      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: February 23, 2017
                           Date Decided: May 24, 2017


Richard H. Morse, AMERICAN CIVIL LIBERTIES UNION OF DELAWARE,
Wilmington, Delaware; John W. Shaw, Karen E. Keller, Jeffrey T. Castellano, David M.
Fry, Nathan R. Hoeschen, SHAW KELLER LLP. Counsel for Plaintiffs.

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


LASTER, Vice Chancellor.
       In February 2015, Red Clay Consolidated School District (“Red Clay”) held a

special election in which residents were asked to approve an increase in the school-related

property taxes paid by owners of non-exempt real estate located within the district (the

“Special Election”). Red Clay prevailed in the Special Election, with 6,395 residents voting

in favor and 5,515 against.

       The plaintiffs are residents of Red Clay who did not vote in the Special Election

because they were unable to access the polls. They filed suit, asserting that Red Clay

violated the provision of the Delaware Constitution which guarantees that “[a]ll elections

shall be free and equal.”1 They also contend that Red Clay’s actions violated the Due

Process and Equal Protection Clauses of the Fourteenth Amendment of the United States

Constitution.2 This court previously held that the plaintiffs’ theories stated claims on which

relief could be granted.3 This decision only addresses their state law claim. It does not reach

their federal claims.

       The plaintiffs proved at trial that to secure a favorable result in the Special Election,

Red Clay violated the Elections Clause. Red Clay held seventy-five events on election day,




       1
           Del. Const. art. I, § 3 (the “Elections Clause”).
       2
         See U.S. Const. amend. XIV, § 1 (“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.”).
       3
        Young v. Red Clay Consol. Sch. Dist., 122 A.3d 784 (Del. Ch. 2015) (the
“Dismissal Ruling”).


                                                1
in the school buildings that served as polling places, that drew families with children to the

polls. The purpose and effect of these events was to reward families of Red Clay students

for voting. By Red Clay’s own calculation, at least 6,383 people attended these gatherings.

Several of the evening events drew hundreds of people.

       The Elections Clause, a related constitutional provision, and two related statutory

provisions evidence an unwavering Delaware public policy against both overt and covert

rewards for voting. When a government provides a targeted reward for voting to a group it

believes will favor its position, the election is not “free and equal.”

       The election day events also had the unfortunate consequence of interfering with

access to the polls. The many families who attended the events jammed the parking lots at

the schools that served as polling places. The evidence at trial showed that at least some

elderly and disabled residents did not vote because they could not find accessible parking.

Having heard the Red Clay representatives testify, I am convinced that they did not intend

to discriminate against elderly and disabled residents. They recognized that the events

would generate crowded parking lots, and they took some steps to mitigate this effect, but

they failed to anticipate the serious problems that elderly and disabled residents would face.

They also did not monitor the parking places designated for voters, as required by Red

Clay’s contracts with the Department of Elections, to ensure that they remained available.

       Delaware case law, a statutory provision governing electioneering, and evidence of

custom and practice in Delaware elections demonstrate that for an election to be “free and

equal,” voters must be able to access the polls. An election in which the government

obstructs the ability of elderly and disabled residents to vote is not “free and equal.”


                                               2
       Red Clay also rendered the Special Election unequal by engaging in four months of

one-sided get-out-the-vote efforts. Starting in November 2014, Red Clay aggressively

targeted the voters it believed would support the tax increase. Red Clay consciously

avoided using communication channels that would inform the public as a whole and make

the Special Election a debate. In particular, Red Clay used its access to confidential

information about Red Clay families to promote voting by parents of Red Clay students.

Red Clay’s assigned each school a goal number of “YES” voters, had each school canvass

its parents to find those “YES” voters, and used targeted followed-up communications to

get these voters to the polls. Red Clay also employed a variety of other tactics to mobilize

student families. Although Red Clay directed some communications to the community at

large, they were comparably minimal and generally required by law.

       The Delaware Supreme Court has held that when a school district conducts a

referendum, the “expenditure of public funds in support of one side” must remain “within

reasonable limits,” and the school district’s speech should not venture “beyond [a] factual

presentation” to the point of “overstatement and emotional appeals.”4 In the Dismissal

Ruling, I suggested that societal developments since that decision warranted loosening

those restrictions. On the facts of this case, however, the extent and intensity of Red Clay’s

targeted campaign speech, particularly when considered in conjunction with the election

day events, resulted in the Special Election not being “free and equal.”




       4
           Brennan v. Black, 104 A.2d 777, 790 (Del. 1954).


                                              3
       Although this case focuses on Red Clay’s election-related conduct, it stems from

dysfunction in Delaware’s system for funding public schools. The proper operation of that

system depends on the regime for determining property values for tax purposes. By statute,

the assessed value is supposed to reflect a property’s current market value. In practice,

assessments in New Castle County remain pegged to values from 1983. This means that

Red Clay’s tax base has remained flat for nearly thirty-five years.

       Red Clay’s operating expenses have not remained flat for nearly thirty-five years.

They increase every year, both because of inflation and because society regularly asks the

public schools to take on greater burdens. When the value of the tax base is fixed, the only

way to raise revenue is to increase the tax rate. By statute, school districts cannot raise the

tax rate unilaterally; they must ask district residents to approve the increase.

       In this case, without a favorable vote, Red Clay faced a looming deficit. Prevailing

in the Special Election was therefore crucial, and the Red Clay administrators were under

a great deal of pressure to achieve that result. Unfortunately, their understandable desire to

obtain adequate funding to fulfill their mission led them to undermine the electoral process.

But their actions must be evaluated in light of the difficult situation they faced.

       The question for decision in this case is not only whether Red Clay violated the

Elections Clause, but also whether those violations warrant invalidating the Special

Election. Extensive precedent makes clear that proving electoral misconduct does not lead

ineluctably to invalidation. In this case, a balancing of multiple factors convinces me that

the Special Election should stand. This decision therefore results in a declaration that Red

Clay violated the Elections Clause, but it does not award any greater relief.


                                              4
                           I.      FACTUAL BACKGROUND

       A three-day trial took place from October 31 to November 2, 2016. The parties

introduced 327 exhibits. Eighteen fact witnesses and five expert witnesses testified live.

The following facts were proven by a preponderance of the evidence.

A.     Property Taxes And Public Schools

       Understanding why Red Clay intervened in the Special Election requires some

background knowledge about how Delaware funds its public schools. School districts in

Delaware receive the majority of their operating revenue from a combination of state and

local funds. State funds come from the General Assembly.5 Local funds come from

property tax revenue generated within each school district. “Local funds touch every aspect

of the school district budget from employee salaries and benefits, to supplies and

materials[,] to maintenance and security and transportation.”6

       To generate local revenue, owners of non-exempt real property in a school district

pay property taxes on the assessed value of their real estate at a rate set by the school board

and approved by residents.7 The amount of available local revenue thus depends on two

variables: the assessed value of the property and the tax rate per dollar of assessed value.

The Delaware Code provides that “[a]ll property subject to assessment shall be assessed at




       5
           See 14 Del. C. § 1701 et seq.
       6
           JX 25 at D2548.
       7
           See 14 Del. C. §§ 1902-03, 1913-18.


                                              5
its true value in money.”8 The Delaware Supreme Court has held that the concept of a

property’s “true value in money” is “the same as its fair market value.”9 “Fair market value”

is “the price which would be agreed upon by a willing seller and a willing buyer, under

ordinary circumstances, neither party being under any compulsion to buy or sell.” 10

       The Delaware Code requires the annual preparation of an assessment roll showing

the values ascribed to properties for purposes of taxation.11 In New Castle County, where

Red Clay is located, the Department of Land Use is obligated to “assess all property subject

to taxation by the County and maintain appropriate records.”12 The Department also must

“prepare tax rolls, including those required by any . . . school district.”13

       To oversee the process of preparing the assessment roll, the Delaware Code

establishes a Board of Assessment Review.14 To emphasize the point that its members are




       8
           9 Del. C. § 8306(a).
       9
        New Castle Cty. Dep’t of Fin. v. Teachers Ins. & Annuity Ass’n, 669 A.2d 100,
102 (Del. 1995).
       10
            Id. (citation omitted).
       11
          See 9 Del. C. § 8301 (titled “Annual Assessment of all assessable property and
persons”). Each county follows different procedures and is governed by a different chapter
of Title 9. Id. Red Clay is located in New Castle County, so this decision focuses on the
procedures there.
       12
            9 Del. C. § 1301(15).
       13
            Id. § 1301(16).
       14
            9 Del. C. § 1317.


                                               6
supposed to ensure that property is valued at its “true value in money,” the Delaware Code

contemplates a per-property fine for departures from that standard.15

       The statutory framework calls for the Department of Land Use each year to “prepare

and present to the Board of Assessment Review a copy of the assessment roll for [that]

year.”16 The Board of Assessment is charged with hearing appeals by individual property

owners who have challenged the assessment of the property.17 The Board of Assessment

also is charged with “[r]eview[ing] the methods by which the general manager of the

Department of Land Use has established the assessments and the results thereof as reflected

by the assessment roll.”18

       So far, this system makes sense. Property must be assessed at its “true value in

money,” which is synonymous with its “fair market value.”19 The Department of Land Use




       15
         Id. § 8306(b) (“If any board of assessment, or any member thereof, knowingly
and willfully vales or assesses any property upon any other standard than its true value in
money, each of the members of the board participating therein shall be fined not more than
$100.”).
       16
            9 Del. C. § 1322(a).
       17
            9 Del. C. §§ 1318(1) & (2).
       18
            9 Del. C. § 1318(3).
       19
            Teachers Ins., 669 A.2d at 102.


                                              7
conducts the annual assessment.20 The Board of Assessment oversees the system to keep

everything on track.21

       Yet in New Castle County, “property assessments are based upon 1983 property

values.”22 That fact is sufficiently astounding to merit repeating. Property assessments are

not based on fair market value in the year of the assessment, but rather on their value as of

June 1, 1983, nearly thirty-five years ago. That date carries talismanic significance because

it was when New Castle County’s last general reassessment became effective for tax

purposes.23




       20
            See 9 Del. C. §§ 1322, 8301.
       21
            See 9 Del. C. § 1318(3).
       22
         Office of Assessment, Assessment Process & Applicability, http://www.nccde.
org/181/Assessment; accord New Castle County v. New Castle County Bd. Of Assessment
Review, 970 A.2d 257, 2009 WL 790360, at *3 (Del. 2009) (TABLE); accord JX 25 at
D2548 (“Local taxes are collected by New Castle County and are fixed based on 1983
assessed property values.”); Tr. 645 (Floore).
       23
          A general reassessment involves a systematic effort to determine current
valuations for all the taxable property in the county. This concept contrasts with the annual
assessment, when the Department of Land Use generally carries forward existing
valuations. As part of this process, the Department of Land Use does update some
valuations of specific properties. When issuing a building permit, the Department conducts
a property-specific reassessment to reflect the value of the improvements, such as a new
deck or finished basement. It then adjusts the reassessment to reflect 1983 values. These
changes lead to de minimis increases in the tax base.

      By going without a general reassessment since 1983, New Castle County falls in
between its sister counties. Kent County’s last general reassessment was in 1987. Sussex
County’s was in 1974.


                                             8
       Reflect momentarily on how much has changed since 1983. Back then, the

Governor of Delaware was Pete DuPont. The President of the United States was Ronald

Reagan. The Soviet Union still existed, and the federal government regarded it as the “evil

empire.” A new Star Wars movie was in theaters, but it was Return of the Jedi. MTV still

played music videos, and Michael Jackson’s Thriller made its premier. The two teams in

Super Bowl XVII were the Washington Redskins and the Miami Dolphins. On a personal

note, I started high school.

       Property values have changed dramatically since the early 1980s. The following

data from judicially noticeable sources provides a sense of the magnitude of the change:

      In 1983, the House Price Index for New Castle County, published by the Federal
       Housing Finance Agency, was 159.59. By 2016, the House Price Index had climbed
       to 499.49. The 2016 figure represents an increase of 340% over the 1983 figure and
       an annualized gain of 9.44%.24

      Measured in 2017 dollars, the inflation-adjusted median sales price of a new home
       in Delaware in January 1980 was $126,455. In January 2000, it was $187,596.25 In
       January 2010, the median value of all owner-occupied housing in Delaware (not just




       24
         See Federal Housing Finance Agency, Housing Price Index Datasets: States (Not
Seasonally Adjusted), https://www.fhfa.gov/DataTools/Downloads/Pages/House-Price-
Index-Datasets.aspx#qexe. The base year was 1975, meaning that housing values in that
year were assigned a value of 100. The index reached 159.59 in 1983, meaning housing
values in New Castle County were 60% higher in 1983 than they were in 1975.
       25
         See United States Census Bureau, Historical Census of Housing Tables: Home
Values, available at https://www.census.gov/hhes/www/housing/census/historic/values.
html. The Census Bureau presents these values in 2000 dollars. For consistency with
present data, this decision recalculates them in 2017 dollars using the Consumer Price
Index. See U.S. Dep’t of Labor Bureau of Labor Statistics, CPI Inflation Calculator, https://
www.bls.gov/data/inflation_calculator.htm.


                                             9
       new homes) was $273,000.26 The 2010 figure represents an increase of 116% over
       the 1980 figure and an annualized gain of 3.86%. That was seven years ago.

      Measured in 2017 dollars, the inflation-adjusted median sales price of a new home
       in the United States in January 1980 was $196,331. In January 2000, it was
       $235,214, and in January 2010, it was $244,535. In January 2017, the median sales
       price of a new home was $308,000.27 The 2017 figure represents an increase of
       56.9% over the 1980 figure and an annualized gain of 1.54%.

      Measured in 2017 dollars, the median value of an owner-occupied housing unit in
       New Castle County in 2000 was $195,652. In 2015, it was $260,600.28 The 2015
       figure represents an increase of 33.2% over the 2000 figure and an annualized gain
       of 2.2%.

Yet despite these significant gains, the assessed value of New Castle County’s underlying

tax base remains flat. In Red Clay, the average assessed value of a residential property is

stuck at the 1983 level of $80,100.29




       26
         See United States Census Bureau, Fact Finder: Median Housing Value of Owner-
Occupied Housing Units (Dollars), https://factfinder.census.gov/faces/tableservices/jsf/
pages/productview.xhtml?src=bkmk.
       27
          See United States Census Bureau, Median and Average Sales Prices of New
Homes Sold in United States, available at https://www.census.gov/construction/nrs/pdf/
uspricemon.pdf. The Census Bureau’s figures do not account for inflation. This decision
recalculates the values in 2017 dollars using the Consumer Price Index. See U.S. DEP’T OF
LABOR BUREAU OF LABOR STATISTICS, CPI Inflation Calculator, https://www.bls.gov/
data/inflation_calculator.htm.
       28
        See United States Census Bureau, American Fact Finder Guided Search: Selected
Housing Characteristics, https://factfinder.census.gov/faces/nav/jsf/pages/guided_search.
xhtml.
       29
            JX 25 at D2551.


                                            10
       It should be obvious that assessing properties as of 1983 is a far cry from

determining their “true value in money” as of the current year.30 The Delaware Supreme

Court indicated in 1977 that at some point, assessed values could become so stale as to be

statutorily infirm.31 But to date, no one has brought a county-wide challenge.32




       30
            9 Del. C. § 8306(a).
       31
           See Bd. of Assessment Review for New Castle Cty. v. Stewart, 378 A.2d 113, 116
(Del. 1977) (observing that no one had argued that “an unreasonable period of time has
passed since the last general assessment was made in 1970”). Technically, there is no
statutory section in the Delaware Code that requires New Castle County to conduct a new
general reassessment. Nevertheless, multiple sections anticipate that general reassessments
will take place. Several establish mechanisms for capping at 10% the maximum possible
tax increase that could result from a general reassessment. See 14 Del. C. § 1916(b)
(providing that if “a subsequent general reassessment of all real estate in the county
changes the total assessed valuation of the school district, the local board of education of
each such local school district shall calculate a new real estate tax rate which, at its
maximum, would realize no more than 10% increase in actual revenue”); 14 Del. C.
§ 2601(c) (providing similar procedure for adjustment of tax rate based on general
reassessment that changes total assessed value of county vocational-technical high school
district or county vocational-technical center district); 14 Del. C. § 1707(b)(11) (providing
for possibility of general reassessment when defining term “total full valuation” for
purposes of Division III equalization funding that state provides to school districts).
Another authorizes the New Castle County Council to facilitate challenges by property
owners following a general assessment. See 9 Del. C. § 1322(d) (providing that in any
fiscal year in which New Castle County proposes to implement a general reassessment,
“the County Council may by ordinance establish appropriate and reasonable time periods
for the filing of exemption applications; submission, inspection and certification of
assessment rolls; notices of assessments; appeals from such assessments; and any other
requirements relating to the implementation of the general reassessment”). Of course, an
obligation to conduct periodic general assessments might be implicit in a statutory
requirement to value each property at its “true value in money.” 9 Del. C. § 8306(a).
       32
         Individual litigants have objected to the staleness of the 1983 general assessment
when challenging the valuations of their own properties. In that context, however, the
Delaware courts have refused to intervene because the Delaware Constitution requires
uniformity in tax assessments. See Del. Const. art. VIII, § 1 (“All taxes shall be uniform
upon the same class of subjects within the territorial limits of the authority levying the

                                             11
       Ironically, a well-intentioned state-level scheme for providing additional funds to

less-wealthy school districts creates a powerful disincentive for any civic-minded official




tax[.]”). To ensure uniformity, New Castle County uses the base year method. See, e.g.,
Stewart, 378 A.2d at 116. As noted, New Castle County currently uses a base year of 1983.
Commerce Assocs. v. New Castle Cty. Office of Assessment, 2016 WL 3457820, at *8 (Del.
Super. Apr. 1, 2016), rev’d on other grounds, 2017 WL 1337318 (Del. Apr. 11, 2017).
When a property owner asserts that a 1983 valuation is outdated and a property should have
a more accurate, current value, the principal of uniformity comes into play and prevents
any single property owner from obtaining a valuation different from the base year. Id.
Using this reasoning, a series of decisions have rejected challenges to valuations based on
1983 values. See, e.g., Mazen v. City of Dover Bd. of Assessment Appeals, 2016 WL
520996, at *2 (Del. Super. Jan. 22, 2016); RRHC Wilmington, LLC v. New Castle Cty.
Office of Finance, 2014 WL 2538886, at *8-9 (Del. Super. May 30, 2014); Bailey v. Bd. of
Assessment Review, 2004 WL 1965867, at *5 (Del. Super. Aug. 19, 2004).

       The uniformity defense might not apply in a case which asserted that New Castle
County is currently violating the statutory requirement to value property at its “true value
in money” by continuing to use a base year of 1983. Assuming the suit asserts that 1983
valuations are so stale that New Castle County must conduct a general reassessment, then
the values going forward would be tied to the general reassessment and made uniform as
of a new date. The 1983 base year would no longer be relevant, just as the prior base year
of 1974 was no longer relevant after the 1983 general reassessment. Moreover, nothing
about the base year method requires that the base year be the same year when the last
general reassessment took place. Just as the county currently uses the Consumer Price
Index to factor property values back to 1983, it could use the same metric (or a more real-
estate-specific metric) to bring values forward to a later year or, most appropriately, the
current year. See New Castle Cty. v. New Castle Cty. Bd. of Assessment, 970 A.2d 257,
2009 WL 790360, at *1 (Del. 2009) (TABLE) (explaining that the County “used the
Consumer Price Index (CPPI) to factor [a 2006-2007-year valuation] back to 1983”).

        One reason for the lack of a county-wide challenge might be the absence of a
motivated plaintiff. A successful challenge that generates a new general assessment almost
certainly would cause most assessed property values to increase, subject to the 10%
statutory cap. Few people like paying higher taxes. Even fewer are motivated to file suit to
fix a dysfunctional system where success means higher taxes for everyone. A plaintiff with
more systemic interests, such as restoring the integrity of the school-funding mechanism,
might have different motivations. So too might an institutional plaintiff that could represent
the interests of minors currently disadvantaged by the system.


                                             12
to take the lead in reassessing property values. Each year, the Department of Education

recommends that the General Assembly authorize an aggregate state-wide appropriation

based on the number of “units of pupils” in each school district.33 The General Assembly

allocates appropriations in three buckets. Division I funds pay for administrators, teachers,

and other personnel.34 Division II funds primarily pay for textbooks, furniture, and other

classroom equipment, but can be used for any lawful purpose.35 Division III funds are

budget equalization funds that are allocated based on a formula designed to provide

matching funds to less wealthy districts.36 Because districts that generate less local funding

receive more Division III funding, there is a disincentive for any county to take the lead in

reassessing property values. Although a general reassessment would yield more local

funds, the county’s school districts would receive less state funds. Everyone has a reason

to keep the existing values in place.




       33
         See 14 Del. C. §§ 1702(b), 1703-04. One “unit” is 16.2 students enrolled in
kindergarten, first grade, second grade, or third grade, or 20 students enrolled in fourth
through twelfth grade. See 14 Del. C. § 1703(d)(2)-(3); Tr. 655 (Floore).
       34
            14 Del. C. § 1702(c).
       35
            14 Del. C. §§ 1702(d), 1706.
       36
          See 14 Del. C. § 1707. The formula is complex but essentially pegs state funding
to a combination of each school district’s “effort index” and “ability index.” 14 Del. C. §
1707(c). The effort index is the ratio by which the district’s tax burden exceeds the average
tax burden across the state. See 14 Del. C. § 1707(b)(3). The ability index is the district’s
aggregate property value. As the effort index rises, the State’s contribution rises, but as the
ability index rises, the State’s contribution falls. See 14 Del. C. § 1707(c) (“The State share
per unit is equal to the authorized amount times the effort index times the quantity of 1
minus .75 times the ability index[.]”).


                                              13
       The upshot is that the value of the underlying tax base in each school district remains

flat. But the cost of running a school district does not. Inflation reduces the purchasing

power of a school district’s budget every year. Even if a school district does not introduce

any new initiatives and just maintains the status quo, the absence of regular and systematic

reassessments inevitably generates a funding gap. At a macro level, since 1983, the

purchasing power of a school district’s tax base in constant dollars has declined by nearly

60%. Put differently, it requires $2.44 in 2017 to buy the same amount of goods and

services that $1.00 would buy in 1983.37

       This leaves school districts with one lever to pull. The Delaware Code empowers

the school board for each district to set the amount of tax per dollar of assessed value that

a property owner must pay.38 Using this authority, the school board can increase the tax

rate so that the same assessed value generates more revenue. 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.”39 The outcome of the special election determines whether the tax can be levied.40




       37
         See U.S. Dep’t of Labor Bureau of Labor Statistics, CPI Inflation Calculator,
https://www.bls.gov/data/inflation_calculator.htm.
       38
         See 14 Del. C. § 1902. See Tr. 646-47 (Floore explaining why, under current
system, a referendum is “inevitable”).
       39
            14 Del. C. § 1903.
       40
         14 Del. C. § 1911 (“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.”).
Technically there are other, smaller tax categories that the board can raise unilaterally,

                                               14
       The relentless effect of inflation combined with the increased expectations and

demands that our society places on public schools means that school districts in Delaware

must regularly seek tax increases from their voters. Generally speaking, in Delaware, a

school district needs to prevail in a referendum every three to five years.41

       The frequency of tax referendums generates negative reactions. Some residents

object as a matter of principle to having their taxes raised. More object if they think their

tax dollars are not being used wisely. Delaware’s complex system for funding public

schools is not easily understood. The natural reaction of some citizens to regular requests

for tax increases is to suspect that school officials are wasting money. A review of decades

of referendums reveals that they often fail the first time, then pass when presented a second

time after supporters recognize the need to make it a priority to vote.42




without the approval of residents. Tr. 645, 703 (Floore identifying these categories). They
are relatively immaterial. To avoid overly complicating an already complicated area, this
decision sets them aside.
       41
           Tr. 660 (Floore testifying that contemplating a referendum every four years is
“pretty standard for every school district” in Delaware). Appendix A compiles a list of
school referendums in Delaware, since 1980, drawn from publicly available articles in The
News Journal. It includes both operating expense referendums and capital expense
referendums, which must be held separately. See 14 Del. C. § 2122. It also includes
referendums seeking approval to transfer tax revenue from one account to another. See id.
The appendix, which is likely under-inclusive, indicates that on average, Delaware school
districts have obtained approval for 7.3 tax increases since 1980. That amounts to one tax
increase every five years. Counting only operating referendums, Delaware school districts
has obtained approval for an average of 4.4 tax increases since 1980. Red Clay is slightly
above average on both counts, having obtained approval for eight tax increases, including
six for operating expenses, during that period.
       42
         See Appendix A. Of the operating referendums for which vote figures are publicly
available, sixty-six were approved and fifty-one defeated. When a referendum failed, the

                                             15
       The Delaware public schools, including Red Clay, recognize the problems created

by this system. When responding to questions from legislators about Red Clay’s conduct

during the Special Election, Superintendent Mervin Daugherty started by calling out the

underlying problem with Delaware’s mechanism for funding public schools:

       It is important to note that the election process and requirement for a
       Referendum is one that is set by the legislature, not school districts. The
       public school districts believe the established system is an ineffective way to
       fund education, especially in light of recent years in which the State has cut


school district frequently prevailed in a second referendum held shortly thereafter. The
second referendum nearly always generated higher turnout. For example:

      In Brandywine School District, which borders Red Clay, voters defeated an
       operating referendum in March 1987 by a vote of 6,841 to 6,313. In October 1987,
       the voters approved it by a vote of 11,938 to 6,589. In 1993, the voters defeated an
       operating referendum by a vote of 9,827 to 8,866. In 1994, they approved it by a
       vote of 14,579 to 10,669. In April 2007, they defeated an operating referendum by
       a vote of 4,800 to 4,322. In June 2007, they approved it by a vote of 7,584 to 6,305.
       In June 2007, they defeated an operating referendum by a vote of 3,892 to 3,729. In
       March 2016, they approved it by a vote of 9,500 to 5,780.

      In Colonial School District, which also borders Red Clay, voters defeated an
       operating referendum in 1992 by a vote of 3,900 to 2,988, then approved it in 1993
       by a vote of 7,082 to 5,228. In February 2013, they defeated an operating
       referendum by a vote of 2,484 to 925, then approved it in June 2013 by a vote of
       3,005 to 2,938.

      In Christina School District, which also borders Red Clay, voters twice defeated an
       operating referendum in 2015, first by a vote of 6,076 to 2,119, then by a vote of
       5,968 to 5,074. In 2016, voters approved the referendum by a vote of 6,770 to 6,625.

      In Red Clay itself, voters defeated an operating referendum in 2007 by a vote of
       6,220 to 4,822, then approved it in 2008 by a vote of 8,550 to 7,414.

See Appendix A. It makes intuitive sense to me that busy parents who support their
children’s schools might nevertheless fail to vote in a referendum, expecting it to pass, then
make an extra effort to vote after seeing the initial referendum fail. I confess to having been
guilty of this on at least one occasion.


                                              16
       funding for public schools. We recognize, however, that we all must work
       within the confines of the existing law.43

I would go one step further. The referendum process results from a combination of a

legislative framework and a property assessment system that currently does not function

as the statutes contemplate.

       In my view, Delaware’s statutory framework is not supposed to force school

districts into a vicious cycle of regular referendums. If New Castle County conducted

periodic general reassessments—which the Delaware Code appears to contemplate and

which seems to have been the practice until 1983—then the underlying tax base would rise

as property values increased. The same tax rate would generate more money for the school

district, and the district would not have to seek a tax increase as frequently. Or if New

Castle County simply used the current year as the base year and brought values forward to

the current year rather than back to 1983—whether using the Consumer Price Index or

some other measure—then at least the values would increase by inflation year-over-year,

and school districts would not have to call referendums just to keep up. Or the General

Assembly could solve the problem with legislation that would create a more serviceable

framework.44 But without action by the political branches, school districts must resort to

the only tool they have: the referendum process.




       43
            JX 176 at D14675.
       44
          The General Assembly could devise a wide variety of solutions. Like the United
States Census, a statute might require a general assessment in every tenth year. Cf. U.S.
Const. art. 1, § 2. Or to give flexibility to the counties, a statute might contemplate a general
assessment not less frequently than every tenth year. Nor is there any particular magic to a

                                               17
B.     Red Clay Is Forced To Seek A Tax Increase.

       In summer 2014, Red Clay’s senior administrators concluded that the district needed

more local tax revenue to cover its operating expenses. They did not make this decision

lightly. They decided to “go to referendum” (the colloquial phrase) only because there was

no alternative.




ten-year period. Before the 1983 assessment, New Castle County conducted a general
assessment that became effective in 1974, nine years earlier. See McGinnes v. Dep’t of
Fin., 359 A.2d 166, 167 (Del. 1976). Before that, it appears that New Castle County
conducted a general assessment that became effective in 1970, just four years earlier. See
Stewart, 378 A.2d at 117. A statute governing mobile homes mandates periodic
reassessment every five years. See 9 Del. C. § 8351. Mandatory periodic reassessments
also would help mitigate the incentive to game the Division III funding formula.

        Other structures could be more responsive to market values. For example, a statute
could require a new general assessment if average sale price deviated by a particular
amount from assessed values. Cf. 14 Del. C. § 1707(b)(11) (using ratio of assessed value
to sales price to adjust from assessed value to “total full valuation”). Or a statute could use
the most recent arms’ length sale price as the assessed value, then equalize property values
for constitutional purposes by applying an adjustment factor to bring the sale price current
to the existing calendar year.

       One also could envision more significant changes to the overarching system for
funding public schools. For example, Delaware’s vocational schools are authorized to raise
tax rates without a referendum, subject to maximum caps imposed by the legislature. See
14 Del. C. §§ 2601-02.

        Obviously these are not the only possibilities. Minds more sophisticated in
legislative and property tax matters than mine can doubtless come up with superior
solutions. The point is that many alternatives are available. The options are not limited to
either (i) conducting general reassessments annually or on some other short-term basis,
which would be both cost prohibitive and wasteful, or (ii) maintaining the current status
quo of doing nothing since 1983.


                                              18
       Red Clay had held its last operating referendum in 2008, when voters approved a

twenty-five cent increase phased in over three years.45 Because of New Castle County’s

approach to property tax assessments, Red Clay’s local operating revenue had not increased

materially since 2010. Over those four years, inflation deprived Red Clay’s local operating

revenue of 5% of its purchasing power.46 Meanwhile, Red Clay’s student population grew

by 10%.47 Measured by units of pupils, Red Clay’s enrollment grew by 17%.48

       Red Clay received approximately 40% of its operating budget from local funds and

60% from the state.49 The state funds had not made up the growing local shortfall. By 2014,

Red Clay received less discretionary state funding than it had in 2008.50

       To operate under these conditions, Red Clay cut costs. By 2014, however, Red Clay

projected that without additional revenue, the district would end 2016 with a deficit. By

2018, the cumulative deficit would reach $24.7 million.51 To balance its budget without

new revenue, Red Clay would need to cut approximately $9 million in recurring expenses,




       45
         JX 25 at D2548. Red Clay held a separate capital referendum in 2012 to fund
construction of a new school and building improvements. Id. at 2552; Tr. 644 (Floore).
       46
         See U.S. Dep’t of Labor Bureau of Labor Statistics, CPI Inflation Calculator,
https://www.bls.gov/data/inflation_calculator.htm.
       47
            JX 25 at D2548; Tr. 646, 655-56 (Floore).
       48
            JX 258 at D2169.
       49
            Tr. 645 (Floore).
       50
            JX 27 at D2602; Tr. 651-52 (Floore).
       51
            JX 258 at D2176; Tr. 661-63 (Floore).


                                             19
representing 15% of the operating budget.52 This would require eliminating at least forty

teachers. It also would mean fewer school resource officers, reading specialists, and other

staff positions. The cuts would affect virtually every aspect of programming, including

after-school sports, technology programs, and arts offerings.53

       After evaluating their options, Red Clay’s senior administrators concluded that the

district had “stretched as long as we can.”54 They recommended that the Red Clay Board

of Education (the “School Board”) call a special election.

       In October 2014, the School Board scheduled the Special Election to take place on

February 24, 2015. The purpose of the Special Election was to obtain approval from district

residents to raise the tax rate on non-exempt real property by a total of thirty-five cents per

$100 of assessed value. The proposal initially called for the rate to rise by $0.25 in 2016,

$0.05 in 2017, and $0.05 in 2018. It was later modified to $0.20 in 2016, $0.10 in 2017,

and $0.05 in 2018.55

       At the time, the owner of an average taxable parcel in Red Clay paid $1,419 per

year in school-related property taxes. After the three-year phase-in, the owner 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



       52
            JX 25 at D2554.
       53
            JX 27 at D2607; Tr. 665 (Floore).
       54
            JX 25 at D2548; see also JX 27 at D2602.
       55
            JX 324 at D18441-42; PTO ¶ 8; Tr. 323 (Johnson); Tr. 668-69 (Floore).


                                                20
by the average property owner. The first-year increase would generate an incremental

$10.5 million for Red Clay. The second-year increase would generate another $5.2 million,

and the third-year increase would add another $2.6 million. When fully implemented, the

tax increase would yield $18 million annually in operating funds.56

       Once a referendum is called, the Department of Elections designates buildings to be

used as polling places.57 When selecting polling places, the Department of Elections gives

“prime consideration” to the suitability, convenience, and accessibility of the locations for

voters.58 The statute identifies public schools as recommended polling places. 59 The

Department of Elections designated twenty-five polling places for the Special Election.60

Twenty-three were Red Clay public schools.61




       56
            See JX 283; Tr. 681 (Floore).
       57
            14 Del. C. §§ 1072(b), 1903.
       58
            14 Del. C. § 1072(b).
       59
            Id.
       60
            Tr. 408 (Lippincott).
       61
          See PTO ¶ 26. Appendix B contains a table listing the schools designated as
polling places and the abbreviated names that this decision uses to refer to the schools.


                                             21
C.     The Campaign Team

       In Delaware, school tax referendums frequently fail.62 In 2007, a Red Clay

referendum failed. The district made $8 million in cuts and took out a loan to cover

expenses. The district held its last successful referendum the following year.63

       Red Clay’s financial situation made the Special Election a high stakes matter.64 Red

Clay’s administrators thought that obtaining a successful vote was an “uphill campaign by

its very nature.”65

       Not surprisingly, given the stakes, Red Clay planned and carried out a campaign to

secure passage of the tax increase. Superintendent Daugherty was the final decision-maker,



       62
            See Appendix A.
       63
            Tr. 643-44 (Floore).
       64
         Tr. 184-86 (Nash telling reporter that Red Clay “had a lot at stake” in the
referendum); JX 81 at D11596 (teacher noting, “We NEED this referendum to pass.
PERIOD”); id. at D11597 (principal noting, “This referendum is very important to ALL of
us in Red Clay”); JX 89 (principal stating, “The success of this referendum is VITAL”);
JX 96 at D4599 (principal stating the referendum “is critical”); JX 119 (Superintendent
Daugherty noting, “There is a lot riding on this one vote”); JX 176 at D14676
(Superintendent Daugherty describing the referendum as concerning “critical funding for
our school district”); JX 233 (principal’s message to parents stating that with a failed
referendum, “[c]uts would be drastic and across the board”); JX 242 (Superintendent
Daugherty describing the referendum as “so important”); JX 300 (president of School
Board describing referendum as “critical”).
       65
            JX 176 at D14677; accord Tr. 721 (Floore: “[A]sking people to increase their
taxes is an uphill battle. By its very nature, anybody who asks to do that is at an extreme
disadvantage.”); see also JX 119 (“[R]aising taxes is about the hardest thing to ask any
community.”); JX 242 (“[I]t is not easy to ask our community to raise taxes.”); JX 259 (“A
referendum is not an easy task . . . .”); JX 310 at D8612 (“Passing a referendum isn’t easy
. . . .”); JX 50 (“We anticipate a close race and your support of Red Clay schools could
make all the difference.”).


                                            22
but he delegated primary day-to-day responsibility to three senior administrators: Ted

Ammann, the Assistant Superintendent for District Operations; Patti Nash, the Public

Information Officer, and Jill Floore, the Chief Financial Officer.66

       Each administrator’s role in the campaign matched their job with the district.

Ammann took charge of operations. He ensured that the school principals supported the

campaign, instructed them to develop and submit school-specific referendum plans,

reviewed and signed off on their plans, and oversaw their implementation. He mobilized

Red Clay personnel to volunteer for various referendum-related projects, including making

get-out-the-vote calls, stuffing report card envelopes with referendum materials, and

putting out pro-referendum signs.67 He caused Red Clay personnel to generate the student

call lists that the callers used.68 He also dealt with a variety of logistical matters.69 He was




       66
           See, e.g., Tr. 179 (Nash testifying she was “at the center of the referendum
organizing at Red Clay” and “[o]ne of its leaders”); JX 90 (Daugherty delegating planning
of event on day of Special Election to Ammann); JX 133 (Daugherty delegating
distribution of pro-referendum video clips to Nash); JX 169 (Daugherty complementing
senior administrators for their work on Special Election); Daugherty Dep. 17-20, 23-24, 31
(explaining that he has “never been the point person” for a referendum; identifying
Ammann and Nash as the lead personnel for special elections).
       67
         See, e.g., JX 72 (arranging “clerical help” for stuffing report cards); JX 145
(organizing placement of pro-referendum signs).
       68
         See JX 84 at D19668 (“All building principals received an updated call list from
Ted [Ammann] this week.”); JX 112 (Ammann directing preparation of call lists and
describing them as “critical”).
       69
          See, e.g., JX 52 (ensuring that pro-referendum signs were ordered); JX 62
(arranging transportation for Red Clay personnel to volunteer on election day); JX 130
(ordering pro-referendum stickers).


