immunities secured by the Constitution and laws, shall be
       liable to the party injured in an action at law, suit in equity, or other proper
       proceeding for redress . . . .

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.‖2

Consequently, the content of the violations that the plaintiffs have alleged under Section

1983 must flow from federal 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 4942.3 They also cite the Delaware Equal Accommodation Act, 6



       2
         Marker v. Talley, 502 A.2d 972, 976 (Del. Super. 1985) (emphasis added); see
Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002) (―[Section] 1983 merely provides a
mechanism for enforcing individual rights ‗secured‘ elsewhere, i.e., rights independently
‗secured by the Constitution and laws‘ of the United States.‖); Golden State Transit
Corp. v. City of Los Angeles, 493 U.S. 103, 105 (1989) (―As the language of [Section
1983] plainly indicates, the remedy encompasses violations of federal statutory as well as
constitutional rights.‖).
       3
          It not clear whether the plaintiffs purport to sue directly under the electioneering
statutes. To the extent the Complaint could be read to assert such a claim, it is dismissed.
Each of the provisions is a criminal statute. Only the Attorney General has authority to

                                             14
Del. C. § 4504, which prohibits discrimination against the aged and disabled.4 The

plaintiffs regard the Elections Clause as self-executing, such that they can enforce it

directly by way of a private action. Alternatively they invoke Article I, § 9, of the

Delaware Constitution, which states:

       [E]very person for an injury done him or her in his or her reputation,
       person, movable or immovable possessions, shall have remedy by the due
       course of law, and justice administered according to the very right of the
       cause and the law of the land, without sale, denial, or unreasonable delay or




bring a criminal proceeding. E.g., Brett v. Berkowitz, 706 A.2d 509, 512-13 (Del. 1998)
(finding no private right of action under criminal statutes penalizing offensive touching
and sexual harassment because ―the statutes were enacted, not to create rights for a
particular group of citizens, but to protect the public at large‖).
       4
          It is not clear whether the plaintiffs purport to sue directly under 6 Del. C. §
4504. To the extent the Complaint could be read to assert such a claim, it is dismissed.
Miller v. Spicer, 602 A.2d 65, 68 (Del. 1991) (―The [Delaware Equal Accommodation
Act] contains no express authorization for the maintenance of a private cause of action
and, in our view, no legislative intention to permit such a remedy may be implied from
the [Delaware Equal Accommodation Act‘s] underlying purpose.‖); see Joy Mulholland
& Richard H. Morse, Article I of the Delaware Constitution: Liberty Begins at Home,
Del. Law., 29-WTR Del. Law. 18, 20 (2012) (observing that ―the [Equal
Accommodation] statute supplies no private right of action, and victims seeking redress
under state law may only file complaints before the Human Relations Commission‖). As
part of the administrative procedure, the statute provides a mechanism by which the
Attorney General can seek injunctive relief on a plaintiff‘s behalf, or the agency can do
so through special counsel. See 6 Del. C. § 4610(e); State v. Messic, 1998 WL 671279, at
*1 (Del. Ch. Sept. 18, 1998) (discussing procedures). This decision need not consider
whether there might be a rare case in which exigent circumstances would call for a court
to act before a plaintiff had exhausted the administrative procedures. Cf. Levinson v. Del.
Comp. Rating Bureau, Inc., 616 A.2d 1182, 1191-92 (Del. 1992) (explaining that
exhaustion of administrative remedies is not required if a prompt decision in the public
interest is needed, if the case does not involve administrative expertise or discretion, or if
irreparable harm would result).


                                             15
       expense. Suits may be brought against the State, according to such
       regulations as shall be made by law.5

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




       5
        Del. Const. art. I, § 9 (the ―Remedies Clause‖). ―Under this section, the courts
have a duty to afford a remedy for every substantial wrong; the volume of cases, danger
of fraudulent claims, or difficulty of proof do not eliminate this requirement.‖ Holland,
Delaware State Constitution, supra, at 65. Also under this section, ―the General
Assembly is not permitted to restrict the general historic equity jurisdiction of the Court
of Chancery to less than that provided for in the Delaware Constitution of 1792.‖ Id. As
the Delaware Supreme Court has observed, ―[i]t cannot be said too forcefully that the
general powers of the Court of Chancery refers to that complete system of equity as
administered by the High Court of Chancery of Great Britain.‖ Glanding v. Indus. Tr.
Co., 45 A.2d 553, 558 (Del. 1945).

       [T]he Chancellor always has had, and always must have, a certain power
       and freedom of action, not possessed by the courts of law, of adapting the
       doctrines which he administers. He can extend those doctrines to new
       relations, and shape his remedies to new circumstances, if the relations and
       circumstances come within the principles of equity, where a court of law in
       analogous cases would be powerless to give any relief.

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)).


                                             16
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

this case. It then considers and rejects each of Red Clay‘s arguments. Having done so,

this decision outlines the general contours of the federal and state law claims. Lacking

detailed briefing from the parties, those outlines are necessarily tentative and designed

only to indicate that the Complaint‘s theories and allegations are sufficient to survive a

motion to dismiss.

A.     The Public Policy Issues

       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




                                             17
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


                                             18
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 serious public policy

concerns and presents a greater threat of entrenched political power. Government

intervention in the second scenario, particularly in the form of traditional speech, seems

less dangerous. Some degree of government speech in the second scenario seems

desirable as a means of providing information that will enhance decision-making by the

electorate.6



       6
          For a scholarly article endorsing this distinction for government election
advocacy, see Helen Norton, Campaign Speech Law with a Twist: When the Government
is the Speaker, Not the Regulator, 61 Emory L.J. 209, 213 (2011) [hereinafter Campaign
Speech]. Other scholars are more skeptical. See Steven J. André, Government Election
Advocacy: Implications of Recent Supreme Court Analysis, 64 Admin. L. Rev. 835
(2014); Nelson Tebbe, Government Nonendorsement, 98 Minn. L. Rev. 648 (2013);
Edward H. Ziegler Jr., Government Speech and the Constitution: The Limits of Official

                                           19
      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

      speech to the public (rather than to other government entities) that
      expresses the official view of a governmental branch or body, such as
      speech issued collectively in the form of a resolution or proclamation, or
      speech by an official empowered to speak for that governmental entity. It
      does not include speech by individual government officials expressing their
      own views in a personal, nongovernmental capacity—e.g., when a governor
      endorses a particular candidate for Senate on her own time and without any
      expenditure of government resources. . . .7

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




Partisanship, 21 B.C. L. Rev. 578 (1980); David P. Haberman, Note, Governmental
Speech in the Democratic Process, 65 Wash. U. L.Q. 209 (1987); Note, The
Constitutionality of Municipal Advocacy in Statewide Referendum Campaigns, 93 Harv.
L. Rev. 535 (1980).
      7
         Norton, Campaign Speech, supra, at 213-14. Norton distinguishes government
campaign speech on referenda from government campaign speech in favor of particular
candidates and excludes the latter from her definition. Id. at 214. I believe the term
logically extends to both contexts, although I agree with her that the two scenarios
present different policy issues and that government speech during an election involving
candidates should be subject to greater restrictions and closer scrutiny.


                                           20
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 disadvantage competing voices, and even the ability of a government

to use its regulatory muscle to limit or shut down its opponents. Another concern is that

government speech may not be reliable. ―The Gulf of Tonkin and the Watergate cover-up

are more egregious examples of government efforts to manufacture the consent of the

governed.‖ André, Government Election Advocacy, supra, at 841 n.11. Distortions also

may result from well-meaning government officials acting in good faith. ―Their

investment in a particular ballot measure inevitably predisposes them to be biased, to

discount other perspectives, and to slant their approach in discussing it with the voting

public. In addition, because they are insulated, they may be mistaken, misinformed or

unwittingly primed by institutional forces . . . .‖ Id. These concerns resonate more

strongly if the government‘s message does not disclose its official origins, if listeners are

not able to avoid or counter the government‘s message, or if the audience is a vulnerable

segment of the population, such as children or youth. Norton, supra, at 238-39.


                                             21
       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.


                                            22
       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, believing them to be likely to support the tax increase.

       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




                                             23
disfavor others. Recent scholarship and litigation involving this type of government

intervention has focused on voter identification statutes.8

       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.




       8
         See, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008); Veasey v.
Abbott, 796 F.3d 487 (5th Cir. 2015); Spencer Overton, Voter Identification, 105 Mich.
L. Rev. 631, 633 (2007). A historical example involved the widespread furloughs granted
to Union troops so they could return home to vote in the election of 1864. The Lincoln
administration believed that the troops would favor the President over his challenger. See
Eugene R. Gaetke, Lessons in Legal Ethics from Reading About the Life of Lincoln, 97
Ky. L.J. 583, 613 (2009) (citing David Herbert Donald, Lincoln 454-55 (1955)).


                                             24
      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 to the point of transferring

something of value to a subset of the electorate in return for the act of voting.

Conceptually, it resembles a bribe. It also involves the government discriminating among

identifiable groups of voters by choosing to favor some and disfavor others. There are

scholars who argue that to increase election turnout, governments should be able to
                                                     9
provide some form reward for voting to all voters.       Several states allow payments for



      9
         See Anthony B. Sanders, In Defense of Vote Buying: How ―Nader Traders‖ Can
Defeat Rent Seeking, 26 Hamline J. Pub. L. & Pol‘y 43 (2004); Richard L. Hasen, Vote
Buying, 88 Cal. L. Rev. 1323, 1326, 1334 (2000) (arguing that paying rewards to boost
turnout would be beneficial when evaluated using norms of equality and efficiency but
could pose concerns for community self-governance); Natalie J. Lockwood, International
Vote Buying, 54 Harv. Int‘l L.J. 97, 116 (2013) (arguing that vote buying may be
effective in encouraging voter turnout) (citing Simeon Nichter, Vote Buying or Turnout
Buying: Machine Politics and the Secret Ballot, 102 Am. Pol. Sci. Rev. 19 (2008)).


                                          25
voting, so long as the payment is not designed to induce a voter to favor a particular

candidate or result.10 I have not located authority that favors a government having the

ability to provide rewards to a particular subset of the electorate that the government

believes will favor its preferred outcome.

       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


       10
          See Cal. Elec. Code § 18522 (prohibiting any person from providing
consideration to a voter to induce or reward the voter to vote for or against a particular
candidate, or to refrain from voting generally); Dansereau v. Ulmer, 903 P.2d 555, 560
(Alaska 1995) (―Although [Alaska law] prohibits a person from paying another person to
vote for a particular candidate, proposition, or question, no Alaska Statute prohibits a
person from compensating another person for voting per se.‖). See generally Richard L.
Hasen, Vote Buying, 88 Calif. L. Rev. 1323, 1355 (2000).


                                             26
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 getting their coupons and could pass them along to relatives or friends.

Instead, by structuring the rewards as events hosted by the schools that would appeal to

families with children, Red Clay transferred something of value to an identifiable group

of voters that it believed would support its desired electoral outcome.

       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.




                                            27
       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.


                                             28
       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.

B.     Red Clay’s Election Interventions As Constitutionally Protected Speech

       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.

       According to Red Clay, ―the District has a constitutionally protected right to

advocate for or against a matter within its governance functions, including a tax

referendum.‖ Red Clay Op. Br. at 9-10. In its reply brief, Red Clay relied specifically on

its ―First Amendment right to advocate‖ and asserted that ―governmental entities are

protected by the First Amendment.‖ Red Clay Reply Br. at 9. At oral argument, Red

Clay‘s counsel stood by these contentions. Dkt. 35 at 6-12. Moreover, as Red Clay sees

it, the United States Supreme Court has equated the expenditure of money with speech.11




       11
          See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 314, 350 (2010);
Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam); Daniel J. Oates, Franchisor Political
Speech: The Disclosure Question, 34 Franchise L.J. 555, 569 n.3 (2015) (collecting
authority and discussing debate about whether money is speech); Marion McLane Read,
Note, Between A Rock and A Hard Place: Looking Beyond Statutes and the First
Amendment to Address Ethical Concerns in Federal Lobbying, 24 Geo. J. Legal Ethics

                                            29
Consequently, Red Clay believes that the Free Speech Clause protects not only traditional

speech like Superintendent Daugherty‘s letter, but also its expressive conduct, such as the

Family-Focused Events, that involved using Red Clay‘s facilities and spending its funds.

Although I agree that the government speech doctrine applies to Red Clay, I do not

believe that the Free Speech Clause protects Red Clay, nor that it operates as a form of

constitutional immunity against claims grounded in other sources of law.

      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.12 As the United States Supreme Court has written, ―[t]he

Free Speech Clause restricts government regulation of private speech; it does not regulate

government speech.‖ Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009).

Instead, ―[t]he involvement of public officials in advocacy may be limited by law,

regulation, or practice.‖ Id. at 468. The ―law‖ includes the United States Constitution:

―[E]ven if the Free Speech Clause neither restricts nor protects government speech,




783, 790-91 (2011) (arguing that Citizens United and Buckley stand for the proposition
that ―spending money is speech‖).
      12
          See Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 139
(1973) (Stewart, J., concurring) (―The First Amendment protects the press from
government interference; it confers no analogous protection on the government.‖)
(emphases added); see also Bob Burns, Remarks on the South Dakota Law Review
Symposium: The Government Speech Doctrine, 57 S.D. L. Rev. 394, 396 (2012) (noting
that the ―First Amendment was intended to limit national governmental powers and not to
augment or enhance governmental powers‖).


                                            30
government speakers are bound by the Constitution‘s other proscriptions, including those

supplied by the Establishment and Equal Protection Clauses.‖ Id. at 482 (Stevens, J.,

concurring). For state government actors like Red Clay, the ―law‖ includes the state

constitution and other sources of state law. See Cook v. Baca, 95 F.Supp.2d 1215, 1227 &

n.18 (D.N.M. 2000) (rejecting Free Speech Clause challenge while noting that courts

often enforced state law limits on government campaign speech).

      To justify its assertion of constitutionally protected speech, Red Clay relies on

cases applying the ―recently minted‖ government speech doctrine. Summum, 555 U.S. at

481 (Stevens, J., concurring). As I understand it, the government speech doctrine does not

rewrite the Free Speech Clause to protect government speech, nor does it create a defense

to other limitations on government speech that the law might impose. It rather protects

the government‘s own speech from claims that a plaintiff otherwise might raise under the

Free Speech Clause. It particularly addresses two recurring claims: first, a viewpoint-

discrimination claim in which a plaintiff argues that once the government establishes a

forum for speech, the government must remain neutral and cannot engage in viewpoint

discrimination, and second, a compelled-subsidy claim in which a plaintiff argues that by

spending taxpayer funds or other government moneys in support of a particular program,

the government is compelling the plaintiff to subsidize speech with which the plaintiff

disagrees. In response to these species of claims, the United States Supreme Court held in

Summum that if government entities are ―engaging in their own expressive conduct, then

the Free Speech Clause has no application.‖ Id. at 467. Having ―no application‖ is




                                           31
different than providing affirmative constitutional protection for government speech or a

complete defense against other limitations on government conduct.