                                              23
in charge of election day arrangements and interactions with the Department of Elections,

including arrangements for parking.70

       Nash took charge of communications. She developed and ran a telephone campaign

to identify likely “YES” voters among Red Clay student households, then follow up with

those likely “YES” voters to get them to the polls.71 She organized and ran a social media

campaign.72 She spearheaded the creation of campaign materials, including pro-

referendum video clips.73 She also helped organize a pro-referendum rally on the night

before the Special Election.74

       Floore provided expertise regarding Red Clay’s finances. Internally, she served as

a third key decision maker. Externally, she explained the district’s finances and consequent

need for the Special Election to numerous groups and the media.75

       The Red Clay administrators did not openly lead the campaign. They believed there

were limitations on what district employees could do, such as not directly asking residents




       70
            See, e.g., JX 88.
       71
            Tr. 176, 189 (Nash).
       72
            Id. at 176.
       73
          For video clips, see JX 39; JX 40; JX 57. For other materials, see JX 35 (providing
scripts for telephone campaign); JX 86 (distributing referendum fact sheet to be placed in
report cards); JX 97 (distributing draft Steering Committee email).
       74
            See JX 59; JX 60; JX 72.
       75
         Tr. 673-75 (Floore describing her role); see JX 267 (listing meetings at which
Special Election was discussed); see, e.g., JX 83; JX 154.


                                             24
to vote “YES.”76 They also believed that by establishing a broader organization that

included Red Clay parents, they could expand the campaign’s reach and generate greater

support.77 The administrators therefore formed a Referendum Steering Committee.78 To

chair the committee, they recruited two community members: Yvonne Johnson, whose




       76
          See, e.g., Tr. 189 (Nash testifying that district employees could not ask residents
to vote “YES” while on district time); Tr. 191 (Nash testifying she was “told that District
communications, our newsletters, our website, could not specify how to vote”); JX 65
(principal noting that parents who are members of the parent-teacher association can “say
to vote yes”); JX 78 (Nash stressing that a teacher could not say “Vote Yes” or post
information promoting a “YES” vote on a school page or during the school day, but could
do so on a personal page, on their own time); JX 79 (Superintendent Daugherty correcting
assistant principal who planned to use faculty meeting time for teachers “to make parent
phone calls in regards to the referendum”); JX 81 (teacher noting that district could not
require staff to make pro-referendum calls or engage in pro-referendum activities); JX 84
(principal informing parent, “I have some ideas as to ways you can help – since we (as
employees) can’t tell people to vote yes, but you as a parent can certainly do so. : )”); JX
108 (parent stating she was “under the impression that [parents] were making calls as well
[as teachers] because we could actually ask [voters] to vote yes”); JX 140 (principal telling
staff, “While we can’t tell people to vote yes, we can say how passing the referendum will
help children”); JX 150 at D11328 (parent stating, “I was under the impression we were
making calls as well because we could actually ask them to vote yes”).

        Contrary to the premise that staff members could not ask parents to vote yes, Red
Clay communications frequently made this ask. See, e.g., JX 144 (“Your students will
benefit from the following with a Vote ‘For’ . . .”); JX 247 (“Vote ‘yes’ to keep Skyline a
school of excellence!”); Tr. 630 (Ammann agreeing that the Skyline principal asked
families to “Vote ‘yes’”); see also JX 233 (“WE NEED YOUR VOTE!”); JX 259 (letter
telling recent Red Clay graduates about the “opportunity to support . . . your . . . school
district by voting YES”); id. (“[C]ome to the polls to vote Yes on February 24 . . . .”).
       77
        Tr. 193-94 (Nash explaining that having communications come from parents
would make them seem “more real” and would “resonate more” with voters).
       78
           See JX 16 (Floore emailing potential committee members); Tr. 177 (Nash
agreeing that “part of [her] job as public information officer for the District was to sit on
the steering committee”).


                                             25
children had attended Red Clay schools, and Nate Schwartz, whose children were still

attending Red Clay schools.79 They also formed a political action committee called

“Friends of Red Clay Referendum,” chartered for the purpose of “rais[ing] funds to support

successful referenda in the Red Clay school district.”80

       During and after the campaign, Red Clay representatives tried to depict these

organizations as grassroots, parent-led efforts rather than something Red Clay

engineered.81 In fact, the entire campaign was a Red Clay operation. Of the nineteen

members of the Steering Committee, fourteen were current Red Clay employees: five were

Red Clay administrators, three were principals, five were teachers, and one was a current

member of the School Board. Of the five who were not current Red Clay employees, one

was a retired teacher and former president of the School Board.82 The treasurer of the

political action committee and the signatory on all of its filings was a Red Clay employee,83




       79
            See JX 193; Tr. 322 (Johnson).
       80
            PTO ¶ 31; see JX 41; JX 68.
       81
          Tr. 324 (Johnson: “So the steering committee was a grassroots effort to educate
the community [about] why we needed to go to referendum and to get the support to get
the referendum passed.”); JX 50 (Red Clay communication to residents stating, “This is a
community led campaign . . .”); JX 176 at D14675 (Superintendent Daugherty telling
legislators, in response to inquiries about election misconduct, that campaign was “led by
parents”); see also JX 154 (News Journal article reporting that “a steering committee
chaired by parents” was “working to ‘get the word out’”); JX 172 (parent claiming in
response to legislative inquiry that Red Clay effort was a “grassroots campaign”).
       82
            See JX 25 at D2546; Tr. 177-78 (Nash).
       83
            PTO ¶ 32.


                                             26
and Nash drafted the invitation for its fundraiser.84 Internally, Red Clay personnel did not

distinguish between the district administration and the Steering Committee. The Baltz

principal testified that “the steering committee and the district kind of meshed together.”85

       The core day-to-day leadership team for the campaign was Ammann, Nash, Floore,

Johnson, and Schwartz.86 When push came to shove, Ammann, Nash, and Floore were the

day-to-day decision-makers, with Superintendent Daugherty having final authority.87

D.     The Overall Campaign Strategy

       To obtain a favorable vote, the Red Clay team developed a campaign strategy that

involved identifying groups that were likely to favor the tax increase, then engaging in




       84
            See JX 30.
       85
            Tr. 114 (Penoyer).
       86
          See Tr. 348-49 (Johnson testifying that “the core group . . . was [herself], [her]
co-chair, and . . . Pati Nash, Jill Floore, and Ted Ammann,” and that the “five . . .
coordinated closely on every step of the referendum process”); see also, e.g., JX 59
(reflecting decision by core group after communications among group); accord JX 67; JX
90; JX 123. The team also benefitted from the input of Richard Przywara, a professional
campaign consultant, who provided advice as a volunteer. Tr. 202-03 (Nash).
       87
           By making this finding, this decision does not mean to diminish the importance
of the parents and community members who volunteered. The record demonstrates that
many parents and community members worked extremely hard and contributed
meaningfully to achieving the outcome that Red Clay sought. In particular, Johnson and
Schwartz devoted many hours to the referendum. Johnson also participated actively in the
litigation and testified at trial. In my view, this type of community involvement and support
for the public schools is highly commendable. In defending its election-related conduct,
however, Red Clay sought to use the Steering Committee and the involvement of parents
and community members to diminish its role as a state actor. The record demonstrates that
in substance, Red Clay ran the campaign.


                                             27
efforts to convert those likely supporters into actual votes.88 In crafting and carrying out

the campaign, the Red Clay team viewed individuals with ties to the Red Clay schools as

more likely to support the tax increase. In particular, they believed that parents of current

Red Clay students would be supportive.89 Their reasoning was straight-forward: Parents

likely want a good education for their children, so they should be willing to support a tax

increase to achieve that goal.90 The Red Clay team appears to have adopted this view as a

matter of common sense, based on their intuitions about human nature and their experience

from past referendums in which mobilizing the parent vote provided the key to success.91

Data that the Red Clay team gathered during the campaign confirmed their assessment.92



       88
         Tr. 181 (Nash testifying that Red Clay prioritized “the people you think are the
most likely to be positive voters”); id. (Nash testifying that in its telephone campaign, Red
Clay “was targeting or prioritizing positive voters”).
       89
          See Tr. 180 (Nash testifying that “there is a belief that parents are more likely to
support the referendum”); Tr. 351 (Johnson testifying to her understanding “that very few
parents would oppose the tax increase”); id. (Johnson confirming that she “wanted parents
in the schools on the day of the referendum because [she] wanted them to vote”); Tr. 497-
98 (principal of Richardson Park stating, “I believe that if [parents] came out, they would
vote yes”); Tr. 638 (Ammann testifying that “[t]he referendum steering committee had
talked about the importance of contacting parents, and that would be what they would do”).
       90
          See Tr. 351-52 (Johnson explaining that parents should want to support their
children’s schools).
       91
          See JX 242 (“The 2008 referendum passed for one reason—because parents and
schools worked together. The same holds true today.”); JX 169 (Superintendent Daugherty
observing after Special Election that “[s]chool leaders and staff worked extremely hard to
gain parent support”); JX 193 (Johnson observing before Special Election that “we will not
pass this without support from our charter and choice parents”); see also JX 97 (“In the
past, referendums have failed because of apathy.”).
       92
        See JX 303 (results from electronic survey of McKean parents showing support);
JX 87 (Skyline principal noting that parent calls yielded sixty-six expected “YES” votes

                                             28
       At the same time, the Red Clay team viewed elderly and retired residents as less

likely to support the tax increase.93 Their reasoning was again straight-forward: Many

elderly and retired residents live on fixed incomes, so they cannot easily accommodate

additional expenses. The Red Clay team appears again to have adopted this view as a matter

of common sense, based on their intuitions about human nature and their experience from

other referendums in which elderly and retired residents vocally opposed tax increases. 94




and five expected “NO” votes”); JX 99 (Heritage secretary informing Johnson that parent
calls yielded 309 “YES” votes); JX 148 (email to dean of Cab Calloway reporting that
parent calls yielded nine “definite yes votes” and “zero no votes”); JX 313 at D20468
(Johnson reporting to team ten days before Special Election that “[p]reliminary numbers
we are getting from schools look very positive, we are trending in the right direction and
getting very few opposition votes from our parents”).
       93
           See, e.g., Tr. 217 (Nash agreeing that she believed that seniors generally “would
be more likely to vote against a referendum”); Tr. 675 (Floore explaining that at the initial
Steering Committee meeting, one of the speakers gave an example of a senior citizen on a
fixed income as a likely “NO” voter with whom there would be “no point” in engaging);
JX 310 at D8610 (Johnson stating her belief that the campaign would “not . . . reach out to
[retired] folks as they could bring out the no vote”).
       94
          See Tr. 179 (Nash testifying that the “conventional wisdom” is that “seniors vote
against referendums”); id. at 206 (same); see also JX 104 (Nash asking for input on letter
that “kind of mention[s] the senior vote, without saying seniors”); JX 124 (delaying
submission of supportive letters to the editor because of concerns that “the letters might
‘wake up’ the ‘no’ voters”); JX 134 (debating whether “the ‘pro’ letters [to the editor]
would wake up even more seniors??”); JX 309 at D8598 (Johnson expressing concern
about speaking with “retired folks when I thought we were not going to reach out to these
folks as they could bring out the no vote”).

       The Red Clay team’s views found support in the reaction to a proposed reduction in
a tax credit that Delaware provides to seniors. Recognizing that many senior citizens live
on a fixed income and have a limited appetite for paying school-related taxes, the State of
Delaware has a program that gives seniors a credit on their state income taxes for amounts
paid for school property taxes. Under the 2014 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

                                             29
       Importantly, the Red Clay team did not adopt a simplistic view in which they

expected every parent to vote “YES” and every elderly resident to “NO.” They recognized

that many factors affect how an individual votes. A parent might oppose the tax increase

because of a negative experience with a public school, personal financial limitations, or a

strong ideological opposition to tax increases. Or an elderly voter might support the tax

increase because of a positive experience with a public school, ample income, or a civic-

minded belief that funding public education benefits the community. 95 But the Red Clay

team understood that there are tendencies in the electorate, and they wanted to mobilize the

groups that were most likely, on average, to support the tax increase. At bottom, the Red

Clay team believed that by increasing the number of parents who voted, they increased

their chances of success. They likewise believed that by decreasing—or at least not

increasing—the number of seniors who voted, they increased their chances of success.96




cap of $500. In January 2015, then-Governor Jack Markell proposed a budget for the 2015-
16 fiscal year that would have reduced the income tax credit, either by lowering the
percentage to 25% or by reducing the cap to $250. See Jon Offredo & Jonathan Starkey,
Senior Tax Breaks Hit in Budget Proposal, The News Journal, Jan. 30, 2015, at A1, A14.
Supporters of public schools worried that this proposal would make senior citizens less
likely to vote for a tax increase. See, e.g., JX 105 (inquiring about effect of reduction in tax
credit); JX 123 at D1799, D1800 (email from senior citizen stating that he intended to vote
“NO” in part due to the proposed reduction in tax credit; Floore forwarding email and
commenting that “we knew we wouldn’t be able to change some people’s minds”).
       95
            See Tr. 675-76 (Floore describing variation in electorate).
       96
          The social science literature indicates that school districts employ similar
strategies widely and effectively. See, e.g., Stephanie Dunne et al., Endogenizing the
Median Voter: Public Choice Goes to School, 93 Public Choice 99 (1997) [hereinafter
Endogenizing the Median Voter]. As discussed in the section on remedies, the parties did
not address any of the extensive social science literature on pertinent issues, nor did they

                                               30
       To this end, Red Clay’s strategy focused primarily on mobilizing parents of existing

Red Clay students and getting them to the polls. But the Red Clay team also identified and

targeted other groups that were likely to be supportive, such as parents with children under

five years of age, graduates of the Red Clay schools, and current students who were old

enough to vote. Conversely, Red Clay focused on not doing things that might mobilize the

opposition, particularly seniors.

       The Red Clay team documented their overall strategy in a presentation to the

Steering Committee during that group’s first meeting, held on November 6, 2014. In

advance of the meeting, Superintendent Daugherty made the official nature of the meeting

clear when some principals asked whether they needed to attend. He responded, “Everyone

should attend – They must realize the importance of this Referendum.”97 Kelly Penoyer,

the Baltz principal, understood that the Steering Committee meeting was a mandatory event

for all Red Clay principals.98 Eric Mathis, the Richardson Park principal, only attended the

meeting because it was mandatory.99

       As described in the presentation to the Steering Committee, the Red Clay campaign

strategy had four principal planks:



introduce the type of statistical analysis that the literature conducts and which would have
been highly informative. See Part III.B.4, infra. Consequently, while noting the existence
of this scholarship, this decision does not take it into account.
       97
            JX 28.
       98
            Tr. 114 (Penoyer).
       99
            Tr. 489 (Mathis).


                                            31
       •     Work from past experience

       •     Work on the Yes not the No

       •     Inform and engage all parents

       •     Vote Goals100

“Work from past experience” meant that in prior referendums, success resulted from

mobilizing parents and other supportive groups.101 “Work on the Yes not the No” meant

that converting members of supportive groups into actual votes was more important than

trying to convince negative voters to change their minds.102 “Inform and engage all parents”

recognized that parents of Red Clay students were the group most likely to support the tax

increase. “Vote Goals” referred to specific numbers of likely “YES” voters that the Red




       100
             JX 25 at D2555.
       101
           Cf. JX 97 (“In the past, referendums have failed because of apathy.”); JX 242
(“The 2008 referendum passed for one reason—because parents and schools worked
together. The same holds true today.”); JX 169 (Superintendent Daugherty observing after
Special Election that “[s]chool leaders and staff worked extremely hard to gain parent
support”); JX 193 (Johnson observing before Special Election that “we will not pass this
without support from our charter and choice parents”).
       102
           See Tr. 675 (Floore: “[I]f somebody has made up their mind, you’re not going to
change their mind. That’s what I understood that to be. Work on the people [to whom] you
can make your case.”); id. (explaining that at the initial Steering Committee meeting, one
of the speakers gave an example of a senior citizen on a fixed income as a likely “NO”
voter with whom there would be “no point” in engaging); JX 53 (Johnson stating, on behalf
of the Steering Committee, “We appreciate your support in getting the vote out. We believe
overall that folks support the referendum however, it is getting them out to the polls to vote
that we must focus on”); JX 61 at D5290 (Brandying Springs PTO minutes stating, “Ms.
Yvonne Johnson . . . shared the importance of parents getting out to vote . . . . Dr. Newton
shared information about the importance of college students being eligible to request
absentee ballot[s]”).


                                             32
Clay team established for each school to turn out based on the school’s student population

and voting patterns from past referendums.103

       Implementing this strategy required a school-by-school effort. The assembled

principals were told that they each “needed to have an event” on the day of the Special

Election.104 They also were told that each school would have a parent leader whose

responsibilities included:

       •     Texting, Social Media and Letters to the Editor

       •     Coordinating call sessions

                o Get out the vote information calls

                o Reminders 2 days before

       •     Yard Signs

       •     Working with Principals for Referendum Day Events105

The school principals were in charge of implementing the campaign plan at each school.

Ammann required that each principal prepare a School Referendum Plan on a form he

created. The form required that each principal provide (i) a communication plan, (ii) a list

of activities leading up to the Special Election, and (iii) “school activities planned for the




       103
         See JX 27 at D2608 (listing voting totals from 2008 operating referendum and
2012 capital referendum, and setting target vote totals for Special Election); JX 61 at
D5290 (“Each school has an identified target number of parental votes.”).
       104
          Tr. 114 (Penoyer testifying that her understanding from the meeting was that
“every school needed to have an event on the day of the referendum”).
       105
             JX 25 at D2556.


                                              33
day of the 2015 Referendum.”106 Every school principal submitted a plan, and every school

held at least one and typically multiple “Referendum Day Events.”107

E.     Specific Campaign Tactics

       Red Clay mounted a vigorous election campaign that involved a series of tactics

designed to generate a favorable vote. These included (i) hosting seventy-five

“Referendum Day Events” at the schools designated as polling places to bring families of

Red Clay students to the polls, (ii) calling the households of Red Clay students to identify

likely “YES” voters, then following up with the likely “YES” voters to get them to the

polls, and (iii) sending targeted communications to Red Clay households and other groups

that Red Clay believed would be likely to support the tax increase. At the same time, Red

Clay avoided communications with groups that Red Clay believed would oppose the tax

increase, particularly seniors, to avoid “waking up” the opposition vote.108

                1.     The Family-Focused Events

       Red Clay’s signature tactic was to hold events on the day of the Special Election, in

the schools designated as polling places.109 The events were designed to appeal to families

of Red Clay students, thereby providing the parents with an inducement to come to the




       106
             See JX 307 (compilation of all plans).
       107
             Tr. 625, 628 (Ammann).
       108
          See JX 124 (reflecting concerns about “‘wak[ing] up’ the ‘no’ voters”); JX 134
(discussing how to avoid “wak[ing] up even more seniors”).
       109
             See JX 301 (table compiling all events).


                                              34
polls.110 Because of their purpose and effect, the Dismissal Ruling called them the “Family-

Focused Events.”

       Ammann oversaw this aspect of the campaign. He required that each school

principal submit a School Referendum Plan on a form he created, and the plan had to

identify “school activities planned for the day of the 2015 Referendum.” 111 Ammann

instructed the principals that “activities should be scheduled between the hours of 10:00

am and 7:00 pm.”112 Ammann provided examples such as “homeroom breakfast, lunch

with your child, [and] after school activities.”113 Ammann reviewed and approved the

plans, sometimes asked for changes, then sent them to Johnson for her review.114

       Each of the twenty-three schools designated as polling places held Family-Focused

Events on the day of the Special Election.115 The one school that was not designated as a




       110
          See Tr. 351 (Johnson confirming that she “wanted parents in the schools on the
day of the referendum because [she] wanted them to vote” and that she “didn’t want any
parents to come to an event and then leave without voting”); Daugherty Dep. at 203
(agreeing that the Family-Focused Events were “get out the vote events”).
       111
             See JX 307 (stating timeframe for scheduled activities on plan forms).
       112
             Id.
       113
             Id.
       114
         Tr. 595-97, 621-28 (Ammann describing review process). Ammann tried at trial
to suggest that he was simply an administrative conduit and was not substantively
approving the plans. That testimony was contrary to the weight of the evidence.
       115
          PTO ¶ 27; see JX 301 (table compiling all events); Tr. 625 (Ammann testifying
that on day of Special Election, all schools that were designated as polling places held
events).


                                              35
polling place did not hold any family-oriented events on the day of the Special Election.116

The principal of that school wrote in his School Referendum Plan, “Since we are not a

polling site, I will support [Stanton] for any activities.”117

       In total, the Red Clay schools held seventy-five Family-Focused Events on the day

of the Special Election.118 During the school day, many schools scheduled luncheons for

parents.119 In the evening, many schools scheduled fun activities for children. Baltz hosted

a “Pajama Jammie Jam” dance party with pizza and a raffle.120 Linden Hill hosted

“Blizzard Blues Beach Bingo.”121 Marbrook hosted a “Winter Carnival.”122 Shortlidge

hosted “Family Line Dancing.”123 Skyline hosted a family pizza dinner and a staff versus




       116
          PTO ¶ 28; see Tr. 624-26 (Ammann testifying that the principal of the one school
that was not designated as a polling place reallocated resources to support events being
held at two of the schools that were polling places).
       117
             JX 307 at D3716.
       118
          See JX 301 (spreadsheet identifying events, target audience, likely attendance,
and other details).
       119
           See, e.g., JX 248 (“Honor Roll Luncheon” at Stanton); JX 250 (“Rockin’ The
Referendum Day” at Warner with “Science Show” luncheon); JX 301 (“Taco Tuesday”
lunch with parents and “Sixth Grade Luncheon,” among other events, at Brandywine
Springs; luncheons with parents at Forest Oak; “Lunch with Your Child” at Richey; “Bring
a Special Person to Lunch” at Shortlidge; “Literacy Coffeehouses” at Baltz; “Author’s
Teas” at Heritage).
       120
             See JX 301; Tr. 120-25 (Penoyer describing Pajama Jammie Jam).
       121
             See JX 234; JX 301.
       122
             See JX 235; JX 301.
       123
             JX 301.


                                               36
students basketball game.124 A.I. duPont and Mote held “Family Fun Nights.”125 Highlands

held a “Family Fitness Night.”126 Free food was provided for attendees at twenty-four of

the events.127 At two other sites, the parent-teacher organizations solicited pizza orders

from parents in advance.128 Needing to pick up a pizza that you had pre-ordered gave

parents good reason to attend those schools’ Family-Focused Events.

       The principals and staff understood that the purpose of the Family-Focused Events

was to get likely “YES” voters to the polls. The principal of A.I. duPont wrote in his plan,

“We will find opportunities during the studnet [sic] day to draw families in.”129 A teacher

at Heritage explained to a parent that the “Author’s Teas” were “one of the activities to

help get parents in to school so they will vote in the referendum.”130




       124
             Id.
       125
             Id.
       126
             Id.
       127
             Id.
       128
          See Tr. 618-19 (Ammann explaining that at Linden Hill and Marbrook, parents
pre-ordered pizza in advance); JX 234 (pizza order form for Linden Hill); JX 235 (pizza
order form for Marbrook).
       129
             JX 56.
       130
             JX 102 at D5960; see JX 301 (listing six “Author’s Teas” during the day at
Heritage).


                                             37
       The principal at Richardson Park was particularly candid in his communications.

He planned a luncheon event at which parents would get a free meal.131 He instructed a

volunteer to remind parents “to vote first then eat.”132 For the evening, he planned a bingo

night with over $1000 in prizes, two movies, and “1 free uniform pass for each voting

adult.”133 He testified that because Richardson Park was a uniform school, the “no-uniform

pass” was about the most valuable reward he could offer his students.134 For the evening

event, he instructed a volunteer to organize a team to “catch” parents attending the

“Bingo/Movie night” and “make sure they vote prior to ‘having fun.’”135 The principal

believed that these events would “make it a very incentivized night for parents and kids to

come out.”136 He also believed that “if parents come out most will vote yes (I hope).”137




       131
             See generally JX 149; JX 150.
       132
           JX 149 at D11324; see also JX 150 at D11327 (“I’m thinking having 2 or 3
parents during the day . . . [and] about twice that during the evening to both help steer
people to the auditorium lobby to vote and encourage them to vote yes . . . .”).
       133
         JX 108; see also JX 66 (noting that Richardson Park was hosting Bingo and
movies and distributing no-uniform passes); JX 80 (soliciting donations for use as prizes).
       134
          Tr. 492-94; id. at 494-95 (Q: “And if a parent didn’t vote, they didn’t get a pass.
Correct?” A: “Technically.”).
       135
             JX 149 at D11324.
       136
             JX 66.
       137
             JX 108.


                                             38
       Johnson perceived the direct connection between the Family-Focused Events and

getting parents out to vote. On February 14, 2015, ten days before the election, she sent out

the following email to the Red Clay team, including the Red Clay principals:

       School Events!!!

       All your school events for the day of the referendum should be planned and
       invitations/announcements to your entire school community should have
       been sent home via email, phone, or paper. Principals, when your families
       arrive I know you will be reminding your families to go into that poll and
       vote! Very important, please be sure to get these folks to the polls before the
       event begin[s]. The polls could be closed when the event is over!138

After the election, Nash told a reporter from NBC10 News that the Family-Focused Events

were “get-out-the-vote events.”139 Superintendent Daugherty agreed that the Family-

Focused Events were “get-out-the-vote events.”140

       At trial, some Red Clay witnesses attempted to suggest that Red Clay held the

Family-Focused Events for the general community to showcase the Red Clay schools.141

That testimony was contrary to the weight of the evidence. The Family-Focused Events

were not advertised to the general community, only to the families of the schools hosting

the events.142 For some events, the schools only permitted family members to attend




       138
             JX 313 at D20467.
       139
             JX 185.
       140
         Daugherty Dep. 203; accord JX 176 at D14676 (Daugherty referring to Family-
Focused Events as “[g]et out the vote activities”).
       141
             Tr. 182-84, 188 (Nash); Tr. 346 (Johnson); Tr. 621 (Ammann).
       142
             Tr. 183-84 (Nash).


                                             39
because of security concerns.143 During her post-Special Election, pre-litigation interview,

Nash noted that the events technically were open to voters without children, but she

qualified her statement by observing, “I don’t know that they [i.e., voters without children]

would . . . have [a] desire to come to Family Bingo Night.”144 She described the events

more accurately as “parent events that [were] open to every parent.”145

       For purposes of this litigation, Red Clay listed the seventy-five Family-Focused

Events held on the day of the Special Election. Only three identified the “community” or

the “public” as part of their target audience: a high school drama production, a musical

showcase, and an arts concert. For every other event, the target audience was students,

parents, and families.146

                2.     Identifying “YES” Voters Among Red Clay Families

       A second Red Clay campaign tactic was to identify likely “YES” voters in Red Clay

student households, then follow up with targeted get-out-the-vote communications

designed to get them to the polls. Red Clay did not make similar efforts to communicate

with other voters.




       143
             Tr. 123, 145-46 (Penoyer).
       144
          JX 185. Nash confirmed at trial that she “just didn’t know whether or not
someone who has no connection to the school and no connection to those children would
want to participate with them in an event.” Tr. 187.
       145
             JX 185.
       146
             JX 301.


                                             40
       Beginning in December 2014, every Red Clay school made an initial round of

scripted calls to Red Clay student households to determine how the adults were likely to

vote.147 Each school was assigned a specific goal for the number of “YES” voters it needed

to identify; the calls were used “to find your goal ‘yes’ votes.”148 During an early debate

over making direct telephone calls to households, Nash explained the purpose of the calls:

       The phone calls aren’t meant as a way to keep in touch through the campaign,
       that can occur with social media, etc. What we have done in the past was use
       the calls to find our goal yes votes and remind them to vote. It allows us to
       track where we are, and whether we are close to our goal. I think the phone
       campaign – even in our era of social media – remains really important.149

Throughout the campaign, internal communications stressed using the calls to identify the

goal number of “YES” voters so they could be targeted later with reminders to vote.150



         Daugherty Dep. 149 (“They all made parent calls . . . . [E]very school said they
       147

completed it.”).
       148
           Tr. 208 (Nash); accord Tr. 636 (Ammann). During the November 2014 parent
leader meeting, which every principal was required to attend, Red Clay gave the principals
target vote counts specific to each school. JX 27 at D2608.
       149
             JX 24; accord Tr. 208 (Nash); see JX 27 at D2608.
       150
           See Tr. 189, 208 (Nash testifying about plan to identify “YES” voters and then
follow up with reminders directed at those voters); id. at 209 (Nash discussing need for
caller “to keep track of the number of parents that told them they would be voting yes”);
JX 58 (informing team at one school that “We need to get a tally of YES votes” and
describing plan for contact, identification, and follow up); JX 81 at D11597 (principal
explaining that the purpose of the calls is “to inform parents of the upcoming referendum
and to get an estimate of how many people we can count on to support the referendum”);
id. (“In order to pass the referendum, we need to reach out to our parents to inform them
of the referendum. It is also important that we tally the number of votes for the
referendum.”); id. at D11598 (“Our school goal is to get 375 yes votes for the referendum!
Parent responses will help us estimate where we stand.”); id. (explaining that reminder
calls would be placed “to parents who respond with yes”); JX 87 (principal of Skyline
reporting on results of teacher calls to 185 families that resulted in “66 yes votes (35%)[,]

                                             41
       The Red Clay team asked teachers to make the initial voter identification calls.151

The team adopted this strategy because “most parents will listen to what teachers have to

say.”152 Consistent with the purpose of identifying a goal number of “YES” voters, teachers

could send emails instead of making personal calls only if the teachers asked for and




5 no votes and 114 no contacts”); JX 96 (principal explaining that results of survey would
be shared “with the Referendum committee”); JX 99 (representative from Heritage
reporting on vote totals); JX 113 at D14079 (principal of Conrad explaining that “[m]any
of your [sic] are making phone calls to collect as many ‘YES’ voters as we can”).
       151
           See JX 66 (discussing plan to “have teachers call first and then have parents
follow up as needed”); JX 79 (discussing plan for teachers “to make parent phone calls in
regards to the referendum”); JX 81 at D11598 (“Homeroom teachers are responsible for
calling your class list.”); JX 87 (“Yesterday Skyline teachers began making calls . . . .”);
JX 91 (principal at Baltz informing staff about making calls, stating, “We are asking that
each homeroom teacher be responsible for making all initial phone calls to their
homeroom”); JX 96 (principal at Brandywine Springs instructing teachers to send email
survey, stating, “It is time sensitive and we have to begin to determine how many families
we have to make personal contact with given our survey results”); JX 108 at D11406
(principal of Richardson Park writing, “[T]he expectation we were given [by Red Clay]
was that teachers would be calling”); Tr. 117-18 (Penoyer testifying that she instructed
homeroom teachers to be responsible for making initial phone calls to parents using a script
provided by the district and that she asked every school staff member to join a call-a-thon);
Daugherty Dep. 142-43 (expressing his view that individual teachers should call their
parents and could better connect with the voters).
       152
            JX 66; accord Tr. 498 (Mathis); see Daugherty Dep. at 143 (agreeing that the
district felt that “individual teachers would be better able to connect with voters”).


                                             42
received responses saying how the adults in the home planned to vote.153 Parent volunteers

supplemented the teachers’ efforts using the same script.154

       To facilitate the calls, Ammann had Red Clay personnel generate call lists from

classroom rosters.155 The lists identified the student, the adults in the family, and their

contact emails and phone numbers.156 Red Clay organized call center nights at its schools,




       153
           See JX 81 at D11598 (“You can send an email . . . but you MUST ask for the
parents to respond back in an email about whether we can count on them to support the
referendum.”); JX 96 (distributing email script with survey for homeroom teachers to send
to families); JX 98 (email distributing survey to Brandywine Springs parents “IN AN
ATTEMPT TO COLLECT DATA ON OUR SCHOOL’S SUPPORT” for referendum);
JX 102 (teacher from Heritage emailing parents in his class and stating, “I am contacting
you via this email message rather than calling your home or cell phone but I do need a
response. In other words, I will have to call if I don’t hear from you – sorry!”; stating,
“Please let us know we can count on your support FOR the Referendum by hitting ‘Reply’
and writing ‘Yes’ and the number of voters we can count on from your home”); JX 218
(McKean electronic poll for Special Election asking parents for identifying information
and whether parent supports the referendum); JX 233 (Heritage survey stating, “Please let
us know we can count on your support FOR the Referendum by hitting ‘Reply’ and writing
‘Yes’ and the number of voters we can count on from your home”); JX 276 (email
distributing survey to McKean parents “IN AN ATTEMPT TO COLLECT DATA ON
OUR SCHOOL’S SUPPORT” for the referendum); compare JX 74 (email to Conrad
parents about Special Election; asking recipients to take survey), with JX 75 (Ammann
criticizing survey for failing to “actually ask whether or not a parent plans to support”). For
an example of survey results, see JX 303 (summary of data from electronic survey
distributed by McKean).
       154
           See JX 311 (Johnson distributing telephone campaign script to parent
volunteers); accord Tr. 208-09 (Nash).
       155
             JX 112 (Ammann directing creation of lists, stating that “these calls are critical”).
       156
           See, e.g., JX 33 (Linden Hill); JX 34 (Skyline); JX 63 (Baltz); JX 111
(Brandywine Springs); see also JX 79 (referring to distribution of lists with “parent
contacts organized by classroom”); JX 81 at D11598 (“District will provide call lists,
scripts, and FAQs to assist with telephone campaign.”); JX 84 at D19668 (“All building
principals received an updated call list from Ted [Ammann] this week.”); JX 87 (reporting

                                                43
many of which provided dinner for the callers.157 Although teacher participation was

nominally voluntary, Ammann charged the principals with getting the calls done. They in

turn put pressure on their teachers, some of whom felt “bullied or guilted” into working on

the Special Election.158

       Nash drafted the script that the Red Clay callers used.159 At the outset, the caller

identified herself as a parent, teacher, or other capacity “AND volunteer.” 160 The caller

then asked the person reached how they intended to vote. If the person expressed support,

the caller thanked them, told them their vote was important, and gave them information

about when and where to vote. If the person did not seem supportive, the caller would ask




that Skyline teachers were making calls “using the phone lists provided”) JX 91 (telling
teachers that “[c]lass lists with phone numbers and speaking points will be available”); JX
108 (principal of Richardson Park explaining that teachers “were given lists of the
students” to call); JX 112 (Ammann managing distribution of call lists and describing the
calls as “critical”).
       157
         See, e.g., JX 81 at D11597 (Forest Oak); JX 87 (Skyline); JX 91 (Baltz); JX 107
(Linden Hill); JX 113 (Conrad).
       158
           JX 81 at D11596; see JX 170 at D11484 (teacher informing union negotiator that
“we at AI were ‘bullied’ into making phone calls to support the referendum”); see also JX
81 at D11598 (principal asking staff to report back on how they would accomplish parent
calls); JX 91 (principals asking staff to let them know if a staff member would not attend a
nominally voluntary call session); JX 96 (principal asking staff to make calls and send
emails, stating, “If you are uncomfortable doing this, please notify an administrator asap”);
cf. JX 79 (principal informing staff that faculty meeting time would be allotted to making
parent phone calls for Special Election; Superintendent Daugherty overruling after
teachers’ union representative objected).
       159
             Tr. 208-09 (Nash); Tr. 633-35 (Ammann).
       160
             JX 311 (emphasis in original).


                                              44
about their concerns and try to address one or two points. If the answer was “no” or they

were still undecided, the caller would “thank them for their time and hang up” without

giving information about when and where to vote.161 After each call, the caller recorded

how the person planned to vote so that Red Clay could send follow-up communications to

“YES” voters.162

       As planned, Red Clay used the voter identification data it obtained for subsequent

get-out-the-vote efforts. On the Sunday and Monday before the Special Election, Red Clay

made follow-up reminder calls and sent reminder emails to the households that expressed




       161
          JX 91 at D15185-86; accord JX 222; JX 228; JX 274; see Tr. 209-11 (Nash
describing script).
       162
            See Tr. 189, 208-11 (Nash testifying about identifying “YES” voters through
initial calls, followed by get-out-the-vote reminders to “YES” voters); JX 24 (explaining
purpose of calls in terms of getting out the vote); JX 58 (describing plan for contact,
identification, and follow up); JX 81 at D11597 (explaining that the purpose of the calls is
“to inform parents of the upcoming referendum and to get an estimate of how many people
we can count on to support the referendum”); JX 87 (principal of Skyline asking where to
turn in call sheets); JX 113 at D14078 (principal at Conrad informing callers that “[c]all
sheets are due Thursday, February 12th. Currently we have 364 confirmed YES voters with
68% of sheets collected”); id. at D14079 (principal of Conrad noting that get-out-the-vote
plan contemplated “Reminder Phone Calls to ‘YES’ voters”).

      At trial, Red Clay witnesses asserted that the purpose of the calls was merely to
educate parents and provide them with factual information about the Special Election. Tr.
337-38 (Johnson); Tr. 717-18 (Floore). That testimony was contrary to the weight of the
evidence.


                                            45
support.163 On February 14, 2015, ten days before the Special Election, Johnson gave the

Red Clay team the following instructions:

      Callers!!

      Everyone should have made their first round of calls. You should all be
      thinking about the reminder calls. The reminder calls should be done Sunday
      (2/22) or Monday (2/23) before the referendum. Calls [are] to remind the
      “yes” voters to vote. As a reminder we do not call back folks that said they
      are voting “no.”164

      In addition to personal calls, Red Clay used the School Messenger system to send

automated follow-up calls to “YES” voters reminding them to vote.165 Red Clay also sent

text messages on the day of the Special Election to “YES” voters reminding them to vote.166

Only the “YES” voters received the follow-up calls and reminders.167

               3.     Other Targeted Communications Directed To Red Clay Parents

      In addition to the voter identification campaign, Red Clay used other

communication channels to target the parents of Red Clay students.168 The effort began in



      163
           See Tr. 189 (Nash); JX 113; JX 138; JX 141; JX 147; JX 148; JX 223; JX 313;
see also JX 150 at D11328 (discussing whether parents or teachers would make the follow-
up calls).
      164
            JX 313 at D20467.
      165
         Tr. 212-14 (Nash); see, e.g., JX 223 (script of call from Dickinson School
Messenger system for “[l]aunch on 2/23/2015”).
      166
           See Tr. 189 (Nash); JX 113 at D14078 (“Team will text YES voters the morning
of the referendum . . . .”).
      167
            Tr. 211 (Nash).
      168
          See generally JX 307 (compilation of School Referendum Plans including each
school’s communication plan).


                                            46
November 2014 and continued steady through January 2015, then ramped up dramatically

during February 2015. The effort included the following activities:

      Red Clay representatives spoke about the Special Election at PTA or PTO meetings,
       school-organized information sessions, and school activities, such as concerts and
       athletic events.169

      Principals sent flyers and newsletters home with students.170

      Principals sent reminder emails to parents using their school-email distribution
       systems.171

      Principals sent telephone messages to parents using their School Messenger auto-
       dialer systems.172

      Red Clay staff members stuffed copies of a “Referendum Fact Sheet” in students’
       report card envelopes because “report cards are one piece of mail that parents look
       at right away.”173

      Superintendent Daugherty sent a letter in January 2015 to all Red Clay families
       asking them to support the tax increase.174




       169
          Tr. 326-27 (Johnson); see, e.g., JX 67 (Schwartz speaking at H.B. duPont Choral
Concert); JX 237 (Johnson speaking at PTA meeting); JX 251 (Warner hosting “Tea and
Talks” to discuss Special Election); JX 307 (passim); JX 311 at D10352 (Johnson noting,
“We have been attending many of your PTA/PTO/Boosters meeting[s]”).
       170
             Tr. 333 (Johnson); see, e.g., JX 245; JX 246; JX 247; JX 255; JX 256; JX 307
(passim).
       171
            JX 141 (principal of Richardson Park instructing staff to send emails and
explaining that he wanted to “flood the parents with reminders”); accord Tr. 490 (Mathis);
see, e.g., JX 89; JX 100; JX 144; JX 146; JX 233; JX 307 at D3704.
       172
             See, e.g., JX 223; JX 238; JX 307 (passim).
       173
           JX 86; see Tr. 116-17 (Penoyer testifying about instructing teachers at Baltz to
stuff flyers in report card envelopes).
       174
             JX 242.


                                              47
      Red Clay held a pep rally on the night before the Special Election.175

      On the day of the Special Election, Superintendent Daugherty made an automated
       call to all parents using the School Messenger system.176

      On the day of the Special Election, Red Clay teachers placed stickers on their
       elementary school students as a reminder for parents to vote.177

      On the day of the Special Election, Red Clay organized teams to distribute push
       cards at morning drop-off lines and afternoon pick-up lines. Volunteers and district
       employees walked car-to-car to encourage parents to go inside and vote.178

Each of these communications focused on parents of current Red Clay students. None of

them were directed to the electorate as a whole.

                4.     Targeted Communications Directed At Other Likely “YES”
                       Voters

       Another Red Clay campaign strategy was to identify other groups that were likely

to favor the tax increase. Red Clay sent targeted communications to those groups in an

effort to generate favorable votes.




       175
          See JX 72; JX 84 at D19688; JX 139 at D20526; JX 249; JX 253. Nash believed
that holding a pep rally would increase positive voter turnout. Tr. 206-07 (Nash).
Approximately 4,500 people attended. Tr. 339 (Johnson).
       176
             JX 158; JX 159.
       177
             Tr. 490 (Mathis); see JX 130; JX 139 at D20526.
       178
         Tr. 213-15 (Nash); Tr. 340-41 (Johnson); JX 123; JX 137 at D13901; JX 139 at
D20526; JX 149; JX 308.


                                             48
       The Red Clay team identified recent Red Clay graduates as one group of voters who

would be likely to support the referendum.179 In December 2014, Red Clay had each high

school principal send a letter to Red Clay graduates asking them “to support your former

classmates and school district by voting YES to fund a much needed operating

referendum.”180 The letter asked graduates living in Red Clay to come to the polls and

provided information about where and when to vote; the letter asked graduates who were

“away at college or serving in the military” to vote by absentee ballot.181 The letter stressed

the need to “[m]ake your voice count” because “[w]e anticipate a close race and your

support of Red Clay schools could make all the difference.”182

       The Red Clay team also identified parents of pre-school-age children as likely to

support the tax increase. On February 18, 2015, Red Clay sent a letter from Superintendent

Daugherty to parents living in the district with children under the age of five.183 The letter

described the Special Election as a “critical upcoming vote” and argued that “[a]s a future

Red Clay parent, you have perhaps the largest stake in this referendum and ensuring our




       179
          See JX 120 at D79055 (“[P]art of [the team’s] strategy was to reach out to alumni
students from Red Clay . . . .”); see also JX 61 at D5290 (“Dr. Newton shared information
about the importance of college students being eligible to request absentee ballot[s].”)
       180
             JX 50.
       181
             Id.
       182
             Id.
       183
             PTO ¶ 30; JX 254.


                                              49
schools offer the highest quality education to our children.”184 The letter described various

programs and said they were “the very things we are in danger of losing.” 185 The letter

asked the parents “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.”186

       In the final days before the vote, the president of the School Board suggested

“reaching out to the local colleges with [education] programs to gain support for the

referendum” on the theory that “[i]f it doesn’t pass, we will not only have no job openings,

but we will have experienced teachers laid off and first [in] line for the next openings.” 187

He specifically recommended this as a possible strategy “to get votes in the last days.” 188

Floore quickly worked up a “blurb” and asked the Red Clay staff who worked with Red

Clay’s student teachers to email it out to their colleges and universities.189 The email

included a link so that Red Clay residents could easily request absentee ballots. 190




       184
             JX 254.
       185
             Id.
       186
             Id.
       187
             JX 120 at D7906.
       188
             Id. at D7905.
       189
             Id.; Tr. 707-10 (Floore agreeing with email).
       190
             JX 120 at D7905.


                                               50
       The Red Clay team also recognized that current Red Clay students who were old

enough to vote were likely “YES” voters.191 Ammann organized this part of the effort. In

January 2015, he provided each principal of a Red Clay high school with a list of students

who would be eighteen on the date of the Special Election. Ammann further facilitated

student voting by telling the principals that “[i]f they [the students] [d]o not have a driver’s

license or other id, your counselor can print or sign something from eschool showing

address and age.”192

                5.     The Ghostwritten Media Campaign

       Yet another Red Clay campaign tactic involved ghostwriting content for parents.

Nash organized a social media campaign in which she generated much of the content, but

made it appear as if it came from parents.

       To implement the campaign, Nash created a Facebook account called “Red Clay

Parents for Students” and a Twitter handle called “RedClayParents.”193 She organized

parents to submit posts, designated several people at each school to share and like the posts,

and established a “Response Team” of five parents to counter any negative posts.194 She



       191
           See, e.g., JX 56 (principal of A.I. duPont stressing in his School Referendum
Plan that “we will make sure our seniors (18yrs+) understand they have the right to vote”);
JX 143 (teacher at McKean explaining procedures for having 18-year-old students vote).
       192
             JX 64.
       193
          JX 25 at D2558; accord Tr. 195 (Nash testifying that a Facebook page called
“Parents of Red Clay” was “created specifically for the . . . referendum”).
       194
          Tr. 197-99 (Nash); JX 76 (Nash distributing “Referendum Social Media Plan”);
see also JX 106; JX 272.


                                              51
mapped out a schedule that contemplated having posts submitted every other day from

February 2 until February 15, every day from February 15 through February 24, and every

half-hour on February 24.195

       Nash drafted posts for parents to submit as their own.196 She similarly prepared

ghostwritten letters to the editor—the old-school version of social media—for parents to

submit.197 The lack of attribution was intentional: Nash believed “it was more real and

would resonate more with voters if it came from parents.”198

                6.     Relations With Likely “NO” Voters

       In contrast to Red Clay’s efforts to mobilize likely “YES” voters, the Red Clay team

took steps to avoid bringing out likely “NO” voters.199 Red Clay recognized that there were

identifiable groups of opposition voters and, although the Red Clay team rarely came out

and said it, they associated the opposition primarily with elderly and retired residents. For

example, in February 2015, Nash prepared a draft of the letter that eventually went out to

parents of pre-school-aged children. The draft stated, “As a future Red Clay parent, you




       195
          JX 272 (Referendum Social Media Plan detailing “who will post,” “what will be
posted,” “when will it be posted,” and “where will it be posted”).
       196
          Tr. 197-98 (Nash); see, e.g., JX 32, JX 57; JX 103; JX 106; see also JX 95. See
generally JX 76; JX 78; JX 123.
       197
          Tr. 199, 200-01 (Nash); see, e.g., JX 57; JX 103; JX 106; cf. JX 124 (discussing
timing of letters to the editor).
       198
             Tr. 194 (Nash).
       199
             Tr. 352 (Johnson).


                                             52
have a large stake in this referendum, larger perhaps than the many residents who typically

come out to vote against any school funding increase.”200 Nash sent the draft to Floore and

Ammann, noting that it “kind of mention[s] the senior vote, without saying seniors,” and

asking if it went “too far.”201 The text did not appear in the final version of the letter.202

       To avoid mobilizing the “NO” vote, the Red Clay team minimized and, when

possible, delayed district-wide communications:

      The team delayed having parents send letters to the editor in support of the
       referendum because “the letters might ‘wake up’ the ‘no’ voters.”203 Even after the
       News Journal ran a story about the Special Election, the team considered waiting
       until anti-referendum letters to the editor appeared.204 Once they did, the team
       debated whether “the ‘pro’ letters would wake up even more seniors??”205

      The team limited the number of posts about the Special Election on the district’s
       social media sites as part of “a conscious decision to keep it from becoming a
       debate.”206

      For the same reason, despite making four pro-referendum videos, the Red Clay team
       decided not to distribute them on the district’s social media platforms.207



       200
             JX 273.
       201
             JX 104.
       202
           JX 119; see JX 309 (Johnson expressing concern about a planned “bus trip to
retired folks” and Floore reassuring her that the trip would target “retired red clay educators
who support us” and not “random retirees”); Tr. 352-54 (Johnson discussing same).
       203
             JX 124; accord Tr. 201-02 (Nash).
       204
             See Tr. 201-02 (Nash); JX 103; JX 124.
       205
             JX 134.
       206
             JX 133; Tr. 215-16 (Nash).
       207
             JX 133; Tr. 221 (Nash).


                                               53
      When filming a pro-referendum video with Floore and Johnson, Nash told them to
       focus on the “big picture” rather than on the details of the campaign because
       publicizing the details “MAY TRIGGER AN ORGANIZED OPPOSITION . . . .”208

      The team sought to avoid discussing the Special Election on a particular radio talk
       show because the host’s audience historically had been “the anti-vote.”209

      The team delayed putting up any yard signs until the Sunday evening before the
       vote, because widespread signage “could bring out the no voters.”210

      When the team did put out signs, they only placed them on school property near
       pickup and drop-off locations so they could serve “for our voters as a reminder
       which is mostly families.”211

       The desire to avoid stirring up opposition extended to distributions of the Red Clay

Record, the district’s newsletter. The Red Clay team initially planned to send the February

2015 edition only to the student households in the district.212 Later, the Steering Committee

decided to send the February 2015 edition to all Red Clay residents. 213 That decision was

driven by (i) an inquiry from the Department of Elections about whether Red Clay was

sending a mailing to the entire district, and (ii) a desire to pre-empt the charge that Red

Clay was running “a secret campaign.”214



       208
             JX 73.
       209
             JX 135; see Tr. 219-20 (Nash).
       210
         JX 137 at D13900; see also JX 114 (discussing timing of setting up signs); JX
139 at D20526 (same); JX 145 (same).
       211
             JX 137 at D13901; see also Nash Dep. 154-55.
       212
             JX 100.
       213
             See JX 101; Nash Dep. 30-31.
       214
             See JX 109; Nash Dep. 31, 37-39.


                                              54
       The Red Clay team’s concern about senior opposition proved prescient. After Red

Clay mailed the February 2015 edition of the Red Clay Record, and after the News Journal

began running stories on the Special Election, seniors began objecting.215 One described

the referendum as “yet another attack on the Senior Citizens of the district, state, and the

nation.”216 Another said he would vote against the referendum because “Our Governor

wants to cut the school tax for senior citizens.”217 A News Journal article quoted an

opponent who was a retiree. She complained that “[t]here are so many costs that people

want to place on us seniors, and we just can’t afford it.”218 A News Journal article about a

contemporaneous referendum in the Christina School District quoted a community leader

who similarly objected that “[w]e have a lot of seniors saying ‘we can’t afford this increase

right now.’”219 Johnson told the other members of the Red Clay team that objections from

seniors had been “coming in since the red clay record landed.”220



       215
           See, e.g., JX 132 (Johnson noting arrival of opposition); JX 134 (parent
informing Nash that “there were 2 [letters to the editor] in today about seniors and school
tax”); JX 153 (post on Facebook page for opposition group stating, “Residents of Red Clay
also stand to get punched in the wallet”); JX 163 (post on Facebook page for opposition
group stating, “Get out there and VOTE NO!”).
       216
             JX 132 at D13973.
       217
             JX 123 at D1800.
       218
             JX 154.
       219
             JX 155.
       220
          JX 132; see JX 134 (Nash responding to question about whether “‘pro’ letters to
the editor would wake up even more seniors” by stating, “I think they [the seniors] are
awake”). There is some ambiguity as to whether Red Clay sent the December 2014 edition
of the Red Clay Record to all district residents or only to student households. Lippincott’s

                                             55
F.    Referendum Day: Red Clay’s Perspective

      On February 24, 2015, Red Clay held the Special Election. From Red Clay’s

perspective, the day went largely as planned. The seventy-five Family-Focused Events, the

targeted communications, and the get-out-the-vote efforts drew large numbers of parents

to the schools that served as polling places. According to Red Clay, at least 6,383 people

attended the Family-Focused Events, a figure that uses the low end of Red Clay’s estimates

and does not include attendees at twenty-two events where the attendance was listed as

“Unknown.”221 Many of the evening events drew hundreds of people, including

approximately 300 people at Baltz, 300 people at Linden Hill, and 700 people at

Brandywine Springs.222 Testimony at trial focused on the Family-Focused Events at Baltz

and Richardson Park.

      Baltz held three Family-Focused Events: two “Literacy Coffeehouses” around lunch

time and a “Pajama Jammie Jam” in the evening.223 The coffeehouses involved families




later inquiry and the lack of any meaningful response from “NO” voters in December
suggests that the December edition only went to families. Ammann testified that the
December edition went to all Red Clay residents. Tr. 580-81 (Ammann). Accepting that it
did, the December edition did not go out of its way to focus a reader’s attention on the
Special Election. The front page contained a small, approximately one-inch square graphic
stating “VOTE! Operating Tax Referendum. February 24, 2015. Polls Open 10 a.m. to 8
p.m. Every Red Clay School (except Central).” JX 281 at D14388. Inside, on page two, the
newsletter had a half-page article on the Special Election. Id. at D14389.
      221
            JX 301.
      222
            Id.
      223
            JX 301.


                                           56
visiting the school so that students could present what they were learning. They were solely

for the parents, not for the public. Red Clay estimated that approximately fifty people

attended.224 Food was provided free of charge.225

       The “Pajama Jammie Jam” was held from 6:00 to 8:00 p.m. It was a fun event so

that students could wear their pajamas and dance.226 Food again was provided free of

charge.227 For security reasons, the Pajama Jammie Jam was only open to Baltz students

and their families; it was not open to the community.228 Baltz sent home approximately

three flyers to its families to advertise the event. Baltz also used the Alert-Now system to

send a recorded telephone message to its families to remind them about the event.229

       Red Clay estimated that approximately 300 people attended the Pajama Jammie

Jam.230 Baltz stationed staff members at a table at the main entrance to the school to greet

families as they entered.231 A sign behind the table stated, “If you care for the Baltz Bear




       224
             Tr. 118-19 (Penoyer); JX 301.
       225
             JX 301.
       226
             Tr. 120 (Penoyer).
       227
             JX 301.
       228
             Tr. 123, 145-46 (Penoyer).
       229
             Id. at 121-22.
       230
             Id. at 122; JX 301.
       231
             Tr. 132 (Penoyer).


                                             57
Vote Yes!”232 Although there was a separate entrance for voting, voters often used the main

entrance.233

       Upon entering the building, each family received a check-off card.234 The card had

three boxes labeled, respectively, “I ate,” “I voted,” and “I danced.” Below the boxes were

lines for the “Student Name,” the “Parent Name,” and a phone number.235 One of the

purposes of the card was to give each family a checklist of the things they were able to

do.236 Teachers and staff had stamps to check off items on the card. They asked to look at

the cards and encouraged families to check off activities that they had not yet completed,

such as voting.237 At the end of the night, the checklists served as raffle tickets, and the

person whose card was selected won a prize.238

       Richardson Park held two Family-Focused Events: a luncheon for parents during

the day and a bingo and movie night in the evening.239 Approximately seventy-five parents




       232
             JX 162; see Tr. 136-37 (Penoyer).
       233
             See Tr. 132-35 (Penoyer); Tr. 300 (McHugh).
       234
             Tr. 124 (Penoyer).
       235
             JX 275.
       236
             Tr. 124-26 (Penoyer).
       237
             Id. at 128, 130; see Tr. 302-03 (McHugh).
       238
             Tr. 131-32 (Penoyer).
       239
             JX 301; Tr. 489 (Mathis).


                                             58
attended the luncheon, and approximately 300 people attended the bingo and movie

night.240

       The bingo games offered prizes valued at over $1,000. More importantly, each child

who attended the event received a “no-uniform pass” for “each adult who voted.”241 If a

parent did not vote, then the child was not supposed to get a no-uniform pass, but the school

did not monitor that closely. The passes served their purpose by incentivizing people to get

to the polling place. Because the passes could be used on picture day, they functioned as a

reward for the whole family.242

       During both events, Richardson Park had parents circulating to “tell people to vote

yes.”243 Richardson Park used parents for this purpose because the principal did not believe

that he or his staff could ask people to vote “yes.”244 Teachers also circulated during the

events. They told parents how important the vote was and “how little time it will take to

make a difference for students.”245




       240
             JX 301; Tr. 499 (Mathis).
       241
             Tr. 491 (Mathis); see JX 141.
       242
             Tr. 495, 499 (Mathis).
       243
             Tr. 500 (Mathis).
       244
             Id. at 503-04.
       245
             Id. at 507.


                                             59
G.    Referendum Day: The Community Witnesses’ Perspective

      For a series of witnesses from the community, the Special Election did not go

smoothly. Plaintiff Rebecca Young described her experience attempting to vote at North

Star. She brought her parents with her so that they could vote as well. At the time of the

Special Election, Rebecca Young was sixty-seven years old, her father James Young was

ninety years old, and her mother Elizabeth Young was eighty-eight years old. Both of

Rebecca’s parents have mobility issues. They initially tried to vote in the morning at

approximately 10:00 a.m. As Rebecca explained at trial, “The parking lot was completely

packed, jammed, congested. There was no place to park where I could reasonably expect

my parents to walk into the -- the polls.”246 They tried again around 3:00 p.m. and found

the same situation.247 Because of the lack of parking, Rebecca and her parents were unable

to vote. They had never encountered that problem before.248

      Mary O’Neill, a non-party witness, testified about her experience attempting to vote

at Marbrook. She attempted to vote twice, first at approximately 10:30 or 11:00 a.m., and




      246
            Tr. 8 (Young).
      247
            Id. at 8, 10.
      248
           Id. at 11. Red Clay called a community witness to rebut the testimony about
parking problems at North Star. Tr. 230-34 (Landseder). The documentary record reflected
that the witness had not voted at North Star on the day of the Special Election. JX 161. It
seems likely that the witness confused the Special Election with another occasion on which
he voted at North Star. His testimony also concerned the parking situation around 1:30
p.m., which was not when the Youngs tried to vote.


                                            60
a second time around 3:30 or 3:45 p.m.249 Each time, O’Neill found a packed parking lot

and no spaces.250 O’Neill suffers from fibromyalgia and lower back pain, so when she could

not find a convenient space, she “gave up” and “[w]ent home.”251 She called the

Department of Elections the next day to complain, and she also contacted her state

representative. She felt she had “every right to vote” but was prevented because Red Clay

had “‘events’ going on at the school.”252

       State Representative Deborah Hudson testified as a fact witness in addition to

serving as one of the plaintiffs’ experts. She also testified about voting at Marbrook. She

arrived at Marbrook between 5:30 and 6:30 p.m. and found that the parking lot was full.

She circled two or three times, then waited for someone to leave. She also saw a bus that

was parked in the circle in front of the school.253 When she entered the school, she saw

“[b]ig crowds” and “a lot of people” that included “[m]ore adults than [she was] used to

seeing” for an election.254 But despite the crowds, there was not a long line to vote.255

Someone asked her if she was there to vote or to attend the Winter Carnival, and she



       249
             Tr. 89-90 (O’Neill).
       250
             Id.
       251
             Id. at 88, 90.
       252
             Id. at 90-91.
       253
             Tr. 27-28, 34-35, 53-54 (Hudson).
       254
             Id. at 28, 34.
       255
             Id. at 28.


                                             61
decided to check out the carnival. In the “cafetorium,” she saw a well-run event with games

for children and people in the center of the room eating. Her immediate reaction was that

the event was a planned activity that Red Clay arranged in an attempt to get “persuadable”

voters to vote in favor of the tax increase.256

       David Pickering, a non-party witness, testified about his efforts to vote. He left work

around 5:00 p.m. and was planning to pick up his parents and take them to vote at H.B.

duPont. When he drove by the school on his way to get them, he saw that the parking lot

was full of cars. He told his parents that “the polls were very busy,” and they decided at

that point not to try to vote.257 After that, Pickering drove to Skyline. When he got there,

he saw another full parking lot. He called a friend who was voting inside at the time. His

friend told him that “the voting line wasn’t bad,” but that “[t]here w[ere] a lot of people in

there for some kind of event.”258 Pickering then drove to Marbrook where the “[p]arking

lot was packed.”259 He also saw buses in the circle driveway. He eventually parked in the

fire lane. When he got inside, there was virtually nobody voting; everyone was there for an

event. After voting, Pickering called the Department of Elections to complain and emailed




       256
             Id. at 29-30, 32, 38-39, 41.
       257
             Tr. 73 (Pickering).
       258
             Id. at 74.
       259
             Id.


                                              62
State Senator Karen Peterson. He “felt it wasn’t right to have the parking lot so full of cars

when [he] was trying to get in there to vote.”260

       Mary Ellen Fitzpatrick, a non-party witness, testified about her experience voting at

Linden Hill. She drove to the school around 1:30 p.m. She found a “packed” parking lot,

cars parked illegally in the circle in front of the school, and cars lining both sides of the

street leading to the school. On a second trip through the lot, she decided to park at the end

of a line of spaces in the circle, even though it was not a legal space.261 No other spaces

were available. When she got inside, the multipurpose room was full of people, and she

initially thought it would take a long time to vote. Then she saw a separate sign saying

“vote here,” where there were approximately four people in line. She voted and left. She

had never encountered similar problems with parking when trying to vote.262

       Russell Schnell, a non-party witness, testified about his experience voting at

McKean. He arrived at approximately 5:30 p.m. He discovered that the parking lot was

“completely full” and that one of the sidewalks was under construction. After spending

approximately five minutes circling the lot several times, he parked beside a construction

barricade in an area that was not a parking spot.263 He expected there would be a long line

to vote, but there were only three or four people voting. After he got home, he sent a note



       260
             Id. at 78.
       261
             See Tr. 96-97 (Fitzpatrick); see also JX 284 at D425.
       262
             Tr. at 100-01 (Fitzpatrick).
       263
             Tr. 148-49, 156 (Schnell).


                                              63
to the American Civil Liberties Union because he was concerned about how the election

was being conducted.264

       Sean Boyle, a non-party witness, testified about his experience voting at

Brandywine Springs. He arrived around 7:00 p.m. The parking lot was full, and he drove

around for five to ten minutes before finding a spot. Other cars were also circling the lot.

When Boyle entered the school, he saw lines of people waiting to enter a choral production.

To the right, he saw the voting area, where there were perhaps three people waiting to vote.

A few days later, he saw an article in the News Journal about problems with voting, so he

reached out to Senator Peterson and described his experience.265

       Several Red Clay witnesses who were involved with the Special Election sought to

rebut the testimony from the community witnesses. Johnson testified that she visited a

series of schools on the day of the Special Election and did not see any parking problems,

including at Cab Calloway around noon, Marbrook around 1:30 p.m., H.B. duPont around

2:00 p.m., Brandywine Springs from 3:00 to 4:30 p.m., Linden Hill from 5:30 to 6:30 p.m.,

and North Star around 6:30 p.m.266 Only two schools held Family-Focused Events during

those times, and those events only drew twenty-three and twenty-four attendees.267




       264
             Id. at 154-55.
       265
             Tr. 162-65, 167-69 (Boyle).
       266
             Tr. 340-45 (Johnson).

         See JX 301 (twenty-three attendees at Marbrook’s Fifth Grade Author’s Day;
       267

twenty-four attendees at North Star’s Read-In Night).


                                            64
Johnson’s testimony did not rebut the community witnesses’ accounts. Floore testified that

she voted at North Star around 10:00 a.m. and did not see any parking problems. 268 The

plaintiffs testified that the parking lot was full at the time. The accounts can be reconciled

if the witnesses were slightly off about the time. The Youngs may have been at North Star

somewhat later in the morning. North Star held six Family-Focused Events during the day,

but Red Clay could not say when any of them took place.269 If some took place after Floore

left when the Youngs tried to vote, then both witness accounts can be credited.

       Ammann was in charge of ensuring that there was adequate parking at the polling

places, and he understood that Red Clay needed to ensure access for voters. 270 He

recognized that with the large turnout Red Clay hoped to generate, there could be parking

problems at some locations. To avoid congestion at Forest Oak and Linden Hill, he had

teachers park in nearby commercial lots.271 For similar reasons, at Richardson Park,

teachers and staff were not permitted to park in the front and side lots.272

       Ammann also coordinated with the Department of Elections to meet their parking

requirements. Their regulations contemplated using five “Voter Only” parking signs to




       268
             Tr. 677 (Floore).
       269
             See JX 301.
       270
             Tr. 631-32 (Ammann).

         See JX 88; JX 116; Tr. 616 (Ammann testifying that Red Clay “transferr[ed]
       271

some teachers from the remote parking to Linden Hill”).
       272
             JX 140; JX 142; JX 149; JX 151.


                                               65
secure ten to twenty spaces.273 The Department asked Ammann to have the spaces

monitored so that they remained available for voters. Ammann prepared a parking plan for

each school, and the Department of Elections approved his plans.274

       The process fell short in the implementation. Ammann admitted that he did not

instruct the principals to monitor the parking situation, which led to the principal at

Marbrook not taking any action to address the buses that were parked in her school’s circle

driveway for a period of time on election day.275 Ammann testified that he instructed the

custodial staff at each school to monitor the parking lots to ensure that the spots designated

for voters remained available, but there is no contemporaneous evidence that he gave that

instruction, even though Ammann used email as a primary means of communication.276

Ammann did not follow up on this instruction during the Special Election, and no one

explained how custodians would have distinguished a voter’s car from an event attendee’s,




       273
             JX 121.
       274
             See, e.g., JX 266 (plan for North Star); JX 182 (plan approval).
       275
            Tr. 632 (Ammann testifying that he did not speak with the principals about
monitoring parking access). The buses were from Charter School of Wilmington and
parked at Marbrook for part of the afternoon as part of an activity. Id. at 631. Having heard
the Red Clay witnesses testify, I find that there was no intent to use buses to interfere with
the ability of elderly or disabled residents to access the polls.
       276
             Id. at 632-33 (Ammann asserting that he told the custodians to monitor the
parking).


                                               66
particularly when those categories overlapped. Superintendent Daugherty testified that Red

Clay did not monitor who was using the parking spaces.277

H.     Complaints About The Election

       Very few issues were reported to the Department of Elections on the day of the

Special Election itself.278 On the day after the Special Election, the Department of Elections

was “slammed” with complaints.279 Voters also contacted their state legislators, including

Senator Peterson and Representative Hudson.280

       On March 3, 2015, the Board of Elections for New Castle County met to consider

whether to certify the results of the Special Election.281 The Department of Elections

reported on the complaints it had received. The Board of Elections determined that it did

not have authority to investigate the complaints or take them into account when certifying

the election.282 It referred isolated issues to the Attorney General for investigation. The




       277
             Daugherty Dep. 205.
       278
             JX 177 at D303.
       279
             JX 166 (“We are really getting slammed about events yesterday . . . .”).
       280
             Tr. 48 (Hudson); Peterson Dep. at 11-16.
       281
             PTO ¶ 7.
       282
           This court agreed. A companion decision to the Dismissal Ruling dismissed the
plaintiffs’ claims against the Board of Elections, holding that “under the statutory scheme
that existed at the time of the Special Election, the Board of Elections had no authority to
consider legal violations when certifying the results beyond fraud that was apparent on the
face of a ballot or certificate.” Young v. Red Clay Consol. Sch. Dist., 2015 WL 5853762,
at *4 (Del. Ch. Oct. 2, 2015).


                                               67
Attorney General only reviewed the events for criminal violations and determined not to

pursue any criminal charges.

I.     The Certified Results

       On March 10, 2015, the Board of Elections certified the results of the Special

Election. There were 6,395 votes in favor of the tax increase and 5,515 votes against.283

The winning margin of 880 votes amounted to 7% of those who voted. The 11,910 votes

cast represented about 7% of the approximately 165,000 residents in the district and about

12% of its 93,905 registered voters.284 The winning margin thus amounted to less than

0.5% of the district’s residents and less than 1% of its registered voters.

       As previously noted, Red Clay estimated that the Family-Focused Events drew at

least 6,383 people to the polls. That figure uses the low end of Red Clay’s estimates for

three events and does not include any attendees for twenty-two events where Red Clay

listed the attendance as “Unknown.”285 Using the high end of Red Clay’s estimates, the

attendance figure rises to 6,593 people. The average attendance figure for the fifty-three

events for which Red Clay provided estimates was 120 people. Using that number for the

twenty-two events where Red Clay listed the attendance as “Unknown” adds another 2,640

attendees. A more realistic estimate for the Family-Focused Events is that they brought




       283
             PTO ¶ 6; JX 178; JX 181.
       284
             Dkt. 144; see Tr. 252-53 (Ratledge).
       285
             JX 301.


                                              68
between 9,023 and 9,233 people to the polling places. The mid-point of that range is 9,128

attendees.

       Red Clay’s low-end attendance figure of 6,383 means that the number of people

who attended the Family-Focused Events was approximately equal to the 6,395 votes that

Red Clay received in favor of the tax increase. Using the low-end attendance figure, the

winning margin of 880 votes represented approximately 14% of the people who attended

the Family-Focused Events.

       The more realistic attendance figure of 9,128 means that the number of people who

attended the Family-Focused Events exceeded the 6,395 votes that Red Clay received in

favor of the tax increase. Using the high-end attendance figure, the winning margin of 880

votes represented approximately 10% of the people who attended the Family-Focused

Events.

J.     Procedural History

       On March 27, 2015, the plaintiffs filed their initial complaint and sought 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

increase went into effect, a post-trial remedy could be crafted if the plaintiffs prevailed.

       On April 13, 2015, the plaintiffs filed an amended complaint. Red Clay moved to

dismiss the amended complaint for failing to state a claim on which relief could be granted.

After briefing and oral argument, the matter was submitted for decision on July 10.




                                              69
       On October, 7, 2015, I issued the Dismissal Ruling, which held that the plaintiffs

had stated a claim on which relief could be granted. The matter proceeded to trial. After

post-trial briefing, post-trial argument was held on February 23, 2017.

K.     The Present Status Of The Tax Increase

       On July 1, 2015, Red Clay began receiving incremental revenue from the tax

increase. During the 2015-16 tax year, Red Clay received approximately $10.5 million in

additional tax revenue, reflecting the initial $0.20 increase. During the 2015-16 tax year,

Red Clay received approximately $15.8 million in additional tax revenue, reflecting both

the initial $0.20 increase and the next $0.10 increase. The full $0.35 tax increase will go

into effect on July 1, 2017.286

                             II.     LEGAL ANALYSIS

       The Dismissal Ruling evaluated the plaintiffs’ complaint. In doing so, it set out a

legal framework for analyzing the legal issues presented by the case. As often happens, the

evidence presented at trial differed in some respects from the less-informed allegations of

the complaint. At the pleading stage, the plaintiffs primarily challenged the Family-

Focused Events as a means of enhancing turnout by parents of Red Clay students while

suppressing turnout by elderly and disabled residents. They alleged that Red Clay engaged

in excessive advocacy and targeted campaign speech, thereby violating the principles




       286
             PTO ¶¶ 13-14.


                                            70
established in Brennan v. Black.287 They were not aware of the full scope of Red Clay’s

targeted campaign speech.

       In light of the Dismissal Ruling and the evidence presented at trial, the plaintiffs no

longer meaningfully challenge Red Clay’s broadly directed campaign speech. They

challenge the Family-Focused Events and Red Clay’s targeted campaign speech.

A.     The Primacy Of The Plaintiffs’ State Law Claim

       The plaintiffs assert that Red Clay’s electoral interventions violated both federal and

state law. As their federal theory, they contend that Red Clay violated the Due Process and

Equal Protection Clauses of the Fourteenth Amendment of the United States

Constitution.288 As their state law theory, the plaintiffs contend that Red Clay violated the

Elections Clause.

       Red Clay has asked the court to consider the state constitutional claim first and only

reach the federal constitutional claims if necessary. This approach comports with Delaware

Supreme Court jurisprudence, which generally gives primacy to specific guarantees in the

Delaware Constitution.289 It also makes logical sense. The Dismissal Ruling concluded that




       287
             104 A.2d 777 (Del. 1954).
       288
           In the Dismissal Ruling, this court held that the Equal Protection Clause provided
a more logical framework for analyzing the plaintiffs’ claims. See 122 A.3d at 830-31. The
plaintiffs nevertheless continued to advance a claim under the Due Process Clause, which
they supported in their pre- and post-trial briefing with more thorough legal analysis than
at the pleadings stage.
       289
          See id. at 811-13 (discussing Delaware Supreme Court precedent that gives
primacy to provisions of the Delaware Constitution and declines to interpret them in
lockstep with federal analogs). See generally Randy J. Holland, The Delaware State

                                             71
“[t]he Elections Clause has independent content that is more protective of electoral rights

than the federal regime.”290 It is therefore possible that an electoral intervention could pass

muster under the federal constitution and yet violate the more specific guarantee provided

by the Delaware Constitution.291




Constitution 32-34 (2011); Randy J. Holland, State Constitutions: Purpose and Function
[hereinafter Purpose & Function], in The Delaware Constitution of 1897: The First One
Hundred Years 3, 17 (Harvey Bernard Rubenstein et al. eds., 1997) [hereinafter First 100
Years].
       290
             122 A.3d at 813.
       291
            A different outcome seems unlikely in this case. Under United States Supreme
Court precedent, a selective incentive for voting is subject to the same constitutional
analysis a selective burden. Hopper v. Bernalillo Cty. Assessor, 472 U.S. 612, 619 n.8
(1985); see, e.g., Harlan v. Scholz, 210 F. Supp. 3d 972, 977-79 (N.D. Ill. 2016) (enjoining
law that would require high-population urban counties to provide same-day voter
registration while not requiring low-population rural counties to do the same); Garza v.
Smith, 320 F. Supp. 131, 137 (W.D. Tex. 1970) (invalidating statute that allowed blind
persons to have an assistant in the voting booth but did not extend the same advantage to
illiterate voters), vacated on other grounds, 401 U.S. 1006 (1971). Imposing a burden on
an identifiable group of voters violates the Equal Protection Clause unless the government
can justify the selective burden with a sufficiently compelling state interest. See Anderson
v. Celebrezze, 460 U.S. 780, 782 (1983) (invalidating 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”); Bullock v. Carter, 405 U.S. 134, 144 (1972) (holding
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”); Obama for Am. v. Husted, 697 F.3d 423, 436-37 (6th Cir. 2012)
(affirming injunction blocking statute that established shorter early voting period for non-
military voters). “[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.” Anderson, 460 U.S. at 793.
“‘Fencing out’ from the franchise a sector of the population because of the way they may
vote is constitutionally impermissible.” Carrington v. Rash, 380 U.S. 89, 94 (1965); see id.
(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

                                               72
       This decision consequently starts with the Elections Clause. Because the plaintiffs

have proven that Red Clay violated the Elections Clause, this decision does not reach the

federal claims.

B.     Distinguishing Among The Types Of Electoral Interventions

       The plaintiffs challenge Red Clay’s electoral interventions as a whole, contending

that they violated the Elections Clause when viewed in the aggregate. For analytical clarity,

however, it is helpful to consider the Family-Focused Events separately from Red Clay’s

other interventions, all of which involved varying degrees of government campaign speech.

       Government involvement in elections creates difficult line-drawing problems.