       The decision in Rust v. Sullivan, 500 U.S. 173 (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 (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. The United States Supreme

Court disagreed.

       The Government can, without violating the Constitution, selectively fund a
       program to encourage certain activities it believes to be in the public
       interest, without at the same time funding an alternative program which
       seeks to deal with the problem in another way. In so doing, the Government
       has not discriminated on the basis of viewpoint; it has merely chosen to
       fund one activity to the exclusion of the other.13


       13
          Id. at 193. The Supreme Court reasoned similarly but reached a different
conclusion in Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819
(1995). There, a public university collected money through mandatory student activity
fees, which it used to print student publications. The university refused to pay the printing
costs of a student-written religious publication. Those students sued, arguing that the
university abridged their First Amendment rights under the Free Speech Clause. The
United States Supreme Court affirmed its holding in Rust, but held that on the facts
presented in Rosenberger, the university had undertaken to fund the speech of all student
groups on campus, effectively creating the equivalent of a public form. The Court
nevertheless cautioned that ―[a] holding that the University may not discriminate based
on the viewpoint of private persons whose speech it facilitates does not restrict the
University‘s own speech, which is controlled by different principles.‖ Id. at 834. For a
similar case granting relief on a compelled-speech claim, see Bd. of Regents of University
of Wis. Sys. v. Southworth, 529 U.S. 217, 223, 229-30 (2000), where the Court held that a
mandatory activity fee that was used for student publications forced students to engage in

                                             32
Selective funding was an appropriate means by which the government could ―ensure that

the limits of the federal program are observed.‖ Rust, 500 U.S. at 193.

       The decision in Johanns v. Livestock Marketing Association, 544 U.S. 550 (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.14 The plaintiffs

argued that the program violated the Free Speech Clause by forcing them to subsidize

speech with which they disagreed. The United States Supreme Court upheld the

assessment and the use of the proceeds for advertising. The decision explained that ―[t]he

message of the promotional campaigns [was] effectively controlled by the Federal

Government itself‖ and that ―‗[c]ompelled support of government‘—even those programs

of government one does not approve—is of course perfectly constitutional, as every

taxpayer must attest. And some government programs involve, or entirely consist of,

advocating a position.‖ 544 U.S. at 559-60. The Court concluded that ―[c]itizens may

challenge compelled support of private speech, but have no First Amendment right not to

fund government speech.‖ Id. at 562.



compelled speech, but cautioned that ―[w]here the University speaks, either in its own
name through its regents or officers, or in myriad other ways through its diverse faculties,
the analysis likely would be altogether different.‖ Id. at 235.
       14
           Id. at 553. Livestock Marketing was the third in a string of similar cases that
challenged industry-specific assessments used for general advertising purposes. See
United States v. United Foods, Inc., 533 U.S. 405 (2001); Glickman v. Wileman Bros. &
Elliott, 521 U.S. 457 (1997).


                                            33
      Federal and state decisions have relied on the government speech doctrine to reject

Free Speech Clause challenges to government campaign speech.15 The plaintiffs in these

cases challenged government campaign speech by invoking the Free Speech Clause.

They did not challenge government electoral interventions by invoking other limitations

on the government’s ability to speak or act, such as the Due Process Clause and Equal

Protection Clauses of the Fourteenth Amendment or various provisions of state law.

      A leading decision, on which Red Clay relies heavily, is Kidwell. That case

focused on a disputed ballot initiative relating to the creation and funding of a fire

department for the City of Union. 462 F.3d at 622. The city council opposed a citizen-

sponsored resolution to create a fire department for the city and used public funds to


      15
          See Page v. Lexington Cty. Sch. Dist. One, 531 F.3d 275, 281 (4th Cir. 2008)
(rejecting viewpoint-discrimination challenge to school district‘s advocacy against
proposed tax credit); Kidwell v. City of Union, 462 F.3d 620, 626 (6th Cir. 2006)
(rejecting compelled-subsidy and viewpoint-discrimination challenges to city‘s advocacy
against a ballot initiative); Adams v. Maine Mun. Ass’n, 2013 WL 9246553, at *22 (D.
Me. Feb. 14, 2013) (rejecting compelled-subsidy challenge to lobbying efforts by firm
that represented association of municipalities); Cook v. Baca, 95 F. Supp. 2d 1215, 1227-
29 (D.N.M. 2000) (rejecting viewpoint-discrimination challenge to advertisement in
favor of ballot initiative that mayor had included with utility bills), aff’d, 2001 WL
303679 (10th Cir. Mar. 29, 2001); Lash v. City of Union, 104 F. Supp. 2d 866, 876 (S.D.
Ohio 1999) (analyzing compelled-subsidy challenge to City‘s use of money to promote
tax levy); Ala. Libertarian Party v. City of Birmingham, 694 F. Supp. 814, 817-21 (N.D.
Ala. 1988) (rejecting compelled-subsidy challenge to city‘s promotional campaign in
favor of bond issue and new tax levy); Peraica v. Riverside-Brookfield High Sch. Dist.,
999 N.E.2d 399, 407-09 (Ill. App. Ct. 2013) (relying on government speech doctrine to
dismiss compelled-subsidy and viewpoint-discrimination challenges to a school district‘s
efforts in support of a tax referendum); Montgomery Cty. v. Fraternal Order of Police,
112 A.3d 1052, 1070, 1074 (Md. Ct. Spec. App. 2015) (rejecting compelled-subsidy
challenge to county‘s expenditure of funds to promote its position on a ballot measure),
cert. granted, 2015 WL 5109169 (Md. Aug. 21, 2015). See generally André, Government
Election Advocacy, supra, at 843-44.


                                           34
campaign against it. The city hung ―Vote NO‖ banners, mailed leaflets to residents,

bought advertising in local newspapers, and used the town newsletter to express its

opposition. Id. at 622-23. Voters who supported the initiative asserted two Free Speech

Clause violations. They claimed that the city had engaged in viewpoint discrimination by

denying them access to a public forum (the town newsletter and town treasury), and they

argued that the city had forced them to engage in compelled speech by using public funds

to disseminate a message with which they did not agree. Id. at 623.

       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 (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.




                                           35
       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:

       Although these principles require some limit on the government‘s power to
       advocate during elections, they do not support a bright line rule barring
       such speech, at least where the government speaks within the scope of its
       governance functions.

       Governments must serve their citizens in myriad ways, including by
       provision of emergency services, and those activities require funding
       through taxation. . . . The issues on which the city advocated were thus
       germane to the mechanics of its function, and are clearly distinguishable
       from the hypothetical cases of government speech in support of particular
       candidates . . . .

       The natural outcome of government speech is that some constituents will be
       displeased by the stance that their government has taken. Displeasure does
       not necessarily equal unconstitutional compulsion, however, and in most
       cases the electoral process—not First Amendment litigation—is the
       appropriate recourse for such displeasure.




                                            36
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.16

       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



       16
         Illustrating the sensitivity of government interventions in elections, even when
the only challenges arise under the Free Speech Clause, Kidwell was a split decision that
prompted a lengthy, vigorous, and scholarly dissent. See id. at 626-37 (Martin, J.,
dissenting).


                                             37
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. 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.

C.     The Relationship Between The Federal And State Claims

       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 only responds to Free Speech Clause claims. It


                                             38
does not provide a defense to a claim under sources of law, such as state law. The

equivalency argument fails a second time because the ostensible federal parallel for the

Elections Clause is not the Free Speech Clause and cases applying the government

speech doctrine, but rather the federal regime of implied constitutional protection for

voting rights that has developed under the Due Process and Equal Protection Clauses.

The equivalency argument fails yet again because the Elections Clause in the Delaware

Constitution is both separate from and more protective of electoral rights than the implied

federal regime.

       Commentators have identified several models that state courts use when analyzing

the relationship between state and federal constitutional protections.17 The lockstep

model rests on the proposition that ―a state constitutional provision with an analogous

federal counterpart should be construed precisely the same way.‖ Holland, Purpose &

Function, supra, at 18. Under this model, ―changes or clarifications of federal law by the

United States Supreme Court lead to parallel changes in state constitutional law.‖ 18 The



       17
          See Randy J. Holland, State Constitutions: Purpose and Function [hereinafter
Purpose & Function], in The Delaware Constitution of 1897: The First One Hundred
Years 5, 18 (Randy J. Holland & Harvey Bernard Rubenstein eds., 1997) [hereinafter,
First 100 Years]. For a discussion of these approaches that focuses on voting provisions
in state constitutions, see Joshua A. Douglas, The Right to Vote Under State
Constitutions, 67 Vand. L. Rev. 89 (2014) [hereinafter State Constitutions].
       18
           Earl M. Maltz, False Prophet—Justice Brennan and the Theory of State
Constitutional Law, 15 Hastings Const. L.Q. 429, 437-38 (1988); see John Christopher
Anderson, The Mysterious Lockstep Doctrine and the Future of Judicial Federalism in
Illinois, 44 Loy. U. Chi. L.J. 965, 966-71 (2013) (discussing lockstep and judicial
federalism debate); James A. Gardner, The Failed Discourse of State Constitutionalism,
90 Mich. L. Rev. 761, 788-792 (1992) (analyzing lockstep doctrine and collecting cases).


                                            39
interstitial model gives federal law priority by first analyzing a claim under the United

States Constitution. If the federal right addresses the issue, then the analysis stops. Only

if the federal right leaves a gap will a court determine whether the state constitution fills

it.19 The primacy model takes the opposite view. It treats a state constitution as ―an

independent source of rights and relies on it as the fundamental law.‖20




       19
         Holland, Purpose & Function, supra, at 18; accord Robert F. Utter, Swimming
in the Jaws of the Crocodile: State Court Comment on Federal Constitutional Issues
When Disposing of Cases on State Constitutional Grounds, 63 Tex. L. Rev. 1025, 1047-
50 (1985).
       20
           Utter, supra, at 1028. Other approaches have been identified, and an extensive
literature has developed on the subject. See, e.g., Lawrence Friedman, The Constitutional
Value of Dialogue and the New Judicial Federalism, 28 Hastings Const. L.Q. 93 (2000)
(collecting cases and scholarship and analyzing debate on various state constitutional
interpretive approaches); Shirley S. Abrahamson, State Constitutional Law, New Judicial
Federalism, and the Rehnquist Court, 51 Clev. St. L. Rev. 339 (2004); Anderson, The
Mysterious Lockstep Doctrine and the Future of Judicial Federalism in Illinois, supra;
John Kincaid, Foreword: The New Federalism Context of the New Judicial Federalism,
26 Rutgers L.J. 913 (1995); Article, Developments in the Law – The Interpretation of
State Constitutional Rights, 95 Harv. L. Rev. 1324 (1982); Lawrence Friedman &
Charles H. Baron, Baker v. State and the Promise of the New Judicial Federalism, 43
B.C. L. Rev. 125 (2001); James A. Gardner, State Constitutional Rights as Resistance to
National Power: Toward a Functional Theory of State Constitutions, 91 Geo. L.J. 1003
(2003); Matthew C. Jones, Fraud and the Franchise: The Pennsylvania Constitution’s
―Free and Equal Election‖ Clause as an Independent Basis for State and Local Election
Challenges, 68 Temp. L. Rev. 1473 (1995); Timothy P. O‘Neill, Escape from Freedom:
Why ―Limited Lockstep‖ Betrays our System of Federalism, 48 J. Marshall L. Rev. 325
(2014); Michael Schwaiger, Understanding the Unoriginal: Indeterminate Originalism
and Independent Interpretation of the Alaska Constitution, 22 Alaska L. Rev. 293 (2005);
Diane S. Sykes, The ―New Federalism‖: Confessions of a Former State Supreme Court
Justice, 38 Okla. L. Rev. 367 (2013); Elisabeth A. Archer, Note, Establishing Principled
Interpretation Standards in Iowa’s Cruel and Unusual Punishment Jurisprudence, 100
Iowa L. Rev. 323 (2014).


                                             40
       These interpretive models are generalizations, and the Delaware Supreme Court

has not embraced any of them exclusively. The Delaware Supreme Court instead has held

that a court must ―apply a logical, deductive analytical process‖ to determine whether a

state constitutional provision should be given the same interpretation as ―similar

language in the United States Constitution.‖ Jones v. State, 745 A.2d 856, 864 (Del.

1999). Relying on an influential concurring opinion by Justice Handler of the New Jersey

Supreme Court, the Jones decision identified a ―partial list of . . . non-exclusive criteria‖

that could be used in the analysis. Id. They include:

       (1) Textual Language—A state constitution‘s language may itself provide a
       basis for reaching a result different from that which could be obtained
       under federal law. Textual language can be relevant in either of two
       contexts. First, distinctive provisions of our State charter may recognize
       rights not identified in the federal constitution. . . .

       Second, the phrasing of a particular provision in our charter may be so
       significantly different from the language used to address the same subject
       in the federal Constitution that we can feel free to interpret our provision on
       an independent basis . . . .

       (2) Legislative History—Whether or not the textual language of a given
       provision is different from that found in the federal Constitution, legislative
       history may reveal an intention that will support reading the provision
       independently of federal law. . . .

       (3) Preexisting State Law—Previously established bodies of state law may
       also suggest distinctive state constitutional rights. State law is often
       responsive to concerns long before they are addressed by constitutional
       claims. Such preexisting law can help to define the scope of the
       constitutional right later established.

       (4) Structural Differences—Differences in structure between the federal
       and state constitutions might also provide a basis for rejecting the
       constraints of federal doctrine at the state level. The United States
       Constitution is a grant of enumerated powers to the federal government.
       Our State Constitution, on the other hand, serves only to limit the sovereign
       power which inheres directly in the people and indirectly in their elected

                                             41
       representatives. Hence, 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.

       (5) Matters of Particular State Interest or Local Concern—A state
       constitution may also be employed to address matters of peculiar state
       interest or local concern. When particular questions are local in character
       and do not appear to require a uniform national policy, they are ripe for
       decision under state law. Moreover, some matters are uniquely appropriate
       for independent state action. . . .

       (6) State Traditions—A state‘s history and traditions may also provide a
       basis for the independent application of its constitution . . . .

       (7) Public Attitudes—Distinctive attitudes of a state‘s citizenry may also
       furnish grounds to expand constitutional rights under state charters. While
       we have never cited this criterion in our decisions, courts in other
       jurisdictions have pointed to public attitudes as a relevant factor in their
       deliberations.

Id. at 864-865 (alterations in original; quoting State v. Hunt, 450 A.2d 952, 965-66 (N.J.