       A government that intervenes in elections to protect electors and prevent
       private parties from using force, coercion, bribery, or intimidation does not
       undermine the legitimacy of the election. That type of government activity
       enhances the electoral process by making it possible for more electors to
       participate freely and express their views. Different and more difficult issues
       arise if a government uses its powers to encourage or facilitate voting by
       electors who might be thought to favor the government’s positions, or to
       discourage or interfere with voting by electors who might be thought to
       oppose the government’s views. Along similar lines, a government that



Forces); 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, 309 (D. Me. 1984) (invalidating
statutory filing deadline because it placed a burden on an “identifiable segment of Maine
voters—those who may be dissatisfied with the major parties’ choices”). The Dismissal
Ruling held at the pleading stage that Red Clay had not justified its electoral interventions
with sufficiently compelling state interests. See 122 A.3d at 833-37. Since then, Red Clay
has not advanced any additional interests, and the factual record at trial showed that Red
Clay’s interventions were more extensive that what the plaintiffs had been able to allege in
their complaint.


                                             73
       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.292

Recent allegations that a foreign state influenced a national election by altering the

information available to voters has brought home the extent to which subtle interventions

can affect an electoral outcome.

       This decision distinguishes targeted incentives and disincentives for voting from

government campaign speech. The latter 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.”293 Government

campaign speech can take a variety of forms.

       The least problematic type of government campaign speech is directed broadly to

the electorate as a whole and openly identified as coming from a government source. Red

Clay engaged in this type of campaign speech. Examples included:

      The two mailings of the Red Clay Record.



       292
             Dismissal Ruling, 122 A.3d at 799.
       293
           Helen Norton, Campaign Speech Law with a Twist: When the Government is the
Speaker, Not the Regulator, 61 Emory L.J. 209, 213-14 (2011). Norton distinguished
government campaign speech during referendums from government campaign speech in
favor of particular candidates and excluded the latter from her definition. Id. at 214. In the
Dismissal Ruling, I observed that the term logically extends to both contexts, but I agreed
that the two scenarios present different policy issues such that government speech during
an election involving candidates should receive greater scrutiny. See 122 A.3d at 800 n.7.


                                             74
      Postings on the district’s official website and official social media channels.

      Videos distributed through the district-sponsored cable television channel.

      Presentations by self-identified Red Clay representatives at public meetings and
       workshops that were advertised and open to the public.

      Signs in Red Clay schools or in the community asking for support.

      Statements by Red Clay representatives to the press.

       Red Clay also engaged in broadly directed government campaign speech that did

not openly identify its source. Instead, Red Clay took steps to mask this speech to look like

it originated from parents. Examples included (i) the social media campaign that Nash ran

using the Facebook account called “Red Clay Parents for Students” and the Twitter handle

called “RedClayParents” and (ii) ghostwritten letters to the editor. These forms of

campaign speech became problematic because Red Clay masked their source.

       A more serious type of electoral intervention involves “targeted government

campaign speech, which is directed to identifiable groups within the electorate.” 294 By

communicating more vigorously with identifiable subsets of the electorate, the government

can encourage voting by groups that are likely to favor its position, thereby increasing

turnout among those groups.295 This type of intervention involves the government making




       294
             Dismissal Ruling, 122 A.3d at 800.
       295
             Id. at 802.


                                             75
distinctions among groups and attempting to affect the outcome of the election by shaping

the demographic characteristics of those who vote.296

       Red Clay engaged in extensive campaign speech that was targeted at identifiable

groups. Most of it targeted parents of Red Clay students, whom Red Clay believed would

support the tax increase. These efforts included:

      Superintendent Daugherty’s letter to Red Clay student households in January 2015.

      Presentations by Red Clay representatives at events that parents primarily attended,
       such as school concerts and athletic events.

      The flyers and newsletters that Red Clay personnel sent home with students.

      The “Referendum Fact Sheet” that staff members stuffed into student report cards.

      The reminder emails that principals sent to parents using their school-email
       distribution systems.

      The reminder messages that principals delivered to parents using the School
       Messenger auto-dialer system.

      Superintendent Daugherty’s referendum-day reminder message delivered to parents
       using the School Messenger auto-dialer system.

      The “VOTE” stickers that Red Clay school teachers put on elementary students.

      The teams that Red Clay organized to distribute election push cards and encourage
       parents to vote during morning drop-off and afternoon pick-up.

       Red Clay also targeted other groups that Red Clay believed would support the tax

increase. These efforts included:

      The December 2014 letter to Red Clay graduates.




       296
             Id. at 801.


                                            76
      The February 2015 letter to parents of children under five years of age.

      The February 2015 email to local colleges with teacher education programs.

      The facilitation of voting by high school students who were old enough.

       An even more serious type of targeted government campaign speech moves from

identifiable groups to individual voters. This type of speech involves the government

seeking to identify how particular individuals will vote and then taking steps to convert

supportive individuals into actual votes. It therefore involves the government

discriminating among individuals and attempting to affect the outcome by influencing their

behavior.

       The Dismissal Ruling did not discuss individualized government campaign speech

because the plaintiffs did not know it had occurred. During discovery, the plaintiffs learned

that Red Clay gave each school a specific number of “YES” voters to identify among its

parents. When Red Clay representatives reached “YES” voters, they provided information

about how to vote and added the voters to a list for follow-up. When Red Clay

representatives reached “NO” voters, they did not provide information about how to vote.

Just before the election, Red Clay contacted the “YES” voters to get them out to vote.

       So far, each level of government intervention has only involved campaign speech.

The focus of the speech has narrowed, starting with the electorate as a whole, then moving

to identifiable groups, and then reaching individual voters, but the exclusive medium has

been speech. A qualitatively different intervention targets an identified group with a

concrete incentive or disincentive to vote. Like targeted government campaign speech, this

type of intervention involves the government discriminating among identifiable groups by


                                             77
choosing to favor some and disfavor others. It also involves the government trying to

influence the outcome of the election by shaping the demographic characteristics of those

who vote. But the intervention goes beyond speech by putting a thumb on the scales of the

decision to vote.

       Much of the legal scholarship and case law has involved disincentives for voting.

Historical examples involved poll taxes, literacy tests, and other hurdles that were

superficially neutral but operated as impediments to identifiable groups.297 More recent

efforts involve voter identification requirements, which appear neutral but may operate in

practice as a disincentive for identifiable groups.298




       297
            See generally Christopher S. Elmendorf, Structuring Judicial Review of
Electoral Mechanics: Explanations and Opportunities, 156 U. Pa. L. Rev. 313, 365-76
(2007). The Twenty-Fourth Amendment to the United States Constitution abolished the
poll tax in federal elections. U.S. Const. amend. XXIV, § 1. The United States Supreme
Court invalidated the poll tax in state elections because it discriminated among voters on
the basis of wealth. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666-67 (1966). The
Voting Rights Act Amendments of 1970 largely prohibited the use of literacy tests, and the
United States Supreme Court held that the ban fell within Congress’ enforcement powers
under the Fourteenth and Fifteenth Amendments. Oregon v. Mitchell, 400 U.S. 112, 118
(1970).
       298
           See, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008); N.C. State
Conference of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016); Veasy v. Abbott, 796
F.3d 487 (5th Cir. 2015) (rehearing en banc pending); Frank v. Walker, 768 F.3d 744 (7th
Cir. 2014); Common Cause/Ga. v. Billups, 554 F.3d 1340 (11th Cir. 2009); Michael D.
Gilbert, The Problem of Voter Fraud, 115 Colum. L. Rev. 739, 743-50 (2015); Charles
Stewart III, Voter ID: Who Has Them? Who Shows Them?, 66 Okla. L. Rev. 21, 23-30
(2013); Spencer Overton, Voter Identification, 105 Mich. L. Rev. 631, 633 (2007).
Empirical data on the effect of voter identification laws on turnout is mixed. See Gilbert,
supra, at 749-50 (compiling literature); Robert S. Erikson & Lorraine C. Minnite, Modeling
Problems in the Voter Identification—Voter Turnout Debate, 8 Election L. J. 85, 98 (2009)

                                              78
       But a government also can provide an incentive to an identifiable group. This type

of intervention transfers something of value to a subset of the electorate in return for the

act of voting. Conceptually, it resembles a bribe. As the Dismissal Ruling recognized, some

have argued that to increase turnout, governments should be able to provide a reward for

voting to all voters.299 Several states allow payments for voting, so long as the payment is

not designed to induce a voter to favor a particular candidate or result.300 No one appears

to favor a government having the ability to provide rewards to a particular subset of the

electorate that the government believes will favor its preferred outcome.




(describing then-existing science regarding vote suppression as “incomplete and
inconclusive”).
       299
           See Natalie J. Lockwood, International Vote Buying, 54 Harv. Int’l L.J. 97, 116
(2013) (citing Simeon Nichter, Vote Buying or Turnout Buying: Machine Politics and the
Secret Ballot, 102 Am. Pol. Sci. Rev. 19 (2008)) (arguing that vote buying may be effective
in encouraging voter turnout); Anthony B. Sanders, In Defense of Vote Buying: How
“Nader Traders” Can Defeat Rent Seeking, 26 Hamline J. Pub. L. & Pol’y 43 (2004)
(arguing that vote trading, as opposed to vote buying, could increase voter turnout without
increasing rent seeking or interest group capture); Richard L. Hasen, Vote Buying, 88 Cal.
L. Rev. 1323, 1326, 1332-34 (2000) [hereinafter Vote Buying] (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).
       300
           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 Vote Buying
at 1355.


                                            79
       As described in the Statement of Facts, the seventy-five Family-Focused Events

were intended to and operated as an inducement for the families of Red Clay students to

vote. Red Clay held Family-Focused Events at every school that was designated as a

polling location. Their purpose was to draw parents of Red Clay students to the polls. The

incentive was a tangible reward in the form of child-focused activities. Although the events

were nominally open to everyone, Red Clay recognized that adults without children would

not have a desire to attend.

       Red Clay’s decision to convey the rewards in the form of events did not change their

status as a reward for voting. Consider the free food that was made available at twenty-four

of the events, or the carnivals and family fun nights that various schools held.

       Instead of hosting the dinner and carnivals themselves, the schools could
       have given families coupons to a local restaurant, arcade, or family fun park.
       Or in lieu of providing coupons, the schools could have handed out money
       and encouraged families to spend it at a local restaurant, arcade, or family
       fun park. If the schools had handed out coupons or money, then the exchange
       of something of value for the act of voting would have been readily apparent.
       By hosting the dinner and carnivals themselves, the schools simplified the
       exchange by providing the benefits directly.301

       I recognize that some may not immediately perceive the Family-Focused Events as

a reward for voting. Or some may feel that because public schools need money, and

because public schools are indisputably a public good, the end justifies the means. A

thought experiment involving a different issue may offer perspective:




       301
             Dismissal Ruling, 122 A.3d at 803.


                                             80
      Imagine a state-wide referendum on an issue relating to gun rights, such as a
       proposal to allow universal concealed carry.

      Posit that the state Department of Elections designates gun ranges as polling places,
       which is permitted by law.

      Envision that the separate state agency that focuses on gun regulation engages in a
       state-wide, pro-referendum campaign that culminates in each gun range offering
       every adult of voting age free range time and a box of free ammunition on the day
       of the referendum.

As with the Family-Focused Events, the gun range events are facially neutral and open to

everyone. Nevertheless, I would expect many would regard this type of intervention as a

means of increasing turnout by voters who would favor the referendum. The same is true

for the Family-Focused Events. What matters for legal analysis is not whose political ox is

gored, but the effect on the electoral process.

       In practice, the Family-Focused Events did more than just operate as an incentive

to vote for parents of Red Clay students. They also functioned as a disincentive for voting

by the elderly and disabled. The Family-Focused Events caused the school parking lots to

be packed with cars. The full lots made it difficult for elderly and disabled residents to find

accessible parking spots. Although Red Clay did not purposefully create this obstacle, the

Family-Focused Events had this effect.

       Because the Family-Focused Events provided an incentive for voting by parents of

Red Clay students while creating a disincentive for voting by the elderly and disabled, this

decision analyzes them separately from Red Clay’s government campaign speech. In

ultimately deciding whether Red Clay’s conduct affected the election, this decision

considers Red Clay’s interventions as a whole.



                                              81
C.     The Family-Focused Events

       The Elections Clause provides that “[a]ll elections shall be free and equal.” 302 The

plaintiffs proved that the Family-Focused Events violated the Elections Clause. By holding

seventy-five events on the day of the Special Election, in the schools that served as polling

places, Red Clay provided a targeted incentive for parents of Red Clay students to vote. At

the same time, Red Clay created a disincentive for elderly and disabled residents to vote.

The Family-Focused Events rendered the Special Election unfair and unequal.

       1.        The Family-Focused Events As A Targeted Incentive For Voting

       The Family-Focused Events operated as targeted incentives for voting by parents of

Red Clay students. By providing a reward for voting to the group most likely to support

the referendum, Red Clay violated the Elections Clause.

                 a.     The Relevant Content Of The Elections Clause

       An election in which the government provides a particular group with targeted

incentives to vote is neither fair nor equal. This conclusion flows from multiple sources.

                        i.      The Text Of The Elections Clause And Pertinent Judicial
                                Interpretations

       The Dismissal Ruling analyzed the text of the Elections Clause and Delaware

decisions that have discussed voting rights.303 The one Delaware decision to address the

Elections Clause states that its purpose is “to ensure that the right of citizens to vote in an




       302
             Del. Const. art. I, § 3.
       303
             See 122 A.3d at 837-38, 855.


                                              82
election is unfettered.”304 Other Delaware decisions on voting rights call for interpreting

election-related laws liberally to protect voters.305 These decisions suggest that the

Elections Clause should be interpreted broadly, but they do not provide more concrete

guidance.

       The Dismissal Ruling also examined decisions from other jurisdictions that have

interpreted their comparable constitutional provisions.306 These decisions observe that the

operative question under the Elections Clause is whether the outcome represented “a full,

fair, and free expression of the popular will upon the matter, whatever it may be.”307 They

also teach that that it does not matter “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,




       304
             Abbott v. Gordon, 2008 WL 821522, at *19 (Del. Super. Mar. 27, 2008).
       305
           Republican Party of Del. v. Dep’t of Elections, 792 A.2d 224, 226 (Del. Super.
2001) (“Election laws are to be construed liberally because of their importance to the
public’s right to vote.”); Bartley v. Davis, 1986 WL 8810, at *9 (Del. Ch. Aug. 14, 1986)
(Allen, C.) (“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.”), aff’d, 519 A.2d 662 (Del. 1986).
       306
             See 122 A.3d at 838-41.
       307
           Wallbrecht v. Ingram, 175 S.W. 1022, 1026 (Ky. 1915). The State of Kentucky
has a particularly well-developed elections-clause jurisprudence. Dismissal Ruling, 122
A.3d at 838; see Gunaji v. Macias, 31 P.3d 1008, 1016 (N.M. 2001) (citing Kentucky as
having “the most developed jurisprudence of any state on what [the free and equal
elections] clause means in relation to ballot problems”).


                                             83
violence, bribery, or other wrongdoing.”308 One precedent states that “[e]lections 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.”309 These

decisions indicate that the Elections Clause protects against improper, external influences

on voting, but they offer little more.

       Having reviewed these authorities, the Dismissal Ruling sought more specific

sources of authority:

       When imbuing terms like [“free” and “equal”] 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.310




       308
             Wallbrecht, 175 S.W. at 1026.
       309
          People v. Hoffman, 5 N.E. 596, 599-600 (Ill. 1886). The State of Illinois is
another jurisdiction with a well-developed elections-clause jurisprudence. Dismissal
Ruling, 122 A.3d at 839.
       310
           Dismissal Ruling, 122 A.3d at 841. The Dismissal Ruling also noted that “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.” Dismissal Ruling,
122 A.3d at 842 n.65. The parties did not take the hint, but in the interest of completeness,
I secured a copy of Cooley’s treatise. The work states that “[t]o keep every election free of
all the influences and surroundings which might bear improperly upon it, or might impel
the electors to cast their suffrages otherwise than as their judgments would dictate, has
always been a prominent object in American legislation.” Cooley, supra, at 1389 (footnote
omitted). It cites the state free-and-equal elections clauses and related statutes as “looking
to the accomplishment of [this] general purpose.” Id. at 1390. The treatise mentions, as one
of the specific restrictions adopted in support of this end, that “the treating of an elector,

                                             84
For purposes of analyzing incentives to vote, the most pertinent sources are the history of

the Elections Clause, a related provision in the Delaware Constitution that criminalizes

bribery in elections, and Delaware statutes addressing similar electoral misconduct. These

authorities point towards a longstanding Delaware public policy against voters receiving

rewards for voting in elections.

                       ii.    The Legislative History Of The Elections Clause

       If the meaning of a constitutional provision is unclear, a court may consider its

legislative history.311 The legislative history of the Elections Clause “is largely coterminous

with the development of the Delaware Constitution.”312 Delaware has had four

constitutions, adopted respectively in 1776, 1792, 1831, and 1897. They are not separate

and independent, but rather linked.313 The Constitution of 1897 continues in force today.

       “The antecedents of the Elections Clause can be seen in Delaware’s first




with a view to influence his vote, is in some States made an indictable offense.” Id. After
summing up various examples, the treatise observes that “generally all such precautions as
the people in framing their organic law, or the legislature afterwards, have thought might
be made available for the purpose, have been provided with a view to secure the most
completely free and unbiased expression of opinion that shall be possible.” Id. at 1391. The
treatise thus supports examining critically and approaching with skepticism referendum-
day events at polling locations that are designed to influence a subset of the electorate.
       311
         In re Request of Governor for Advisory Opinion, 950 A.2d 651, 653 (Del. 2008);
Opinion of the Justices, 290 A.2d 645, 647 (Del. 1972).
       312
             Dismissal Ruling, 122 A.3d at 819.
       313
           Maurice A. Hartnett, III, Delaware’s Charters and Prior Constitutions
[hereinafter Delaware’s Charters], in First 100 Years 21, 23.


                                              85
constitution.”314 “In May of 1776 the Continental Congress passed a resolution that advised

the colonies to form new governments.”315 “A widespread concern before the Declaration

of Independence had been a desire for popular control over the process of governing.”316

The Constitutional Convention that convened 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 11.317 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.”318 Section 6 contained a predecessor to the Elections

Clause, which 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.”319 When the delegates adopted Delaware’s first constitution on

September 20, 1776, they incorporated the Declaration of Rights.320 Article 30 stated: “No

article of the declaration of rights and fundamental rules of this state, agreed to by this




       314
             Dismissal Ruling, 122 A.3d at 820.
       315
             Purpose & Function at 5.
       316
             Id. at 6.
       317
             Holland, Delaware State Constitution at 6.
       318
             Declaration of Rights & Fundamental Rules of the Delaware State § 1 (1776).
       319
             Id. § 6.
       320
             Holland, Delaware State Constitution at 7; Delaware’s Charters at 28.


                                              86
convention, . . . ought ever to be violated on any pretense whatever.”321

       “After the ratification of the United States Constitution, states began the process of

re-writing their own constitutions.”322 Delaware’s Constitutional Convention took place in

two sessions, one in 1791 and a second in 1792.323 Most significantly for present purposes,

the drafters of the Constitution of 1792 updated the Declaration of Rights.324 The Elections

Clause remained part of the new declaration.325

       The next significant development for the Elections Clause was the Constitution of

1897.326 “Concern about the legitimacy of state and local elections played a significant role

in the prompting Delaware to convene a constitutional convention.327 “[E]lections and



       321
             Del. Const. of 1776, art. 30.
       322
             Dismissal Ruling, 122 A.3d at 820.
       323
             Holland, Delaware State Constitution at 10-11.
       324
             Dismissal Ruling, 122 A.3d at 821.
       325
             Id. at 820.
       326
           The intervening Constitution of 1831 made relatively minor changes to the
Constitution of 1792, which principally involved reorganizing the judiciary. Holland,
Delaware State Constitution at 12-13. The Constitution of 1831 is thus “better seen as a
modification of the 1792 Constitution.” Id. at 15.
       327
          See, e.g., id. 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 45, 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, at 58 [hereinafter Delaware
Constitutional Convention of 1897], in First 100 Years 55, (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”); Rodman
Ward Jr. & Paul J. Lockwood, Bill of Rights: Article I [hereinafter Bill of Rights], in First

                                             87
election politics, which had been a powerful impetus for calling the convention, were never

far from [the delegates’] minds.”328 One of the convention’s standing committees was the

Committee on Securing the Purity of the Ballot.329

       Despite their focus on electoral issues, the delegates did not make changes to the

Elections Clause. 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.330

Rather than changing the Declaration of Rights, they addressed elections elsewhere.331

       One key provision became Section 7 of Article V of the Constitution of 1897 (the

“Anti-Bribery Clause”), which defined substantive election offenses and fixed the penalties




100 Years 73, 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 121, 123 (“The period immediately preceding
the convention was noted by some historians as a time of political scandal, particularly in
the election process.”).
       328
          Delaware Constitutional Convention of 1897, 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.”).
       329
             Id. at 61.
       330
         4 Debates and Proceedings of the Constitutional Convention of the State of
Delaware 2386 (1958).
       331
             Delaware Constitutional Convention of 1897, at 64; Bill of Rights at 80-81.


                                              88
for violations. It stated:

       Every person who either in or out of the State shall receive or accept, 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 . . . 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 shall further for
       a term of ten years next following said person’s sentence, be incapable of
       voting at any such general, special, municipal or primary election or
       convention or meeting . . . .332

Under this clause, it became a constitutional offense to provide money or any other

valuable thing as a means of influencing in any manner the giving or withholding of votes.

       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.”333

       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.334




       332
             Del. Const. art. V, § 7 (amended 1999).
       333
             John A. Munroe, History of Delaware 173 (5th ed. 2010).
       334
             Id.


                                              89
“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.”335

       The 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.336

To address these practices, the Anti-Bribery Clause made it a constitutional offence to use

“any money or other valuable thing” to “influenc[e]” voting or as a “compensation,

inducement or reward” for voting.337 A violation of the Anti-Bribery Clause does not

require a “corrupt motive.”338



       335
             Dismissal Ruling, 122 A.3d at 823.
       336
           Munroe, History of Delaware at 173; see Delaware Constitutional Convention
of 1897, 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”).
       337
             Del. Const. art. V, § 7.
       338
           State v. Collins, 42 A. 619, 622 (Del. Ct. Gen. Sess. 1898); see Holland,
Delaware State Constitution at 203. 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.” See 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 election.”). By its plain
language, the Anti-Bribery Clause would seem to apply to a school referendum. But as

                                                 90
       When the delegates adopted the Anti-Bribery Clause, statutes proscribing bribery in

elections already existed in Delaware. “Despite the existence of these statutes, the delegates

to the Constitutional Convention of 1896-97 regarded the integrity of elections as a serious

problem.”339 So they made it a constitutional criminal office to provide “any money or

other valuable thing” as a “compensation, inducement or reward” for voting.340

       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 in

response to widespread nineteenth-century practices in which voters received items of

value in return for votes. The legislative history indicates that that an election in which

certain voters receive an inducement for voting is not “free and equal.”




noted in the Dismissal Ruling, the Delaware Attorney General opined in 2006 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 relied on the text of the Anti-Bribery
Clause, without discussing the authority that refers 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 in “any
general, special or municipal election,” 15 Del. C. § 5162, creating tension with the
opinion’s prior analysis of the Anti-Bribery Clause.
       339
             Dismissal Ruling, 122 A.3d at 825; see id. at 824-25 (discussing statutes).
       340
           The delegates removed the right of jury trial for the constitutionalized criminal
offense. “Although it seems to be little more than a historical anecdote today, [this] may
have been the most vigorously debated section of the 1897 Constitution.” Bill of Rights at
80; see id. at 81-82. The delegates resisted limiting the fundamental right to trial by jury,
but they ultimately regarded the step as necessary “because juries were unwilling to convict
in political cases.” Id. at 80 (citing 1 Debates and Proceedings of the Constitutional
Convention of the State of Delaware 503 (1958)).


                                               91
                     iii.   Related Statutory Frameworks

       The Delaware statutory frameworks that govern elections also provide guidance for

applying the Elections Clause. Civil and criminal statutes that regulate elections reflect

public policy determinations about what free and equal elections should look like. Criminal

statutes in particular provide evidence of the floor for permissible electoral conduct.341 In

other areas of the law, courts have used criminal statutes to inform how the civil law should

apply342 and to flesh out constitutional parameters.343

       Delaware has several statutory frameworks for challenging particular types of

elections.344 For most elected offices, the statutory procedure permits the losing candidate

to challenge the election “[w]hen the person whose right is contested has given to any

elector . . . any bribe or reward or shall have offered any bribe or reward for the purpose of



       341
           To reiterate a point made in the Dismissal Ruling, 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.”).
       342
           See Dismissal Ruling, 122 A.3d at 843 (discussing role of criminal statutes in
establishing the standard for negligence).
       343
           See id. (discussing judicial consideration of criminal statutes to determine scope
of the right to privacy).
       344
          See 15 Del. C. § 5901 (challenge to election as member of General Assembly);
15 Del. C. § 5921 (challenge to election of persons chosen as electors of the President or
Vice President of the United States); 15 Del. C. § 5941 (challenge to other offices).


                                             92
procuring his or her election.”345 This provision 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.”346 Widespread conduct that violates the provisions of Title 15 is therefore

inconsistent with the “right to free and equal elections.” It follows that an election in which

one side provides voters with widespread rewards for voting violates the Elections Clause.

       Title 14 of the Delaware Code proscribes certain conduct in school elections. It

includes the following prohibition:

       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
       . . . .347

Based on this provision, if a participant in a school election has engaged in a widespread

practice of providing “any money or other valuable thing” as an inducement for voting,

then the election has not been “free and equal” under the Elections Clause.

       As with the evolution of the Delaware Constitution, the statutory schemes governing

elections indicate that the Elections Clause prohibits inducements to vote. An election in




       345
             15 Del. C. § 5941.
       346
             15 Del. C. § 101A.
       347
         14 Del. C. § 1079(a). The statute permits a resident who has been challenged
under the statute to vote if the person executes an oath or affirmation attesting to
compliance with the statute. 14 Del. C. § 1079(a)-(b).


                                              93
which certain voters receive money or other valuable things as an inducement for voting is

not “free and equal.”

               b.    Application To The Trial Record

      The Family-Focused Events provided parents of Red Clay students with an

inducement to go to the polls and vote in the Special Election. The inducements did not

appeal to other parts of the electorate. As such, the Family-Focused Events functioned as

targeted rewards for voting and violated the Elections Clause.

      From the outset, the Family-Focused Events were a central part of Red Clay’s

campaign strategy. Superintendent Daugherty required that all Red Clay principals attend

the campaign kick-off meeting on November 6, 2014,348 when the principals were told that

they “needed to have an event” on the day of the Special Election.349 They also were told

that each school would have a parent leader whose responsibilities included “[w]orking

with Principals for Referendum Day Events.”350 Ammann required that each principal

submit a School Referendum Plan that included “school activities planned for the day of




      348
            JX 28 (Superintendent Daugherty telling all principals to attend); Tr. 114
(Penoyer testifying that she understood the meeting was mandatory); Tr. 489 (Mathis
testifying that he only attended because it was mandatory).
      349
          Tr. 114 (Penoyer testifying that her understanding from the meeting was that
“every school needed to have an event on the day of the referendum”).
      350
            JX 25 at D2556.


                                           94
the 2015 Referendum.”351 Every school principal submitted a plan.352 Ammann reviewed

the plans, approved them or asked for changes, then forwarded them to Johnson.353

       Every school that was a polling place held at least one—and typically two or more—

Family-Focused Events.354 The one school that was not designated as a polling place did

not hold any family-oriented events on the day of the referendum.355 The principal of that

school explained in his School Referendum Plan, “Since we are not a polling site, I will

support [Stanton] for any activities.”356

       In total, the Red Clay schools held seventy-five Family-Focused Events on the day

of the referendum.357 These events were intended to bring parents into the schools to

vote.358 They were not designed to appeal to the community in general. Baltz held a




       351
             See JX 307 (compilation of all plans).
       352
             Tr. 625, 628 (Ammann).
       353
             Tr. 595-98 (Ammann).
       354
             JX 301; Tr. 625 (Ammann).
       355
          PTO ¶ 28; see Tr. 624-26 (Ammann testifying that the principal of the one school
that was not designated as a polling place reallocated resources to supporting two of the
schools that were polling places in hosting their events).
       356
             JX 307 at D3716.
       357
          See JX 301(spreadsheet identifying events, target audience, likely attendance,
and other details).
       358
          See Daugherty Dep. 203 (confirming that the Family-Focused Events were “get
out the vote events”); JX 176 at D14676 (Superintendent Daugherty referring to Family-
Focused Events as “[g]et out the vote activities”); JX 56 (principal of A.I. duPont writing
in his School Referendum Plan, “We will find opportunities during the studnet [sic] day to
draw families in”); JX 102 (teacher at Heritage explaining to parent that the “Author’s

                                              95
“Pajama Jammie Jam”—a pajama dance party with pizza and raffles.359 Other evening

events similarly targeted students and their families, such as “Bedtime Stories,” a “Winter

Blues Beach Bingo,” a “Winter Carnival,” and “Family Fun Night.”360

       Some Family-Focused Events were nominally open to the public, but Red Clay did

not expect them to attract anyone other than students and their families.361 Of the seventy-

five Family-Focused Events, only three identified the “community” or the “public” as part

of their event’s target audience.362 Some events, like the Pajama Jammie Jam, were closed

to the public due to security concerns.363

       Although all of the Family-Focused Events functioned as rewards for parents to visit

the polls, some schools offered more tangible rewards. One example was the “no-uniform”

passes at Richardson Park. Each student received one no-uniform pass for each “voting




Teas” were “one of the activities to help get parents in to school so they will vote in the
referendum”); JX 313 at D20467 (Johnson stressing that during the Family-Focused
Events, principals should be “reminding your families to go into that poll and vote!”); Tr.
351 (Johnson confirming that she “didn’t want any parents to come to an event and then
leave without voting”).
       359
             Tr. 120, 125 (Penoyer).
       360
             See JX 301; JX 234; JX 235.
       361
           JX 185 (Nash acknowledging that “I don’t know [that people without children in
the district] would, you know, have a desire to come to Family Bingo Night”); Tr. 186-87
(same).
       362
             JX 301.
       363
             Tr. 123, 145-46 (Penoyer).


                                             96
adult.”364 There was no limit on how many passes a child could accumulate, so if a child

brought four voting adults, the child received four passes.365 The principal explained that

because Richardson Park was a uniform school, the “no-uniform pass” was perhaps the

most valuable reward he could provide for his students.366 He believed the passes also

served as a reward for the students’ families, because one of the no-uniform days was

“Picture Day,” which provided “a chance for families to get their child’s picture out of

uniform!”367 Richardson Park also offered prizes in its bingo games valued at over $1,000.

The principal believed that the passes, prizes, and activities would “make it a very

incentivized night for parents and kids to come out.”368

       Baltz took a similar approach. When a family entered the school, they received a

checklist with boxes for “I Ate, I Voted, I Danced.” Below the boxes were lines for the

“Student Name,” the “Parent Name,” and a phone number.369 One of the purposes of the

card was to give each family a list of things to do.370 Teachers and staff had stamps to check




       364
         Tr. 491, 494 (Mathis); see JX 66; JX 80; JX 108; see also Tr. 494-95 (Mathis)
(Q: “And if a parent didn’t vote, they didn’t get a pass. Correct?” A: “Technically.”).
       365
             Tr. 494-95 (Mathis); see JX 108 (“[I]t will be 1 free uniform pass for each voting
adult . . . 4 adults – 4 passes . . . .”).
       366
             See Tr. 492-94 (Mathis testifying about importance of pass).
       367
             JX 108; Tr. 495 (Mathis).
       368
             JX 66.
       369
             JX 275.
       370
             Tr. 125, 126-27 (Penoyer).


                                              97
off items on the card. At the end of the night, the completed checklists doubled as raffle

tickets.371 Although the Baltz principal denied that families had to check off all three boxes

to enter the raffle, a community witness testified that adults near the voting area were

checking off the boxes, and other adults were asking the children whether their parents

voted before they entered the line for free pizza.372

       The trial record established that the Family-Focused Events operated as a targeted

reward that induced parents of Red Clay students to vote. As such, they violated the

Elections Clause.

       2.       The Family-Focused Events As Impediments To Voting

       The Family-Focused Events also operated as impediments to voting by the elderly

and disabled. Through this mechanism, they violated the Elections Clause.

                a.     The Relevant Content Of The Elections Clause

       The Elections Clause prohibits widespread impediments to voting. An election in

which a government inhibits voting by particular groups is neither fair nor equal. That is

particularly true when the group is part of a protected class, like the elderly and disabled.373




       371
             JX 275; Tr. 124-25 (Penoyer).
       372
           Compare, e.g., Tr. 127 (Penoyer) (“[It] didn’t have to be all checked. It doesn’t
matter. It’s elementary school. . . . [T]hey can check it, or they don’t have to check it.”),
with Tr. 302-03 (McHugh) (“[T]here was a woman standing there talking as people came
out with their children to make sure—I don’t know the exact words, but something to the
effect of, you know, ‘Did your parents vote?’ You know, ‘Here’s your ticket and’—to go
in and get pizza.”).
       373
             See 6 Del. C. § 4504(a).


                                              98
The conclusion that the Elections Clause prohibits widespread impediments to voting flows

from multiple sources.

                           i.   Traditional Legal Authorities

       Both case law and analogous statutory frameworks indicate that a government

violates the Elections Clause when it inhibits voting by particular groups. The first source

is the Abbott decision, which held that the purpose of the Elections Clause is “to ensure

that the right of citizens to vote in an election is unfettered.”374 The court dismissed the

claim in that case because the candidate had not alleged that voters’ “access to the polls

was disturbed”375 The Abbott decision indicates that sufficiently serious and widespread

impediments to accessing the polls could result in an election that was not “free and equal.”

       Another source of authority is Section 1087 of Title 14, which prohibits

“[e]lectioneering as described in § 4942 of Title 15 . . . in any public school election.”376

Section 4942(a) of Title 15 states:

       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.377




       374
          Abbott, 2008 WL 821522, at *19 (citing State ex rel. James v. Battersby, 56 A.2d
527, 532 (Del. Super. 1947)).
       375
             Id. at *20.
       376
             14 Del. C. § 1087.
       377
             15 Del. C. § 4942(a) (the “Anti-Electioneering Statute”).


                                              99
Under the statute, electioneering includes but is not limited to

       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.378

Based on this provision, when widespread electioneering interferes with voters’ ability to

access the polls, the election has not been “free and equal” for purposes of the Elections

Clause.379

                       ii.    Evidence of Custom and Practice

       An equally important source of authority regarding impediments to voting is

Delaware custom and practice.380 Barbara Lippincott of the Department of Elections



       378
             15 Del. C. § 4942.
       379
             Dismissal Ruling, 122 A.3d at 845.
       380
           See Agostini v. Colonial Tr. Co., 44 A.2d 21, 22 n.1 (Del. Ch. 1945) (“[T]he
existence of a usage or custom may call for, and influence, a construction of the statute.”);
see also In Re Adoption of Keith M.W., 79 P.3d 623, 637 (Alaska 2003) (Matthews, J.
concurring) (“The meaning attached by people affected by an act may have an important
bearing on how it is construed.” (citation and quotation marks omitted)); Bd. of Exam’rs in
Optometry v. Spitz, 479 A.2d 363, 370-71 (Md. 1984) (“In this case, the Court is faced with
an ambiguous statute that has been given a long-standing interpretation by those affected
by it and arguably by the public at large . . . . Such long-standing practice should not be
disturbed in the absence of an unambiguous statute.”); People v. Nguyen, 161 Cal. App.3d
687, 692 (Cal. Ct. App. 1984) (“Requisite standards of certainty can often be fleshed out
from otherwise vague statutory language by reference to . . . long established or commonly
accepted usage . . . .” (internal alterations and quotations omitted)); Hennessey v. Pers. Fin.
Corp. of New York, 26 N.Y.S.2d 1012 (N.Y. Sup. Ct. 1941) (“A practical construction
given a statute by the public generally, as indicated by a uniform course of conduct over a
considerable period of time, and acquiesced in and approved by a public official charged
with the duty of enforcing the act, is entitled to great weight in . . . interpretation.”); 2A

                                              100
testified at trial. She has overseen thirty-five school referendums since 1999, including the

Special Election.381

       To govern the use of Red Clay schools as polling places, the Department of

Elections and Red Clay entered into a “standard polling place contract” for each of the

schools where voting took place.382 Lippincott explained that under the contracts, schools

are permitted to have events during the referendum, and the Department of Elections

understands that “generally events will be held on the day of [a] referendum.” 383 This

makes sense, because a school referendum does not take place on a weekend or holiday.

School is in session, and school activities continue.

       Each polling place contract provides, however, that any activities conducted in the

building designated as a polling place must not “interfere with the voting process.”384 Each

contract likewise provides that the activities cannot “hinder[] access to the voting area

and/or building.”385 Lippincott confirmed that a school cannot “hold an activity that




Norman J Singer & Shambie Singer, Sutherland Statutes and Statutory Construction § 49.5
(7th ed. 2008) (“[C]ourts look to ‘established usage’ and the meaning attached by people
affected by an act, and the public at large, for persuasive interpretative guidance.”
(footnotes omitted)).
       381
             Tr. 379, 390 (Lippincott).
       382
             Id. at 392; see JX 282 (compiling contracts).
       383
             Tr. 396 (Lippincott).
       384
             JX 282.
       385
             Id.