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.21 It seems fair to say, however, that



       21
         See Gen. Elec. Co. v. Klein, 106 A.2d 206, 210 (Del. 1954) (interpreting
language in Article I, § 7 of the Delaware Constitution in parallel with the due process
clause found in the Fifth Amendment of the United States Constitution); Whitwell v.
Archmere Acad., Inc., 2008 WL 1735370, at *2 (Del. Super. Apr. 16, 2008) (observing

                                            42
Delaware jurisprudence generally favors the primacy model and resists the lockstep

model.22 Skepticism about lockstep interpretations is particularly strong for provisions

which, like the Elections Clause, appear in Delaware‘s Declaration of Rights. See

generally Randy J. Holland, The Delaware State Constitution 32-34 (2011).




that when evaluating a claim for deprivation of a right without due process of law,
Delaware follows the lock-step approach); Bailey v. City of Wilmington, 1999 WL
1442006, at *3 (Del. Super. Dec. 22, 1999) (same), aff’d, 766 A.2d 477 (Del. 2001) (per
curiam). See generally Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247, 1259
(Del. 2011) (―Delaware constitutional due process is coextensive with federal due
process.‖).
       22
          See, e.g., Doe v. Wilm. Hous. Auth., 88 A.3d 654, 665 (Del. 2014) (finding
Delaware‘s right to keep and bear arms found in Article I, § 20 of the Delaware
Constitution grants broader rights than the Second Amendment of the United States
Constitution); Jones, 745 A.2d at 860-61, 863 (holding that Article I, § 6 of the Delaware
Constitution provides greater rights against unlawful searches and seizures than the
Fourth Amendment of the United States Constitution); Claudio v. State, 585 A.2d 1278,
1298 (Del. 1991) (holding that Article I, § 4 of the Delaware Constitution provides a
greater right to trial by jury in a criminal matter than the Sixth Amendment of the United
States Constitution); Bryan v. State, 571 A.2d 170, 176 (Del. 1990) (holding that Article
I, § 7 of the Delaware Constitution provides greater rights to counsel than the Fifth
Amendment of the United States Constitution); Hammond v. State, 569 A.2d 81, 87 (Del.
1989) (holding that Article I, § 7 of the Delaware Constitution provided greater
protections in the preservation of evidence used against a defendant than the Fourteenth
Amendment of the United States Constitution); Van Arsdall v. State, 524 A.2d 3, 6-7
(Del. 1987) (holding that Article I, § 7 of the Delaware Constitution contemplated a
greater right of confrontation than the Sixth Amendment of the United States
Constitution); see also Fortt v. State, 766 A.2d 475 (Del. 2000) (per curiam) (―While the
analysis may be the same under either the federal or state [double jeopardy] provision,
Delaware‘s distinct common law roots developed prior to the adoption of the Fifth
Amendment of the Federal constitution do not preclude a separate analysis in given
circumstances without reference to the federal counterpart.‖); Lolly v. State, 611 A.2d
956, 959-60 (Del. 1992) (declining to follow federal due process cases and holding that
bad faith by the policy in failing to preserve exculpatory evidence is not a prerequisite to
a lack of due process under the Delaware Constitution).


                                            43
       The Declaration of Rights in the Delaware Constitution is not a mirror
       image of the federal Bill of Rights. Consequently, 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.

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.23 As the Jones court observed, ―[t]he Framers of the United States

Constitution adopted a constitutionally mandated balance of power between the states

and the Federal Government to ensure the protection of our fundamental liberties.‖ 745

A.2d at 874 (internal quotation marks omitted). ―The preservation of diversity in the legal

and governmental systems of each state was expressly contemplated when the United

States Constitution was framed and adopted.‖ Id. Consequently, ―[t]he Delaware


       23
           See William J. Brennan, Jr., State Constitutions and the Protection of Individual
Rights, 90 Harv. L. Rev. 489, 491 (1977) (―State constitutions . . . are a font of individual
liberties, their protections often extending beyond those required by the Supreme Court‘s
interpretation of federal law.‖); id. at 502 (―[T]he decisions of the [United States
Supreme] Court are not, and should not be, dispositive of questions regarding rights
guaranteed by counterpart provisions of state law.‖). See generally Holland, Delaware
State Constitution, supra, at 33-34; Myron T. Steele & Peter I. Tsoflias, Realigning the
Constitutional Pendulum, 77 Alb. L. Rev. 1365, 1374-75 (2014).


                                             44
Constitution, like the constitutions of certain other states, may provide individuals with

greater rights than those afforded by the United States Constitution.‖ 24 Put simply,

―[s]tate charters are the foundations of American constitutional law.‖ Holland, Purpose &

Function, supra, at 5.

       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.

              1.     Textual Language

       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.25




       24
          Id. at 863; accord California v. Ramos, 463 U.S. 992, 1013-14 (1983) (―It is
elementary that States are free to provide greater protections . . . than the [f]ederal
Constitution requires.‖). See generally Steele & Tsoflias, supra.
       25
         Douglas, State Constitutions, supra, at 95; accord Hannah Tokerud, The Right
of Suffrage in Montana: Voting Protections Under The State Constitution, 74 Mont. L.
Rev. 417, 417 (2013) (―[T]he federal constitution does not expressly grant the people the
right to vote.‖); James A. Gardner, Devolution and the Paradox of Democratic
Unresponsiveness, 40 S. Tex. L. Rev. 759, 763 (1999) (―[T]he United States Constitution

                                            45
Recognizing this fact, the United States Supreme Court has observed that ―the [federal]

Constitution ‗does not confer the right of suffrage upon any one,‘ and ‗the right to vote,

per se, is not a constitutionally protected right.‘‖26 Two provisions in the federal

constitution defer explicitly to the states to set criteria for voting. Article I, § 2 provides

that in electing members of the United States House of Representatives, ―Electors in each

State shall have the Qualifications requisite for Electors of the most numerous Branch of

the State Legislature.‖ U.S. Const. art. I, § 2, cl. 1. The Seventeenth Amendment uses the

same structure for determining who can vote to elect United States Senators. U.S. Const.

amend. XVII.

       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 Amendment27 and (ii) the prohibitions against




does not establish any constitutional substantive right to vote—not even for offices
required by the Constitution to be filled by popular election . . . .‖). The outlier among the
states is the Arizona Constitution, which provides that ―[n]o person shall be entitled to
vote . . . unless‖ certain criteria are met. Douglas, State Constitutions, supra, at 102 n.83
(quoting Ariz. Const. art. VII, § 2).
       26
         Rodriguez v. Popular Democratic Party, 457 U.S. 1, 9 (1982) (quoting Minor v.
Happersett, 88 U.S. (21 Wall.) 162, 178 (1874), and San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 35 n.78 (1973); accord see, e.g., Fontham v. McKeithen, 336 F.
Supp. 153, 156 (E.D. La. 1971) (observing, before recognition of federal right to vote
under Fourteenth Amendment, that ―[t]here is no federal constitutional right to vote in
State and local elections‖).
       27
         See Bush v. Gore, 531 U.S. 98, 104 (2000) (―The individual citizen has no
federal constitutional right to vote for electors for the President of the United States
unless and until the state legislature chooses a statewide election as the means to
implement its power to appoint members of the Electoral College. . . . When the state

                                              46
specific types of disenfranchisement found in other amendments, each of which identifies

a basis on which voting rights ―shall not be denied.‖28 An implied right is not the same

thing as an express right.

       The United States Constitution also does not contain an explicit guarantee of free

elections. The closest that the United States Constitution comes is the Guarantee Clause,

which provides that ―[t]he United States shall guarantee to every state in this Union a

Republican Form of Government.‖ U.S. Const. art. V, § 4, cl. 1. The United States

Supreme Court generally has declined to enforce the Guarantee Clause, holding that

whether a particular governmental system satisfied the Guarantee Clause presented a




legislature vests the right to vote for President in its people, the right to vote as the
legislature has prescribed is fundamental. . . . The State, of course, after granting the
franchise in the special context of Article II, can take back the power to appoint
electors.‖); Harper v. Va. Bd. of Elections, 383 U.S. 663, 665 (1966) (―[O]nce the
franchise is granted to the electorate, lines may not be drawn which are inconsistent with
the Equal Protection Clause of the Fourteenth Amendment.‖). Earlier United States
Supreme Court decisions did not cite a particular constitutional provision but rather
derived the right from overarching democratic principles. See Reynolds v. Sims, 377 U.S.
533, 555 (1964) (holding that ―[t]he right to vote freely for the candidate of one‘s choice
is of the essence of a democratic society, and any restrictions on that right strike at the
heart of representative government‖); Baker v. Carr, 369 U.S. 186, 208 (1962) (stating
that ―[a] citizen‘s right to a vote free of arbitrary impairment by state action has been
judicially recognized as a right secured by the Constitution‖). In addition to the Equal
Protection Clause, the Fourteenth Amendment contains a ―Reduction in Representation‖
clause which provides that if a state restricts the individuals who can vote, then it loses
representation in its Congressional delegation. U.S. Const. amend. XIV, § 2. This clause
also defers to state law to determine who can vote.
       28
       U.S. Const. amends. XV (race), XIX (gender), XXIV (ability to pay a poll tax),
XXVI (age).


                                            47
political question for Congress.29

       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.30 Admittedly these cases did not deal directly with the question of

lockstep interpretation.

       The constitutions of twenty-five other states include a constitutional provision

stating that elections shall be ―free,‖ ―free and equal,‖ or ―free and open.‖ 31 Although the

Jones court did not identify decisions from other jurisdictions explicitly as one of the

factors to be considered, the Delaware Supreme Court in Jones did look to decisions from

other states. The Jones decision explained its rationale as follows:

       The United States Constitution establishes a system of dual sovereignty: a
       federal government and state governments. That system has horizontal and
       vertical aspects. Vertical federalism binds the states to the will of the



       29
         See generally Baker, 369 U.S. at 217-18; Luther v. Borden, 48 U.S. 1, 42
(1849); Gardner, supra, at 764.
       30
          Abbott v. Gordon, 2008 WL 821522, at *19 (Del. Super. Mar. 27, 2008) (―[T]he
limited case law that does exist indicates that this section‘s purpose is to ensure that the
right of citizens to vote in an election is unfettered.‖); State ex rel. James v. Battersby, 56
A.2d 527, 531-32 (Del. Super. 1947) (considering challenge to election results based on
Elections Clause where public official failed to take steps to assess and collect capitation
or poll tax, resulting in some citizens being denied the right to vote).
       31
         Douglas, State Constitutions, supra, at 103. The states other than Delaware are
Arizona, Arkansas, Colorado, Illinois, Indiana, Kentucky, Maryland, Massachusetts,
Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Carolina,
Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah,
Vermont, Virginia, Washington, and Wyoming.


                                              48
      federal sovereign government with regard to the enumerated powers that
      have been surrendered. Horizontal federalism permits the states to look to
      the jurisprudence of sister states in defining the sovereign powers that have
      been reserved for state governments.

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.32 States with particularly well developed bodies of




      32
          See, e.g., Chavez v. Brewer, 214 P.3d 397, 407-08 (Ariz. Ct. App. 2009);
Whitley v. Cranford, 119 S.W.3d 28, 31-32 (Ark. 2003); Moran v. Carlstrom, 775 P.2d
1176, 1180 (Colo. 1989) (en banc); People v. Stapleton, 247 P. 1062, 1064 (Colo. 1926)
(en banc); Neelley v. Farr, 158 P. 458, 467-68 (Colo. 1916) (en banc); Littlejohn v.
People ex rel. Desch, 121 P. 159, 162 (Colo. 1912); People ex rel. Miller v. Tool, 86 P.
224, 226-27 (Colo. 1905); League of Women Voters of Ind., Inc.,. v. Rokita, 929 N.E.2d
758, 763-67 (Ind. 2010); State Election Bd. v. Bartolomei, 434 N.E.2d 74, 78 (Ind. 1982)
(per curiam); Oviatt v. Behme, 147 N.E.2d 897, 900-01 (Ind. 1958); Johnson v. May, 203
S.W.2d 37, 38-39 (Ky. 1947); State Bd. of Elections v. Snyder ex rel. Snyder, 76 A.3d
1110, 1128 (Md. 2013); Burruss v. Bd. of Cnty. Commissioners of Frederick Cnty., 46
A.3d 1182, 1201 (Md. 2012); Nader for President 2004 v. Maryland State Bd. of
Elections, 926 A.2d 199, 210 (Md. 2007); Maryland Green Party v. Maryland Bd. of
Elections, 832 A.2d 214, 228 (Md. 2003); Munsell v. Hennegan, 31 A.2d 640, 644 (Md.
1943) Jackson v. Norris, 195 A. 576, 594-95 (Md. 1937); Kemp v. Owens, 24 A. 606, 608
(Md. 1892); Santana v. Registrars of Voters, 425 N.E.2d 745, 750 (Mass. 1981);
Anderson v. City of Boston, 380 N.E.2d 628, 638 (Mass. 1978); Bowe v. Sec’y of the
Commonwealth, 69 N.E.2d 115, 127-28 (Mass. 1946); Weinschenk v. State, 203 S.W.3d
201, 211-12 (Mo. 2006) (per curiam); Kasten v. Guth, 375 S.W.2d 110, 114 (Mo. 1964);
Preisler v. City of St. Louis, 322 S.W.2d 748, 753 (Mo. 1959); Willems v. State, 325 P.3d
1204, 1210 (Mont. 2014); State ex rel. Nelson v. Marsh, 243 N.W. 277, 278 (Neb. 1932);
Libertarian Party N.H. v. State, 910 A.2d 1276, 1280-81 (N.H. 2006); Gunaji v. Macias,
31 P.3d 1008, 1016 (N.M. 2001); Richardson v. Gregg, 290 P. 190, 193 (Okla. 1930) (per
curiam); Libertarian Party of Or. v. Roberts, 750 P.2d 1147, 1152 (Or. 1988); Burt v.
Blumenauer, 699 P.2d 168, 175 (Or. 1985); Ladd v. Holmes, 66 P. 714, 718 (Or. 1901);
Applewhite v. Commonwealth, 2014 WL 184988, at *18 (Pa. Commw. Ct. Jan. 17, 2014);
Cothran v. W. Dunklin Pub. Sch. Dist. No. 1-C, 200 S.E. 95, 97 (S.C. 1938); Chamberlin
v. Wood, 88 N.W. 109, 110 (S.D. 1901); Crutchfield v. Collins, 607 S.W.2d 478, 480-81
(Tenn. Ct. App. 1980); Anderson v. Cook, 130 P.2d. 278, 285 (Utah 1942) (per curiam);
Brigham v. State, 692 A.2d 384, 394 (Vt. 1997) (per curiam); State ex rel. Onstine v.