                                              101
interferes with the voting process.”386 She similarly confirmed that the “activities within

the building also cannot hinder access to the voting area and/or the building.”387 During the

lead-up to the Special Election, Lippincott warned Ammann against conflicts between

activities at the schools and the voting process.388

       The standard polling place agreements and the Department of Elections’ custom and

practice make clear that the limitation on obstructing voter access applies to any entrance

to the building where the voting room is located and requires a fifty-foot electioneering-

free zone around the voting room, including inside the building where the voting room is

located. Each of the polling place agreements designated the school building as the polling

place for purposes of the Special Election.389 Lippincott agreed that for the Special




       386
             Tr. 398; accord id. at 399.
       387
             Id.
       388
             JX 36; see Tr. 400-01 (Lippincott).
       389
           Each contract began by listing the school and its street address, then included the
following text: “We hereby agree to permit the above named building to be used as a
polling place for the RED CLAY CONSOLIDATED SCHOOL DISTRICT
REFERNDUM.” JX 282. Other Delaware statutes similarly indicate that when an election
statute refers to a “polling place,” it means the building as a whole where voting will take
place. 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”);
14 Del. C. § 1082 (describing procedures for voters “at the polling place”); 14 Del. C. §
1088 (identifying the persons who shall be “admitted within the voting room”).


                                              102
Election, each school building was the operative polling place.390 Each of the polling place

agreements also specified that electioneering cannot take place “within 50 feet of any

entrance to the building in which the voting area is located.”391 This restriction applied by

its terms to any entrance to the building, not just those specifically designated for use by

voters. Lippincott confirmed that the ban on electioneering applied not only to the specific

entrances designated for voting, but to “any entrance used by a voter.”392

       Each of the polling place agreements further specified that any activities held in the

buildings could not involve “[g]atherings advocating or opposing any proposal or candidate

on the ballot.”393 Lippincott agreed that the ban on electioneering is “not just limited to the

area outside the building.”394 Lippincott further agreed that because the tax increase was a

proposal on the ballot for the Special Election, an event advocating in favor of the proposal

should not have been held in a school that was designated as a polling place.395

       Lippincott also explained that the need to ensure access to the polls extends to

parking. The Department of Elections expects that the spaces designated for voters will be

reserved for voters and not used by individuals attending other activities at the polling



       390
             Tr. 398-99.
       391
             JX 282.
       392
             Tr. 388.
       393
             JX 282.
       394
             Tr. 407.
       395
             Tr. 406-07.


                                             103
place.396 When communicating with Ammann about the spots, Lippincott instructed

Ammann to monitor the spaces “so that event attendees will not occupy those spaces.” 397

       Lippincott’s testimony and the content of the polling place agreements indicate that

an election is not “free and equal” when a government holds gatherings inside the buildings

designated as polling places, on the day of the election, that promote the government’s

position on an issue being considered by the voters. Gatherings of this type interfere with

the ability of electors to vote by turning the polling places into partisan outposts. The

interference becomes more pronounced when residents are subjected to electioneering

activities from within the polling places. The same sources indicate that an election is not

“free and equal” when widespread activities inside the polling places have the practical

effect of impeding physical access to the polls.

                b.     The Family-Focused Events Interfered With Voter Access.

       The plaintiffs proved at trial that the Family-Focused Events interfered with voter

access to a degree that violated the Elections Clause. The Family-Focused Events were

partisan gatherings held in polling places on the day of the election, they resulted in

electioneering activity inside the polling places, and they produced parking problems that

hampered the ability of the elderly and disabled to access the polls.




       396
          Tr. 402-03 (Lippincott). “[T]he voter spots are only for people while they are
actively voting. If they are going to be going to an event, they should park in a voter spot,
go in and vote, and then they come out and move their car . . . .” Id.
       397
             JX 121.


                                            104
       In substance, the Family-Focused Events were partisan gatherings. Red Clay held

the seventy-five Family-Focused Events on the day of the Special Election in the school

buildings designated as polling places. The events were designed to support the tax increase

that was on the ballot, contrary to the terms of the polling place agreements.

       They Family-Focused Events involved electioneering activity inside the polling

places and within fifty feet of the entrances to the polling places. One clear example was

the “Support the Baltz Bear” sign that the Baltz principal placed behind a table at the main

entrance to the school, despite knowing that voters often used that entrance.398 Another

example took place at Richardson Park, where the principal recruited parents to tell other

parents to vote “YES” and encourage them to bring other “positive voters” to the polls.399

He also instructed his teachers to “mingle” with parents “to make sure they voted” and to

“say how passing the referendum will help children” because “[h]aving someone ask if

they voted yet and telling the importance of the vote and how little time it will take to make

a difference for students is important.”400




       398
          JX 162; Tr. 133-34, 136 (Penoyer). Red Clay has argued that the sign was more
than 100 feet from the actual voting room and was not near the entrance that the Department
of Elections officially designated for use by voters. Tr. 607 (Amman); JX 323. The Red
Clay agreements and the Department of Elections’ custom and practice prohibited signage
and other electioneering activities within fifty feet of any door to the polling place, i.e., the
school building, that could be used by voters.
       399
             Tr. 500-01, 505, 507-08 (Mathis); JX 108.
       400
          JX 140; accord Tr. 505, 507 (agreeing that “it is harder to say no to someone
who is directly asking you, essentially, ‘Is your child important enough to take 5 minutes
to vote?’”).


                                              105
       Red Clay did not present any evidence suggesting that these were the actions of two

rogue principals. Ammann himself approved the placement of the Baltz sign using an

overly narrow interpretation in which electioneering only was prohibited within fifty feet

of an entrance specifically designated for use by voters.401 Recruiting parents to promote

the tax increase was part of the Steering Committee’s plan to drive pro-referendum

communications through parent volunteers.402 From a big picture standpoint, the whole

purpose of holding seventy-five Family-Focused Events was to support Red Clay’s

preferred outcome.

       The Family-Focused Events also interfered with the voting process by hindering the

ability of elderly and disabled residents to access the polls. Thousands of students and their

family members attended the Family-Focused Events, with many of the evening events

drawing hundreds of people.403 The Family-Focused Events resulted in packed parking lots

that prevented elderly and disabled residents from finding accessible parking.

       The plaintiffs presented unrebutted testimony about parking congestion at seven

different schools.404 They also presented unrebutted testimony that the congestion



       401
             Tr. 606 (Ammann).
       402
             See Tr. 195, 198-99 (Nash).
       403
             JX 301.
       404
           Tr. 8-10 (Young testifying about North Star); Tr. 27-28, 34, 53-54 (Hudson
testifying about Marbrook); Tr. 89-90 (O’Neill testifying about Marbrook); Tr. 73-74
(Pickering testifying about H.B. duPont and Skyline); Tr. 97-101 (Fitzpatrick testifying
about Linden Hill); Tr. 148-53 (Schnell testifying about McKean); Tr. 163-69 (Boyle
testifying about Brandywine Springs).


                                             106
prevented would-be voters from casting ballots.405 Despite having employees at every

school that was a polling place, Red Clay did not present any persuasive evidence to the

contrary. Red Clay’s own attendance estimates supported the plaintiffs’ contentions. For

example, Richardson Park’s parking lot could hold about 150 to 200 cars.406

Approximately 300 people attended the bingo and movie night,407 or enough to fill the

parking lot. Other evening events similarly drew hundreds of people.408

       Red Clay did not fulfill its obligation to monitor the parking spaces designated for

voters. Superintendent Daugherty testified that Red Clay did not monitor who was using

the parking spaces.409 Ammann admitted that he did not instruct the principals to monitor

the parking situation.410 The plaintiffs proved that parking problems prevented some

elderly and disabled residents from voting.411




         Tr. 8-11 (Young); Tr. 89-90 (O’Neill). This decision does not rely on Pickering’s
       405

testimony about his parents’ decision not to vote, which is hearsay. Tr. 73 (Pickering).
       406
             Tr. 488 (Mathis).
       407
             JX 301; Tr. 499 (Mathis).
       408
             See JX 301.
       409
             Daugherty Dep. 205.
       410
         Tr. 632 (Ammann testifying that he did not speak with the principals about
monitoring parking access). As discussed in the Statement of Facts, Ammann testified that
he instructed the custodial staff to monitor the parking lots, but there is no
contemporaneous evidence that he gave that instruction, and Ammann uses email as a
primary means of communication.
       411
             Tr. 8-11 (Young); Tr. 88-89 (O’Neill).


                                             107
       An election is not “free and equal” when one side holds partisan events in the polling

places on election day, when the events subject voters to electioneering within the polling

places themselves, and when the events interfere with the ability of elderly and disabled

residents to access the polls. Consequently, regardless of whether or not the Family-

Focused Events operated as impermissible rewards for voting, the Family-Focused Events

violated the Elections Clause.

       3.       The Family-Focused Events As A Delaware Tradition

       In a final effort to justify the Family-Focused Events, Red Clay called its former

superintendent, Robert Andrzejewski, as an expert witness. Andrzejewski currently serves

as superintendent of the Christina School District and has presided over six referendums.

He opined that it is “standard practice for referendum campaigns across the State of

Delaware [to] include get-out-the-vote activities and voting by eligible students.”412

       As one example, Andrzejewski cited an event held in the Smyrna School District

called “I Love the Smyrna School District Day.” He explained that on that day,

       the entire community is invited to a celebration of Smyrna schools, at the
       same time of which the referendum ballots are cast. The voting, the polls are
       open beyond the activity. However, that’s a significant activity that that
       district uses to generate excitement around their schools, and hopefully the
       people come out to support their community.413




       412
             Tr. 515.
       413
             Id. at 522-23.


                                            108
On cross-examination, however, Andrzejewski conceded that the Smyrna day event was

not held at a school that served as a polling place.414 It therefore did not provide an

inducement for families to come to a polling place and vote, nor did it operate as an

impediment to voting.

       As his second example, Andrzejewski cited an event held in the Caesar Rodney

School District called “Rider Pride Day.”

       It was on homecoming day, and it was reported that thousands of people
       came out to celebrate the school and homecoming and everything the same
       day that the polls were open for a referendum vote. 415

Once again, on cross-examination, Andrzejewski conceded that the Rider Pride Day event

was not held at a school that served as a polling place.416 It therefore did not provide an

inducement for families to come to a polling place and vote, nor did it create an impediment

to voting.

       Red Clay did not provide any evidence of other school districts that have held

widespread events on the day of a special election, in the schools that served as polling

places, that were designed to draw parents and families of students to the polls. The

plaintiffs submitted evidence that the Brandywine School District held a referendum after

the Special Election and did not hold Family-Focused Events.417



       414
             Id. at 534-35.
       415
             Id. at 523.
       416
             Id. at 535-36.
       417
             See JX 291; JX 292; JX 293; JX 294; JX 295; JX 296; JX 297; JX 298.


                                            109
       Andrzejewski testified persuasively that other Delaware school districts hold events

to support their referendums. His testimony did not establish that other Delaware school

districts run top-down campaigns that involve holding widespread events that will appeal

to parents in the schools that serve as polling places on the day of the referendum and which

create impediments for the elderly and disabled.

       This decision concludes that Red Clay violated the Elections Clause by holding the

seventy-five Family-Focused Events on the day of the Special Election in the schools that

served as polling places. The analysis in this decision does not affect the ability of a school

district to hold pro-referendum events on the day of the election in locations that are not

polling places. It also does not affect the ability of a school district to hold pro-referendum

events in locations that are polling places on days other than election day.

D.     Red Clay’s Government Campaign Speech

       Red Clay’s other electoral interventions all involve government campaign speech.

Brennan remains the controlling Delaware Supreme Court precedent on government

campaign speech during a school referendum. In that decision, the Delaware Supreme

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.”418 The Delaware Supreme Court also held that the school district’s

speech should not venture “beyond [a] factual presentation” to the point of “overstatement




       418
             104 A.2d at 790.


                                             110
and emotional appeals.”419 The Dismissal Ruling argued for a more relaxed application of

the principle for purposes of broadly directed campaign speech that is factually accurate

and which openly identifies its source.

        Red Clay’s government campaign speech exceeded these limitations, whether under

Brennan or the more relaxed approach recommended by the Dismissal Ruling. Red Clay

engaged in a full-scale political campaign that included extensive campaign speech

targeted at both identified groups and individuals. At the same time, Red Clay took steps

to avoid communicating with the electorate as a whole so that the election would not

become a debate. Red Clay’s disproportionate efforts to mobilize supportive voters meant

that the Special Election was not “free and equal” as required by the Elections Clause.

                    1.   The Brennan Decision

        The Brennan case concerned steps that the Mount Pleasant School District took to

promote a school bond referendum. Voters who opposed the tax increase challenged the

district’s activities.

        In describing the district’s conduct, the Delaware Supreme Court first recounted

examples of broadly directed campaign speech:

        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




        419
              Id.


                                            111
       certain school officials. Publicity was given prior to these meetings by
       statements in the public press, and by circulars . . . .420

The high court characterized these activities as “entirely appropriate and desirable.”421

       The Delaware Supreme Court next described what appears to have been instances

of targeted campaign speech:

       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 its 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 such language as to appeal to
       the natural desire of parents for good education for their children.422

The Delaware Supreme Court cautioned against the level of rhetoric in these

communications:

       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.423




       420
             Id.
       421
             Id.
       422
             Id.
       423
             Id.


                                             112
Although it is not fully clear from the opinion, the Delaware Supreme Court appears to

have been concerned about both the extent of the district’s advocacy and its appeal to

parents as an identifiable group.

       In ruling on the propriety of these communications, the Delaware Supreme Court

largely followed decisions from other jurisdictions that had limited the government’s

ability to engage in partisan campaign speech during a referendum. The leading decision

was Citizens to Protect Public Funds v. Board of Education,424 an influential opinion

written by future United States Supreme Court Justice William Brennan while serving on

the New Jersey Supreme Court. In Citizens, a school board decided to issue bonds to

finance the expansion of several school buildings. The bond issuance required a favorable

vote. The school board spent public funds to print and disseminate an eighteen-page

booklet urging voters to “Vote Yes,” with an additional page providing a list of bleak

consequences in response to the question, “What Will Happen If You Don’t Vote Yes?”425

A group that opposed the bond issue alleged that the school district had violated New Jersey

law.

       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


       424
             98 A.2d 673 (N.J. 1953).
       425
             Id. at 674.


                                            113
       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.426

Despite rejecting the school board’s ability to engage in advocacy, the New Jersey Supreme

Court did not insist that the government 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.”427 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




       426
           Id. 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.
       427
           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.


                                            114
radio advertisements that presented both sides’ views on the building expansion. 428 But

using government money to try to convince voters to “Vote Yes” was not fair to those who

wanted to “Vote No.”429

       In Brennan, the Delaware Supreme Court held that “[a] Board of Education charged

with the duty of managing the public schools in its district, maintaining them in good

condition, and providing for necessary improvements and expansion of the school system,




       428
             98 A.2d at 676.
       429
           Id. at 677. Another leading example of this approach is Stanson v. Mott, 551 P.2d
1 (Cal. 1976) (en banc), which relied heavily on Citizens. The Mott decision held that a
government agency could not engage in advocacy in connection with a bond referendum,
but could expend funds “to provide the public with a ‘fair presentation’ of relevant
information” relating to the issue under consideration. Id. at 11. The Mott 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.

       [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. at 12 (footnote omitted).


                                            115
is not prevented from using reasonable publicity to bring the issues before the voters.”430

The school district thus could engage in factual, broadly directed campaign speech. Relying

on Citizens, however, the Delaware Supreme Court indicated that the district’s more

partisan campaign speech went too far:

       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.431

The Delaware Supreme Court viewed the more targeted communications in Brennan as a

form of excessive advocacy.

       On the facts of Brennan, however, the Delaware Supreme Court declined to set aside

the election. In reaching this outcome, the Brennan opinion stressed the involvement of a

competing campaign that actively opposed the district’s efforts:

       At the same time that the Board was circularizing the voters an organization
       of taxpayers opposed to the referendum was likewise conducting a campaign
       and was also circularizing the voters. It is a fair inference that upon the whole
       the issue was fairly presented and debated. 432




       430
             104 A.2d at 790.
       431
             Id.
       432
             Id. at 790-91.


                                             116
The Delaware Supreme Court concluded that there was “no showing whatever that the

voters were improperly influenced in any way.”433 The high court therefore allowed the

election result to stand.

       2.          The Dismissal Ruling’s Proposed Update Of Brennan

       The Dismissal Ruling suggested that the Delaware Supreme Court as currently

constituted could be inclined to revisit Brennan and relax the restrictions on advocacy

articulated in that case. My reasoning boiled down to the societal developments that have

taken place during the intervening sixty-four years:

       I suspect that in today’s news-and-advertisement-saturated age, the Delaware
       Supreme Court would expand the [limitations set out in Brennan]. 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 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



       433
             Id.


                                            117
      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. A government speaker still might go too far, but it would require
      more extreme communications.434

The Dismissal Ruling nevertheless followed Brennan for purposes of analyzing Red Clay’s

motion to dismiss.435

      3.       Too Much Partisan Advocacy

      The plaintiffs did not continue after the pleading stage to object to the tone of Red

Clay’s campaign speech. They focused on challenging the targeted nature of Red Clay’s

speech. In essence, they contended that Red Clay violated the Elections Clause by running

a partisan “stealth campaign” directed primarily at the groups and individuals whom Red

Clay believed would support the tax increase.

      The Brennan decision recognized that a government can violate the Elections

Clause by engaging too vigorously in partisan advocacy. The question of “how much” is

invariably fact-specific. As Brennan demonstrates, it can also depend on the extent of an

organized opposition. When an organized opposition engages in partisan advocacy, the

government has greater freedom to respond with partisan advocacy of its own.




      434
            Id. at 852-53 (citations omitted).
      435
            Id. at 853-54.


                                                 118
       The plaintiffs proved at trial that Red Clay violated the Elections Clause because of

the profound imbalance between Red Clay’s intense engagement with targeted groups and

its relatively minimal efforts to engage with the electorate as a whole. Red Clay’s effort to

avoid engaging with other identifiable groups, such as the elderly, accentuated the

imbalance. This is a fact-specific holding.

       Red Clay launched its campaign on November 6, 2014, when the core team held its

initial meeting with the members of the Steering Committee and the Red Clay principals.436

The campaign stressed focusing on favorable groups while avoiding other voters.437 One

of the speakers gave an example of a senior citizen on a fixed income as a “NO” voter with

whom there was “no point” in engaging.438 The Steering Committee co-chair wrote to

others on the core team that she understood the campaign would “not . . . reach out to

[retired] folks as they could bring out the no vote.”439

       Red Clay spent November, December, and January priming its favored groups with

communications about the referendum. During this period, each school engaged in a

telephone campaign to locate its goal number of parents who would vote “YES.” The script



       436
          See JX 28 (Superintendent Daugherty mandating attendance by principals); Tr.
114 (Baltz principal testifying that she understood the meeting was mandatory for all Red
Clay principals); Tr. 489 (Richardson Park principal testifying that he only attended the
meeting because it was mandatory).
       437
         See JX 25 at D2555 (campaign strategy slide listing one of four key planks as
“[w]ork on the Yes not the No”).
       438
             Tr. 675 (Floore).
       439
             JX 310 at D8610.


                                              119
for the calls was explicitly pro-referendum and instructed callers to ask parents to vote for

the tax increase.440 The callers only gave polling information to “YES” voters.441 Red Clay

followed up with the “YES” voters “to remind the ‘yes’ voters to vote,” but did “not call

back folks that said they are voting ‘no.’”442

       Red Clay also targeted parents of Red Clay students with other communications,

such as letters, flyers, emails, and materials stuffed inside student report cards. Promotional

efforts involved attaching “VOTE” stickers to elementary school children and having

district employees and parents pass out “push cards” at the drop-off and pickup lines on

the day of the Special Election.443 Red Clay schools also used their automated alert system

to remind parents to come to the schools on the day of the Special Election.444

       Red Clay focused on parents because those voters were most likely to support a tax

increase.445 When Red Clay voluntarily looked beyond parents, it focused on other



       440
             See JX 311 (“Can we count on you supporting Red Clay schools on February
24th?”).
       441
          See id. (telling “YES” voters but not others “that polls are open from 10 a.m. to
8 p.m. and you can vote at any Red Clay school”); Tr. 209-11 (Nash).
       442
             JX 313.
       443
             Tr. 213-15 (Nash); Tr. 490 (Mathis); Tr. 628-31 (Ammann); JX 227; JX 247.
       444
             Tr. 121-22 (Penoyer).
       445
           See, e.g., Tr. 497-98 (Richardson Park principal stating, “I believe that if
[parents] came out, they would vote yes”); Tr. 351 (Johnson acknowledging, in connection
with the events Red Clay held at all polling place schools during the Special Election, that
she “wanted parents in the schools on the day of the referendum because [she] wanted them
to vote” and she believed that “very few parents would oppose the tax increase”); Tr. 537
(Red Clay expert and former superintendent Andrzejewski agreeing that “the purpose of

                                             120
supportive groups, such as parents of future Red Clay students, Red Clay graduates, and

college educators who worked with student teachers.446

       As part of its one-sided campaign, Red Clay communicated in ways that masked the

official origins of its speech. Nash created a Facebook account called “Red Clay Parents

for Students” and a Twitter handle called “RedClayParents.”447 She ghostwrote much of

the content with no attribution to herself or the district.448 She also offered to ghostwrite

letters to the editor.449 The lack of attribution was intentional: Nash felt “it was more real

and would resonate more [with] voters if it came from parents . . . .”450 Without accurate

disclosure of source and authorship, recipients could not fairly evaluate the interests of the

speaker or the content of the communication.

       Compared to the effort that Red Clay made to reach groups that would favor the tax

increase, Red Clay did relatively little to reach out to the electorate as a whole. That does

not mean Red Clay did nothing. In August 2014, when the School Board first considered




the family friendly events in Red Clay was to get likely yes voters into the polling places”);
Tr. 180-81 (Nash agreeing that Red Clay “was targeting or prioritizing positive voters”
with certain campaign efforts). The Statement of Facts collects further evidence and makes
findings regarding this point.
       446
             JX 50; JX 104; JX 120.
       447
             JX 25 at D2558.
       448
             Tr. 197-99 (Nash); JX 106.
       449
             JX 103; Tr. 199-201 (Nash).
       450
             Tr. 194 (Nash).


                                             121
holding the Special Election, it held a workshop that was open to the public.451 In

September, a community advisory board discussed the potential referendum during a

meeting to that was open to the public, the School Board held a separate meeting to receive

input from members of the community, and the School Board again discussed the matter

during a portion of its meeting that was open to the public.452 In October, when the School

Board formally resolved to hold the Special Election, it did so during a meeting that was

open to the public.453 But these meetings did little to publicize the Special Election, and

they were qualitatively and quantitatively different than the affirmative outreach to

favorable groups that Red Clay began the following month.

       After launching its campaign in November 2014, Red Clay continued to do

relatively little to inform the electorate as a whole. In December, Red Clay sent an edition

of the Red Clay Record to all of the residents and businesses in the district.454 Red Clay

also identified the fact that the Special Election was taking place on the district website and

on the district Facebook page, and it aired some videos on the district’s educational cable

channel.455 And Red Clay representatives attended various meetings with school and

community groups, although the groups largely comprised constituencies that supported



       451
             Tr. 562-64 (Ammann).
       452
             Id. at 564-67.
       453
             Id. at 568-69.
       454
             JX 281; Tr. 329 (Johnson).
       455
             Tr. 225-26 (Nash); Tr. 330-31 (Johnson); Tr. 577, 583-86 (Ammann).


                                             122
Red Clay.456 This level of outreach did not come close to Red Clay’s efforts to contact

favorable voters. Equally important, Red Clay’s internal documents reveal that the district

tried affirmatively during this period to avoid communicating broadly or with groups that

might oppose the tax increase.457 The Red Clay team avoided contact with “random

retirees,”458 delayed sending letters to the editor that “might ‘wake up’ the ‘no’ voters,”459

resisted appearing on a radio show that was perceived as having an “anti-vote” audience,460

and stayed away from other communication channels that might trigger a public debate.461

       As a result, it was not until February 2015 that wider segments of the community

became meaningfully aware of the Special Election. In February, after the Department of




       456
           See Tr. 590-91 (Ammann) (discussing attendance at a Red Clay school resource
fair that drew Red Clay families); id. at 592-94 (discussing meeting with Delaware
Decision Makers business group, New Castle County Chamber of Commerce, and state
legislators).
       457
          See JX 25 at D2555 (describing Red Clay’s strategy as “[w]ork on the Yes not
the No”); Tr. 203-04 (Nash).
       458
             JX 309; see Tr. 352-54 (Johnson).
       459
            JX 124; accord Tr. 201 (Nash). Even after the News Journal ran a story about
the referendum in early February 2015, the team considered waiting until anti-referendum
letters to the editor appeared. See Tr. 201-03 (Nash); JX 103; JX 124. Once they did, the
team debated whether “the ‘pro’ letters would wake up even more seniors??” JX 134; Tr.
215-16 (Nash).
       460
             Tr. 219-20 (Nash); JX 135.
       461
          See Tr. 201-02 (Nash testifying that Red Clay stayed away from certain forums
to avoid alerting “no” voters); Tr. 217-19 (Nash testifying that the Steering Committee
decided against having residential yard signs to avoid alerting “no” voters to the
Referendum).


                                             123
Elections asked whether Red Clay intended to send out any district-wide communications,

Red Clay circulated another edition of the Red Clay Record.462 Unlike the December
                                                          463
edition, the February edition generated a response.             Red Clay also published the

statutorily required notices in the News Journal once a week for the four weeks before the

Special Election.464 And the School Board held another meeting that was open to the public

at which it discussed the referendum.465 These communications remained qualitatively and

quantitatively abbreviated compared to Red Clay’s engagement with favorable groups.

       Under Brennan, Red Clay violated the Elections Clause by conducting a fully

partisan, one-sided campaign. If Red Clay had faced active opposition that was engaging

in similar tactics, then its targeted campaign speech might not have violated the Elections

Clause. In this case, however, Red Clay spent three months mobilizing its supporters before

a public debate began to emerge.466




       462
             JX 280.
       463
          JX 132 (Johnson telling the Red Clay team that objections from seniors had been
“coming in since the red clay record landed”); see JX 134 (parent informing Nash that
“there were 2 [letters to the editor] in today about seniors and school tax”); id. (Nash
responding to question about whether “‘pro’ letters to the editor would wake up even more
seniors” by stating, “I think they [the seniors] are awake”).
       464
             Tr. 577-78 (Ammann); JX 271; JX 189, at 2.
       465
             JX 115; Tr. 587 (Ammann).
       466
           Once it did, then I believe Red Clay had greater license to respond. For example,
there is evidence that just before the Special Election, an opposition group made 5,000 to
6,000 automated calls urging voters to oppose the tax increase. JX 329, at 27. But for other
complicating factors in the case, the existence of those calls would have justified Red

                                            124
       Although the outcome in this case seems clear under Brennan, I do not believe that

the Elections Clause should require that a school district treat all portions of the electorate

identically during a referendum. Envision an alternative scenario in which Red Clay had

openly identified the source of all of its government campaign speech, taking that issue off

the table. If Red Clay had not conducted its telephone campaign to identify individual

“YES” voters, and as long as Red Clay sent out a communication like the December edition

of the Red Clay Record to all district residents early in the process, then I personally would

not view Red Clay’s government campaign speech as constitutionally problematic. That

view arguably conflicts with a strict reading of Brennan. For purposes of this decision, the

issue is irrelevant, because the combination of the Family-Focused Events and Red Clay’s

fully partisan campaign prevented the Special Election from being “free and equal.”

                      III.       THE REMEDIAL CALCULUS

       The plaintiffs have shown that Red Clay violated the Elections Clause. The next

issue is the appropriate remedy. One remedy the plaintiffs seek is a permanent injunction

prohibiting Red Clay from engaging in similar electoral interventions in the future. Other

potential remedies hinge on whether Red Clay’s interventions were sufficiently serious to

warrant declaring the Special Election invalid. If so, then a range of potential remedies

becomes available. Options include an order requiring the holding of a new special

election, a permanent injunction against Red Clay continuing to collect the increased taxes




Clay’s use of its School Messenger system and other school resources during the days
before the vote.


                                             125
that were approved in the Special Election, a requirement that Red Clay refund the moneys

it collected in the incorrect belief that the Special Election was valid, or various

combinations of relief.

A.     An Injunction Against Further Unconstitutional Conduct

       The plaintiffs seek a permanent injunction barring Red Clay from repeating in any

future elections the actions that this court has found unconstitutional. A permanent

injunction against future conduct is not warranted simply because a court has found past

conduct illegal. “[T]he court must presume that [parties] will respect any decision rendered

by any competent court of this State.”467 As Chief Justice Strine explained while serving

as a Vice Chancellor, a request for injunctive relief against future violation of a statute

“both trivializes equity’s role and implicitly suggests that the most powerful expression of

a societal prohibition—an express statute forbidding conduct—is somehow insufficient

without an ‘us, too’ from the judicial branch.”468 In this case, the societal prohibition is a

guarantee protected by the Declaration of Rights.




       467
          Christiana Town Ctr., LLC v. New Castle Ctr., 2003 WL 21314499, at *3 (Del.
Ch. June 6, 2003); accord Del. Bldg. & Constr. Trades Council v. Univ. of Del., 2014 WL
2218730, at *2 (Del. Ch. May 29, 2014) (holding that injunctive relief was not warranted
where a plaintiff “merely contends that, because the Defendants have purportedly not
complied with [a] statute in the past, they will continue this alleged pattern of non-
compliance” after a court order); Reeder v. Del. Dep’t of Ins., 2006 WL 510067, at *16
(Del. Ch. Feb. 24, 2006) (Strine, V.C.) (“There is no justification on this record for an
injunction requiring the Insurance Department to do what it must do in any event—comply
with applicable statutory constraints on its behavior.”).
       468
           State ex rel. Brady v. Pettinaro Enters., 870 A.2d 513, 536-37 (Del. Ch. 2005)
(Strine, V.C.).


                                             126
       Courts will only enjoin future wrongful conduct where the facts “show[] reason to

apprehend a threat of future violation of judicially-determined rights and duties.”469 The

plaintiffs assert that Red Clay will repeat the conduct that led to this case whenever it needs

to conduct another referendum. I do not share the plaintiffs’ concern. I believe that Red

Clay will abide by a final decision rendered by the judiciary.

B.     Whether To Invalidate The Special Election

       The other forms of relief that the plaintiffs seek all hinge on whether the Special

Election was invalid. The fact that a plaintiff has proven electoral violations, even

constitutional violations, does not lead inexorably to invalidating the election. A further

remedial calculus is necessary. In this case, a multi-factor analysis counsels against

invalidating the Special Election.

       Courts are understandably reluctant to invalidate elections.470 As the Delaware

Superior Court has observed, “It is the duty of the Court, if possible, to sustain elections

which have resulted in a full and fair expression of the public will.”471 In Brennan, the

Delaware Supreme Court observed that “minor irregularities in the conduct of an election

unaccompanied by fraud or unfair dealing, and not affecting the result, will not void an




       469
             McMahon v. New Castle Assocs., 532 A.2d 601, 606 (Del. Ch. 1987) (Allen, C.).
       470
           See generally Stephen F. Huefner, Remedying Election Wrongs, 44 Harv. J. on
Legis. 265, 283-85 (2007) [hereinafter Election Wrongs]; Kenneth W. Starr, Federal
Judicial Invalidation as a Remedy for Irregularities in State Elections, 49 N.Y.U. L. Rev.
1092, 1105-08 (1974) [hereinafter Irregularities in State Elections].
       471
             State ex rel. Stabler v. Whittington, 290 A.2d 659, 662 (Del. Super. 1972).


                                              127
election otherwise valid.”472 Decisions from other jurisdictions similarly stress that the

judiciary should exercise caution before setting aside an election.473

         The parties have not identified a governing standard for this court to apply and have

battled over competing formulations from other jurisdictions. Given the state of the law,

this comes as little surprise. “Federal courts have struggled to articulate an easily applied

test to determine when the court should invalidate a state election and order a special

election.”474 State authorities use varying formulations.475 The best that can be said is this:

“Rather than utilizing a general rule, each case must be considered individually. There is

no all-encompassing list of factors which a court must consider.”476

         From my review of election decisions and related scholarly literature, several factors

appear salient. These include the nature and scope of the misconduct, the actor’s intent, the



         472
               104 A.2d at 789.

          See, e.g., Bortner v. Woodbridge, 736 A.2d 104, 113 (Conn. 1999) (“[A]lthough
         473

a court undoubtedly has the power to order a new election . . . , the court should exercise
caution and restraint in deciding whether to do so. A proper judicial respect for the electoral
process mandates no less.”); Putter v. Montpelier Pub. Sch. Sys., 697 A.2d 354, 357 (Vt.
1997) (“Voiding an election and ordering a new one represents one of the more extreme
remedial measures available to a court sitting in equity.”).
         474
               Gjersten v. Bd. of Election Comm’rs for Chicago, 791 F.2d 472, 478 (7th Cir.
1986).

          See Election Wrongs at 283 (“Courts have resorted to this remedy in a variety of
         475

circumstances, and many courts have wrestled with whether and when they have authority
to order a new election.”); Note, Developments in the Law: Elections, 88 Harv. L. Rev.
1111, 1302-05 (1975) (examining varying standards that are used) [hereinafter Election
Law Developments].
         476
               Gjersten, 791 F.2d at 479.


                                              128
clarity of the effect on the election, and the consequences for the parties involved.477 In this

case, after weighing these factors, I do not believe that Red Clay’s conduct warrants

invalidating the Special Election.

       1.     The Nature Of The Misconduct

        One factor that courts frequently consider is the nature of the misconduct.

Flagrantly unconstitutional actions and blatant violations of election laws are more likely

to lead to the invalidation of an election.478 At the other end of the spectrum are cases




       477
            See, e.g., id. (noting relevant interests include “the integrity of the electoral
system[,] . . . the necessities of the process of governing[,] . . . [and whether] the
unconstitutional practice had a significant impact on the particular election”); Hendon v.
N.C. State Bd. of Elections, 710 F.2d 177, 182 (4th Cir. 1983) (“Whether the irregularity
amounts to a constitutional claim depends on its severity, whether it was intentional or
more of a negligent failure to carry out properly the state election procedures, and whether
it erodes the democratic process.” (citation omitted)); Putter, 697 A.2d at 357 (“[C]ourts
have focused on several key considerations, including the nature and severity of the . . .
violation, the probability that it actually affected the election result, the presence or absence
of culpable intent, and the harm to the organic process of the election.” (citations omitted)).
       478
           Putter, 697 A.2d at 358. The clearest examples are the foundational federal cases
that invalidated elections in which state governments excluded voters based on race. See,
e.g., Hadnott v. Amos, 394 U.S. 358, 367 (1969) (directing district court “to require the
state and local officials promptly to conduct a new election” after finding that state officials
struck candidates from ballot on basis of race); Toney v. White, 488 F.2d 310, 316 (5th Cir.
1973) (en banc) (invalidating election where voters were purged on basis of race); Bell v.
Southwell, 376 F.2d 659, 664 (5th Cir. 1967) (holding that invalidating local election was
warranted “[c]onsidering the gross, spectacular, completely indefensible nature of this
state-imposed, state-enforced racial discrimination”). See generally Irregularities in State
Elections at 1097 (noting that the federal judiciary’s historic unwillingness to interfere in
state elections “was finally interred during the 1960’s with the full advent of
reapportionment and civil rights litigation”). A less-extreme Delaware example involved a
municipal election where city-appointed election officials refused to serve, at which point
a private individual “assumed the office of inspector, appointed two judges of elections,
and the election was held.” Hampson v. State ex rel. Buckson, 233 A.2d 155, 158 (Del.
1967). The Delaware Supreme Court explained that it was “immaterial that the election

                                              129
involving “minor irregularities.”479 Although misconduct that violates a constitutional

guarantee is typically more problematic than a statutory or regulatory violation, the

existence of a constitutional violation does not “ipso facto work any fundamental change

in judges’ equitable methodology.”480 Depending upon the circumstances, courts have




may have been conducted honestly. If those persons conducting it had no lawful right to
do, it is a nullity, and its results must be set aside.” Id.
       479
           Brennan, 104 A.2d at 789. Most of the Delaware precedents involve this level of
misconduct. See, e.g., id. (declining to invalidate school tax referendum in which residents
received separate ballots for voting for or against the proposal, rather than single ballot
containing both options, as required by then-existing state law); State ex rel. Wahl v.
Richards, 64 A.2d 400, 406-07 (Del. 1949) (declining to invalidate General Assembly
election in which officials in one district improperly counted ballots that were not signed
by both clerks, as required by then-existing state law); Spencer v. Smyrna Bd. of Educ., 547
A.2d 614, 618 (Del. Super. 1988) (declining to invalidate school tax referendum with
eighteen-vote discrepancy between vote totals from initial vote count, recount, and polling
lists); Whittington, 290 A.2d at 662 (declining to invalidate municipal election where local
officials failed to use voting machines, as required by then-existing state law); State ex rel.
Green v. Holzmueller, 5 A.2d 251, 256 (Del. Super. 1939) (declining to invalidate
municipal election where city officials and Board of Elections permitted voting by proxy,
which was not authorized by city’s charter); McComb v. Dutton, 122 A. 81, 83 (Del. Super.
1923) (declining to invalidate school tax referendum in which election officers opened and
closed at hours specified in statute but using Daylight Savings Time rather than Standard
Time); Kelley v. Mayor & Council of Dover, 300 A.2d 31, 36 (Del. Ch. 1972) (declining
to invalidate special election for annexation where city did not have number of election
officials required by city charter).
       480
            Irregularities in State Elections at 1099; see Gjersten, 791 F.2d at 478
(“Although federal courts have the power to invalidate elections held under constitutionally
infirm conditions, the courts need not exercise this power in the case of all elections held
pursuant to unconstitutional statutes.” (internal citations omitted)); Hamer v. Campbell,
358 F.2d 215, 222 (5th Cir. 1966) (“This action does not mean that we necessarily would
set aside every election in which a substantial number of citizens have been denied the right
to vote.”); Putter, 697 A.2d at 357 (“Invalidation of an election requires more than merely
a claim of election irregularity, even one of constitutional dimensions.” (citing
Irregularities in State Elections at 1099)); Abrahams v. Superior Court 131 A.2d 662, 671

                                             130
sometimes allowed an election to stand even though it was tainted by unconstitutional

conduct.481 The primary consideration appears again to be the clarity of the violation.