                                           49
jurisprudence giving independent content to these clauses include Illinois 33 and

Kentucky.34

       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.35 Nevertheless, the decisions from other jurisdictions show that state courts can and




Bartlett, 230 P. 636, 638-39 (Wash. 1924); State ex rel. Voiles v. Johnson Cty. High Sch.,
5 P.2d 255, 258 (Wyo. 1931).
       33
         See, e.g., Thompson v. Conti, 233 N.E.2d 351, 354-55 (Ill. 1968); Moran v.
Bowley, 179 N.E. 526, 531 (Ill. 1932); People ex rel. Lindstrand v. Emmerson, 165 N.E.
217, 220 (Ill. 1929); Emery v. Hennessy, 162 N.E. 835, 837 (Ill. 1928); McAlpine v.
Dimick, 157 N.E. 235, 238 (Ill. 1927); Rouse v. Thompson, 81 N.E. 1109, 1122-23 (Ill.
1907); People v. Hoffman, 5 N.E. 596, 600-01 (Ill. 1886); Orr v. Edgar, 670 N.E.2d
1243, 1252 (Ill. App. Ct. 1996); Ross v. Kozubowski, 538 N.E.2d 623, 627 (Ill. App. Ct.
1989); Goree v. LaVelle, 523 N.E.2d 1078, 1080-81 (Ill. App. Ct. 1988).
       34
        See Johnson v. May, 203 S.W.2d 37, 38-39 (Ky. 1947); Asher v. Arnett, 132
S.W.2d 772, 776 (Ky. 1939); Taylor v. Neutzel, 295 S.W. 873, 875, 883 (Ky. 1927);
Wallbrecht v. Ingram, 176 S.W. 1022, 1026-27 (Ky. 1915); Upton v Knuckles, 470
S.W.2d 822, 827 (Ky. Ct. App. 1971); Gross v. West, 283 S.W.2d 358, 361 (Ky. Ct. App.
1955).
       35
          For example, the Supreme Court of Colorado has given independent meaning to
the Colorado Elections Clause. See, e.g. Moran, 775 P.2d at 1180; Neelley, 158 P. at 467-
68. Despite these and other precedents, when confronting a claim that a statute which
required persons serving as election judges to be affiliated with one of the two major
political parties, the Colorado Supreme Court declined to construe provisions of
Colorado‘s state constitution, including its Elections Clause, as providing greater

                                            50
do enforce their Elections Clauses, and that they frequently give their clauses content

independent of federal law.

       As its sole authority for asserting that Delaware‘s Elections Clause has no

independent meaning, Red Clay relied on Erfer v. Commonwealth, 794 A.2d 325 (Pa.

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.

       The crux of this dispute is whether Petitioners have established that Act 1
       constitutes unconstitutional political gerrymandering in violation of the
       equal protection guarantee, Pa. Const. art. 1, §§ 1 and 26, and the free and
       equal elections clause, Pa. Const. art. 1, § 5. . . .




protection than federal law. See MacGuire v. Houston, 717 P.2d 948, 955 (Colo. 1986)
(en banc). Relying on MacGuire, a Colorado trial court subsequently chose to evaluate a
challenge to a voter identification requirement solely under federal law and not separately
under state law. See Colorado Common Cause v. Davidson, 2004 WL 2360485, at *4
(Colo. Dist. Ct. Oct. 18, 2004).


                                            51
       This court did not always recognize that a claim of political
       gerrymandering was cognizable under the Pennsylvania Constitution. This
       court changed tack, however, in our unanimous decision In re 1991
       Reapportionment . . . and recognized that a litigant could raise claims that a
       reapportionment plan effected a political gerrymander and thus violated the
       U.S. and Pennsylvania Constitutions. This new view on the justiciability of
       political gerrymandering claims was predicated on the U.S. Supreme
       Court's decision in Davis v. Bandemer, . . . wherein the Court held that such
       claims were cognizable as a violation of the Equal Protection Clause.

       Once having determined that the claim was justiciable, the next task for the
       1991 Reapportionment court was to define the contours of the test for
       determining whether unconstitutional political gerrymandering had
       occurred. Unfortunately, a majority of the Bandemer Court was unable to
       agree on the parameters of such a test. While the Bandemer Court issued no
       holding on this point, the 1991 Reapportionment court opted to follow the
       test set forth by the Bandemer plurality. The 1991 Reapportionment court
       then proceeded to utilize the test set forth by the Bandemer plurality to
       resolve both federal and state constitutional political gerrymandering
       claims.

       In resolving Petitioners‘ claim that Act 1 is a political gerrymander in
       violation of the Pennsylvania Constitution, we will continue the precedent
       enunciated in 1991 Reapportionment and apply the test set forth by the
       Bandemer plurality. We reject Petitioners‘ arguments that we should
       declare that the right to vote guaranteed by our Commonwealth‘s
       Constitution provides broader protections than those guaranteed by the
       federal Equal Protection Clause. We come to this conclusion for two
       reasons. First, to the extent that Petitioners‘ gerrymandering claim is
       predicated on the equal protection guarantee contained in Pa. Const. art. 1,
       §§ 1 and 26, this court has previously determined that this right is
       coterminous with its federal counterpart. Second, we reject Petitioners‘
       claim that the Pennsylvania Constitution‘s free and equal elections clause
       provides further protection to the right to vote than does the Equal
       Protection Clause. Petitioners provide us with no persuasive argument as to
       why we should, at this juncture, interpret our constitution in such a fashion
       that the right to vote is more expansive than the guarantee found in the
       federal constitution.

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




                                            52
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:

       The act provides for a secret ballot. That is manifestly its main purpose, and
       it is in entire harmony with article 1, § 5, Const., which declares that
       ―elections shall be free and equal.‖ This means that every citizen shall have
       an equal right to cast a free ballot. This is the letter of the constitution, and
       it is a right which no legislature can interfere with. The spirit of the
       constitution requires that each voter shall be permitted to cast a free and
       unintimidated ballot. This the act of 1891 was intended to secure. An
       election, to be free, must be without coercion of every description. An
       election may be held in strict accordance with every legal requirement as to
       form, yet if, in point of fact, the voter casts the ballot as the result of
       intimidation; if he is deterred from the exercise of his free will by means of
       any influence whatever, although there be neither violence nor physical
       coercion,—it is not a free and equal election, within the spirit of the
       constitution. The framers of the act in question have evidently reached the
       conclusion that the only adequate guaranty of free and equal elections,
       within the letter and spirit of the constitution, is absolute secrecy. They
       therefore have provided a secret ballot.

De Walt v. Bartley, 24 A. 185, 186 (Pa. 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, 54 A.3d 1, 3-4 (Pa. 2012). In Applewhite, various plaintiffs sought an

injunction against a recently implemented voter identification law, arguing that it would


                                               53
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 right of suffrage under the Elections Clause.

The trial court denied the injunction, but the Pennsylvania Supreme Court reversed the

denial and remanded the case so the trial court could consider the issue further. In doing

so, the Pennsylvania Supreme Court

       agree[d] with Appellants‘ essential position that if a statute violates
       constitutional norms [viz., the Elections Clause] in the short term, a facial
       challenge may be sustainable even though the statute might validly be
       enforced at some time in the future. Indeed, the most judicious remedy, in
       such a circumstance, is the entry of a preliminary injunction, which may
       moot further controversy as the constitutional impediments dissipate.

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

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



                                             54
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.‖36

       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.

              2.     Legislative History

       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 co-

terminous 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


       36
         Dorsey v. State, 761 A.2d 807, 814 (Del. 2000). One commentator has argued
that Pennsylvania‘s Elections Clause should have independent content. See Matthew C.
Jones, Fraud and the Franchise: The Pennsylvania Constitution’s ―Free and Equal
Election‖ Clause as an Independent Basis for State and Local Election Challenges, 68
Temp. L. Rev. 1473 (1995).


                                            55
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.

                      a.      The Constitution Of 1776

       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


                                               56
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:

        To prevent any violence or force being used at the said elections, no
        persons shall come armed to any of them; and no muster of the militia shall
        be made on that day; nor shall any battalion or company give in their votes
        immediately succeeding each other, if any other voter who offers to vote
        objects thereto; nor shall any battalion or company in the pay of the
        Continent, or of this or any other state, be suffered to remain at the time and
        place of holding the said elections, nor within one mile of the said places
        respectively for twenty-four hours before the opening said elections, nor
        within twenty-four hours after the same are closed, so as in any manner to
        impede the freely and conveniently carrying on the said election: Provided
        always, That every elector may in a peaceable and orderly manner give his
        vote on the said day of election.

Id. art. 28.

                      b.     The Constitution Of 1792

        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

Dickson and Richard Bassett, who had served as members of the Philadelphia




                                              57
Convention, and because the members were familiar with the federal constitution.‖ 37 But

the drafters did not follow the federal constitution in all things. In particular, they

―reaffirmed [Delaware‘s] commitment to its own declaration of rights and common law

traditions.‖ Holland, Purpose & Function, supra, at 14.

       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.

                     c.     The Constitution Of 1897

       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




       37
         Jones, 745 A.2d at 866 (quoting Claudia Bushman, et al., Proceedings of the
House of Assembly of the Delaware State 1781-1792 and of the Constitutional
Convention of 1972 36-37 (1988)); see also Claudio v. State, 585 A.2d 1278, 1291-98
(Del. 1991); Holland, Delaware State Constitution, supra, at 11.


                                               58
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 1896.38 ―[E]lections and election politics, which

had been a powerful impetus for calling the convention, were never far from the


       38
          See, e.g., Holland, Delaware State Constitution, supra, at 24 (―[R]eforming the
political system had helped spur calls for the convention. Vote buying and election fraud
were considered rampant.‖); William H. Williams, Delaware in the 1890s, in First 100
Years, supra, 47, 53 (describing the decade of the 1890s as ―probably the most politically
corrupt in the state‘s history‖); Henry R. Horsey, et al., The Delaware Constitutional
Convention of 1897, in First 100 Years, supra, 57, 58 (noting that in the years leading up
to the Constitutional Convention of 1896-97, ―abuse of the poll tax and rampant vote-
buying threatened to undermine the foundations of representative government‖); Ward &
Lockwood, Bill of Rights, supra, at 80 (―The delegates at the 1897 Convention met in the
shadow of a very recent history of election bribery in the state.‖); Joseph T Walsh &
Thomas J. Fitzpatrick, Jr., Judiciary: Article IV, in First 100 Years, supra, 123, 123
(―The period immediately preceding the convention was noted by some historians as a
time of political scandal, particularly in the election process.‖). John Edward Addicks‘s
quest to obtain a seat in the United States Senate was the spark that lit the flame of
reform. Horsey, Delaware Constitutional Convention of 1897, supra, at 63-64; Williams,
Delaware in the 1800s, supra, at 52-53; Ward & Lockwood, Bill of Rights, supra, at 80-
81. For an account of Addicks‘s corruption, see John A. Murone, History of Delaware
175-78 (5th ed. 2006) and 1 Delaware: A History of the First State 305-06 (H. Clay Reed
ed., 1947). For a description of election fraud in Kent County during the elections of
1896, see 1 Henry C. Conrad, History of the State of Delaware 236 (1908). An initial
challenge to the refusal by the board of canvass to consider the allegations led to the
decision in McCoy v. State, 36 A. 81 (Del. 1897). Coincidentally, this court relied on
McCoy in a companion decision that granted the motion to dismiss filed by the
Department of Elections in this case. See Young v. Red Clay Consol. Sch. Dist., C.A. No.
10847-VCL (Del. Ch. Oct. 2, 2015).


                                            59
[delegates‘] minds.‖39 Consistent with this focus, one of the standing committees that the

Convention established was a Committee on the Purity of the Ballot.40

      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.‖41 The report from the committee charged with

reviewing the Declaration of Rights stated:

      This [Declaration of Rights] is regarded, astonishingly and with great
      unanimity, by the Members of the Convention, as almost the same
      document. Gentlemen of the Convention are so earnest and anxious that
      they may transmit this valuable relic of the former centuries to their
      children and grand-children, and they might point to themselves with pride,
      that they have left it simply intact, scarcely a dot from the i or a cross from
      the t being omitted.

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.




      39
         Horsey, Delaware Constitutional Convention of 1897, supra, at 61; see id. at 62
(―Another of the convention‘s primary concerns was to rescue the state‘s election process
from the rampant fraud which pervaded elections in the Reconstruction period.‖).
      40
          Ward Jr. & Lockwood, Bill of Rights, supra, at 81; Horsey, Delaware
Constitutional Convention of 1897, supra, at 61.
      41
         Ward & Lockwood, Bill of Rights, supra, at 78; accord Holland, Delaware State
Constitution, supra, at 32.


                                               60
       Two key provisions became §§ 7 and 8 of Article V of the Constitution of 1897.42

Article V, § 7 defined substantive election offenses and fixed the penalties for violations,

including for vote-buying, bribery of election officers, voter intimidation, and

malfeasance by election officers. It stated:

       Every person who either in or out of the State shall receive or except, or
       offer to receive or except, or offer to receive or accept or shall pay, transfer
       or deliver, or offer or promise to pay, transfer or deliver, or shall contribute,
       or offer or promise to contribute, to another to be paid or used, any money
       or other valuable thing as a compensation inducement or reward for the
       giving or withholding, or in any manner influencing the giving or
       withholding, a vote at any general, special, or municipal election in this
       State, or at any primary election, convention or meeting held for the
       purpose of nominating any candidate or candidates to be voted for at such
       general, special or municipal election; or who either in or out of the State
       shall make or become directly or indirectly a party to any bet or wager
       depending upon the result of any such general, special, municipal or
       primary election or convention or meeting, or upon a vote thereat by any
       person; or who either in or out of the State, shall, by the use or promise of
       money or valuable thing, or otherwise, cause or attempt to cause any officer
       of election or registration officer to violate his official duty; or who either
       in or out of the State shall by the use or promise of money or other valuable
       thing influence or attempt to influence any person to be registered or
       abstain from being registered; or who, being an officer, of election or
       registration officer, shall knowingly and willfully violate his official duty;
       or who shall by force, threat, menace or intimidation, prevent or hinder, or
       attempt to prevent or hinder, any person qualified for registration from
       being registered or any person qualified to vote from being registered or
       any person qualified to vote from voting according to his choice at any such
       general, special or municipal election, shall be deemed guilty of a
       misdemeanor, and shall be fined not less than one hundred dollars nor more
       than five thousand dollars, or shall be imprisoned for a term not less than
       one month nor more than three years . . .; and, if a male, shall further for a
       term of ten years next following his sentence be incapable of voting at any



       42
       Horsey, Delaware Constitutional Convention of 1897, supra, at 64; Ward &
Lockwood, Bill of Rights, supra, at 80-81.


                                               61
       such general, special, municipal or primary election or convention or
       meeting . . . .

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.

       Since the voter had to be a taxpayer, the candidate who had money was
       tempted to help a poor but faithful supporter by paying his tax bill. He
       might go a bit further, by giving him a drink of liquor and perhaps two
       dollars. Sometimes a hat, a coat, or a pair of boots would do as a gift, or a
       dress for a man‘s wife.

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,

       [t]he voter who wanted to sell his vote would request assistance in marking
       his ballot. When he had properly marked and deposited his ballot, he would
       be given some token as a sort of receipt for his vote, along with instructions
       as to where to find the party treasurer, who would exchange an agreed sum
       for the token. In one case that became notorious because it was described in
       a court of law, the payoff token was a salted chestnut, handed at the polls to
       a voter who would then exchange it for his payoff-usually five or ten
       dollars—at a nearby livery stable.43




       43
          Id.; see Horsey, Delaware Constitutional Convention of 1897, supra, at 63
(explaining that ―a candidate or party could pay the tax for a voter who would not
otherwise qualify (or could simply provide the voter with a falsified tax receipt)‖ and that
―it was common practice to provide citizens with a tax receipt, together with a pre-
marked ballot and perhaps a drink or other small gift once the duty was performed‖).


                                            62
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 V, § 8 may have been the most vigorously debated

section of the 1897 Constitution.‖44 The delegates resisted limiting the fundamental right

to trial by jury, but they ultimately regarded the step as a necessity:

       Most of the delegates believed that elections were being bought. They also
       believed that the criminal justice system could not control the problem
       because juries were unwilling to convict in political cases. One delegate
       suggested that nine out of ten times the jury would not convict a person
       guilty of election fraud.

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.




       44
          Ward & Lockwood, Bill of Rights, supra, at 80; see id. at 81-82; Walsh &
Fitzpatrick, Judiciary, supra, at 126 (describing Article V, § 6 as ―a source of much
debate in the convention‖).


                                              63
       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.

              3.     Pre-Existing State Law

       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.


                                             64
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

       That if any person who is a duly qualified elector of this State, according to
       the Constitution and the Laws thereof, shall hereafter be prevented from
       voting, or obstructed in his effort to vote at any election, by reason of any
       interference by any person or persons . . . exercising or attempting to
       exercise force, intimidation or threats, or requiring any qualifications or
       conditions unknown to such Constitution and Laws, he shall be deemed and
       taken to have suffered private damage and injury, and shall have civil
       remedy therefor, in the Courts of this State by action of trespass, or on the
       case, according to the nature of the interference, against all and every
       person or persons who promote such interference, whether by active
       participation, or by advising, counseling, or in any wise encouraging the
       same; and in any trial under this act, the jury, if, in their opinion the
       circumstances will warrant it, may give exemplary damages.

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.45



       45
          See, e.g., Del. C. 1852, § 307 (making it a misdemeanor for justices of the
peace, collectors, and constables who ―refuse or neglect to perform the duties by this
section‖); id. at § 309 (imposing fine on any ―inspector, collector, assessor, or other
presiding officer, judge,‖ ―clerk‖ ―a clerk of the peace, sheriff, coroner, prothonatory, or
other officer presiding at a board of canvass‖ for neglect of duty or ―misbehavior‖ in
performing duties); id. at 310 (misdemeanor for presiding officer or judge who
knowingly receives unlawful votes); id. at § 311 (misdemeanor for fraud in producing

                                              65
       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.

              4.      Structural Differences

       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.



certificate of election). It also established penalties for inappropriate voter behavior. Id. at
§ 312 (misdemeanor for illegal voting); id. at § 313 (misdemeanor for bribery); id. at §
314 (civil fines for betting on election); id. at § 316 (civil and criminal penalties for
breaches of the peace); id. at § 317 (civil penalties for selling liquor within two miles of a
polling place).


                                              66
      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 fundamental freedoms. At the time of the ratification of the United States

Constitution in 1787, the declarations of rights in state constitutions were paramount.

When the movement to add a bill of rights to the federal constitution began during the

debates in September 1787, opponents argued that a federal bill of rights was unnecessary

because ―the State Declarations of Rights are not repealed by this Constitution . . . and

being in force are sufficient.‖ 2 The Records of the Federal Convention of 1787, at 588

(M. Farrand ed., 1911), quoted in Holland, Purpose & Function, supra, at 12 n.58.

Further evidencing the importance of the state declarations of rights before the adoption

of the Fourteenth Amendment, the United States Supreme Court held unanimously in a

decision authored by Chief Justice John Marshall that the federal bill of rights afforded

no protection against action by state governments, nor was federal protection needed:

      Each State established a constitution for itself, and in that constitution,
      provided such limitations and restrictions on the powers of its particular
      government as its judgment dictated . . . .

      In their several constitutions [the states] have imposed such restrictions on
      their respective governments, as their own wisdom suggested; such as they
      deemed most proper for themselves. It is a subject on which they judge
      exclusively. . . .

Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 247-48 (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.



                                             67
       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 (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.

       The declaration of rights or substantive provisions in a state‘s constitution
       may, and often do, provide for broader or additional rights. The expansion
       beyond federally guaranteed individual liberties by a state constitution is
       attributable to a variety of reasons: differences in textual language,



                                            68
       legislative history, pre-existing state law, structural differences, matters of
       particular concern, and state traditions.

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.

              5.       Other Jones Factors

       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.‖46 This factor, therefore, does not weigh in

favor of a special Delaware-based regime.




       46
         Joshua A. Douglas, Is the Right to Vote Really Fundamental?, 18 Cornell J.L. &
Pub. Pol'y 143, 144-45 (2008). As support Douglas cites work ―showing that 93.2% of
survey respondents believed that the right to vote is either the most important or one of
the most important rights in a democracy.‖ Id. at 144 n.1 (citing Brian Pinaire et al.,

                                              69
       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.

              6.     Summing Up

       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.

D.     The Effect Of Red Clay’s Efforts On The Vote




Barred from the Vote: Public Attitudes Toward the Disenfranchisement of Felons, 30
Fordham Urb. L.J. 1519, 1533-34 (2003))


                                             70
       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 issued by the United States District Court for the

U.S. Virgin Islands:

       No Court should invalidate an election and order a new one unless where
       there is a finding of fraud or deprivation of rights which would implicate
       the Constitution of the United States, unless there is a clear statutory
       provision requiring it[,] or unless violations of the statutory scheme were
       pervasive enough to affect or change the result of the election[.] Where
       irregularities are alleged, the burden of proof is on the plaintiff to show that
       the irregularities affect or change the result of the election by the
       questioned votes.

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



                                              71
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.47

Approximately 7% of the total residents voted, and the winning margin was 7% of that

7%, or less than 0.5% of the total voting population.

       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


       47
          By law, ―[e]very citizen 18 years of age or over and a resident of‖ Red Clay was
eligible to vote in the Special Election, ―whether or not that citizen [was] at the time a
registered voter for purposes of a general election.‖ 14 Del. C. § 1077.


                                            72
Family-Focused Events reduced turnout by elderly and disabled voters by interfering

with their ability to access the polls.

       At this stage of the proceeding, it is reasonable to infer that Red Clay‘s activities

had the desired effect. Indeed, the contemporaneous failure of two tax referenda in

Christiana offers the evidentiary equivalent of a control group. The outcomes of those

votes support an inference that the Red Clay tax increase would have failed if Red Clay

had not intervened.

       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.

E.     Alternative Remedies: The Department Of Elections and the Attorney
       General



                                             73
       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




                                               74
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 discretionary judgment.

Albury v. State, 551 A.2d 53, 61 (Del. 1988). Assuming the Attorney General concludes

that there is insufficient evidence to prove guilt beyond a reasonable doubt as to criminal

conduct by particular individuals, that assessment does not mean that the evidence could

not establish widespread electoral misconduct under the preponderance-of-the-evidence

standard for purposes of a civil claim. See Shahan v. Landing, 643 A.2d 1357, 1359 (Del.

1994) (holding that because of different levels of proof in criminal and civil proceedings,

an acquittal on the merits of a criminal charge is not res judicata as to a later conducted

civil action). Moreover, as the Attorney General noted when considering similar election

law issues in a different context, the Attorney General ―has no jurisdiction to enforce‖

civil election violations. Del. Op. Att‘y Gen. 06-IB04, 2006 WL 1242015, at *2 (Mar. 23,

2006). Unlike the existence of a criminal conviction, which can have res judicata effect

in a civil proceeding, the absence of a criminal proceeding says nothing about the

potential for a civil suit.48



       48
          Higgins v. Walls, 901 A.2d 122, 137-38 (Del. Super. 2005) (―[U]nder modern
law the decision of whether a criminal conviction can be conclusive as to a question of
fact in a civil case rests in the sound discretion of the court.‖ quoting Cunningham v.
Outten, 2001 WL 428687, at *1 (Del. Super. Mar. 26, 2001)); see also 47 Am. Jur. 2d
Judgments § 651 (―A judgment of conviction precludes the defendant from denying the

                                            75
F.    The Federal Claim

      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




allegations in a subsequent civil complaint as to issues that were actually litigated and
adjudicated in the prior criminal proceeding.‖).


                                            76
‗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).

      Due process analysis is employed if ―a law burdens all persons equally when they

exercise a specific right.‖ Id. at § 14.7. Equal protection, on the other hand, is applied

when a ―law distinguishes between who may and who may not exercise a right.‖ Id.

Applying the Equal Protection Clause makes more sense in this case. Although the

plaintiffs can claim to have been denied the right to vote, the real problem was that Red

Clay treated identifiable groups of voters differently by favoring families with children

and disfavoring the elderly and disabled. That is a complaint about unequal treatment best

addressed under the Equal Protection Clause.

      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




                                           77
standards of review.‖49 ―If a statute invades a ‗fundamental‘ right or discriminates against

a ‗suspect‘ class, it is subject to strict scrutiny.‖50 Under strict scrutiny, the state has the

burden demonstrate that its action or regulation serves a compelling government interest

and was narrowly tailored to serve that interest. See, e.g., Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 235 (1995).

       Although the federal constitution does not guarantee the right to vote, the United

States Supreme Court has held that voting is a fundamental right. 51




       49
          Rotunda & Nowak, supra, § 15.4(a); accord Plante v. Gonzalez, 575 F.2d 1119,
1128 n.15 (5th Cir. 1978) (noting that ―due process and equal protection arguments often
[are] transformed into each other, and although the standard of review may be the same
under either characterization, there is value in maintaining the conceptual distinction‖);
Miranda Perry, Kids and Condoms: Parental Involvement in School Condom-Distribution
Programs, 63 U. Chi. L. Rev. 727, 760 (1996) (―Both equal protection and due process
analysis employ the strict scrutiny standard of review when regulations or classifications
affect the exercise of fundamental rights.‖).
       50
          Mass. Bd. of Ret. v. Murcia, 427 U.S. 307, 319 (1976); accord Regents of Univ.
of Cal. v. Bake, 438 U.S. 265, 357 (1978) (Brennan, J., concurring in the judgment and
dissenting in part) (―[A] government practice or statute which restricts ‗fundamental
rights' or which contains ‗suspect classifications‘ is to be subjected to ‗strict scrutiny‘‖);
Cain Norris & Whitney Turk, Equal Protection, 14 Geo. J. Gender & L. 397, 402 (2013)
(―A state action that impinges on a fundamental right is subject to strict scrutiny even if a
group affected is not a suspect or quasi-suspect class.‖). But see Adam Winkler,
Fundamentally Wrong About Fundamental Rights, 23 Const. Comment. 227, 239 (2006)
(arguing that ―the old adage about laws infringing fundamental rights being subject to
strict scrutiny remains a favorite of scholars, judges, and law students‖ but ―is flatly
wrong‖).
       51
           See, e.g., Bartlett v. Strickland, 556 U.S. 1, 10 (2009) (describing the right to
vote as ―one of the most fundamental rights of our citizens‖); Romer v. Evans, 517 U.S.
620, 650 n.3 (1996) (―[W]e have declared the right to vote to be a fundamental political
right‖) (internal quotations marks omitted); Burdick v. Takushi, 504 U.S. 428, 433 (1992)
(―It is beyond cavil that ‗voting is of the most fundamental significance under our

                                              78
       [T]he right to vote is accorded extraordinary treatment because it is, in
       equal protection terms, an extraordinary right: a citizen cannot hope to
       achieve any meaningful degree of individual political equality if granted an
       inferior right of participation in the political process. Those denied the vote
       are relegated, by state fiat, in a most basic way to second-class status.

Plyler v. Doe, 457 U.S. 202, 233 (1982).

       Although the application of strict scrutiny to state action involving the right to

vote was once clear cut,52 the United States Supreme Court has since developed a more

flexible standard of review that is more deferential to government actors. The more

lenient standard recognizes that

       [e]lection laws will invariably impose some burden upon individual voters.
       Each provision of a code, ―whether it governs the registration and
       qualifications of voters, the selection and eligibility of candidates, or the
       voting process itself, inevitably affects—at least to some degree—the
       individual's right to vote and his right to associate with others for political
       ends.‖ Consequently, to subject every voting regulation to strict scrutiny
       and to require that the regulation be narrowly tailored to advance a
       compelling state interest ... would tie the hands of States seeking to assure
       that elections are operated equitably and efficiently.‖

Burdick, 504 U.S. at 433 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)).




constitutional structure‘‖) (quoting Ill. Bd. of Elections v. Socialist Workers Party, 440
U.S. 173, 184 (1979)).
       52
          See Plyler, 457 U.S. at 233 (Blackmun, J., concurring) (noting that ―the Court's
decisions long have accorded strict scrutiny to classifications bearing on the right to vote
in state elections‖); accord Kelly T. Brewer, Disenfranchise This: State Voter Id Laws
and Their Discontents, A Blueprint for Bringing Successful Equal Protection and Poll
Tax Claims, 42 Val. U. L. Rev. 191, 195-96 (2007) (―Courts considering [Fourteenth
Amendment disenfranchisement] challenges have traditionally applied the strict scrutiny
analysis, requiring that the regulation employ narrowly tailored means to accomplish a
compelling regulatory interest.‖).


                                             79
       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 (2008) (Scalia, J., concurring). ―The first step is to

decide whether a challenged law severely burdens the right to vote.‖ Id. at 205. ―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.

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 (quoting Anderson, 460 U.S. at 789). 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 (1992)). If the burden

imposed is not severe, then the state‘s intervention need only have served a ―legitimate

interest‖ and represent a ―reasonable way of accomplishing this goal.‖ See id. at 440.

When the state has imposed ―reasonable, nondiscriminatory restrictions‖ on voting rights,




                                              80
then ―important regulatory interests are generally sufficient to justify‖ the intervention.

Id. at 434 (quoting Anderson, 460 U.S. at 788).

       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 (quoting Norman, 502 U.S. at 288-89).

       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.

              1.     Government Campaign Speech Under The Fourteenth
                     Amendment




                                            81
      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:

     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.

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 Clay‘s campaign speech did not severely

burden the right to vote. As the cases applying state law restrictions on government

campaign speech have noted, see infra Part II.G.3.b, at some level government campaign

speech in favor of one side in an election contest aids that side and burdens the opposing


                                             82
side. Perhaps there could be a case where the government speech in favor of one side

could be sufficiently extensive and overbearing to constitute a severe burden on the

opponents. The allegations of the Complaint do not support a reasonable inference that

Red Clay‘s government campaign speech reached that level.

       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.

       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.