Courts have declined to invalidate elections “when the validity of the subsequently

invalidated governmental practice or policy [was] subject to ‘rational disagreement.’”482

       In one pertinent example, the Supreme Court of Vermont rejected a complaint that

sought to invalidate a school referendum in which the school board published and

distributed newsletters, leaflets, and stickers in support of a budget and bond proposal.483

Despite acknowledging that the plaintiff’s constitutional claim “finds support in a number

of judicial authorities,” the court observed that the theories were “relatively novel, the

supporting authorities comparatively sparse, and the rules defining the scope of permissive

conduct currently unsettled; the issue, in short, is one about which reasonable minds may

easily disagree.”484 The court concluded that ordering a new election would be




(Del. 1957) (declining to invalidate municipal election canvassed pursuant to a state law
requiring judicial canvassing despite holding that law was unconstitutional).
       481
           See, e.g., Bowes v. Ind. Sec’y of State, 837 F.3d 813, 821 (7th Cir. 2016);
Gjersten, 791 F.2d at 479; Putter, 697 A.2d at 359.
       482
         Irregularities in State Elections at 1101; see, e.g., Allen v. State Bd. of Elections,
393 U.S. 544, 571-72 (1969) (declining to invalidate election after finding that state had
erroneously interpreted Section 5 of the Voting Rights Act).
       483
             Putter, 697 A.2d at 359.
       484
             Id. at 358.


                                             131
disproportionate absent “any basis for a finding that the disputed materials were

outrageously illegal,” among other considerations.485

       In this case, Red Clay’s electoral interventions violated the Elections Clause. They

were constitutional violations, and hence of serious magnitude, but Red Clay did not cross

clearly delineated, brightly marked lines. This court has issued two lengthy decisions

analyzing the Family-Focused Events. Although this court has concluded that the Family-

Focused Events prevented the Special Election from being “free and equal,” reasonable

minds could disagree. Both decisions relied for support on the Anti-Bribery Clause in the

Delaware Constitution and comparable statutory prohibitions, but there was not previously

a judicial ruling addressing targeted inducements to vote like the Family-Focused Events.

Likewise, although both decisions relied on the Electioneering Statute, the Dismissal

Ruling found that statute ambiguous in two respects,486 and this decision relied in

significant part on evidence of Delaware custom and practice to apply it to the facts. Under

the circumstances, it was not unreasonable to believe that the Family-Focused Events could

be constitutionally permissible.

       The case for Red Clay’s extensive and targeted campaign speech is somewhat

harder, because the Delaware Supreme Court held in Brennan that “expenditure of public




       485
          Id. at 359. In a more recent decision, the Supreme Court of Vermont followed
Putter and refused to invalidate an election where a town distributed campaign materials
that advocated its positions on various issues. See Daims v. Town of Brattleboro, 148 A.3d
185, 190-91 (2016).
       486
             See Dismissal Ruling, 122 A.3d at 854-56.


                                            132
funds in support of one side” must remain “within reasonable limits” and that a school

district’s speech should not venture “beyond [a] factual presentation” to the point of

“overstatement and emotional appeals.”487 But as the Dismissal Ruling explained, more

than sixty years have elapsed since Brennan, and a strong argument can be made that its

strictures should be relaxed for referendums in which the state has an affirmative position

on a particular policy issue.488 Under the circumstances, it was not unreasonable to believe

that Red Clay’s campaign speech was constitutionally permissible.

       In light of these considerations, Red Clay’s electoral misconduct, although

unconstitutional in nature, was neither flagrant nor extreme. This factor counsels against

invalidating the Special Election.

       2.       The Scope Of The Misconduct

       A second factor that courts frequently consider is the scope of the misconduct.

When the misconduct is isolated or sporadic, courts are unlikely to invalidate the




       487
             104 A.2d at 790.
       488
           See Dismissal Ruling, 122 A.3d at 852-54; cf. Mercier v. Inter-Tel (Del.), Inc.,
929 A.2d 786, 808-09 (Del. Ch. 2007) (Strine, V.C.) (“Here’s a news flash: directors are
not supposed to be neutral with regard to matters they propose for stockholder action.”); In
re MONY Gp., Inc. S’holder Litig., 853 A.2d 661, 675-76 (Del. Ch. 2004) (“[O]nce a board
of directors deems a merger agreement favorable, it may employ various legal powers to
achieve a favorable outcome on a shareholder vote required to approve that agreement.”).
My suggestion in the Dismissal Ruling only addressed referendums, not candidate
elections.


                                            133
election.489 When the misconduct is widespread or systematic, courts are more likely to

determine that the election was void.490



       489
           See, e.g., Soules v. Kauaians for Nukolii Campaign Comm., 849 F.2d 1176, 1184
(9th Cir. 1988) (“[The plaintiffs’] claims of lax security and the delivery of 60 absentee
ballots by persons other than the voter, do not bring into question the fundamental fairness
of the conduct of the special election.”); Pettengill v. Putnam Cty. R-1 Sch. Dist., 472 F.2d
121, 122 (8th Cir. 1973) (dismissing challenge to local school board election that alleged
116 absentee ballots were counted illegally); Johnson v. Hood, 430 F.2d 610, 611, 613 (5th
Cir. 1970) (dismissing challenge to local election that alleged “arbitrary and capricious”
rejection of ten ballots); Ron Barber for Congress v. Bennett, 2014 WL 6694451, at *7 (D.
Ariz. Nov. 27, 2014) (“Here, Plaintiffs’ claims are not basely broadly on the fairness of the
terms and procedures of the election; rather they focus on individual and infrequent polling-
place irregularities and verification procedures.”); Rizzo v. Bizzell, 530 So.2d 121, 128
(Miss. 1988) (“When the percentage of illegal votes is small[], even though the winning
margin is less than the number of illegal votes, a special election may not be required.”);
Anderson v. Ivy, 955 N.E.2d 795, 803 (Ind. Ct. App. 2011) (refusing to invalidate election
where candidate’s violations of state anti-electioneering law “occurred in only two out of
six precincts” and for only “a few hours in the morning and early afternoon”).
       490
            See, e.g., Bonas v. Town of N. Smithfield, 265 F.3d 69, 72-73, 75 (1st Cir. 2001)
(holding that school committee members elected in 1997 to four-year terms could not delay
next school committee election by year, and stating, “If the [city’s] decision is allowed to
stand, every resident of North Smithfield will be deprived of his or her right to vote for the
affected offices. In our judgment, such across-the-board disenfranchisement betokens an
utter breakdown of the electoral process”); Bennett v. Yoshina, 140 F.3d 1218, 1226 (9th
Cir. 1998) (“We have drawn a distinction between ‘garden variety’ election irregularities
and a pervasive error that undermines the integrity of the vote.”); Marks v. Stinson, 19 F.3d
873, 887 (3d Cir. 1994) (upholding district court order invalidating election tainted by
“massive absentee ballot fraud, deception, intimidation, harassment and forgery”); Griffin
v. Burns, 570 F.2d 1065, 1077 (1st Cir. 1978) (“There is precedent for federal relief where
broad-gauged unfairness permeates an election . . . .”); Krieger v. City of Peoria, 2014 WL
4187500, at *5 (D. Ariz. Aug. 22, 2014) (“This fundamental unfairness is more than
isolated. . . . [T]he defective ballots in this case were mailed to approximately one-half of
the voters.”); Hoblock v. Albany Cty. Bd. of Elections, 341 F. Supp. 2d 169, 177 (N.D.N.Y.
2004) (granting preliminary injunction prohibiting certification of election results after
finding “pervasive and fundamental unfairness in the election”), aff’d in relevant part, 422
F.3d 77 (2d Cir. 2005); Ex parte Vines, 456 So.2d 26, 28 (Ala. 1984) (ordering new election
where one of four voting machines in city race failed to register any votes); Miller v.
Picacho Elementary Sch. Dist. No. 33, 877 P.2d 277, 279 (Ariz. 1994) (“This is not a case

                                             134
       In this case, Red Clay’s electoral interventions were pervasive. Red Clay held

seventy-five Family-Focused Events in the twenty-three schools that served as polling

places. Using Red Clay’s own low-end estimate, at least 6,383 people attended the Family-

Focused Events, a figure that does not include attendees at twenty-two events where the

attendance was listed as “Unknown.”491 That figure is just a dozen votes short of the 6,395

votes in favor of the referendum. A more realistic estimate for the Family-Focused Events

is that they brought between 9,023 and 9,233 people to the polling places, well in excess

of the number of “YES” votes. Red Clay also engaged in extensive and intensive

government campaign speech. The widespread nature of Red Clay’s conduct counsels in

favor of invalidating the Special Election.




of mere technical violation . . . . District employees with a pecuniary interest in the
override’s passage delivered [absentee] ballots to electors whom they knew. . . . These were
substantive irregularities.”); Bolden v. Potter, 452 So.2d 564, 567 (Fla. 1984) (“The fraud
in this instance was not inconsequential. It was blatant and corrupt and it permeated a
substantial part of this absentee-election process.”); Barbour v. Gunn, 890 So.2d 843, 847-
48 (Miss. 2004) (“In the case sub judice, the problems are not ‘technical;’ an entire sub-
precinct was not allowed to vote.”); McNally v. Tollander, 302 N.W.2d 440, 445 (Wis.
1981) (“[T]he number of voters who were denied ballots in the present case was very
substantial. Some 2,500 voters, approximately forty percent of the electorate, were denied
ballots.”).
       491
             JX 301.


                                              135
       3.      The Actor’s Intent

        A third factor that courts frequently consider is the actor’s intent.492 If the actor has

acted intentionally, then a court is more likely to invalidate the election.493 If the violation

resulted from negligence or inadvertence, then a court is less likely to invalidate the

election.494




       492
           Hendon, 710 F.2d at 182 (noting significance of whether failure to comply with
state election law “was intentional or more of a negligent failure”); Bolden, 452 So.2d at
566 (stating one factor courts must consider is “the presence or absence of fraud, gross
negligence, or intentional wrongdoing”); McCavitt v. Registrars of Voters, 434 N.E.2d 620,
630 (Mass. 1982) (“We think there is an important distinction between fraud, intentional
wrongdoing, and mere failure to follow directions.”); Putter, 697 A.2d at 357 (noting that
courts often consider “the presence or absence of culpable intent”).
       493
          See, e.g., Bonas, 265 F.3d at 75 (“Here, . . . the decision to dispense with an
election was deliberate.”); Duncan v. Poythress, 657 F.2d 691, 704 (5th Cir. Unit B 1981)
(“We . . . can imagine no claim more deserving of constitutional protection than the
allegation that state officials have purposely abrogated the right to vote”); Bolden, 452
So.2d at 567 (holding that “clear fraud and intentional wrongdoing” that “tainted the entire
absentee voting procedure” warranted invalidating a local school board election); Pabey v.
Pastrick, 816 N.E.2d 1138, 1154 (Ind. 2004) (“The magnitude, pervasiveness, and
widespread effect of the deliberate series of actions found in this case leads to but one
conclusion. The Pastrick campaign certainly knew or consciously intended that the results
of their conduct would . . . profoundly undermine the integrity of the election . . . .”);
Tollander, 302 N.W.2d at 444 (“[T]he record shows that the election statutes were
intentionally ignored by public officials . . . .”).
       494
           See, e.g., Gold v. Feinberg, 101 F.3d 796, 802 (2d Cir. 1996) (“[H]uman error in
the conduct of elections does not rise to the level of a Fourteenth Amendment constitutional
violation actionable under § 1983 in the absence of willful action by state officials intended
to deprive individuals of their constitutional right to vote.”); Hendon, 710 F.2d at 182
(“There is no indication that the failure was other than simple negligence on the part of
election officials.”); Gamza v. Aguirre, 619 F.2d 449, 454 (5th Cir. 1980) (“There was no
allegation of intent to violate their constitutional rights or of deliberate deprivation of their
right to vote.”); Hamer v. Ely, 410 F.2d 152, 156 (5th Cir. 1969) (“[T]he attitude of
Sunflower’s Election Commissioners may have been shoddy, but it does not justify . . .
voiding a state election.”); Putter, 697 A.2d at 359 (“[T]he claimed constitutional

                                              136
       In this case, Red Clay intended to intervene in the election in the manner that it did.

Red Clay developed and implemented a top-down strategy to prevail in the Special

Election. Red Clay intended to hold the Family-Focused Events and to use them to bring

parents to the polls. Red Clay also intended to reach groups that it believed would favor

the referendum through targeted government campaign speech. In these senses, Red Clay’s

conduct was intentional.

       Red Clay did not, however, intend to violate the law. The trial record convinced me

that the Red Clay team believed that they were acting lawfully and doing what was both

necessary and appropriate for the district to prevail in the Special Election. Primarily

through Ammann, Red Clay worked with the Department of Elections and sought to

comply with its instructions. More broadly, Red Clay tried to follow what its administrators

understood the law to be, even if they pushed the edges of that understanding. This decision

has found that the Red Clay administrators did not consciously discriminate against elderly

or disabled voters.




infringement provides no basis for a finding that the Board willfully and knowingly
violated plaintiff’s constitutional rights.”); Adair Cty. Bd. of Elections v. Arnold, 2015 WL
5308132 (Ky. Ct. App. Sept. 11, 2015) (refusing to invalidate municipal election despite
“incompetence and incomprehensible carelessness” of local officials). Of course, other
factors may result in relief being granted notwithstanding a lack of intent. See Hoblock v.
Albany Cty. Bd. of Elections, 422 F.3d 77, 98 (2d Cir. 2005) (holding that issuance of
preliminary injunction against certifying election result was warranted “when election
officials refuse to tally absentee ballots that they have deliberately (even if mistakenly) sent
to voters”); Krieger, 2014 WL 4187500, at *4 (“wrongful intent is not required” where
there is fundamental unfairness in the election process).


                                             137
       In short, the Red Clay team acted in good faith. At worst, they were mistaken about

the scope of the Elections Clause. That description could apply to my decisions as well,

because only the Delaware Supreme Court can issue an authoritative interpretation of that

provision. Red Clay’s effort to comply with the law, at least as they understood it, supports

not invalidating the Special Election.

       4.     The Clarity Of The Effect On The Election

       A fourth factor that courts examine is the extent to which the misconduct tainted

the result. Demonstrating the interrelatedness of the factors, the scope and seriousness of

the misconduct often affect how a court takes this consideration into account.

       When parties argue about specific ballot irregularities or misconduct at particular

polling locations, then courts frequently examine whether the plaintiff can show that the

outcome of the election would have been different. If it is clear that the wrongdoing could

not have affected the outcome, then that fact is dispositive.495 For example, the Delaware




       495
           See, e.g., Bennett, 2014 WL 6694451, at *8 (“Even if all 133 votes are counted,
it is undisputed that Martha McSally wins the election because she leads by a margin of
161 votes at this time.”); Abbott v. Hunhoff, 491 N.W.2d 450, 452 (S.D. 1992) (“[I]f it is
possible through the exercise of due diligence to show for whom the illegal votes were cast,
[the plaintiff] must show that but for the illegal votes he would have prevailed.” (citation
and internal quotation marks omitted)); Taylor v. Armentrout, 632 S.W.2d 107, 118 (Tenn.
1991) (“The existence of two uncertain votes, when the referendum passed by six votes,
does not justify voiding the entire election.”); Files v. Hill, 594 S.W.2d 836, 839-40 (Ark.
1980) (“The difference amounted to 1,731. Assuming, but not deciding, that the votes of
the 1,522 persons named who said they offered to vote for Files but were unable to do so
were counted as legal votes, Munson would still have 209 more votes . . . .”); Baggett v.
State Election Bd., 501 P.2d 817, 824 (Okla. 1972) (“If competent evidence can be
introduced establishing that in spite of the illegal ballots cast, it may be determined with
mathematical certainty which candidate received the majority of the legal votes cast, the

                                            138
Superior Court refused to invalidate an election based on minor discrepancies between the

vote tally and the number of certified ballots because “even if the plaintiffs are given the

benefit of the doubt . . . the tax referendum still would have passed.”496 Conversely, courts

will usually invalidate an election when there is hard proof that the outcome would have

been different but for the conduct in question.497

       When the misconduct is more widespread and more serious, courts have not

required mathematical certainty that the result would have been different. In those cases, it

may be sufficient to show that the misconduct made it impossible to determine how the

election otherwise would have turned out. For example, the Delaware Supreme Court has

observed that “[w]hen illegal ballots have been voted in an election district in such numbers

as to affect the result, or at least to make it uncertain, . . . there are cases where justice




State Election Board should issue its certificate of election.”). See generally Election
Wrongs at 280.
       496
             Spencer, 547 A.2d at 618.
       497
           See, e.g., Hadnott, 394 U.S. at 367 (ordering new election in county where voting
totals indicated that candidates would have prevailed if they had not been struck from the
ballot); Perkins v. Matthews, 336 F. Supp. 6, 11 (S.D. Miss. 1971) (“In [a particular]
Ward[,] Glynn L. Cook, the winner at large, received 343 votes while his opponent, Sam
Young, received 747 votes. Had the election been held in the Ward only, as in 1965, Sam
Young would presumably have been elected. . . . [T]he election of Mr. Cook, from the City
at large, must be set aside.”); Qualkinbush v. Skubisz, 826 N.E.2d 1181, 1207 (Ill. App. Ct.
2004) (affirming trial court and invalidating election after the deduction of thirty-nine
fraudulent absentee ballots changed the outcome). See generally Election Law
Developments at 1317 (“All jurisdictions will overturn the results of an election and install
a new winner when it can be demonstrated that but for the violation, the announced winner
would have lost the election.”).


                                             139
requires that the entire vote of that election district be rejected in making the count.”498 The

Delaware Superior Court has similarly stated that invalidating an election is warranted

“where there is such uncertainty arising from the reception of supposedly illegal votes as

to make it impossible to ascertain the true expression of the opinion of the voters . . . .

[I]mpossibility is the test.”499

       Put differently, mathematical proof that electoral misconduct changed or could not

have changed the result is sufficient for a court to issue a ruling, but it is not necessary:

“While the ‘outcome’ test provides a sensible guideline for determining when federal

judicial invalidation of an election might be warranted, it is not a principle requiring

mathematical certainty.”500 If the misconduct has been widespread, serious, and

intentional, then courts have been willing to invalidate elections if the misconduct rendered

the outcome uncertain.501 In those situations, definitive proof is likely impossible to




       498
             Richards, 64 A.2d at 406 (emphasis added).
       499
             Holzmueller, 5 A.2d at 255 (internal quotation marks omitted).
       500
           Griffin, 570 F.2d at 1080 (citations omitted); accord Bolden, 452 So.2d at 567
(“Once substantial fraud or corruption has been established to the extent that it permeated
the election process, it is unnecessary to demonstrate with mathematical certainty that the
number of fraudulently cast ballots actually affected the outcome of the election.”).
       501
           See, e.g., Bowes, 837 F.3d at 819 (holding that “if plaintiffs show a ‘reasonable
possibility’ that [and unconstitutional law] affected the outcome of an election, that may
demonstrate a ‘significant impact’” such that a court may invalidate an election (citations
omitted)); Stinson, 19 F.3d at 889 (“If the district court finds a constitutional violation, it
will have authority to order a special election, whether or not it is able to determine what
the results would have been in the absence of that violation.”); Henderson v. Graddick, 641
F. Supp. 1192, 1204 (M.D. Ala. 1986) (“Because the right to vote is so important, the
possibility that the results of an election were changed as a result of illegal votes is enough

                                             140
achieve.502 Thus, “where there is substantial wrongdoing in an election, the effects of which

are not capable of quantification but which render the apparent result an unreliable

indicium of the will of the electorate, courts have frequently declined” to uphold the




to justify ordering a new election.”); Coal. for Educ. in Dist. One v. Bd. of Elections, 370
F. Supp. 42, 57, 58 (S.D.N.Y. 1974) (invalidating school board election; concluding that a
“substantial violation of constitutional rights” by local officials “could very well have
modified the outcome of the election”), aff’d, 495 F.2d 1090 (2d Cir. 1974); Whitley v.
Cranford, 119 S.W.3d 28, 35 (Ark. 2003) (“[A]n election may be voided when the outcome
is uncertain.”); Arras v. Reg’l Sch. Dist. No. 14, 125 A.3d 172, 184 (Conn. 2015) (an
election may be invalidated where “there were substantial violations” of election law and
“as a result of those violations, the reliability of the result of the election is seriously in
doubt”); Jackson v. Maley, 806 P.2d 610, 620 (Okla. 1991) (explaining that an election
may be invalidated where irregularities are “of such a character in either quality or quantity
to prove the outcome of an election cannot be determined”); Buonanno v. DiStefano, 430
A.2d 765, 770 (R.I. 1981) (“[T]he contestant [must] show that the irregularities were
sufficiently large in number to establish the probability that the result would be changed
. . . .”); Armentrout, 632 S.W.2d at 119 (an election may be invalidated if the outcome is
“rendered incurably uncertain”).
       502
           See, e.g., Cranford, 119 S.W.3d at 35 (“[W]here the wrongs are so serious that
they render the election results uncertain or doubtful, there is no way for the trial court to
determine who won and who lost the election.”); Pabey, 816 N.E.2d at 1151 (“When as
here an election is characterized by a widespread and pervasive pattern of deliberate
conduct calculated to cast unlawful and deceptive ballots, the election results are inherently
deceptive and unreliable.”); Election Wrongs at 281 (“[W]hen the tainted votes cannot be
specifically identified, as is often the case, the proper remedy is less clear.”).


                                             141
election.503 As one court observed, “an altered outcome should be found readily when there

is a serious violation and close election.”504




       503
          Stinson, 19 F.3d at 887; accord Buonanno, 430 A.2d at 771 (“A new election is
a remedy frequently utilized by courts when a cloud of doubt encircles the original election
results.”); see, e.g., Griffin, 570 F.2d at 1080 (upholding district court decision invalidating
local election; concluding that district court “could infer that it was more likely than not
that a very significant proportion of those voting by absentee ballot would have gone to the
polls had such ballots not been available”); Southwell, 376 F.2d at 662 (“[W]e do not think
the Court could justify denial of effective, present relief because of any assumed inability
to demonstrate that the outcome would have been different.”); Pabey, 816 N.E.2d at 1151
(ordering new election after pervasive absentee voter fraud made it “impossible to
determine the candidate who received the highest number of legal votes”).
       504
             Griffin, 570 F.2d at 1080 (citation and internal quotation marks omitted).


                                              142
       Based on the trial record that the parties created, this factor is difficult to assess. In

my view, this case cried out for serious statistical analysis,505 informed by relevant social

science literature.506 Obvious issues to consider would have included:



       505
            Scholars have argued that courts should use statistical models when deciding
election challenges. See Election Law Developments at 1324-28 (endorsing the use of
statistical models by courts where possible to “facilitate more rational and consistent
decisionmaking”); Michael O. Finkelstein & Herbert E. Robbins, Mathematical
Probability in Election Challenges, 73 Colum. L. Rev. 241, 241-42 (1973) (criticizing
courts for subjective approach to probability in election challenges and proposing statistical
model); see also Bernard Harris, Election Recounting, 42 Am. Stat. 66, 67 (1988)
(constructing model and applying it to hypothetical election); James E. Ward III, The
Probability of Election Reversal, 54 Mathematics Mag. 256, 257-59 (1981) (constructing
model and applying it to challenged municipal election in Brunswick, Maine); Tom Downs
et al., Probability in a Contested Election, 32 Am. Stat. 122, 123-24 (1978) (constructing
model and applying it to challenged municipal election in Flint, Michigan). Statistical
analysis is not a cure-all, but it can be particularly helpful when assessing the relative
likelihood of events, where the simple heuristics that the human mind deploys when
making day-to-day decisions often lead to error. See generally Daniel Kahneman, Thinking
Fast and Slow (2011). Although judges deciding election contests generally rely on their
own subjective assessments of probability, at least one court has considered statistical
evidence when determining whether to invalidate an election. See Green v. Reyes, 836
S.W.2d 203, 206 (Tex. App. 1992) (discussing statistical evidence but declining to find it
dispositive in light of conflicting expert testimony).
       506
          There appears to be an extensive body of social science literature that could have
informed an expert’s analysis of issues pertinent to this case. See, e.g., Randall Reback,
Buying Their Votes? A Study of Local Tax-Price Discrimination, 53 Econ. Inquiry 1451
(2014) (finding presence of an aging population correlates with decreased school revenue,
unless elderly homeowners receive state-financed reductions in their local tax prices);
Huan Gong & Cynthia L. Rogers, Does Voter Turnout Influence School Bond Elections?,
81 S. Econ. J. 241 (2014) [hereinafter School Bond Elections] (concluding that targeted
voter mobilization strategies have potential to influence school bond election outcomes);
Sarah F. Anzia, Election Timing and the Electoral Influence of Interest Groups, 73 J. Pol.
412 (2011) (using school district elections to analyze whether interest groups with large
stake in electoral outcome can influence low-turnout elections); Craig S. Maher & Mark
Skidmore, Voter Response to Referenda Seeking to Exceed Revenue Limits, 29 Pub.
Budgeting & Fin. 71 (2009) (analyzing factors that contribute to passage of school bond
referendums); Marc Meredith, The Strategic Timing of Direct Democracy, 21 Econ. & Pol.

                                              143
      The base rates at which parents and seniors have participated historically in
       referendums and other sufficiently comparable elections.

      The rates at which parents and seniors participated in the Special Election.

      Tests of statistical significance to evaluate whether any difference in rates of
       participation were inconsistent with random chance.

      The base rates at which parents and seniors support school referendums.

      The rates at which parents and seniors supported the tax increase in the Special
       Election. Because there were (i) twenty-five different polling places, (ii) different
       numbers of parents and seniors who voted at each polling place, and (iii) different
       levels of support for the tax increase at each polling place, it would have been a
       simple matter for a properly trained expert to prepare scatter plots and conduct
       regressions to identify any statistically significant correlations.

With this type of information, an expert could have offered informed opinions about

whether and to what degree Red Clay’s electoral interventions affected the outcome of the

Special Election, either by changing the result or rendering the unaffected outcome

sufficiently uncertain. But no one did any of this.




159 (2009) (examining how scheduling of referendum affects voter turnout and likelihood
of passage); Ronald G. Ehrenberg et al., Why Do School Budget Referenda Fail?, 26 Educ.
Evaluation & Pol’y Analysis 111 (2004) (analyzing factors that contribute to passage
versus failure of school bond referendums); Endogenizing the Median Voter (examining
how school districts schedule referendums to shape electorate and increase chances of
referendum passing); see also Henry E. Brady & John E. McNulty, Turning Out to Vote:
The Costs of Finding and Getting to the Polling Place, 105 Am. Pol. Sci. Rev. 115 (2011)
(examining how creating low-intensity impediment to voting by changing locations of
polling places influences voter turnout by increasing cost of voting for subsets of
electorate). Neither side cited any of this literature, much less presented an expert who
could explain its implications. This decision therefore merely notes its existence. I have
not attempted to take it into account in rendering this decision.


                                            144
       The factual record at trial established that the Family-Focused Events and Red

Clay’s targeted campaign speech brought parents to the polls in large numbers. The

community witnesses testified that they saw polling places that were filled with students

and their families. By Red Clay’s own estimate, at least 6,383 people attended the Family-

Focused Events; more realistically there were more than 9,128 attendees. 507 The low-end

attendance figure is just a dozen votes short of the 6,395 total votes recorded in favor of

the referendum and the more realistic figure substantially exceeds it. With 5,515 votes

against, the winning margin was only 880 votes, or approximately 7% of the residents who

voted. With such a narrow margin of victory, one possible inference is that the Family-




       507
             JX 301.


                                           145
Focused Events swung the result.508 But that is only an intuition.509 Many of the parents

who attended the Family-Focused Events likely would have voted anyway. Each

community witness testified that the voting lines were short, suggesting that the Family-

Focused Events may not have substantially increased the number of votes. Without more




       508
            See, e.g., School Bond Elections at 247 (concluding that targeted voter
mobilization strategies have potential to influence school bond election outcomes); Samuel
Issacharoff, Collateral Damage: The Endangered Center in American Politics, 46 Wm. &
Mary L. Rev. 415, 427 (2004) (“Particularly in low profile elections, or whenever turnout
is low, [a strategy targeting a partisan base] is especially effective since fewer votes will
be necessary in the low turnout race to produce a victorious election.” (citation omitted));
James Adams & Samuel Merrill III, Voter Turnout and Candidate Strategies in American
Elections, 65 J. Pol. 161, 170 (2003) (noting that when turnout is low, “each candidate is
motivated to appeal to his own partisan constituency since he can affect his supporters’
turnout decisions but not the decisions of the rival party’s supporters”); Samuel Issacharoff,
Private Parties with Public Purposes: Political Parties, Associational Freedoms, and
Partisan Competition, 101 Colum. L. Rev. 274, 307 (2001) (noting that in an election with
low turnout, “activist-fueled get-out-the-vote drives may prove as effective in pulling out
a close election as concerted appeals to the center”); see also Michael Peress, Securing the
Base: Electoral Competition Under Variable Turnout, 148 Pub. Choice 87, 103 (2011)
(observing that while targeting swing voters is the optimal strategy in large elections, this
rule may not hold in local elections where “there is more room for variable turnout to have
a substantial effect”); Thomas M. Holbrook & Scott D. McClurg, The Mobilization of Core
Supporters: Campaigns, Turnout, and Electoral Composition in United States Presidential
Elections, 49 Am. J. Pol. Sci. 689, 691 (2005) (“[I]ndependents need to be persuaded and
mobilized, while partisans mainly need to be mobilized. Therefore, campaigns have
strategic incentives to target their mobilization efforts on partisans out of fear that a core
will stay home without the mobilization effort and that a broader canvass would bring the
wrong voters to the polls.”).
       509
          There is a suggestion in the record that it was Floore’s intuition as well. At trial,
she expressed concern about whether Red Clay could prevail in a referendum if it could
not hold Family-Focused Events or engage in targeted communications with Red Clay
parents, but she stopped short of agreeing that they were dispositive. See Tr. 719-22.


                                             146
meaningful analysis, it is difficult to assert with confidence that Red Clay’s actions made

the difference.

       One question is whether Red Clay’s interventions actually affected turnout. The

plaintiffs tried to provide some numerical analysis of this issue by comparing the rates at

which parents voted in the Special Election with the rates at which other groups voted.

Using data that Red Clay eventually produced,510 the plaintiffs calculated that parents of

Red Clay students voted at between twice and 3.8 times the rate of other registered voters.

The plaintiffs reasoned as follows:

      There were 93,905 active registered voters in Red Clay on the date of the Special
       Election.511

      There were 19,793 parents of Red Clay students on the date of the Special
       Election.512



       510
           During discovery, Red Clay initially failed to produce the voter information that
the plaintiffs requested. Red Clay only produced partial “call lists” from four different
schools, which identified the parents of the children on the lists. JX 33; JX 34; JX 63; JX
111. Of the 2,660 parents, 757 (or 28.5%) were registered voters who voted in the
referendum. JX 279. After the close of discovery, Red Clay moved to exclude the plaintiffs’
expert witnesses on the theory that they had not relied on meaningful data. In response, the
plaintiffs pointed to Red Clay’s failure to produce it, and the court observed that under
settled principles of Delaware law, Red Clay’s failure to produce evidence would permit
the court to draw a negative inference about what the evidence would show. See Kahn v.
Lynch Commc’n Sys., Inc., 638 A.2d 1110, 1119 n.7 (Del. 1994) (“[T]he production of
weak evidence when strong is, or should have been, available can lead only to the
conclusion that the strong would have been adverse.”); accord Smith v. Van Gorkom, 488
A.2d 858, 878 (Del. 1985); Chesapeake Corp. v. Shore, 771 A.2d 293, 301 n.7 (Del. Ch.
2000) (Strine, V.C.). Afterwards, Red Clay produced additional information about the
electorate. See JX 305; JX 306.
       511
             JX 207; Dkt. 144.
       512
             JX 305; Dkt. 144.


                                            147
     There were 3,985 parents who voted in the Special Election.513 Of the parents who
      voted, 3,677 were registered voters, or 92.3%.514

     Assuming that the same percentage held true for all parents in the Red Clay school
      district, then there were 18,269 active registered voters among those parents (92.3%
      of 19,793).

     Consequently, 20.13% of the registered parents voted in the Special Election.
      (3,677/18,269).

     A total of 11,300 registered voters voted in the Special Election. Because 3,677 of
      the voters were parents, there were 7,623 voters who were not.

     A total of 75,636 registered voters were not parents of Red Clay students (93,905-
      18,269).

     Consequently, 10.08% of the registered voters who were not parents or guardians
      of Red Clay students voted in the Special Election (7,623/75,636).

     Registered parents voted at approximately twice the rate of other registered
      voters.515

These calculations were based on Red Clay’s identification of registered voters, which

relied on identical matches between the names on the registered voter list and the list of

Red Clay parents. The plaintiffs showed that Red Clay’s insistence on exact matches

underreported the number of Red Clay parents who voted by excluding some voters who




      513
            JX 305; JX 306.
      514
            JX 305 (3,677/3,985 = 92.3%).
      515
          The calculations are based on registered voters—although non-registered voters
may vote in school referenda—because the total number of unregistered voters in Red Clay
is unknown. The difference is likely immaterial: All but 610 of the 11,910 voters in the
referendum were registered. JX 161.


                                            148
were obviously the same person. Based on the plaintiffs’ independent review of the call

list data, they calculated that parents voted at 3.8 times the rate of other voters.516

       The plaintiffs’ calculations indicate that parents voted at a higher rate in the Special

Election than other eligible voters, but that by itself is not dispositive. Perhaps parents

always vote in referendums at higher rates than other voters. The other key piece of data is

the base rate at which parents vote absent interventions. There is also always random

variation in any sample, so another key input would be a test of statistical significance to

determine whether or not any difference in the Special Election was the result of random

chance. No one provided any of this.

       The plaintiffs did show that Red Clay’s electoral interventions suppressed turnout

by seniors.517 Ironically, the plaintiffs established this point through the testimony of

Professor Ed Ratledge, one of the defendant’s experts. Ratledge teaches public policy at




       516
           See JX 279. Based on Red Clay’s initial call lists, produced at JX 33, JX 34, JX
63, and JX 111, the plaintiffs calculated that 28.5% of registered parents voted. Applying
the plaintiffs’ percentage to the total number of parents in the district (19,793) indicates
that 5,641 registered parents voted. Subtracting this number from the 11,300 registered
voters who voted yields 5,659 non-parent and guardian registered voters. The resulting
voting rate for non-parent and guardian registered voters is 7.5% (5,659/75,636). That rate
is approximately one fourth of the 28.5% voting rate for parents (28.5%/7.5% = 3.8).
       517
           “Suppression” is a one-sided term. The percentage of the senior vote in the
electorate depended on the number of non-senior voters, so it could have been affected if
other voters participated at higher levels. If parents turned out in greater numbers than
usual, that necessarily would lower the percentage of seniors, even if the rate at which
seniors participated remained constant. No one attempted to untangle these effects.
Because the testimony on this issue was framed in terms of “suppression,” I have used that
terminology.


                                              149
the University of Delaware and directs the University’s Center for Applied Demography

and Survey Research. He initially opined that the Family-Focused Events did not suppress

the elderly vote. His opinion, however, relied on comparing the percentage of seniors who

voted in the Special Election (25.9%) with the percentage of seniors who voted in the 2012

presidential election (26.5%). He conceded when examined that the 2014 midterm election

was a better comparable.518 In the 2014 midterm election, approximately 33% of the voters

were 65 years old or older.519 Ratledge agreed that the 7% gap between the percentage of

seniors who participated in the Special Election and the percentage of seniors who

participated in the 2014 midterm election supported an inference of suppression. 520 The

plaintiffs introduced data on senior turnout in other elections that could support a similar

inference. In the 2010 midterm election, approximately 32% of the voters were 65 years




       518
          Tr. 260-61, 265-66. Ratledge agreed that the 2014 mid-term election was more
comparable to the Special Election than the 2012 presidential election, both because it was
closer in time and because the mid-term elections receive less publicity and have less
widespread turnout than presidential elections. See id. at 260-66. He offered no plausible
explanation for initially ignoring the mid-term data, saying that he simply did not recall
why he chose to use the less comparable 2012 presidential election. See id. at 261
(Ratledge: “I just don’t recall.”).
       519
             Id. at 267, 315-16.
       520
             Id. at 279-80.


                                            150
old or older.521 In recent Red Clay school board elections, the percentage of older voters

has ranged from 29.73% to 31.65%.522

       Ratledge’s initial opinion was based on an unreliable comparison that seemed

cherry-picked to support the outcome his client wanted him to reach. His opinions based

on the more comparable 2014 midterm election supported the plaintiffs’ case. Here again,

however, the plaintiffs did not take the further steps that would be necessary to show that

the degree of suppression likely affected the outcome of the Special Election or called the

result into question. What was missing was some evidence about the rates at which seniors

support referendums generally or supported the Red Clay tax increase. With that

information, the plaintiffs might have been able to show that suppressing the senior vote

by 7% made a statistically significant difference. Without it, they have only one input for

a multi-variable equation.