              2.     Selective Rewards For Voting Under Federal Law

       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


                                             83
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. 53

       The United States Supreme Court has been skeptical of state interventions that

operate differently on different subsets of the electorate. See generally Christopher L.




       53
          Using the poll tax analogy is provocative because the United States Supreme
Court has invalidated poll taxes and other voting-related fees that discriminate on the
basis of wealth. See, e.g., Harper v. Va. Bd. of Elections, 383 U.S. 663, 666 (1966).

       We conclude that a State violates the Equal Protection Clause of the
       Fourteenth Amendment whenever it makes the affluence of the voter or
       payment of any fee an electoral standard. Voter qualifications have no
       relation to wealth nor to paying or not paying this or any other tax. Our
       cases demonstrate that the Equal Protection Clause of the Fourteenth
       Amendment restrains the States from fixing voter qualifications which
       invidiously discriminate. Thus without questioning the power of a State to
       impose reasonable residence restrictions on the availability of the ballot, we
       held . . . that a State may not deny the opportunity to vote to a bona fide
       resident merely because he is a member of the armed services. . . .
       Previously we had said that neither homesite nor occupation affords a
       permissible basis for distinguishing between qualified voters within the
       State. We think the same must be true of requirements of wealth or
       affluence or payment of a fee.

Id. at 666-67 (footnote, citations, and internal quotation marks omitted).


                                             84
Elmendorf, Structuring Judicial Review of Electoral Mechanics: Explanations and

Opportunities, 156 U. Penn. L. Rev. 313, 365-76 (2007). In Anderson, the United States

Supreme Court stated that ―[i]t is especially difficult for the State to justify a restriction

that limits political participation by an identifiable political group whose members share a

particular viewpoint, associational preference, or economic status.‖ 460 U.S. at 793. The

Anderson decision cited as an example Bullock v. Carter, 405 U.S. 134, 143 (1972), in

which the United States Supreme Court held that high filing fees for candidates imposed

by Texas law were unconstitutional because of the ―obvious likelihood that this limitation

would fall more heavily on the less affluent segment of the community, whose favorites

may be unable to pay the large costs required by the Texas system.‖ 405 U.S. at 144. In

Anderson, the United States Supreme Court invalidated Ohio‘s filing deadline for third

party candidates, finding that it ―place[d] a particular burden on an identifiable segment

of Ohio‘s independent-minded voters,‖ id. at 792, and ―discriminate[d] against those

candidates and—of particular importance—against those voters whose political

preferences like outside the existing political parties.‖ Id. at 794. The Anderson decision

rejected as inadequate the state‘s efforts to justify the early filing deadline based on the

state‘s interests in (i) the electorate having time to become informed about candidates, (ii)

the administrative benefits of treating all candidates identically, and (iii) the goal of

avoiding intraparty feuding by eliminating the opportunity for a candidate to lose in the

party primary and then run as an independent candidate. Id. at 798, 801, 806.

       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


                                             85
vote is constitutionally impermissible.‖54 Nevertheless, there must be an ―independently

identifiable group or category‖ that is affected by the state‘s action. Gordon v. Lance, 403

U.S. 1, 5 (1971) (rejecting challenge that failed to identify such a group).

       As part of its sensitivity to incursions that operate differently on different subsets

of the electorate, the United States Supreme Court appears to take into account whether

the government acted with discriminatory intent. Justice O‘Connor explained the

relevance of motive in Clingman v. Beaver, 544 U.S. 581 (2005).

        Where the State imposes only reasonable and genuinely neutral restrictions
       . . ., there is no threat to the integrity of the electoral process and no
       apparent reason for judicial intervention. As such restrictions become more
       severe, however, and particularly where they have discriminatory effects,
       there is increasing cause for concern that those in power may be using
       electoral rules to erect barriers to electoral competition. In such cases,
       applying heightened scrutiny helps to ensure that such limitations are truly
       justified and that the State‘s asserted interests are not merely a pretext for
       exclusionary or anticompetitive restrictions.

Id. at 603 (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.




       54
          Carrington v. Rash, 380 U.S. 89, 94 (1965) (invalidating Texas law that
excluded members of the Armed Forces who moved their residency to Texas from voting
in Texas elections as long as they remained in the Armed Forces); accord Patriot Party
of Allegheny Cty. v. Allegheny Cty. Dep't of Elections, 95 F.3d 253, 262, 264, 269 (3d
Cir. 1996) (invalidating Pennsylvania law that prevented cross-nomination and fusion
only for minor political parties because it severely burdened two identifiable groups—the
minority party and those who wished to vote for its candidates—and ―constitute[d] the
type of invidious discrimination prohibited by the Fourteenth Amendment‖); Stoddard v.
Quinn, 593 F. Supp. 300, 305 (D. Me. 1984) (invalidating statutory filing deadline under
the Anderson balancing approach because it placed a burden on an ―identifiable segment
of Maine voters—those who may be dissatisfied with the major parties' choices‖).

                                             86
       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 (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


                                             87
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.

              3.     Selective Get-Out-The-Vote Efforts Under The Fourteenth
                     Amendment

       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. The efforts in this category include the school

administrators who called older students out of class to vote, and the use of district

resources like the automated phone systems and Red Clay‘s school messenger system to

remind parents of enrolled students to vote. Red Clay‘s targeted campaign speech also

falls within this category. The example of targeted campaign speech cited in the

Complaint was Superintendent Daugherty‘s letter to families in the district with school-

aged and pre-school-aged children.

       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



                                            88
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.

G.     The State Law Claim

       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.

              1.     The Text Of The Elections Clause


                                             89
       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 that the

purpose of the Elections Clause ―is to ensure that the right of citizens to vote in an

election is unfettered.‖ Abbott, 2008 WL 821522, at *19 (citing State ex rel. James v.

Battersby, 56 A.2d 527, 532 (Del. Super. Ct. 1947). The court dismissed the claim

because the candidate had not alleged that ―Delaware citizens were disenfranchised[,] . . .

that their access to the polls was disturbed, that the process by which ballots were

accepted and counted was flawed, or that Defendants somehow tainted the election

results.‖ Id. at *20. The court observed that the election law violations in which the

defendants allegedly engaged might have affected the voters‘ decisions, but not the

outcome. On the facts alleged, the court concluded that the voters had a free and equal

opportunity to decide the outcome of the primary for themselves.

       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.




                                            90
      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. Macias, 31 P.3d 1008, 1016 (N.M. 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:

      Strictly speaking, a free and equal election is an election at which every
      person entitled to vote may do so if he desires, although in dealing with the
      practical aspect of elections, it could hardly be said that, if only a few were
      prevented from voting, the election would not be free and equal, in the
      constitutional sense. The very purpose of elections is to obtain a full, fair,
      and free expression of the popular will upon the matter, whatever it may be,
      submitted to the people for their approval or rejection; and when any
      substantial number of legal voters are, from any cause, denied the right to
      vote, the election is not free and equal, in the meaning of the [Kentucky]
      Constitution.

Wallbrecht v. Ingram, 175 S.W. 1022, 1026 (Ky. 1915). Continuing, the Kentucky

Supreme Court explained the breadth of the protection provided by the clause:

      Nor do we think it material whether the cause that prevented persons
      legally entitled to vote from exercising the right of suffrage was due to
      some imperfection or insufficiency in the statute regulating the conduct of
      elections or to fraud, intimidation, violence, bribery, or other wrongdoing
      that prevented a full and free expression of the will of the people. The
      constitutional provision is mandatory. It applies to all elections, and no
      election can be free and equal, within its meaning, if any substantial
      number of persons entitled to vote are denied the right to do so. . . . In short,
      this constitutional provision admits of no evasions or exceptions. No
      amount of good intention or good faith can be allowed to defeat its purpose


                                             91
       or meaning. When the question of elections arises, the single inquiry will
       be: Was the election free and equal, in the sense that no substantial number
       of persons entitled to vote and who offered to vote were denied the
       privilege?

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,55 (ii) challenges to state election laws and voting procedures, 56 and (iii)

attempts to influence voters by providing bribes or other rewards for voting.57




       55
          Hodges v. Hodges, 314 S.W.2d 208, 212 (Ky. 1958) (intimidation); Taylor v.
Neutzel, 295 S.W. 873, 875 (Ky. 1927) (fraud, intimidation, violence, ballot stuffing, and
use of ―imposters‖ to vote); Burns v. Lackey, 186 S.W. 909, 912-13 (Ky. 1916)
(intimidation and violence); Stewart v. Wurts, 135 S.W. 434, 438 (Ky. 1911) (fraud and
illegal voting); Skain v. Milward, 127 S.W. 773, 775 (Ky. 1910) (fraud, intimidation, and
violence); Scholl v. Bell, 102 S.W. 248, 250, 255 (Ky. 1907) (fraud, intimidation,
violence); Adair Cty. Bd. of Elections v. Arnold, 2015 WL 5308132, at *11-12 (Ky. Ct.
App., Sept. 11, 2015) (fraud and illegal voting).
       56
          McIntosh v. Helton, 828 S.W.2d 364, 367 (Ky. 1992) (use of initials instead of
full name for write-in candidate); Upton v. Knuckles, 470 S.W.2d 822, 826-27 (Ky. 1971)
(incorrect voters‘ oath and excessive number of people at voting machines); Ferguson v.
Rohde, 449 S.W.2d 758, 760 (Ky. 1970) (right of candidate to appear on ballot); Arnett v.
Hensley, 425 S.W.2d 546, 548-59 (Ky. 1968) (use of absentee ballots); Hodges, 314
S.W.2d at 212 (failure to sign ballots and signature books and to take oaths and violations
of voter qualification requirements); Burchell v. Smith, 262 S.W.2d 365, 367 (Ky. 1953)
(improper ballots and no voting booths, blinds, or curtains); Asher v Arnett, 132 S.W.2d
772, 775-76 (Ky. 1939) (candidate‘s compliance with election procedures); Skain, 127
S.W. at 775 (district reapportionment); Hocker v. Pendleton, 39 S.W. 250, 250 (Ky.
1897) (insufficient ballots, booths, and stencils); Commonwealth v. McClelland, 83 Ky.
686, 691 (Ky. 1886) (voter qualifications); Arnold, 2015 WL 5308132, at *2-3 (clerk
failing to properly follow district lines when registering voters).
       57
          Middleton v. Poer, 121 S.W.2d 28, 30 (Ky. 1938) (affirming trial court‘s
decision to vacate election because ―money and whiskey were used to influence voters‖);
Neutzel, 295 S.W. at 883 (bribery); Burns, 186 S.W. at 912 (the use of ―money, illegally,

                                            92
       Summarizing the operative principles, a later decision by the Kentucky Supreme

Court stated:

       [A]n election is free and equal within the meaning of the [Kentucky]
       Constitution when it is public and open to all qualified electors alike; when
       every voter has the same right as any other voter; when each voter under
       the law has the right to cast his ballot and have it honestly counted; when
       the regulation of the right to exercise the franchise does not deny the
       franchise itself or make it so difficult as to amount to a denial; and when no
       constitutional right of the qualified elector is subverted or denied him.

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.58 In

an early decision, the Supreme Court of Illinois was asked to determine the

constitutionality of a law addressing election administration which applied only to

municipalities that opted into it.59 The plaintiffs argued that because adoption of the law




wrongfully, and improperly to influence the voters‖); Skain, 127 S.W. at 774 (bribery);
Scholl, 102 S.W. at 250 (bribery).
       58
          Despite extensive case law giving independent meaning to the Illinois Elections
Clause, at least one Illinois opinion has described the provision as operating in lockstep
with the implied federal regime crafted under the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. Fumarolo v. Chi. Bd. of Educ., 566 N.E.2d 1283,
1290 (Ill. 1990). Subsequent Illinois cases have given independent content to the clause.
See Stroger v. Reg’l Transp. Aut’y, 778 N.E.2d 683, 689 (Ill. 2002); Orr v. Edgar, 670
N.E.2d 1243, 1252 (Ill. App. Ct. 1996) (―Our examination of the rights conferred by this
constitutional provision is not, however, exclusively confined to a fourteenth amendment
analysis.‖). The debate does not affect this decision‘s ability consider as a source of
persuasive authority those cases that have given the Illinois Elections Clause independent
meaning.
       59
          See People v. Hoffman, 5 N.E. 596 (Ill. 1886). Although now appearing in
Article 3, § 3 of the Illinois Constitution, when Hoffman was decided the clause was
found in Article II, § 16.


                                            93
would not be uniform, the resulting elections would not be ―equal.‖ In rejecting this

argument, the Illinois Supreme Court explained what a ―free and equal‖ election meant:

       Elections are free when the voters are subjected to no intimidation or
       improper influence, and when every voter is allowed to cast his ballot as his
       own judgment and conscience dictate. Elections are equal when the vote of
       every elector is equal in its influence upon the result to the vote of every
       other elector; when each ballot is as effective as every other ballot. Where
       an election for or against the same candidates, or for or against the same
       measure, takes place on the same day, in two different cities of the state, the
       fact that in one city the election officers make their returns to the city clerk,
       while in the other the returns are made to the county clerk, cannot possibly
       make any difference in the freedom or equality of the election.

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,60 (ii) challenges to




       60
          Stroger, 778 N.E.2d at 689 (statute providing procedure for appointing directors
of state agency); Bridgewater v. Hotz, 281 N.E.2d 317, 323 (Ill. 1972) (statute regulating
county elections); Carstens v. Bd. of Educ. of E. Alton-Wood River Cmty. High Sch. Dist.,
187 N.E.2d 682, 684-85 (Ill. 1963) (school code regulating ballots in special election);
People ex rel. Honefenger v. Burris, 95 N.E.2d 882, 887-88 (Ill. 1950) (act authorizing
incorporation of park district); People v. Deatherage, 81 N.E.2d 581, 588 (Ill. 1948) (act
authorizing organization of school districts); Moran v. Bowley, 179 N.E. 526, 527 (Ill.
1932) (act reapportioning state congressional districts); McAlpine v. Dimick, 157 N.E.
235, 238 (Ill. 1927) (act regulating primaries); People v. Fox, 128 N.E. 505, 507 (Ill.
1920) (law permitting political party to divide county into districts for primary election
without requiring uniformity as to number of voters); Rouse v. Thompson, 81 N.E. 1109,
1122-23 (Ill. 1907) (statute regulating nominating procedures); see People ex rel. Royal
v. Cain, 101 N.E.2d 74, 78 (Ill. 1951) (act authorizing organization of hospital districts);
see also Hulme v. Madison Cty., 188 F. Supp. 2d 1041, 1054 (S.D. Ill. 2001)
(redistricting plan); Clark v. Ill. State Bd. of Elections, 17 N.E.3d 771, 796-77 (Ill. App.
Ct. 2014) (constitutionally provided ballot initiative procedure).


                                               94
election procedures,61 (iii) the framing and presentation of issues and candidates on the

ballot,62 and (iv) claims that elections were tainted by fraud or intimidation. 63

Summarizing the applicable standards, a later Illinois Supreme Court decision stated 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. Elections are equal where the vote of each voter is
       equal in its influence upon the result to the vote of every other elector—
       where each ballot is as effective as every other ballot.



       61
         Craig v. Peterson, 233 N.E.2d 345, 347 (Ill. 1968) (validity of absentee ballots);
Thompson v. Conti, 233 N.E.2d 351, 355 (Ill. 1968) (rules governing town meeting);
People ex rel. Daniels v. Carpentier, 198 N.E.2d 514, 516 (Ill. 1964) (primary
nomination procedures); Larvenette v. Elliot, 107 N.E.2d 743, 744 (Ill. 1952) (procedures
regulating petitions for candidate elections); People ex rel. Funk v. Hagist, 82 N.E.2d
621, 622-23 (Ill. 1948) (school district election procedure); People ex rel. Agnew v.
Graham, 108 N.E. 699, 705-06 (Ill. 1915) (time and place of elections); People ex rel.
Hoyne v. McCormick, 103 N.E. 1053, 1057 (Ill. 1913) (limits on legislative power to
regulate election procedure); see also Bazydlo v. Volant, 636 N.E.2d 1107, 1111 (Ill.
App. Ct. 1994) (validity of un-initialed absentee ballots).
       62
          Vill. of Deerfield v. Rapka, 296 N.E.2d 336, 340 (Ill. 1973) (holding that the free
and equals elections clause prohibits combining separate and unrelated questions into a
single proposition for submission to a vote); Roll v. Carrollton Cmty. Unit Sch. Dist. No.
1, 121 N.E.2d 1, 2 (Ill. 1954) (conducting single-proposition analysis); People ex rel.
Hall v. Bopp, 71 N.E.2d 351, 352-53 (Ill. 1947) (same); Routt v. Barrett, 71 N.E.2d 660,
665-66 (Ill. 1947) (same); Hagler v. Small, 138 N.E. 849, 851 (Ill. 1923) (same); People
ex rel. Schnackenberg v. Czarnecki, 100 N.E. 283, 286 (Ill. 1912) (candidates right to be
on a ballot in municipal election); Chi. Bar Ass’n v. White, 898 N.E.2d 1101, 1106 (Ill.
App. Ct. 2008) (vote at constitutional convention); Richardson v. Leibovitz, 637 N.E.2d
1217, 1220 (Ill. App. Ct. 1994); (conducting single-proposition analysis); see Hester v.
Kamykowski, 150 N.E.2d 196, 200 (Ill. 1958) (quality of ballot paper in context of ballot
secrecy).
       63
         Emery v. Hennessy, 162 N.E. 835, 837 (Ill. 1928) (fraud); People ex rel. Agnew
v. Graham, 108 N.E. 699, 705-06 (Ill. 1915) (fraud); Ross v. Kozubowski, 538 N.E.2d
623, 627 (Ill. App. Ct. 1989) (fraud); Goree v. LaVelle, 523 N.E.2d 1078, 1080 (Ill. App.
Ct. 1988) (fraud); People ex rel. Elder v. Quilici, 33 N.E.2d 492, 495 (Ill. App. Ct. 1941)
(intimidation); see Craig, 233 N.E.2d at 192 (fraud); Hester, 150 N.E.2d at 200 (fraud).


                                             95
Moran, 179 N.E. at 531 (citations omitted).

              2.         Other Sources Of Content

       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.64



       64
          See, e.g., State v. Wright, 67 A.3d 319, 322 (Del. 2013) (interpreting bail clause
in light of criminal statutes); Griffin v. State, 47 A.3d 487, 490 (Del. 2012) (interpreting
right to bear arms in light of other states‘ statutes and constitutions); Dorsey v. State, 761
A.2d 807, 819 (Del. 2000) (interpreting search-and-seizure clause in light of 150 years of
precedent under related Delaware statute); Claudio v. State, 585 A.2d 1278, 1290-91,
1303-05 (Del. 1991) (interpreting right to jury trial based on common law precedent, jury
instructions, criminal procedure rules, and criminal statutes); Chesapeake Utils. Corp. v.
Hopkins, 340 A2d 154, 156-57 (Del. 1975) (construing corruption-of-blood clause in
conjunction with Remedies Clause); State v. Flowers, 330 A.2d 146, 147-49 (Del. 1974)
(interpreting right-to-bail clause by examining Delaware statutes and similar clauses in
other states); State v. Cannon, 190 A.2d 514, 515-18 (Del. 1963) (interpreting prohibition
on cruel and unusual punishments in light of common law, Delaware Supreme Court
precedent, and historical and contemporary statutes); Piekarski v. Smith, 153 A.2d 587,
592 (Del. 1959) (relying on treatise to interpret right-to-petition clause); see Mott v. State,
9 A.3d 464, 465-66 (Del. 2010) (interpreting grand jury clause based on common law
precedent); E. Lake Methodist Episcopal Church, Inc. v. Trs. of Peninsula-Del. Annual
Conference of the United Methodist Church, Inc., 731 A.2d 798, 808 (Del. 1999)
(interpreting freedom-of-religion clause in light of precedent analyzing Delaware‘s
Religious Societies Act of 1787); Curran v. Woolley, 104 A.2d 771, 772-74 (Del. 1954)

                                              96
       For present purposes, this decision looks to (i) the statutory framework for

challenging the outcome of a candidate election, (ii) election-related criminal statutes,

(iii) the Anti-Bribery Clause, and (iv) the Delaware Equal Accommodation Act. These

sources are not exclusive. At later stages of the case, the parties may point to other

informative authorities.65

                     a.      The Election Contest Statute

       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.66 For most elected

offices, the statutory procedure is as follows:

       Any person claiming to be elected to an office to be exercised in and for
       any county, district or hundred may contest the right of any person declared
       to be duly elected to such office for any of the following causes:

       (1) For malconduct on the part of the election officers or clerks holding the
           election, or any one of them;

       (2) When the person whose right to the office is contested was not at the
           time of the election eligible to such office;



(examining parameters of habeas corpus using state and federal statutes and common law
precedent).
       65
          As just one example, several of the older cases interpreting the Elections
Clauses of other states cite Thomas M. Cooley, A Treatise on the Constitutional
Limitations which Rest Upon the Legislative Power of the States of the American Union
(8th ed. 1927). It seems likely that this treatise and others would shed additional light on
the meaning of the Elections Clause.
       66
          See 15 Del. C. § 5901 (challenge to election as member of General Assembly);
id. at § 5921 (challenge to election of persons chosen as electors of the President or Vice
President of the United States); id. at § 5941 (challenge to other offices).


                                             97
       (3) When the person whose right is contested has given to any elector or
           inspector, judge or clerk of election, any bribe or reward or shall have
           offered any bribe or reward for the purpose of procuring his or her
           election;

       (4) On account of illegal votes.

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 reward‖ for the

purpose of procuring the outcome favored by the persons offering the bribe or reward. Id.

at § 5941.

                     b.      Criminal Election Statutes

       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




                                              98
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


                                              99
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.67 The California

Supreme Court engaged in similar reasoning by looking to state criminal statutes to give

content to a person’s reasonable expectation of privacy. See Shulman v. Gp. W Prods.,

Inc., 955 P.2d 469, 493-96 (Cal. 1998).

       Two criminal statutes are particularly relevant to the activity in this case. The first

is an anti-bribery statute. See 14 Del C. § 1079 (the ―Anti-Bribery Statute‖). The second

is an anti-electioneering statute. See id. at § 1087 (the ―Anti-Electioneering Statute‖).

                            i.      The Anti-Bribery Statute




       67
        Florida Star v. B.J.F., 491 U.S. 524, 530 (1989); see also Smith v. Daily Mail
Publ’g Co., 443 U.S. 97, 103 (1979).


                                             100
       The Anti-Bribery Statute makes a simplified version of the Anti-Bribery Clause

applicable to school elections. It states:

       (a) No person who receives or accepts or offers to receive or accept, or
       pays, transfers or delivers, or offers or promises to pay, transfer or deliver,
       or contributes or offers or promises to contribute to another to be paid or
       used, any money or other valuable thing as a compensation, inducement or
       reward for giving or withholding or in any manner influencing the giving or
       withholding a vote at any public school election, shall vote at such election
       unless such person being challenged for any of said causes takes and
       subscribes to the oath or affirmation as provided for in § 4940 of Title 15.

       (b) Such oath or affirmation shall be conclusive evidence to the election
       officers of the truth of such oath or affirmation, but if any such oath or
       affirmation shall be false, the person making the same shall be guilty of
       perjury . . . . Such oath or affirmation, when signed and attested as provided
       in this section shall be competent evidence in any proceeding against the
       party making the same.

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.


                                             101
                             ii.    The Anti-Electioneering Statute

       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:

       (a) No election officer, challenger or any other person within the polling
       place or within 50 feet of the entrance to the building in which the voting
       room is located shall electioneer during the conduct of the election. No
       political headquarters or gathering shall be permitted within that building
       during the conduct of the election.

       (b) Whoever violates subsection (a) of this section shall be fined not more
       than $200 or imprisoned not more than 90 days, or both.

       (c) Whoever, being an election officer, violates subsection (a) of this
       section shall be deemed to have knowingly and willfully violated that
       election officer‘s own official duty.

       (d) For the purposes of this section, the following definition shall apply:

       ―Electioneering‖ includes political discussion of issues . . . or partisan
       topics, the wearing of any button, banner or other object referring to issues .
       . . or partisan topics, the display, distribution or other handling of literature
       or any writing or drawing referring to issues . . . or partisan topics, the
       deliberate projection of sound referring to issues . . . or partisan topics from
       loudspeakers or otherwise into the polling place or the area within 50 feet
       of the entrance to the building in which the voting room is located.

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.

                      c.     The Anti-Bribery 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-


                                             102
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.‖68

       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.‖ 69 The Anti-Bribery Clause does not apply directly to this case because



       68
        State v. Collins, 42 A. 619, 622 (Del. Ct. Gen. Sess. 1898); see Holland,
Delaware State Constitution, supra, at 205.
       69
         14 Del C. § 1903 (―Before any school board levies a tax [it] shall call a special
election to be held at the polling place or places designated by the Department of
Elections conducting the elections.‖); see Brennan v. Black, 104 A.2d 777, 780 (Del.
1954) (noting the requirement that a school district hold a ―special election‖); 8 Del.
Laws ch. 21, § 5 (1830) (requiring approval of voters in school district before the levying
of a school-related tax). In 2006, the Delaware Attorney General opined that the Anti-
Bribery Clause did not apply to a school referendum. See Del. Op. Att‘y Gen. 06-IB04,
2006 WL 1242015 (Mar. 23, 2006). The opinion rested on the text of the Anti-Bribery
Clause, which states that it applies to ―any general, special, or municipal election in this
State, or at any primary election, convention or meeting held for the purpose of

                                            103
it is a criminal provision. Nevertheless, as with the Election Contest Statute, the Anti-

Bribery Statute, and the Anti-Electioneering Statute, the Anti-Bribery Clause can inform

the Elections Clause analysis because its existence underlines the principle that an

election in which certain voters received money or other valuable things for their votes is

not ―free and equal.‖

                     d.         The Delaware Equal Accommodation Act

       The Delaware Equal Accommodation Act prohibits discrimination against the

aged and disabled. It states:

       No person being the owner, lessee, proprietor, manager, director,
       supervisor, superintendent, agent or employee of any place of public
       accommodation, shall directly or indirectly refuse, withhold from or deny
       to any person, on account of race, age, marital status, creed, color, sex,
       disability, sexual orientation, gender identity or national origin, any of the
       accommodation, facilities, advantages or privileges thereof.

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,




nominating any candidate or candidates to be voted for at such general, special, or
municipal election.‖ Del. Const. art. V, § 7. The Attorney General‘s opinion did not
discuss Brennan or Section 1903 of Title 14, both of which refer to a school tax
referendum as a ―special election.‖ In the same opinion, the Attorney General suggested
that the plaintiffs might have a cause of action under Section 5162 of Title 15. That
section also applies only in a ―general, special or municipal election.‖ 15 Del C. § 5162.


                                             104
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.

              3.     Applying The Standards To The Conduct Alleged In The
                     Complaint

       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.

                     a.     Selective Rewards For Voting Under The Elections Clause

       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



                                             105
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 things for votes was a central focus of the Constitutional Convention of 1896-

97, which produced the Anti-Bribery Clause. A violation of the clause does not require a

―corrupt motive.‖ Collins, 42 A. at 622. It requires only that money or something of value

be given as a reward or inducement for voting.70



       70
          Federal law similarly proscribes paying for votes. See 52 U.S.C. § 10307(c);
United States v. Thomas, 510 F.3d 714, 723-24 (7th Cir. 2007) (affirming conviction for
conspiracy to violate act based on plan to ―take care of‖ voters who ―expect something‖
and budget suggesting payments of five dollars per voter); United States v. Daugherty,
952 F.2d 969, 971 (8th Cir. 1991) (affirming conviction for violating act based on plan to
pay three to five dollars in exchange for votes); United States v. Garcia, 719 F.2d 99, 104
(5th Cir. 1983) (affirming conviction under act where defendants provided welfare food
vouchers in exchange for votes); United States v. Thompson, 2009 WL 331482, at *7
(E.D. Ky. Feb. 9, 2009) (evidence supported conviction where defendant agreed to
deliver his family‘s votes in return for candidate paving his driveway). Further
evidencing Delaware‘s strong objection to any type of payment for voting, the federal
provision was sponsored by Senator John J. Williams of Delaware as an amendment to
the Voting Rights Act. When he introduced this amendment, he stated: ―[T]he
amendment would provide a penalty for anyone offering or accepting money or
something of value in exchange for registering or voting.‖ 111 Cong. Rec. S8423 (daily
ed., April 26, 1965).