       Implicitly recognizing the gap in the evidence, the plaintiffs argued based on

anecdotal descriptions of the voting patterns that parents of Red Clay students supported

the tax proposal to a greater extent than seniors. They noted the following:

      At all thirteen polling places where 37% or more of the voters were parents, the tax
       increase was approved.




       521
             Id. at 315-16.
       522
          Data from Red Clay Board of Education elections shows the percentage of voters
65 or older in those elections to have been 31.63% in 2012, 31.65% in 2013, 30.42% in
2014, and 29.73% in 2015. See JX 6; JX 8; JX 13; JX 187; Dkt. 155, at 25 n.11.


                                            151
      In the twelve polling places where fewer than 37% of the voters were parents, the
       tax increase was approved at only three locations and defeated at nine.

      In the six polling places where 30% or more of the voters were seniors, the tax
       increase was rejected.

      In the nineteen polling places where seniors comprised less than 30% of the
       electorate, the tax increase was approved at sixteen and defeated at three.523

These observations are interesting, but I have no idea whether these figures are consistent

with historical trends or fall within the variation produced by random chance. No one

provided a cross-tabulation that compared the percentages of parents or seniors at a polling

location with the voting results. No one presented any other tests of statistical significance.

No one tried to use the polling location data to show how the number of parents or seniors

in the voting population correlated with the number of “YES” votes. No one explained why

drawing the line at 37% electoral participation by parents is meaningful versus 30% for

seniors.

       In lieu of statistical analysis informed by social science research, the plaintiffs

tendered two veteran campaigners: Senator Peterson and Representative Hudson. Both

were qualified by virtue of experience to opine on election issues. Both opined that Red

Clay sought to use the Family-Focused Events and targeted campaign speech to intervene

in the election. Both opined that Red Clay’s electoral interventions had the desired effect

and determined the outcome of the Special Election.




       523
             JX 194; JX 305; Tr. 460 (Agne).


                                               152
       Senator Peterson is now retired. At the time of the Special Election, she represented

the 9th State Senate District, which includes portions of Red Clay. She served as a state

senator for fourteen years. Before that, she served as President of the New Castle County

Council. She has been elected to public office six times and has helped manage eight other

campaigns. She resides in Red Clay and voted in the Special Election.524

       Senator Peterson explained that in any election, “you want to get the people out to

vote who will support the outcome you want,” while trying to avoid having the people who

oppose you turn out.525 She testified that someone seeking to prevail in the Special Election

“would do everything in their power to get as many of the parents and guardians to the

polls as possible, . . . because their children would be the beneficiaries of the outcome.”526

She opined that the Family-Focused Events served that purpose by drawing parents to the

polls.527 She also opined that the parking problems disproportionately affected older voters,

because parents of Red Clay students would have less difficulty physically accessing the

polls.528 She concluded that “the outcome [of Red Clay’s efforts] was a disproportional




       524
             Peterson Dep. at 3-7.
       525
             Id. at 27-28.
       526
             Id. at 29-30.
       527
             Id. at 24.
       528
             Id. at 30-33.


                                             153
number of likely supporters of the referendum were able to vote as compared with those

who would not be as likely to support the referendum.”529

       Representative Hudson currently represents the 12th State House District, which

includes much of Red Clay. She has served as a state legislator for twenty-two years,

having been elected to that position eleven times. Before serving as a representative, she

served as the New Castle County Prothonotary, then an elected position, for five years. She

lives in Red Clay and voted in the Special Election.530

       Representative Hudson testified that successful campaigns “put the most effort” into

“people that are open-minded and may consider you, if you appeal to them.” 531 She

explained that at the state and local level, “it’s better just to ignore” individuals who are

likely to vote against: “You would hope that they weren’t paying attention to even know

there was an election. . . . [I]t’s better to just ignore that group and hope that maybe they

won’t even come out to vote.”532 Representative Hudson testified that in her experience,

“parents of the children do tend to support referendums,” while the elderly are “the most

vocal group in [the] district . . . [and] tend to not want an increase in their school taxes.”533

She opined that by holding the Family-Focused Events, Red Clay drew parents with



       529
             Id. at 40-41.
       530
             Tr. 25-26 (Hudson).
       531
             Id. at 42-43.
       532
             Id. at 43.
       533
             Id. at 44, 45.


                                              154
children to the polls and “increase[d] the likely event that more people will vote

positive.”534

       Although their opinions were informed by their considerable experience, Senator

Peterson and Representative Hudson ultimately offered intuitive assessments about the

outcome of the election. They did not support their intuitions with data or step-by-step

analyses. They did not attempt to estimate the magnitude of the effect. Their testimony

amounted to a version of “I know it when I see it.”

       To rebut Senator Peterson and Representative Hudson’s testimony, Red Clay

retained Karl Agne, the founding partner of a strategic consulting firm who has extensive

experience in campaign polling, including referendums. Agne’s central point was that we

cannot know, without more detailed analysis, what happened in the Special Election.535

Agne repeatedly pointed out the obvious fact that Senator Peterson and Representative

Hudson had not supported their opinions with data.536 He also described instances in the




       534
             Id. at 66; accord JX 210, at 2.
       535
           The plaintiffs spin Agne’s agnosticism in their favor by reframing it as a failure
to contest Senator Peterson’s or Representative Hudson’s opinions, but Agne’s point was
broader: No one can know what took place without more detailed analysis. See, e.g., Tr.
449-50 (Agne stating that he had “no idea how seniors might have voted in [the
referendum] one way or another”); see also id. at 447 (Agne agreeing that he “basically
had no idea whether or not” the referendum passed because of Red Clay’s “get-out-the-
vote activities and their effect on voters and potential voters”); id. (Agne agreeing that did
not have an opinion “on whether or not parents and guardians were more likely to support
the tax increase than other voters”).
       536
             Id. at 413-14.


                                               155
voting results that appeared inconsistent with their opinions, but those anecdotal examples

were neither more nor less persuasive than what the plaintiffs cited.537

       Because of his technical expertise, Agne could have been the most helpful witness

in the case. He had the ability to examine the social science literature and perform a

sophisticated, scientific, and data-driven analysis of the Special Election. He could have

determined whether Red Clay’s interventions had a statistically significant effect and

untangled the various influences on voting, including the extent of any correlation between

independent variables like parent/guardian status and voter age and dependent variables

like turnout and the number of “YES” votes. If he had conducted such an analysis, it likely

would have been dispositive. Both Agne and Ratledge had the ability to prepare scatterplots

and regressions that would have provided more meaningful information about the voting

patterns. In fact, the plaintiffs attempted at trial to introduce simple scatterplots and

regressions through Agne, but those analyses came too late.

       The fact that Red Clay did not have their qualified and capable experts conduct these

obvious types of analyses makes me think that they might have supported the plaintiffs’

position. But it was ultimately the plaintiffs’ burden of proof. My intuition makes me




       537
           For example, Agne noted that at the two polling locations that were not schools,
and hence did not hold Family-Focused Events, voters passed the referendum. He also
noted that at three schools where elderly voters constituted roughly the same percentage of
all voters, the spread in support for the referendum ranged from 31 points in favor to 11
points opposed. Tr. 418-20. These are interesting anecdotal observations, but without more
meaningful analysis, it is impossible to know whether they are artifacts of random chance,
part of a larger and statistically significant pattern, or legitimately disconfirmatory.


                                            156
suspect that Red Clay’s interventions affected the outcome of the Special Election, but

intuition and suspicion are not substitutes for evidence and analysis.

       Because of the gap in the evidentiary record, I am not able to reach any conclusions

about Red Clay’s actions and the outcome of the Special Election. This factor counsels

against invalidating the vote.

       5.       The Balancing of the Hardships

       Because invalidating an election is an equitable remedy, a balancing of the hardships

is always relevant. “In every instance in which a court of equity is asked to issue an

equitable remedy, it must concern itself with the effects upon others of its action.”538

“[H]owever inartfully, equity must try to right the wrongs with adequate remedies that

destroy no party in the process.”539 A court may conclude under the circumstances that it

is “more important for a contested election to be resolved conclusively than that it be

resolved perfectly.”540

       In this case, invalidating the Special Election would lead to potentially catastrophic

consequences for Red Clay. That determination would mean that Red Clay has received

approximately $26.3 million in taxes since July 1, 2015, that it was not entitled to get. Red




       538
          Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Price, 1989 WL 108412, at *2
(Del. Ch. Sept. 13, 1989) (Allen, C.).
       539
         Cantor Fitzgerald, L.P. v. Cantor, 2000 WL 307370, at *29 (Del. Ch. Mar. 13,
2000), overruled on other grounds, Scion Breckenridge Managing Member, LLC v. ASB
Allegiance Real Estate Fund, 68 A.3d 665, 686 (Del. 2013).
       540
             Election Wrongs at 293.


                                            157
Clay’s CFO testified credibly at trial that there is no possible way Red Clay could

reimburse taxpayers for that amount.541 She believed that even if Red Clay were given

twenty years to pay it back, Red Clay would not be able to shoulder the burden.542

       To avoid this problem, the plaintiffs have represented that they do not seek in this

action to force Red Clay to disgorge or otherwise pay back the taxes it has collected, nor

do they seek to recover damages in that amount.543 But that representation is not binding

on other Red Clay taxpayers. A different group of plaintiffs could file suit and seek a class-

wide damages award, relying on principles of collateral estoppel from this decision.

       There is also another route that individual taxpayers could invoke. By statute,

“[l]ocal county school taxes paid through error or by mistake may be refunded by the

school district to which the taxes were paid . . . .”544 Red Clay has been collecting taxes

since July 1, 2015, in the erroneous belief that the increases were validly approved by

voters in the Special Election. Individual taxpayers could demand that Red Clay refund

their money and sue Red Clay if it did not comply. At present, Red Clay has no procedures

for handling or defending those types of requests. Red Clay has no sense of how many

taxpayers would seek to recover the overpayments and has not established any reserves to




       541
             Tr. 688-93 (Floore describing consequences to Red Clay of having to repay
funds).
       542
             Id. at 688, 693.
       543
             See Dkt. 155 at 55; Tr. 697-700 (plaintiffs’ counsel confirming representation).
       544
             14 Del. C. § 1921.


                                              158
cover the potential claims.545 Invalidating the Special Election would create a host of

unknown complications if taxpayers attempted to invoke their statutory right.

       Invalidating the Special Election also would affect Red Clay’s ability to collect

taxes going forward. On July 1, 2017, Red Clay is scheduled to begin receiving the $0.35

tax increase. If the Special Election is invalid, then Red Clay should not be able to collect

those amounts. But Red Clay has already budgeted for the year on the assumption that it

would have those funds as operating income, and it has hired teachers and other personnel

in reliance on those moneys. If Red Clay could not collect those amounts, it would start the

year with an $18.5 million budget deficit.546

       Faced with these consequences, Red Clay’s only choice would be to hold another

special election and ask its residents to ratify the tax increase.547 To my mind, effectively

forcing Red Clay to hold another election would be unfair, because if the system for

financing public schools operated as it should, then Red Clay would not have been forced

to hold to hold a referendum in the first place. As this decision has explained at length,

Delaware school districts only have to hold regular referendums because no one is currently

updating the property tax assessments.548 The Delaware Code requires that “[a]ll property




       545
             See Tr. 681-86 (Floore).
       546
             Id. at 687-88.
       547
             Id. at 693-94.
       548
             See Part I.A, supra.


                                            159
subject to assessment shall be assessed at its true value in money,”549 and the Delaware

Supreme Court has held that this concept is the same as “fair market value.”550 But in New

Castle County, property values remain pegged to valuations from 1983. 551 If those

valuations were kept current, as the Delaware Code appears to contemplate and as seems

to have been the practice until 1983, then the underlying tax base would rise as property

values increased. School districts would not have to call referendums just to keep up.

       In this case, the primary reason that Red Clay held the Special Election was just to

keep up. True, Red Clay contemplated some new initiatives, but what forced Red Clay to

appeal to its residents was the relentless grind of inflation, coupled with a steadily

increasing student population. If Red Clay’s underlying property values had been

reassessed each year at current levels, then Red Clay’s operating revenues would have

grown with those reassessments. Red Clay has a legitimate interest in not being forced to

hold a referendum again when, if the system functioned properly, Red Clay might never

have needed to hold the referendum in the first place.

       In addition to Red Clay’s interests, there are the interests of the district’s residents.

The vast majority of residents did not vote. Over eleven thousand residents did. Decisions

in which courts have considered invalidating elections teach that a court should not focus




       549
             9 Del. C. § 8306(a).
       550
             Teachers Ins., 669 A.2d at 102.

         JX 25 at D2548 (“Local taxes are collected by New Castle County and are fixed
       551

based on 1983 assessed property values.”); Tr. 645 (Floore).


                                               160
exclusively on the interests of those who were unable to participate or whose votes were

excluded; the court also should consider the interests of those who took the time to

participate by properly casting ballots.552

       In this case, opponents of the referendum had the opportunity to go to the polls. Red

Clay’s interventions did not prevent anyone from voting. They made it more difficult, as a

practical matter, for elderly and disabled resident to vote, but they did not actually bar

anyone from participating. The interventions also did not have the likely effect of changing

anyone’s vote. They primarily operated by encouraging already supportive voters to get to

the polls. Voiding the Special Election would provide those who chose not to vote in the

last election with an opportunity to vote in a new election, but at the expense of invalidating

the votes of everyone who made the effort.

       In my view, the potential negative consequences to Red Clay and the voters who

participated in the Special Election outweigh the importance of giving voters who chose

not to participate a new opportunity to vote. The balancing of hardships therefore does not

favor invalidating the Special Election.

       6.       Weighing the Factors

       As with other multi-factor balancing tests, the factors cited in this decision are not

exclusive, and the analysis is not intended to be a mathematical exercise.553 The tests rather




       552
             See, e.g., Gjersten, 791 F.2d at 479; Bortner, 736 A.2d at 112-13.
       553
         Cf., e.g., Bell Helicopter Textron, Inc. v. Arteaga, 113 A.3d 1045, 1051-60 (Del.
2015) (balancing non-exclusive list of factors to be considered when determining choice
of law under the Restatement (Second) of Conflict of Laws (Am. Law. Inst. 1971));

                                              161
guide the court when weighing various interests. In this case, the pervasiveness of Red

Clay’s conduct weighs in favor of invalidating the Special Election. All of the other factors

counsel to varying degrees against invalidating the Special Election. I therefore conclude

that notwithstanding Red Clay’s constitutional violations of the Elections Clause, the

Special Election should not be invalidated.554

                              IV.        CONCLUSION

       In this case, the high-stakes pursuit of a laudable end caused well-intentioned people

to resort to improper means. No one should infer from this decision that anyone involved

in the Red Clay campaign acted in bad faith or with an ill motive. They sought to achieve

what I regard as an unmitigated public good: adequate funding for our state’s public

schools. Unfortunately, Delaware’s current system for conducting property tax




Martinez v. E.I. DuPont de Nemours & Co., 86 A.3d 1102, 1104-05 (Del. 2014)
(identifying non-exclusive list of factors to be considered when conducting forum non
conveniens analysis); Tumlinson v. Advanced Micro Devices, Inc., 81 A.3d 1264, 1269
(Del. 2013) (identifying a “non-exhaustive list of factors” that a trial court may consider
when evaluating the reliability of expert testimony under Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993)); In re Poliquin, 49 A.3d 1115, 1134-35 (Del. 2012) (identifying
“non-exhaustive list of aggravating factors” that may be considered when imposing
attorney discipline); Sugarland Indus., Inc. v. Thomas, 420 A.2d 142, 149 (Del. 1980)
(identifying non-exhaustive list of multiple factors to be considered when awarding
attorneys’ fees under common fund and common benefit doctrines).
       554
           I would reach the same conclusion if this decision had considered the plaintiffs’
federal claims and held that Red Clay’s conduct also violated the Due Process Clause and
the Equal Protection Clause. Whether Red Clay’s interventions violated those provisions
is not an issue governed by clearly established law or precedent, and Red Clay’s
administrators believed in good faith that they were complying with the law. The other
factors also remain the same.


                                            162
assessments puts school districts in the untenable position of having to ask residents to

raise their taxes on a regular basis, typically once every four years. Forced to operate within

that system, the Red Clay administrators knew that they needed to prevail in the Special

Election. When humans are placed under great pressure to achieve a particular outcome,

they look for ways to make it happen. History teaches that high-pressure situations often

lead to behavior that comes close to a line or crosses it.

       In this case, the line was the Elections Clause, which requires that all elections in

Delaware be “free and equal.” In its zeal to prevail in the Special Election, Red Clay

violated the Elections Clause by holding seventy-five Family-Focused Events, in the

twenty-three school buildings that served as polling places, on the day of the Special

Election. The Family-Focused Events operated as targeted rewards for the families of Red

Clay students and drew them to the polls en masse. An election is not “free and equal”

when the government provides targeted rewards for voting to a group it believes will

support its favored position.

       Although not purposeful, the effect of holding the Family-Focused Events in the

polling places, on the day of the election, was to interfere with the ability of elderly and

disabled residents to vote. The many attendees of the Family-Focused Events crowded the

school parking lots. Several of the evening events drew hundreds of people to schools with

parking lots that could not accommodate the influx. Some elderly and disabled residents

who tried to vote gave up when they could not find accessible parking spaces. Others

undoubtedly inferred from the overflowing lots that the voting lines were unmanageably

long. Red Clay was obligated to monitor the parking situation at the polling places and


                                             163
ensure that designated parking spots were available for voters. Red Clay knew that the

Family-Focused Events would create parking problems and took some steps to prepare, but

Red Clay did not fulfill its monitoring obligation, and because of the Family-Focused

Events, effective monitoring was not feasible. An election in which the government

obstructs the ability of elderly and disabled voters to access the polls is not “free and equal.”

       Red Clay also violated the Elections Clause by engaging in an election campaign

that went far beyond the limited advocacy permitted by governing Delaware Supreme

Court precedent. Although I personally favor loosening the restrictions our law places on

government campaign speech that is factually accurate, broadly directed to the electorate

as a whole, and openly identifies its source, the extent of Red Clay’s government campaign

speech went too far. Rather than engaging from the outset in broadly directed

communications that would have presented Red Clay’s side as part of an open and vigorous

debate about an important policy issue, Red Clay spent three months priming its base of

favorable voters, while avoiding communications with groups that might be opposed. Red

Clay used tactics that individual candidates and private groups regularly deploy, but a

government’s ability to engage in similar advocacy is limited. Red Clay engaged in the

equivalent of a full-scale political campaign, which Delaware Supreme Court precedent

does not permit.

       Taken as a whole, Red Clay’s electoral interventions violated the Elections Clause.

Notwithstanding that conclusion, I am not convinced that Red Clay’s actions warrant

invalidating the Special Election. Precedent from many jurisdictions teaches that electoral

violations, even constitutional ones, do not lead ineluctably to a new election. A court must


                                              164
balance multiple considerations before invalidating an election. In this case, that balancing

weighs in favor of allowing the Special Election to stand.




                                            165
                                                         Appendix A
This appendix identifies the school tax referendums in Delaware since 1980. All information is drawn from publicly available
sources. The list is comprehensive but not exhaustive. Some sources referred to other referendums for which publicly available
data were not readily available. The Special Election is highlighted.
The appendix includes three types of referendums: capital, operating, and transfer. A capital referendum seeks approval for a
tax increase to fund the construction or renovation of a school, classroom, or similar project. An operating referendum seeks
approval for a tax increase to fund a school district’s operating budget. A transfer seeks authority to transfer surplus capital
funds to the operating budget or to retain them in a reserve.
 Date            District         Type          Result                      Source
 Feb. 12, 1980   Seaford          Capital       Approved, 1,516 to 540      Mark Matthews, Seaford Voters OK School Tax
                                  Operating     Approved, 1,262 to 754      Increase, The Morning News, Feb. 13, 1980, at 18.
 Mar. 25, 1980   Milford          Transfer      Approved, 810 to 155        Budgets Up, But Taxes Aren’t, The Morning News,
 Mar. 25, 1980   Woodbridge       Transfer      Approved, 811 to 117        Mar. 26, 1980, at 16.
 May 20, 1980    Capital          Transfer      Approved, 682 to 428        Parents: More Taxes, More School Nurses, The
                                                                            Morning News, May 21, 1980, at 20.
 May 24, 1980    Delmar           Transfer      Not Available               Delmar To Vote on Tax Transfer, The Morning News,
                                                                            May 23, 1980, at 18.
 Oct. 22, 1980   New Castle       Operating     Defeated, 46,740 to 4,851   Steve Goldberg, Voters Trounce Tax Proposal, The
                 County                                                     Morning News, Oct. 23, 1980, at A1.
 Oct. 29, 1980   Smyrna           Transfer      Not Available               Smyrna Schools Seeking Tax Shift, The Evening
                                                                            Journal, Sept. 19, 1980, at A19.
 Nov. 15, 1980   Indian River     Operating     Defeated, 2,559 to 1,397    Indian River District Denies School Tax Hike, The
                                                                            Sunday News Journal, Nov. 16, 1980, at C3.
 June 9, 1981    Appoquinimink    Operating     Defeated, 899 to 285        Janine Jaquet, Property Tax Referendum Is Defeated,
                                                                            The Morning News, June 10, 1981, at C1.
 Nov. 10, 1981   Caesar Rodney    Transfer      Approved, 682 to 106        Caesar Rodney District Oks Tax Transfer, The
                                                                            Evening Journal, Nov. 11, 1981, at C1.
 Dec. 8, 1981    Appoquinimink    Operating     Defeated, 932 to 536        David L. Preston, Appoquinimink Voters Veto Tax
                                                                            Hike; Greenhouse Project May Be Casualty, The
                                                                            Evening Journal, at C8.
Date            District        Type        Result                     Source
Mar. 9, 1982    Capital         Transfer    Approved, 939 to 549       Jane Brooks, Capital District Voters Support School
                                                                       Repairs, The Evening Journal, Mar. 10, 1982, at B8.
Mar. 16, 1982   Seaford         Operating   Defeated, 953 to 906       Kevin Feeley, Seaford Votes Down Tax Hike, The
                                                                       Morning News, Mar. 31, 1982, at B1.
Mar. 30, 1982   Milford         Operating   Approved, 1,256 to 992     Kevin Feeley, Voters OK Tax Hike in Milford, The
                                                                       Morning News, Mar. 17, 1982, at B1.
May 11, 1982    Smyrna          Operating   Defeated, 763 to 450       Nathan Gorenstein, Posts Filled on State School
                                                                       Boards; Voters Reject Smyrna Tax Hike, The Morning
                                                                       News, May 12, 1982, at D1.
May 15, 1982    Indian River    Capital     Approved, 1,936 to 1,179   Voters OK Tax Hike, The News Journal, May 16,
                                                                       1982, at B10.
June 8, 1982    Appoquinimink   Operating   Approved, 1,360 to 1,215   Dan Piper, Appoquinimink Tax Rises, The Evening
                                                                       Journal, June 9, 1982, at A1.
Oct. 12, 1982   Seaford         Transfer    Approved, 1,066 to 126     Seaford School District Voters OK Tax Transfer, The
                                                                       Morning News, Oct. 13, 1982, at B1.
Nov. 20, 1982   Delmar          Operating   Defeated, 200 to 89        Robin Brown, Delmar Votes to Hike Funds for
                                Transfer    Approved, 175 to 113       Schools, The News Journal, Nov. 21, 1982, at B3.
Oct. 25, 1983   Smyrna          Operating   Approved, 898 to 667       Tax Rise OK’d In Smyrna, The Morning News, Oct.
                                                                       26, 1983, at B1.
Nov. 10, 1983   Cape Henlopen   Capital     Approved, 1,857 to 659     Henlopen Voters OK Tax Hikes, The Morning News,
                                Operating   Approved, 1,532 to 865     Nov. 11, 1983, at B4B.
Dec. 14, 1983   Capital         Operating   Approved, 1,018 to 840     Jane Brooks, Dover Area OKs School-Tax Boost, The
                                                                       Morning News, Dec. 15, 1983, at A1.
Mar. 6, 1984    Christina       Operating   Defeated, 4,874 to 2,602   Laurie Hays, Christina Tax Hike Rejected, The
                                                                       Evening Journal, Mar. 7, 1984, at A1.
Mar. 28, 1984   Indian River    Operating   Approved, 2,298 to 1,756   Dennis Friedel, Indian River OKs Tax Hike, The
                                Transfer    Approved, 2,433 to 1,613   Morning News, Mar. 29, 1984, at A1.
May 8, 1984     Lake Forest     Operating   Approved, 942 to 928       Jane Brooks & Rowan Scarborough, 2 Kent Districts
May 8, 1984     Caesar Rodney   Operating   Approved, 1,561 to 713     OK Hikes, The News Journal, May 9, 1984, at B3.
Mar. 21, 1985   Laurel          Operating   Approved, 984 to 615       Molly Murray, Laurel Voters OK Tax Increases, The
                                Transfer    Approved, 1,202 to 402     News Journal, Mar. 23, 1985, at A4.
Mar. 28, 1985   Milford         Operating   Approved, 1,260 to 969     Jerry Hager, Milford Votes Tax Hike to Aid School
Date            District        Type        Result                     Source
                                Transfer    Approved, 1,519 to 698     System, The Morning News, Mar. 29, 1985, at A1.
May 14, 1985    Seaford         Operating   Approved, 1,073 to 504     Seaford Voters OK Tax Hikes for Schools, The
                                                                       Morning News, May 15, 1985, at A1.
May 18, 1985    Woodbridge      Operating   Approved, 785 to 391       Molly Murray, School Tax Hike Approved, The
                                Transfer    Approved, 964 to 196       Morning News, May 21, 1985, at B3.
Nov. 9, 1985    Delmar          Operating   Approved, 249 to 128       Molly Murray, Delmar Voters OK Tax Hike, The
                                                                       News Journal, Nov. 10, 1985, at C6.
Nov. 14, 1985   Cape Henlopen   Operating   Approved, 1,299 to 1,044   Carolyn Lewis, Property Tax Hike Approved, The
                                                                       Morning News, Nov. 15, 1985, at B1.
Nov. 16, 1985   Lake Forest     Capital     Defeated, 1,388 to 691     Molly Murray, Lake Forest Rejects Tax Hike for
                                                                       Schools, The News Journal, Nov. 17, 1985, at C1.
Nov. 19, 1985   Smyrna          Operating   Approved, 933 to 488       Pattie Sewell, Smyrna School Voters OK Tax Increase,
                                                                       The Morning News, Nov. 20, 1985, at B2.
Dec. 10, 1985   Capital         Operating   Approved, 936 to 793       Jane Brooks, Capital District to Get Tax Hike, The
                                                                       Morning News, Dec. 11, 1985, at B6
Dec. 11, 1985   Appoquinimink   Operating   Approved, 944 to 744       Voters OK Higher Tax for Schools, The Morning
                                                                       News, Dec. 12, 1985, at B2.
Feb. 4, 1986    Caesar Rodney   Operating   Approved, 1,136 to 680     Phil Milford, Tax Boost Approved, The News Journal,
                                                                       Feb. 5, 1986, at B1; Molly Murray, Rodney School
                                                                       Post Is Filled, The Morning News, Apr. 16, 1986, at
                                                                       B4.
Mar. 18, 1986   Indian River    Operating   Approved, vote tally not   Dennis Friedel, Indian River Seeks Tax Hike for
                                            available                  Schools, The News Journal, Feb. 13, 1986, at B1;
                                                                       Michael Jackson, Indian River OKs Tax, The News
                                                                       Journal, Mar. 19, 1986, at B1.
Oct. 7, 1986    Christina       Operating   Approved, 4,827 to 3,412   Sandy Dennison, Christina District’s Board to Seek
                                Capital     Approved, 5,143 to 3,100   17% Increase in Taxes, Evening Journal, Aug. 13,
                                                                       1986, at A1; Voters Approve Christina Tax Increase,
                                                                       The Morning News, Oct. 8, 1986, at B8C.
Mar. 31, 1987   Brandywine      Operating   Defeated, 6,841 to 6,313   Sandy Dennison, Brandywine District Says No to Tax
                                                                       Increase, The Evening Journal, Apr. 1, 1987, at A1,
                                                                       A4.
Date            District        Type        Result                     Source
May 19, 1987    Seaford         Capital     Approved, vote tally not   Carolyn Lewis, Seaford Voters OK Bond Issue, The
                                            available                  Evening Journal, May 20, 1987, at B3.
                                Operating   Approved, vote tally not
                                            available
Oct. 27, 1987   Brandywine      Operating   Approved, 11,938 to        Sandy Dennison, Brandywine Voters OK School Tax
                                            6,589                      Hike, The Evening Journal, Oct. 28, 1987, at A1, A4.
Nov. 10, 1987   Lake Forest     Operating   Defeated, 1,383 to 1,071   Lake Forest Tax Vote, The Evening Journal, Sept. 21,
                                                                       1987, at A3; Voters Kill Tax Hike, The Evening
                                Capital     Defeated, 1,257 to 1,215   Journal, Nov. 11, 1987, at B1.

Nov. 10, 1987   Woodbridge      Capital     Defeated, 1,009 to 635     Molly Murray, Woodbridge Schedules Referendum,
                                                                       The Morning News, Oct. 14, 1987, at B1; School Plan
                                                                       Rejected, The Evening Journal, Nov. 11, 1987, at B1.
Mar. 29, 1988   Capital         Operating   Approved, 1,634 to 1,209   Capital Voters OK Hike in School Taxes, The Evening
                                                                       Journal, Mar. 30, 1988, at B1.
Apr. 12, 1988   Smyrna          Operating   Approved, 1,450 to 1,443   Nancy Kesler, Shaky Smyrna School District Ekes Out
                                Transfer    Approved, 2,213 to 698     Tax Hike Vote Victory, The Morning News, Apr. 13,
                                                                       1988, at A1, A12.
May 17, 1988    Lake Forest     Operating   Approved, 2,068 to 1,051   Rhonda Graham, Lake Forest Voters Approve
                                                                       Increase In School Taxes, The Morning News, May
                                Capital     Approved, 2,193 to 1,351
                                                                       18, 1988, at B1.
May 24, 1988    Caesar Rodney   Operating   Approved, 1,051 to 543     Higher Property Taxes OK’d, The Evening News,
                                                                       May 25, 1988, at B2
Apr. 13, 1989   Laurel          Capital     Defeated, 777 to 684       Carolyn Lewis, Voters Say “No” to Laurel’s $6.5
                                                                       Million School Bond Bill, The News Journal, Apr. 14,
                                                                       1989, at B4.
May 9, 1989     Christina       Capital     Approved, 3,274 to 1,629   Sandy Dennison, Christina School District Votes 3
                                                                       Percent Tax Hike, The News Journal, May 10, 1989,
                                                                       at A1.
Mar. 7, 1990    Laurel          Capital     Approved, 1,272 to 874     Nancy E. Lynch, School Bond Issue Approved, The
                                                                       News Journal Delmarva, Mar. 8, 1990, at B2A.
Apr. 4, 1990    Red Clay        Operating   Defeated, 6,569 to 6,101   Sandy Dennison, Proposal Loses By Less Than 500
Date            District        Type         Result                     Source
                                                                        Votes, The News Journal, Apr. 5, 1990, at A1.
May 8, 1990     Christina       Capital      Defeated, 5,083 to 3,452   Eric Ruth, Christina Tax Hike Is Rejected, The News
                                                                        Journal, May 9, 1990, at A1, A4.
May 8, 1990     Capital         Capital      Approved, 1,424 to 524     Jeff Montgomery, Capital Tax Hike Approved, The
                                                                        News Journal Delmarva, May 9, 1990, at B2A.
Oct. 4, 1990    Red Clay        Operating    Defeated, 9,858 to 7,007   Eric Ruth, Red Clay Tax Hike Defeated, The News
                                                                        Journal, Oct. 5, 1990, at A1.
Oct. 11, 1990   Appoquinimink   Operating    Defeated, 1,505 to 1,267   Tom Curley, Appoquinimink Voters Reject School Tax
                                                                        Hike, The News Journal Delmarva, Oct. 13, 1990, at
                                                                        A4A.
Dec. 6, 1990    Christina       Operating    Approved, 6,244 to 4,920   Eric Ruth, Christina Voters OK 24 Percent Tax
                                (17 cents);                             Increase, The News Journal, Dec. 7, 1990, at A1,
                                Capital (1.5                            A19.
                                cents)
Apr. 9, 1991    Milford         Capital      Approved, 1,164 to 798     Milford Voters OK Tax Hikes, The News Journal
                                                                        Delmarva, Apr. 10, 1991, at B1.
Apr. 16, 1991   Appoquinimink   Operating    Approved, 1,791 to 1,572   Tom Curley, Appoquinimink Voters OK Tax Hike, The
                                                                        News Journal, Apr. 17, 1991, at B1.
May 2, 1991     Red Clay        Operating    Approved, 10,814 to        Sandy Dennison, Red Clay Voters Approve 29% Tax
                                             8,585                      Increase, The News Journal, May 3, 1991, at A1, A4.
Oct. 22, 1991   Appoquinimink   Transfer     Approved, 866 to 348       Tom Curley, Appoquinimink Voters OK Bond Money
                                                                        for Redding, The News Journal Delmarva, Oct. 23,
                                                                        1991, at B1.
Nov. 7, 1991    Indian River    Capital      Defeated, 3,060 to 2,883   Bruce Pringle, Schools Building Plans Rejected by
                                                                        Indian River Residents, The News Journal Delmarva,
                                Capital      Defeated, 3,547 to 3,022   Nov. 8, 1991, at A1, A16.

Nov. 7, 1991    Smyrna          Capital      Approved, 717 to 642       Kanchalee Svetvilas, Smyrna Voters OK Plans for
                                                                        School Work, The News Journal Delmarva, Nov. 8,
                                                                        1991, at B1.
Nov. 9, 1991    Woodbridge      Capital      Approved, 1,207 to 443     Eddy J. Parker, Schools Need Renovation, The News
                                                                        Journal, Nov. 5, 1991, at A7; Nan Clements & Molly
Date            District        Type        Result                     Source
                                                                       Murray, Woodbridge Voters OK $10 Million Capital,
                                                                       The News Journal, Nov. 10, 1991, at C3.
Mar. 12, 1992   Cape Henlopen   Operating   Defeated, 1,433 to 1,226   Bruce Pringle, Cape District Residents To Vote On
                                                                       Tax Hike, The News Journal Delmarva, Mar. 2, 1992,
                                                                       at A3; Chris Donahue & Bruce Pringle, Henlopen Tax
                                                                       Increase Is Rejected, The News Journal Delmarva,
                                                                       Mar. 13, 1992, at B1.
May 14, 1992    Indian River    Capital     Approved, 3,636 to 3,609   Bruce Pringle, Review Mixed for Indian River
                                                                       Expansion Plan, The News Journal Delmarva, Mar.
                                                                       28, 1992, at A3; Indian River OKs School Building,
                                                                       The News Journal, May 15, 1992, at B4.
May 23, 1992    Laurel          Transfer    Approved, 197 to 55        Laurel Voters OK Debt Transfer, The News Journal,
                                                                       May 24, 1992, at B6.
May 30, 1992    Delmar          Not         Not available              Special Notice, The News Journal, May 15, 1992, at
                                available                              C8.
Oct. 6, 1992    Colonial        Operating   Defeated, 3,900 to 2,988   Sandy Dennison, Colonial Asks Voters to Approve Tax
                                                                       Hike, The News Journal, Oct. 4, 1992, at B7;
                                                                       Referendum Report, The News Journal Crossroads,
                                                                       Oct. 15, 1992, at 16.
Mar. 9, 1993    Capital         Capital     Approved, 1,060 to 165     School Spending Ok’d, The News Journal, Mar. 10,
                                                                       1993, at B1.
May 4, 1993     Colonial        Operating   Approved, 7,082 to 5,228   Sandy Dennison, Colonial Tax Hike Wins OK, The
                                                                       News Journal, May 5, 1993, at A1.
May 8, 1993     Cape Henlopen   Capital     Approved, 839 to 225       Cris Barrish & Nan Clements, Cape Residents
                                                                       Approve Tax Hike to Fix Schools, The News Journal,
                                                                       May 9, 1993, at B7.
May 11, 1993    Appoquinimink   Capital     Approved, 805 to 623       Sue Denny, Appoquinimink Lowers Tax Proposal, The
                                                                       News Journal, Apr. 8, 1993, at B2; Sandy Dennison,
                                                                       Runoff Looms for Lake Forest Board, The News
                                                                       Journal, May 12, 1993, at B3.
Nov. 2, 1993    Brandywine      Operating   Defeated, 9,827 to 8,866   Sandy Dennison, Brandywine Voters Split on Tax
                                Capital     Approved, 8,518 to 8,476   Hikes, The News Journal, Nov. 3, 1993, at A1; Sandy
Date            District        Type        Result                     Source
                                                                       Dennison, School Officials in Retreat, The News
                                                                       Journal, June 26, 1993, at A1.
Nov. 9, 1993    Caesar Rodney   Capital     Approved, 1,208 to 905     Robert Moore, School Tax Hikes Approved in Kent,
Nov. 9, 1993    Capital         Capital     Approved, 1,117 to 747     The News Journal Kent & Sussex, Nov. 10, 1993, at
                                                                       A1.
Nov. 18, 1993   Cape Henlopen   Operating   Not available              Bruce Pringle, Cape Henlopen School Tax Hike Up
                                                                       for Vote Again, The News Journal Kent & Sussex,
                                                                       Nov. 15, 1993, at A3.
Mar. 8, 1994    Lake Forest     Capital     Defeated, 1,506 to 897     Kim Hoey, School Funding Plans Rejected, The News
Mar. 8, 1994    Milford         Operating   Defeated, 1,996 to 649     Journal Kent & Sussex, Mar. 9, 1994, at B1.
Mar. 29, 1994   Seaford         Operating   Defeated, 1,268 to 1,128   Nan Clements, Seaford Sinks New School Tax, The
                                                                       News Journal Kent & Sussex, Mar. 30, 1994, at A1.
May 3, 1994     Brandywine      Operating   Approved, 14,579 to        Sandy Dennison, Vote Gives Brandywine New Life,
                                            10,669                     The News Journal, May 4, 1994, at A1.
June 14, 1994   Appoquinimink   Transfer    Approved, 306 to 109       Appoquinimink Fund Transfer OK’d, The News
                                                                       Journal, June 15, 1994, at B3.
Feb. 7, 1995    Red Clay        Operating   Defeated, 9,296 to 6,586   Esteban Parra, Red Clay Tax Boost Rejected, The
                                                                       News Journal, Feb. 8, 1995, at A1.
Feb. 14, 1995   Appoquinimink   Operating   Defeated, 1,632 to 777     Joy Gwillim, Appoquinimink Tax Hike Fails, The
                                                                       News Journal, Feb. 15, 1995, at A1.
Mar. 7, 1995    Christina       Capital     Approved, 4,800 to 3,162   Esteban Parra, Christina Tax Hike Proposal
                                                                       Supported, The News Journal Crossroads, Dec. 22,
                                                                       1994, at 10; Eric Ruth, Christina Tax Hike OK’d, The
                                                                       News Journal, Mar. 8, 1995, at B1.
Mar. 28, 1995   Seaford         Operating   Defeated, 1,711 to 1,353   Chris Donahue, Tax Increase Rejected in Seaford
                                                                       Vote, The News Journal Kent & Sussex, Mar. 29,
                                                                       1995, at A1.
Apr. 11, 1995   Caesar Rodney   Operating   Defeated, 1,559 to 1,034   Rodney District: No Tax Hike, The News Journal Kent
Apr. 11, 1995   Cape Henlopen   Transfer    Approved, 1,529 to 930     & Sussex, Apr. 12, 1995, at B1.
May 9, 1995     Appoquinimink   Operating   Defeated, 2,259 to 2,119   Amy Knowles, Appoquinimink: No Tax Hike, The
                                                                       News Journal Kent & Sussex, May 10, 1995, at B1.
Date            District        Type        Result                     Source
May 24, 1995    Red Clay        Operating   Approved, 12,145 to        Esteban Parra, Red Clay Passes Tax Hike, The News
                                            10,644                     Journal, May 25, 1995, at A1.
Feb. 6, 1996    Seaford         Capital     Approved, 855 to 771       Bruce Pringle, Seaford Voters OK School Funds, The
                                                                       News Journal Kent & Sussex, Feb. 7, 1996, at A1.
Feb. 15, 1996   Indian River    Operating   Approved, 4,360 to 3,331   Tax Hike Referendum Set For Indian River District,
                                                                       The News Journal Kent & Sussex, Dec. 18, 1995, at
                                                                       A5; Esteban Parra, District Adds 45 New Teachers,
                                                                       The News Journal Kent & Sussex, Sept. 4, 1996, at
                                                                       B1.
Mar. 12, 1996   Colonial        Capital     Defeated, 3,292 to 703     Nan Clements, Colonial Proposal Defeated, The
                                                                       News Journal, Mar. 13, 1996, at A1.
Mar. 12, 1996   Capital         Capital     Approved, 963 to 602       Robert Moore, Capital Voters OK Tax Hike, The
                                                                       News Journal Kent & Sussex, Mar. 13, 1996, at A1.
Apr. 4, 1996    Caesar Rodney   Capital     Approved, 1,477 to 1,288   James Merriweather, Caesar Rodney Voters OK Tax
                                                                       Hike, The News Journal Kent & Sussex, Apr. 5, 1996,
                                                                       at A1.
Apr. 27, 1996   Appoquinimink   Operating   Defeated, 1,750 to 1,429   Mike Billington & Edward L. Kenney, School Tax
                                                                       Proposal Defeated, The News Journal, Apr. 28, 1996,
                                                                       at A1.
Dec. 3, 1996    Colonial        Capital     Defeated, 2,504 to 1,266   Nan Clements, School Tax Increase Voted Down, The
                                                                       News Journal, Dec. 4, 1996, at A1.
Mar. 8, 1997    Delmar          Capital     Approved, 708 to 267       Nan Clements, Delmar Votes to Build School, The
                                                                       News Journal, Mar. 9, 1997, at B2.
Mar. 11, 1997   Lake Forest     Capital     Defeated, 1,271 to 1,260   James Merriweather, Lake Forest Tax Hikes Defeated,
                                Operating   Defeated, 1,407 to 1,123   The News Journal Kent & Sussex, Mar. 12, 1997, at
                                                                       A1.
Mar. 18, 1997   Red Clay        Capital     Defeated, vote tally not   Beverly James Coleman, Red Clay Tax Hike Rejected,
                                            available                  The News Journal, Mar. 19, 1997, at A1.
Mar. 25, 1997   Milford         Operating   Approved, 2,196 to 1,314   Kim Hoey, Milford School Tax Hike Approved, The
                                                                       News Journal Kent & Sussex, Mar. 26, 1997, at B1.
May 6, 1997     Lake Forest     Capital     Defeated, 2,186 to 1,874   James Merriweather & Patricia V. Rivera, Lake Forest
                                Operating   Defeated, 2,399 to 1,647   Voters Kill Tax Hike, The News Journal, May 7, 1997,
Date            District        Type        Result                     Source
                                                                       at B5.
May 13, 1997    Appoquinimink   Capital     Defeated, 1,590 to 1,194   Stephen Chrzanowski, Appoquinimink School District
                                                                       Referendum Rejected, The News Journal, May 14,
                                                                       1997, at B1.
Mar. 10, 1998   Red Clay        Capital     Defeated, 7,838 to 6,652   Allison Taylor & Esteban Parra, Red Clay Wins Split
                                                                       Decision, The News Journal, Mar. 11, 1998, at A1,
                                Capital     Approved, 7,980 to 6,566   A12.
                                Operating   Approved, 7,700 to 6,781
Mar. 19, 1998   Capital         Operating   Defeated, 1,744 to 1,009   James Merriweather, Tax Hike in Capital Is Rejected,
                                                                       The News Journal Kent & Sussex, Mar. 20, 1998, at
                                                                       B1.
Mar. 31, 1998   Woodbridge      Operating   Defeated, 739 to 419       Lynn Parks, After 10 Years, Track Is Back at
                                                                       Woodbridge High School, The News Journal
                                                                       Delmarva Crossroads, Apr. 15, 1998, at 1.
Apr. 21, 1998   Lake Forest     Capital     Defeated, 1,361 to 1,129   James Merriweather, Lake Forest Tax Hike Is
                                                                       Rejected, The News Journal Kent & Sussex, Apr. 22,
                                                                       1998, at B1.
Apr. 28, 1998   Caesar Rodney   Capital     Defeated, 1,644 to 1,240   James Merriweather, Tax Hike Is Rejected by Voters,
                                                                       The News Journal Kent & Sussex, Apr. 29, 1998, at
                                                                       B1.
May 12, 1998    Appoquinimink   Capital     Approved, 2,359 to 2,341   Allison Taylor & Sean O’Sullivan, Appoquinimink
                                Operating   Approved, 2,321 to 2,218   Voters Approve School Tax Hike, The News Journal,
                                                                       May 13, 1998, at A1.
June 2, 1998    Red Clay        Capital     Defeated, 5,449 to 3,396   Edward L. Kenney, Red Clay Tax Hike Is Rejected,
                                                                       The News Journal, June 3, 1998, at B1.
Mar. 11, 1999   Lake Forest     Capital     Approved, 2,025 to 1,343   Lake Forest Voters OK Tax Increase, The News
                                                                       Journal, Mar. 12, 1998, at B2.
Mar. 23, 1999   Milford         Capital     Approved, 1,536 to 1,258   James Merriweather, Tax Hike OK’d in Milford, The
                                                                       News Journal Kent & Sussex, Mar. 24, 1999, at A1.
Mar. 30, 1999   Capital         Capital     Approved, 1,683 to 1,147   James Merriweather, Capital Tax Hike Approved, The
                                                                       News Journal Kent & Sussex, Mar. 31, 1999, at A1.
Date            District        Type        Result                     Source
Nov. 23, 1999   Caesar Rodney   Capital     Approved, 2,068 to 1,643   James Merriweather, Caesar Rodney Tax Boost
                                                                       Approved, The News Journal, Nov. 24, 1999, at B2.
Nov. 29, 1999   Colonial        Capital     Approved, 2,418 to 1,395   Stephen Sobek, Colonial Voters OK New School, The
                                                                       News Journal, Nov. 30, 1999, at A1, A11.
Feb. 26, 2000   Smyrna          Capital     Approved, 1,493 to 1,104   Chip Guy, District’s School-Tax Hike OK’d, The
                                Operating   Approved, 1,478 to 1,132   News Journal, Feb. 27, 2000, at B1.
Feb. 29, 2000   Woodbridge      Capital     Defeated, 1,022 to 958     Molly Murray, Woodbridge Defeats School
                                Operating   Defeated, 1,034 to 917     Referendum, The News Journal Kent & Sussex, Mar.
                                                                       2, 2000, at B1.
Mar. 7, 2000    Cape Henlopen   Capital     Approved, 2,920 to 1,322   Molly Murray, Voters Pass Plan to Build Two
                                                                       Schools, The News Journal Kent & Sussex, Mar. 8,
                                                                       2000, at B1.
Mar. 23, 2000   Indian River    Capital     Defeated, 3,526 to 3,425   Patricia V. Rivera, Indian River Rejects a Tax Hike,
                                                                       The News Journal Kent & Sussex, Mar. 24, 2000, at
                                                                       A1, A9.
May 6, 2000     Woodbridge      Capital     Defeated, 1,124 to 889     Molly Murray, District Residents Reject 2nd Tax-Hike
                                Operating   Defeated, 1,126 to 843     Referendum, The News Journal, May 7, 2000, at B1.
May 9, 2000     Appoquinimink   Transfer    Approved, 1,730 to 335     Stephanie L. Arnold, School Building Plan OK’d, The
                                                                       News Journal, May 10, 2000, at A1.
May 23, 2000    Indian River    Capital     Approved, 4,909 to 3,528   Patricia V. Rivera, Indian River’s Spending Plan Wins
                                                                       Voters’ Approval, The News Journal, May 24, 2000,
                                                                       at B6.
June 3, 2000    Lake Forest     Operating   Defeated, 934 to 541       James Merriweather, Lake Forest District Says No to
                                                                       Tax Hike, The News Journal, June 4, 2000, at B5.
Feb. 13, 2001   Lake Forest     Operating   Approved, 2,138 to 1,565   James Merriweather, Lake Forest Voters OK a Tax
                                                                       Hike, The News Journal Kent & Sussex, Feb. 14,
                                                                       2001, at B1.
Apr. 3, 2001    Christina       Capital     Defeated, 3,072 to 2,864   Michele Besso, Christina Schools Face Vote, The
                                Capital     Defeated, 3,482 to 2,400   News Journal, Apr. 3, 2001, at B1, B5; Michele
                                                                       Besso, Voters Defeat Christina Proposal, The News
                                                                       Journal, Apr. 4, 2001, at A1, A7.
Apr. 10, 2001   Red Clay        Capital     Defeated, 6,271 to 5,532   Stephen Sobek, Red Clay’s Plans Are Rejected, The
Date            District        Type        Result                     Source
                                                                       News Journal, Apr. 11, 2001, at A1, A12.
May 3, 2001     Indian River    Capital     Defeated, 2,112 to 1,874   Molly Murray, Indian River Voters Go to Polls
                                Operating   Defeated, 2,222 to 1,740   Thursday, The News Journal Kent & Sussex, May 2,
                                Capital     Defeated, 2,137 to 1,814   2001, at B1-2; Molly Murray, Schools Plan Gets a No
                                                                       Vote, The News Journal Kent & Sussex, May 4, 2001,
                                                                       at B1.
May 8, 2001     Woodbridge      Capital     Approved, 1,077 to 1,016   Molly Murray, Woodbridge Referendum to Go to
                                Operating   Defeated, 1,016 to 976     Voters Again, The News Journal, May 7, 2001, at B5;
                                                                       Molly Murray, Residents Approve Tax Hike, The
                                                                       News Journal Kent & Sussex, May 9, 2001, at B1.
May 19, 2001    Delmar          Transfer    Approved, 133 to 2         Delmar District Votes to Transfer Money, The News
                                                                       Journal, May 20, 2001, at B3.
May 31, 2001    Brandywine      Capital     Approved, 7,554 to 2,313   Kate Bailey, Brandywine Sets Referendum On School
                                Capital     Approved, 7,120 to 2,822   Repairs, The News Journal, Mar. 23, 2001, at B1;
                                                                       Stephen Sobek, School Overhauls Approved, The
                                                                       News Journal, June 1, 2001, at A1.
Mar. 6, 2002    Red Clay        Capital     Approved, 4,986 to 4,473   Stephen Sobek, Red Clay Tax Hike Gets Voter
                                                                       Approval, The News Journal, Mar. 7, 2002, at A1, A7.
Mar. 26, 2002   Woodbridge      Operating   Defeated, 876 to 682       Mike Billington, Defeated Tax Hike Means New
                                                                       Woodbridge School Won’t Open, The News Journal
                                                                       Kent & Sussex, Mar. 28, 2002, at B3.
Apr. 9, 2002    Seaford         Transfer    Approved, 731 to 175       Chip Guy, Seaford Voters OK Debt-Service Money
                                                                       Transfer, The News Journal Kent & Sussex, Apr. 10,
                                                                       2002, at B1.
Apr. 18, 2002   Christina       Capital     Approved, 4,291 to 1,979   Michele Besso, Christina Voters OK Tax Increase,
                                                                       The News Journal, Apr. 19, 2002, at A1, A16.
                                Capital     Approved, 3,505 to 2,054
Apr. 23, 2002   Brandywine      Operating   Approved, 6,971 to 2,297   Stephen Sobek, Voters OK Tax Boost for Schools, The
                                                                       News Journal, Apr. 24, 2002, at A1, A12
May 9, 2002     Delmar          Transfer    Approved, 85 to 5          Delmar Voters Pass School’s Tax Proposal, The
                                                                       News Journal Kent & Sussex, May 12, 2002, at B3.
May 23, 2002    Caesar Rodney   Transfer    Approved, 1,564 to 284     James Merriweather, Voters Approve Tax Plan, The
Date            District        Type        Result                     Source
                                                                       News Journal Kent & Sussex, May 24, 2002, at B1.
June 1, 2002    Woodbridge      Operating   Approved, 1,802 to 1,202   Molly Murray, Woodbridge Schools Face a Crucial
                                                                       Vote, The News Journal, May 31, 2002, at B5; Molly
                                                                       Murray, Woodbridge District Tax Hike Passes, The
                                                                       News Journal, June 2, 2002, at A1.
Mar. 18, 2003   Indian River    Transfer    Approved, 2,179 to 174     Molly Murray, Indian River Athletic-Fields Plan
                                                                       Passes, The News Journal Kent & Sussex, Mar. 19,
                                                                       2003, at B3.
Apr. 10, 2003   Christina       Operating   Approved, 5,530 to 2,270   Melissa Tyrrell, Voters OK Christina Tax Increase,
                                Operating   Approved, 5,334 to 2,431   The News Journal, Apr. 11, 2003, at B1.
Nov. 12, 2003   Appoquinimink   Capital     Approved 3,363 to 1,450    Melissa Tyrrell, District’s Voters OK Plans, The
                                Operating   Approved 3,087 to 1,711    News Journal, Nov. 13, 2003, at A1, A4.
                                Operating   Approved 2,885 to 1,939
                                Transfer    Approved, 3,689 to 1,105
Jan. 27, 2004   Woodbridge      Transfer    Approved, 547 to 378       Murali Balaji, Voters OK Woodbridge Upgrades, The
                                                                       News Journal, Jan. 28, 2004, at B1.
Feb. 7, 2004    Delmar          Transfer    Approved, 194 to 28        Melissa Tyrrell, Voters Approve Delmar School
                                                                       Expansion, The News Journal, Feb. 8, 2004, at B3.
Feb. 26, 2004   Red Clay        Operating   Approved, 4,281 to 3,658   Mike Billington & Michele Besso, Red Clay OKs
                                                                       More Funds, The News Journal, Feb. 27, 2004, at B1.
Mar. 30, 2004   Indian River    Capital     Approved, 1,960 to 1,482   Molly Murray, School Tax Hike Approved, The News
                                Operating   Approved, 1,953 to 1,544   Journal Kent & Sussex, Mar. 31, 2004, at B1.


Oct. 12, 2004   Capital         Operating   Defeated, 1,883 to 1,444   James Merriweather, Capital District Rejects Tax
                                                                       Hike, The News Journal Kent & Sussex, Oct. 13,
                                                                       2004, at A1.
Feb. 26, 2005   Smyrna          Capital     Approved, 1,114 to 429     Chris Barrish, Smyrna Vote OKs Tax Hike, The News
                                                                       Journal, Feb. 27, 2005, at B1.
Mar. 8, 2005    Capital         Operating   Approved, 2,491 to 1,784   James Merriweather, Voters OK Tax Increase for
                                                                       Capital Schools, The News Journal Kent & Sussex,
                                                                       Mar. 9, 2005, at B1.
Date            District        Type        Result                     Source
Mar. 22, 2005   Milford         Operating   Approved, 1,882 to 1,097   James Merriweather, Milford Voters Approve Tax
                                                                       Increase, The News Journal Kent & Sussex, Mar. 23,
                                                                       2005, at B3.
Apr. 12, 2005   Seaford         Capital     Approved, 593 to 380       Chip Guy, Seaford Voters Pass Bond Referendum,
                                                                       The News Journal Kent & Sussex, Apr. 13, 2005, at
                                                                       B1.
Apr. 12, 2005   Lake Forest     Transfer    Approved, 950 to 66        Lake Forest OKs Funds Transfer, The News Journal
                                                                       Kent & Sussex, Apr. 13, 2005, at B3.
May 5, 2005     Laurel          Transfer    Approved, 533 to 34        Murali Balaji, Laurel District Voters OK Tax
                                                                       Transfer, The News Journal Kent & Sussex, May 6,
                                                                       2005, at B3.
May 24, 2005    Brandywine      Transfer    Approved, 5,371 to 1,994   Edward L. Kenney, Brandywine Voters OK School
                                Capital     Approved, 4,995 to 1,904   Upgrades, The News Journal, May 25, 2005, at B1-2.
                                Capital     Approved, 4,908 to 2,450
                                Operating   Approved, 5,018 to 2,321
Sept. 27, 2005 Capital          Capital     Approved, 2,467 to 936     Edward L. Kenney, Colonial Bond Questions Win
                                Operating   Approved, 2,251 to 1,140   Voter Approval, The News Journal, Sept. 28, 2005, at
                                                                       B1.
Dec. 6, 2005    Caesar Rodney   Capital     Defeated, 2,268 to 2,229   James Merriweather, CR Rejects Tax Hikes By Slim
                                Operating   Defeated, 2,376 to 2,118   Margins, The News Journal Kent & Sussex, Dec. 7,
                                Operating   Defeated, 2,311 to 2,191   2005, at B1.
Dec. 15, 2005   Cape Henlopen   Capital     Approved, 997 to 421       Molly Murray, Cape Vote on Tax Hike Is Thursday,
                                                                       The News Journal Kent & Sussex, Dec. 13, 2005, at
                                                                       B1; Molly Murray, Cape Henlopen Voters OK Tax
                                                                       Hike for Air Conditioning, The News Journal, Dec.
                                                                       16, 2005, at B5.
Jan. 26, 2006   Christina       Capital     Defeated, 4,798 to 2,921   Edward L. Kenney, Christina Voters Question Second
                                Operating   Defeated, 4,798 to 2,921   School Bond, The News Journal, Jan. 14, 2006, at B1-
                                                                       2; Edward L. Kenney, Christina Voters Defeat
                                                                       Referendum, The News Journal, Jan. 27, 2006, at A1,
                                                                       A6.
Feb. 25, 2006   Smyrna          Capital     Defeated, 1,231 to 1,108   Jeff Montgomery, Smyrna’s Voters Reject Tax
Date            District        Type        Result                     Source
                                                                       Increase, The News Journal Kent & Sussex, Feb. 26,
                                                                       2006, at B1, B3.
Feb. 28, 2006   Seaford         Operating   Approved, 943 to 603       Patricia V. Rivera, Seaford School District Voters OK
                                                                       Referendum, The News Journal Kent & Sussex, Mar.
                                                                       2, 2006, at B3.
Mar. 4, 2006    Caesar Rodney   Operating   Defeated, 3,207 to 2,554   James Merriweather, CR District to Vote on Tax Hike
                                Capital     Defeated, 3,117 to 2,721   in Mar., The News Journal Kent & Sussex, Jan. 18,
                                                                       2006, at B1-2; Voters Put the Squeeze on School Kids,
                                                                       Midstate Living, Apr. 2006, at 11.
Mar. 16, 2006   Cape Henlopen   Capital     Approved, 3,178 to 2,733   Molly Murray, Cape Voters Approve Tax to Build
                                Operating   Defeated, 3,012 to 2,805   New High School, The News Journal, Mar. 17, 2006,
                                                                       at B3.
Mar. 28, 2006   Indian River    Operating   Approved, 2,315 to 1,971   Patricia V. Rivera, Indian River Voters OK Tax Hike
                                Operating   Approved, 2,378 to 1,885   for Raises, Repairs, The News Journal Kent & Sussex,
                                                                       Mar. 29, 2006, at A1-2.
                                Capital     Approved, 2,259 to 2,006
Apr. 26, 2006   Woodbridge      Capital     Approved, 482 to 386       Woodbridge School District Voters Approve
                                                                       Referendum, The News Journal Kent & Sussex, Apr.
                                                                       27, 2006, at B3.
Oct. 10, 2006   Smyrna          Capital     Defeated, 1,628 to 1,556   Andrew Tangel, Smyrna School Building Plan
                                                                       Defeated, The News Journal Kent & Sussex, Oct. 11,
                                                                       2006, at B1.
Dec. 12, 2006   Appoquinimink   Capital     Approved, 2,572 to 1,320   Andrew Tangel, Appoquinimink Referendum Dec. 12,
                                Capital     Approved, 2,298 to 1,457   Midstate Living, Dec. 2006, at 33; Andrew Tangel,
                                                                       Appoquinimink Voters Say Yes to Tax Increase, The
                                                                       News Journal, Dec. 13, 2006, at B1, B3.
Dec. 14, 2006   Lake Forest     Capital     Approved, 731 to 696       J.L. Miller, Lake Forest Voters OK Bond Issue to
                                                                       Upgrade Schools, The News Journal, Dec. 15, 2006,
                                                                       at B5.
Feb. 15, 2007   Milford         Capital     Approved, 1,215 to 1,052   James Merriweather, Milford Approves Tax for
                                                                       Schools, The News Journal Kent & Sussex, Feb. 16,
                                                                       2007, at B1.
Date            District        Type        Result                     Source
Mar. 3, 2007    Smyrna          Capital     Approved, vote tally not   Diane Mouskorie, Smyrna Tries Again, Midstate
                                            available                  Living, Dec. 2006, at 32; Andrew Tangel, One Win,
                                Capital     Defeated, vote tally not   One Loss for Smyrna School Plan, The News Journal,
                                            available                  Mar. 4, 2007, at B1.
Mar. 7, 2007    Capital         Capital     Approved, 1,553 to 1,133   James Merriweather, $13 Million Bond OK’d for
                                                                       Capital District, The News Journal Kent & Sussex,
                                                                       Mar. 8, 2007, at B1.
Apr. 24, 2007   Brandywine      Capital     Defeated, 4,865 to 4,330   Brandywine School Board Sets Date to Hold
                                Operating   Defeated, 4,800 to 4,332   Operating Referendum, The News Journal, Mar. 13,
                                                                       2007, at B3; Edward L. Kenney, Voters Reject
                                                                       Referendum for Brandywine, The News Journal, Apr.
                                                                       25, 2007, at B1.
May 3, 2007     Caesar Rodney   Capital     Approved, 1,705 to 1,694   James Merriweather, Caesar Rodney Voters Approve
                                Operating   Defeated, 1,971 to 1,424   Building Plan, The News Journal Kent & Sussex, May
                                Operating   Defeated, 2,010 to 1,388   4, 2007, at B1-2.
May 17, 2007    Red Clay        Operating   Defeated, 6,220 to 4,822   Edward L. Kenney, Red Clay Hopes for Best, Braces
                                                                       for Worst in Vote, The News Journal, May 16, 2007,
                                                                       at B3; Edward L. Kenney, Red Clay Voters Defeat
                                                                       Operating Referendum, The News Journal, May 18,
                                                                       2007, at B1.
June 4, 2007    Brandywine      Operating   Approved, 7,584 to 6,305   Edward L. Kenney, Brandywine Voters Say Yes to
                                                                       Plan, The News Journal, June 5, 2007, at B1-2.
Nov. 6, 2007    Christina       Capital –   Approved, 6,600 to 2,608   Edward L. Kenney, Christina District’s Proposal
                                Limited                                Approved, The News Journal, Nov. 7, 2007, at B1-2.
                                Plan
                                Capital –   Approved, 6,786 to 1,916
                                Full Plan
Feb. 28, 2008   Red Clay        Operating   Approved, 8,550 to 7,414   Edward L. Kenney, Voters Approve Red Clay
                                                                       Spending, The News Journal, Feb. 29, 2008, at A1,
                                                                       A8.
May 22, 2008    Indian River    Operating   Defeated, 1,830 to 1,467   Molly Murray, Indian River District Voters Reject
                                Operating   Defeated, 1,735 to 1,552   Proposals, The News Journal Kent & Sussex, May 23,
Date            District        Type        Result                     Source
                                Operating   Defeated, 1,887 to 1,389   2008, at B3.
June 12, 2008   Cape Henlopen   Transfer    Defeated, 1,257 to 955     Molly Murray, Cape Voters Reject Proposals, Take
                                Transfer    Defeated, 1,603 to 603     Tax Cut, The News Journal, June 13, 2008, at B3.
Feb. 24, 2009   Cape Henlopen   Transfer    Defeated, 1,769 to 1,650   Molly Murray, Cape District Voters Reject Money
                                                                       Shift, The News Journal Kent & Sussex, Feb. 25,
                                                                       2009, at B3.
Dec. 8, 2009    Appoquinimink   Transfer    Approved, 2,229 to 409     Edward L. Kenney & Ira Porter, Voters OK Plan for
                                                                       Two New Schools, The News Journal, Dec. 9, 2009, at
                                                                       B1.
Mar. 30, 2010   Indian River    Transfer    Approved, 602 to 84        Molly Murray, Indian River Voters Approve
                                                                       Referendum, The News Journal, Mar. 31, 2010, at B1,
                                                                       B3.
Mar. 31, 2010   Capital         Capital     Approved, 1,729 to 1,469   James Merriweather, Capital Voters OK School Bond
                                                                       Issue, The News Journal, Apr. 1, 2010, at B1-2.

                                Capital     Approved, 1,612 to 1,114
Mar. 31, 2010   Laurel          Capital     Defeated, 1,444 to 1,241   Dan Shortridge, Laurel Sets New Date for Schools
                                                                       Vote, The News Journal Kent & Sussex, Feb. 26,
                                                                       2010, at B3; Dan Shortridge, Laurel Voters Say ‘No’
                                                                       to New School Facilities, The News Journal, Apr. 1,
                                                                       2010, at B1.
Apr. 13, 2010   Seaford         Capital     Approved, 475 to 222       Dan Shortridge, Seaford Voters OK School
                                                                       Referendum, The News Journal, Apr. 14, 2010, at B1.
May 25, 2010    Christina       Operating   Approved, 3,049 to 3,023   Edward L. Kenney, Christina Voters Narrowly Pass
                                                                       Referendum, The News Journal, May 26, 2010, at B1-
                                                                       2.
Oct. 4, 2010    Laurel          Capital     Approved, 1,214 to 1,200   Dan Shortridge, Laurel Rolls Out Smaller ‘Plan B’
                                Capital     Defeated, 1,265 to 1,128   Referendum, The News Journal, Aug. 26, 2010, at B3;
                                                                       Dan Shortridge, Laurel Schools Project Grinds Out
                                                                       Passing Vote, The News Journal, Oct. 5, 2010, at B2.
Mar. 29, 2011   Woodbridge      Capital     Approved, 964 to 653       Dan Shortridge, New High School Approved, The
                                                                       News Journal, Mar. 30, 2011, at B1, B3.
Date            District        Type        Result                     Source
May 10, 2011    Colonial        Transfer    Defeated, 319 to 239       Ira Porter, District Voters Fill Board Seats
                                                                       Throughout State, The News Journal, May 11, 2011,
                                                                       at B1.
May 18, 2011    Seaford         Capital     Approved, 404 to 331       Notice of Special Election to Authorize the District to
                                                                       Issue Bonds to Fund School Capital/ Renovation, The
                                                                       News Journal, Apr. 25, 2011, at C9; Seaford Voters
                                                                       OK Tax Increase, The News Journal, May 20, 2011, at
                                                                       B2.
Mar. 28, 2012   Red Clay        Capital     Approved, 5,398 to 4,552   Matthew Albright & Saranac Hale Spencer, School
                                Capital     Approved, 6,675 to 3,494   Votes Splinter Citizens, The News Journal, Mar. 20,
                                                                       2016, at 1A, 8A.
Mar. 28, 2012   Brandywine      Operating   Approved, 4,814 to 4,126   Terri Sanginiti, Voters OK School-Tax Hike, The
                                                                       News Journal, Mar. 29, 2012, at B1-2.
Dec. 4, 2012    Lake Forest     Operating   Approved, 753 to 734       Robin Brown, Lake Forest Residents OK $1.2M
                                                                       Referendum, The News Journal, Dec. 5, 2012, at B2.
Jan. 29, 2013   Indian River    Capital     Approved, 2,695 to 1,239   James Fisher, Voters OK New Spending, The News
                                Operating   Approved, 2,588 to 1,341   Journal, Jan. 30, 2013, at B1.
Feb. 28, 2013   Colonial        Operating   Defeated, 2,484 to 925     Nichole Dobo, Referendums Defeated, The News
Feb. 28, 2013   Appoquinimink   Operating   Defeated, 4,633 to 3,301   Journal, Mar. 1, 2013, at B1-2.
                                Operating   Defeated, 5,008 to 2,668
May 9, 2013     Appoquinimink   Operating   Approved, 4,637 to 3,023   Appoquinimink to Have Second Referendum, The
                                                                       News Journal, Mar. 28, 2013, at B1; Matthew
                                                                       Albright & Saranac Hale Spencer, School Votes
                                                                       Splinter Citizens, The News Journal, May 20, 2016, at
                                                                       1A, 8A.
June 4, 2013    Colonial        Operating   Approved, 3,005 to 2,938   Matthew Albright, Colonial Tax Hike Passes By Slim
                                                                       Margin, The News Journal, June 5, 2013, at A1.
Feb. 22, 2014   Smyrna          Capital     Approved, 930 to 571       Notice of Special Election in the Smyrna School
                                Operating   Approved, 958 to 569       District, The News Journal, Jan. 23, 2014, at D3;
                                                                       Matthew Albright & Saranac Hale Spencer, School
                                                                       Votes Splinter Citizens, The News Journal, May 20,
                                                                       2016, at 1A, 8A.
Date            District        Type        Result                     Source
Feb. 27, 2014   Seaford         Operating   Not available              Matthew Albright, Seaford Seeks Tax Increase, The
                                                                       News Journal, Feb. 25, 2014, at B1.
Mar. 27, 2014   Milford         Capital     Defeated, 1,020 to 842     Matthew Albright & Saranac Hale Spencer, School
                                Operating   Defeated, 1,074 to 769     Votes Splinter Citizens, The News Journal, May 20,
                                                                       2016, at 1A, 8A.
Apr. 2, 2014    Cape Henlopen   Capital     Approved, 3,597 to 2,410   Matthew Albright, Cape Henlopen Voters OK Tax
                                                                       Hike for Schools, The News Journal, Apr. 3, 2014, at
                                                                       A4.
May 28, 2014    Lake Forest     Capital     Approved, 622 to 363       Matthew Albright & Saranac Hale Spencer, School
                                                                       Votes Splinter Citizens, The News Journal, May 20,
                                                                       2016, at 1A, 8A.
Feb. 24, 2015   Red Clay        Operating   Approved, 6,395 to 5,515
Feb. 24, 2015   Christina       Operating   Defeated, 6,076 to 2,119   Matthew Albright, Red Clay Says Yes; Christina Says
                                Operating   Defeated, 6,348 to 1,826   No, The News Journal, Feb. 25, 2015, at A1, A4.
Mar. 10, 2015   Delmar          Operating   Approved, 130 to 78        Matthew Albright & Saranac Hale Spencer, School
                                Capital     Approved, 139 to 67        Votes Splinter Citizens, The News Journal, May 20,
                                                                       2016, at 1A, 8A.
May 5, 2015     Milford         Capital     Defeated, 2,084 to 1,777   James Fisher, Milford Hoping Voters Re-Assess
                                                                       Referendum, The News Journal, May 4, 2015, at 3A;
                                                                       Matthew Albright & Saranac Hale Spencer, School
                                                                       Votes Splinter Citizens, The News Journal, May 20,
                                                                       2016, at 1A, 8A.
May 27, 2015    Christina       Operating   Defeated, 5,968 to 5,074   Matthew Albright, Christina Voters Reject Tax
                                                                       Increase; Budget Cuts, Layoffs Likely Ahead, The
                                                                       News Journal, May 28, 2015, at 1A.
Oct. 6, 2015    Milford         Operating   Approved, 1,621 to 1,282   Matthew Albright & Saranac Hale Spencer, School
Oct. 17, 2015   Caesar Rodney   Operating   Approved, 1,939 to 1,171   Votes Splinter Citizens, The News Journal, May 20,
                                                                       2016, at 1A, 8A.
Mar. 23, 2016   Cape Henlopen   Capital     Approved, 2,947 to 1,031   Jon Bleiweis, ‘Our Time Is Now’: Cape Sets
                                                                       Referendum Date, The News Journal, Jan. 24, 2016, at
                                                                       8A; Saranac Hale Spencer, Two Tax Hikes OK’d; 1
                                                                       Fails, The News Journal, Mar. 24, 2016, at 1A, 5A.
Date            District        Type        Result                     Source
Mar. 23, 2016   Christina       Operating   Approved, 6,770 to 6,625   Saranac Hale Spencer, Christina Makes Its Third
Mar. 23, 2016   Brandywine      Operating   Defeated, 3,892 to 3,729   Attempt at Referendum, The News Journal, Mar. 8,
                                                                       2016, at 1A, 4A; Saranac Hale Spencer, Two Tax
                                                                       Hikes OK’d; 1 Fails, The News Journal, Mar. 24,
                                                                       2016, at 1A, 5A.
May 17, 2016    Brandywine      Operating   Approved, 9,500+ to        Saranac Hale Spencer, Brandywine Referendum
                                            5,780                      Passes in Landslide, The News Journal, May 18,
                                                                       2016, at 2A.
Nov. 22, 2016   Indian River    Operating   Defeated, 3,351 to 3,321   Gray Hughes, Indian River Referendum Reaction Is
                                                                       Mixed, The News Journal, Nov. 3, 2016, at 7A; Gray
                                                                       Hughes, Referendum Fails By Just 30 Votes, The
                                                                       News Journal, Nov. 23, 2016, at 2A.
Dec. 20, 2016   Appoquinimink   Operating   Approved, 5,152 to 2,496   Jerry Smith, $268M Referendum Easily Passes, The
                                Capital     Approved, 5,506 to 2,102   News Journal, Dec. 21, 2016, at 1A, 5A.
Feb. 28, 2017   Colonial        Capital     Defeated, 2,733 to 2,193   Jessica Bies, Colonial School District Referendum
                                Operating   Defeated, 2,961 to 2,067   Fails, Delaware Online (Feb. 28, 2017, 9:34 PM),
                                                                       http://www.delawareonline.com/story/news/education/
                                                                       2017/02/28/colonial-school-district-referendum-fails/
                                                                       98508124/.
Mar. 2, 2017    Indian River    Capital     Approved, 7,095 to 5,394   Gary Hughes, Indian River Referendum Passes by
                                                                       Almost 2,000 Votes, Delmarva Now (Mar. 2, 2017
                                                                       8:35 PM), http://www.delmarvanow.com/story/news/
                                                                       local/delaware/2017/03/02/indian-river-referendum-
                                                                       passes-more-than-1k-votes/98592544/.
                                  Appendix B



      Abbreviation in Decision                        School Name
A.I. duPont                      Alexis I. duPont High School
N/A                              Alexis I. duPont Middle School
Baltz                            Austin D. Baltz Elementary School
Brandywine Springs               Brandywine Springs Elementary School
Cab Calloway                     Cab Calloway School of the Arts
Central                          The Central School
Conrad                           Conrad Schools of Science
Dickinson                        John Dickinson High School
Forest Oak                       Forest Oak Elementary School
H.B. duPont                      Henry B. duPont Middle School
Heritage                         Heritage Elementary School
Highlands                        Highlands Elementary School
N/A                              William C. Lewis Dual Language Elementary School
Linden Hill                      Linden Hill Elementary School
Marbrook                         Marbrook Elementary School
McKean                           Thomas McKean High School
Mote                             Anna P. Mote Elementary School
North Star                       North Star Elementary School
Richardson Park                  Richardson Park Elementary School
Richey                           Donald J. Richey Elementary School
Shortlidge                       Evan G. Shortlidge Academy
Skyline                          Skyline Middle School
Stanton                          Stanton Middle School
Warner                           Warner Elementary School