                                           106
      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).

                    b.     Government Campaign Speech: The Limited Advocacy
                           Principle

      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.71 In Brennan, the Delaware Supreme



      71
          See Stanson v. Mott, 551 P.2d 1, 10-11 (Cal. 1976) (en banc) (holding that
although state agency could disseminate ―information‖ to the public in an election
campaign, it could not use money to spread ―promotional‖ materials); Palm Beach Cty. v.
Hudspeth, 540 So. 2d 147, 154 (Fla. Dist. Ct. App. 1989) (holding that government can
only use funds only for neutral reasons because the government‘s resources would enable
it to drown out opposing views); Rees v. Carlisle, 153 P.3d 1131, 1137-39 (Haw. 2007)
(holding that prosecutor violated state law by acting as advocate in state constitutional
amendment vote because granting the prosecutor power to promote issues would be
unfair); Anderson v. City of Boston, 380 N.E.2d 628, 639 (Mass. 1978) (―Fairness and the
appearance of fairness are assured by a prohibition against using public tax revenues to
advocate a position which certain taxpayers oppose.‖); Smith v. Dorsey, 599 So. 2d 529,
549 (Miss. 1992) (finding that school board‘s fish fry and payment for campaign workers

                                          107
Court permitted a school district to engage in limited advocacy in favor of a referendum,

but held that the ―expenditure of public funds in support of one side‖ must remain

―within reasonable limits‖ and that the school district‘s speech should not venture

―beyond [a] factual presentation‖ to the point of ―overstatement and emotional appeals.‖

104 A.2d 777, 790 (Del. 1954). This decision refers to Brennan‘s holding as the ―Limited

Advocacy Principle.‖

      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, 98

A.2d 673 (N.J. 1953). In Citizens, a school board decided to issue bonds to finance the




to support a school bond referendum ―constituted illegal promotional efforts‖); Burt v.
Blumenauer, 699 P.2d 168, 175-76 (Or. 1985) (en banc) (finding that ―principles of
representative government‖ would limit government speech involving ―electoral or
political advocacy‖); Stern v. Kramarsky, 375 N.Y.S.2d 235, 239 (Sup. Ct. Spec. Term
1975) (finding that state agencies ―cannot advocate their favored position on any issue or
for any candidates‖ and ―must maintain a position of neutrality and impartiality‖ on state
constitutional grounds); see also D.C. Common Cause v. District of Columbia, 858 F.2d
1, 2, 9 (D.C. Cir. 1988) (holding that municipal taxpayers had standing to challenge
―expenditures by the District of Columbia government to influence the outcome of an
initiative,‖ and affirming district court‘s finding that such expenditures were illegal on
statutory and federal constitutional grounds); Coffman v. Colo. Common Cause, 102 P.3d
999, 1011 (Colo. 2004) (en banc) (finding that government must have specific statutory
grant to be able ―to advocate for or against any measure pending before the electorate‖);
Ameritel Inns, Inc. v. Greater Boise Auditorium Dist., 119 P.3d 624, 630 (Idaho 2005)
(finding that because legislature did not grant local government entity ability to expend
money to support or oppose a measure to be voted on, it could not); Elsenau v. City of
Chicago, 165 N.E. 129, 131 (Ill. 1929) (finding that a city did not have the authority to
disseminate information ―partisan in its nature, to induce the voters to act favorably upon
the bond issues submitted at the election‖). See generally André, Government Election
Advocacy, supra, at 846-47, 878.


                                           108
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:

       [T]he board made use of public funds to advocate one side only of the
       controversial question without affording the dissenters the opportunity by
       means of that financed medium to present their side, and thus imperiled the
       propriety of the entire expenditure. The public funds entrusted to the board
       belong equally to the proponents and opponents of the proposition, and the
       use of the funds to finance not the presentation of facts merely but also
       arguments to persuade the voters that only one side has merit, gives the
       dissenters just cause for complaint. The expenditure is then not within the
       implied power and is not lawful in the absence of express authority from
       the Legislature. . . .

       We are persuaded, however, that simple fairness and justice to the rights of
       dissenters require that the use by public bodies of public funds for advocacy
       be restrained within those limits in the absence of a legislative grant in
       express terms of the broader power.72




       72
         98 A.2d at 677-78. Notably, by the time of the decision, the referendum had
passed, and the court regarded the issue of the booklet as moot. The court nevertheless
decided that the legal issue was important enough to warrant addressing. See id. at 676.


                                           109
Notably, the Citizens ruling adopted a stricter line than what the Delaware Supreme Court

would adopt in Brennan. In contrast to the Limited Advocacy Principle, the Citizens

decision stated that the school board could not engage in advocacy at all.

       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.‖73 The court suggested that a government agency could

serve this need by spending money to inform voters. For example, it could make

―reasonable expenditures‖ to purchase radio advertisements that presented both sides‘

views on the building expansion. 98 A.2d at 676. But using money to try to convince

voters to ―Vote Yes‖ was not fair to those who wanted to ―Vote No.‖

       Another leading example of this approach is Stanson v. Mott, 551 P.2d 1 (Cal.

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


       73
          Id. at 676-77. In this respect, the Citizens court followed an earlier New Jersey
decision that had affirmed a ruling permitting government campaign speech. See, e.g.,
City Affairs Comm. v. Bd. of Comm’rs, 41 A.2d 798, 800 (N.J. Sup. Ct. 1945) (―We think
municipalities may, within their discretion and in good faith, present their views for or
against proposed legislation or referendum to the people of questions which in their
judgment would adversely affect the interests of their residents. To accomplish this
purpose we think they may incur expenditures by the publication of pamphlets, circulars,
newspaper advertisements or radio addresses and that to do so is a proper governmental
function.‖), aff’d, 46 A.2d 245 (N.J. 1946). The Citizens court noted that the limitations it
imposed on government campaign speech had not been suggested by the earlier ruling. 98
A.2d at 678.


                                            110
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. 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. at 8-9 (citations

omitted). The court explained the rationale for this line of authority as follows:

       Underlying this uniform judicial reluctance to sanction the use of public
       funds for election campaigns rests an implicit recognition that such
       expenditures raise potentially serious constitutional questions. A
       fundamental precept of this nation‘s democratic electoral process is that the
       government may not ―take sides‖ in election contests or bestow an unfair
       advantage on one of several competing factions. A principal danger feared
       by our country‘s founders lay in the possibility that the holders of
       governmental authority would use official power improperly to perpetuate
       themselves, or their allies, in office (see, e.g., Madison, The Federalist
       Papers, Nos. 52, 53; 10 J. Richardson, Messages and Papers of the
       Presidents (1899) pp. 98-99 (President Jefferson)); the selective use of
       public funds in election campaigns, of course, raises the specter of just such
       an improper distortion of the democratic electoral process.74

The California Supreme Court noted that prior authorities had not distinguished ―between

‗ballot measure‘ and ‗candidate‘ campaigning,‖ and it declined to take that step. 551 P.2d




       74
         Id. at 9. See 1 James D. Richardson, A Compilation of the Messages and Papers
of the Presidents, 1789-1897, at 98-99 (1899) (Thomas Jefferson) (―[I]t is expected that
[a government official] will not attempt to influence the votes of others nor take any part
in the business of electioneering, that being deemed inconsistent with the spirit of the
Constitution and his duties to it.‖); André, Government Election Advocacy, supra, at 843
(equating the neutral view with the view ―accepted by Madison and Jefferson‖).


                                            111
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. 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:

       [O]ne of the primary functions of elected and appointed executive officials
       is, of course, to devise legislative proposals to attempt to implement the
       current administration‘s policies. Since the legislative process contemplates
       that interested parties will attend legislative hearings to explain the
       potential benefits or detriments of proposed legislation, publicly agency
       lobbying . . . in no way undermines or distorts the legislative process. By
       contrast, the use of the public treasury to mount an election campaign
       which attempts to influence the resolution of issues which our Constitution
       leave to the ―free election‖ of the people does present a serious threat to the
       integrity of the electoral process.

Id. 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. 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.



                                               112
       [T]hus, the use of public funds to purchase such items as bumper stickers,
       posters, advertising ―floats,‖ or television and radio ―spots,‖ unquestionably
       constitutes improper campaign activity, as does the dissemination, at public
       expense, of campaign literature prepared by private proponents or
       opponents of a ballot measure. On the other hand, it is generally accepted
       that a public agency pursues a proper ―informational‖ role when it simply
       gives a ―fair presentation of the facts‖ in response to a citizen‘s request for
       information or, when requested by a public or private organization, it
       authorizes a[n] agency employee to present the department‘s view of a
       ballot proposal at a meeting of such organization.

Id. 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:

       During the year 1953 and particularly in September and early October,
       there were held various meetings of Parent-Teacher Associations of certain
       of the public schools, including the schools of the Mount Pleasant District.
       At one or more of these meetings there were discussions of the
       [referendum], by certain school officials. Publicity was given prior to these
       meetings by statements in the public press, and by circulars, all of which
       was entirely appropriate and desirable. In addition, a letter . . . addressed to
       ―Parents and Patrons‖ on the letterhead of the Mount Pleasant School
       District, was prepared and sent out by the Superintendent of Schools. This
       letter is almost wholly factual in nature. . . . It does contain one or two
       statements indicating that the proposed building program should in the
       judgment of the Superintendent of Schools, be supported by the District. In
       addition, a memorandum or circular urging [approval] was prepared and
       circulated, and also a circular containing sketches of children and showing
       the need for immediate action to provide more class rooms, equipment, etc.,
       couched in language as to appeal to the nature desire of parents for good
       education for their children.



                                             113
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:

       It does seem to us that some of the publicity urging support of the
       [referendum], such as the appeals ―to get out the vote‖, [sic] and the
       statement that the voters‘ approval of the program is ―a must‖ if they are to
       continue to have a good school system, went somewhat beyond the factual
       presentation which would have been more decorous in an official statement
       of the case. The expenditure of public funds in support of one side of the
       matter should be kept within reasonable limits. The temptation to any
       public official to overemphasize the importance and the urgency of a
       project which he sincerely believes is necessary is understandable; but
       overstatement and emotional appeals in circulars and other similar matter
       prepared and distributed at public expense are to be avoided.

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 way,‖ and the issues

were fairly ―presented and debated‖ because of a competing campaign effort by an

organization that opposed the referendum. Id.

       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


                                            114
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


                                            115
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 age, the Delaware Supreme Court would expand the Limited Advocacy

Principle. The high court could well regard contemporary voters as more media savvy

and less trusting of government than denizens of a seemingly simpler era culturally

stereotyped by Leave It To Beaver and Father Knows Best. The electorate of sixty years

ago might be seen as imbued with a post-World War II confidence in state institutions


                                           116
and held together by a nascent Cold War fear of communism which, along with other

cultural factors, generated a greater respect for institutional authority and hence a greater

obligation on the part of institutional actors not to abuse voters‘ trust. The initial round of

shocks to that outlook included the countercultural awakening of the 1960s and

Watergate-era revelations about the misuse and abuse of government power. Each

ensuing decade brought shocks and scandals of its own. A more worldly and skeptical

twenty-first century electorate could well be viewed as less susceptible to being misled

by officials deploying urgent language and making emotional appeals.

       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-




                                             117
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 regarding the proper scope

of the Limited Advocacy Principle and how it should apply to the facts as they develop

during discovery. It may well be possible to determine after trial that Superintendent

Daugherty‘s letter did not contribute meaningfully to the outcome of the Special Election.




                                            118
       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.


                                           119
                     c.     Government Campaign Speech: The Anti-Electioneering
                            Statute

       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.

                            i.      The Family–Focused Events As Improper
                                    “Gatherings”

       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 would reflect the

focus on Section 4942 on ―electioneering‖ activities.

       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


                                             120
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.

                            ii.    Electioneering Within Fifty Feet Of The Voting
                                   Rooms

       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



                                            121
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.‖75 It is not clear at present whether the statute uses the terms ―voting

room‖ and ―polling place‖ interchangeably, or whether it regards the ―voting room‖ as a

specific area within the ―polling place.‖ In my personal experience as a voter and

checker-challenger, the polling place often encompasses several rooms and hallways that

one passes through to reach the voting room. At least preliminarily, it seems to me that

the voting room refers to an area within the polling place, and that electioneering is

prohibited within a larger area that the statute defines as the ―polling place.‖




       75
          See 14 Del. C. § 1072(b) (requiring Department of Elections to ―designate and
procure the buildings within the district . . . which shall be used as polling places for any
public school election‖ and stating that ―[w]henever possible, such polling place shall be
located in public buildings, which shall include suitable schools‖); id. at § 1073 (making
election inspector ―responsible for the setup, operation and closing of the polling place‖);
id. at § 1082 (describing procedures for voters ―at the polling place‖); id. at § 1088
(identifying the persons who shall be ―admitted within the voting room‖).


                                             122
       Similar ambiguities confront the fifty-foot, electioneering-free area that the statue

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

       [p]erson or persons with other business within the building in which a
       polling place for a public school election is located may pass through the
       polling place area or by the room in which the polling place is located so as
       not to interfere with the conduct of the election. Such person or persons
       shall not loiter within 50 feet of the polling place, talk to any person or
       persons waiting to vote, promote any candidate or side to an issue, or in any
       other manner interfere with voters or disrupt the polling place.

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




                                            123
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.

                     d.     Selective Get-Out-The-Vote Efforts 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.

      Calling students who were eighteen or older out of class and have them vote.

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,



                                            124
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


                                            125
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, 179 N.E. 526, 531 (Ill. 1932). Free

elections are essential because ―[t]he very purpose of elections is to obtain a full, fair, and

free expression of the popular will upon the matter, whatever it may be, submitted to the

people for their approval or rejection‖ Wallbrecht v. Ingram, 175 S.W. 1022, 1026 (Ky.

1915).

         Historically, the law has focused on forms of ―improper influence‖ that have

interfered with the voting rights of disfavored demographic groups by dissuading or


                                             126
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.76 As alleged in



       76
          By statute, federal law provides similar protection for disabled persons. The
American‘s with Disabilities Act (―ADA‖) prevents discrimination by federal and state
government entities against individuals with disabilities. 42 U.S.C. § 12101. A public
entity cannot exclude those with disabilities from their programs and services. Id. The
entity must make ―reasonable modifications‖ to comply with Title II and provide disabled

                                             127
the Complaint, the Family-Focused Events generated full parking lots that interfered with

the ability of the elderly and disabled to vote. The Complaint alleges specifically that

when the plaintiffs sought to vote, there were empty school buses blocking the

handicapped spots, and they could not find parking spaces close enough to the polls for

ready access. An election in which the government engages in conduct that discriminates

against the aged and disabled is not ―free and equal.‖

       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.

                              III.       CONCLUSION

       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.




persons with meaningful access. Tennessee v. Lane, 541 U.S. 509, 532 (2004). The
provisions of the ADA apply to polling places. The Americans with Disabilities Act and
Other Federal Laws Protecting the Rights of Voters with Disabilities, U.S. Department of
Justice (Oct. 14, 2014), available at http://www.ada.gov/ada_voting/ada_voting_ta.htm.
The ―ADA Checklist for Polling Places‖ published by the United States Department of
Justice states that ―[v]oters with disabilities who arrive by car need a parking space close
to an accessible entrance.‖ ADA Checklist for Polling Places, U.S. Department of Justice
6 (Feb. 2004), available at http://www.ada.gov/votingscrn.pdf; see People of New York
ex rel. Spitzer v. Cty. of Schoharie, 82 F. Supp. 2d 19, 22, 26 n.8 (N.D.N.Y. 2000)
(granting injunction requiring county to provide sufficient handicapped parking spaces
near the entrance of polling sites); see also Westchester Disabled On the Move, Inc. v.
Cty. of Westchester, 346 F. Supp. 2d 473, 477 (S.D.N.Y. 2004) (finding that ―irreparable
harm has occurred if disabled voters are required to vote at alternative locations or by
absentee ballots‖).


                                             128
       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.




                                            129
