Fenwick’s proposal to increase some voter rights, limit others

Discussion is just beginning on a suggestion to change voting requirements in Fenwick Island, based on land ownership.

The Ad-hoc Election Committee has asked the town council to consider not allowing residents to vote in town council elections if they don’t own land in town.

The committee did propose extending voting rights to the spouses of trustees that own property in town.

“It was brought to us as something to review, because of … the way voting is done in most of the beach communities and municipalities. It has to do with ownership stake,” said Councilwoman Julie Lee, who explained the committee’s proposal at the town council’s May 27 meeting.

“I’m not sure right now the general consensus, which is why we sent it over there to Charter & Ordinance,” Lee said. “One of the thoughts we’ve heard is, if you don’t have a property owner, you don’t have a stake; then maybe you shouldn’t be allowed to vote.”

Generally, residents of local municipalities are allowed to vote. Area beach towns are somewhat unique in also allowing non-resident property owners to vote — a product of the large number of second-homeowners who invest in a beach house.

“By virtue of being a Delaware person, you can vote in state elections and Sussex County elections, but [if] you do not have any ownership stake in the municipality, i.e. paying taxes, should they vote? And that was the recommendation that came out,” Lee said.

She said the change would only impact a handful of people.

Councilman Bill Weistling said he wanted to get some legal advice before the C&O Committee begins drafting a charter change.

“When we changed and allowed just one person per trust, we made that based on recommendation of the town attorney,” he said.

Charter changes must also be approved by the Delaware State Legislature.

The Ad-hoc Election Committee was formed last fall to help Fenwick Islanders better understand Town voting requirements. After updating the Town website and creating information cards, they also created these two suggestions for the council to consider.

Allowing spouses to vote again

Currently, Fenwick town code allows every resident to vote. Also, any non-resident entity owning a property gets one vote. So every person, trust or LLC gets one vote. Properties owned by an LLC or a legal trust get only one vote, as determined by power of attorney.

Although the change regarding trusts and LLCs was made in 2008, Fenwick’s lack of elections meant the new rule wasn’t noticed by many voters until the 2015 election, which produced a lot of surprises.

Before 2008, companies and LLCs could not vote. But “a person who had their property in a trust, whether it was a resident or a non-resident, that spouse was allowed to vote.”

The ad-hoc committee suggested that be revaluated, especially since some towns, such as South Bethany, specifically allow trustee spouses to vote, whether they’re on the deed or not.

“In estate planning and family planning, it sometimes makes sense to put a second property — especially a beach property as valuable as this — into a trust,” Lee said. “But if you’re a resident, and you’re a couple, you get two votes, just by the virtue that you’re a Delaware resident.”

The committee members said they felt non-resident trustees should be treated the same as full-time resident trustees, and that “allowing this change will eliminate a great deal of inequity and legal confusion.”

Restricting residents from voting

“A resident who is a non-property-owner should not be entitled to a vote,” the election committee’s letter to the council stated.

According to the May 14 written request, “Fenwick Island is the only municipality that allows resident non-property owners (i.e. renters) to vote without some sort of qualification. Some municipalities require a lease of at least five years or longer. Other municipalities do not allow resident non-property owners to vote.”

However, this statement conflicts with Coastal Point’s research into the voting regulations in the neighboring beach towns (South Bethany, Bethany Beach, Dewey Beach, Rehoboth Beach and Lewes). They all appear to allow residents to vote, without requiring land ownership. (Dewey Beach does require a minimum of a five-year lease.)

The proposal did not mention the voting rights of adult children living in town. Currently, resident children 18 or older can vote, whether they pay rent in the parents’ house or not. The proposal did not specifically suggest whether the adult children would be forbidden from voting if they’re not on their parents’ deed.

Does the Ad-hoc Election Committee believes a person owning a property deserves to vote more than the person physically living there?

“I absolutely, definitely, would not say that,” Lee said.

“It was something that was brought to our attention” from the community, just an idea for discussion, she explained. That’s why they forwarded the idea to the C&O Committee, which is tasked with such investigation.

Meanwhile, “The primary thing that we would like to change, that’s important to us, is to allow the spouses of trustees to vote, as they have in the past,” Lee said.

“We are reviewing the voter qualifications in each of the neighboring municipalities” and hope to present at the C&O Committee meeting on June 7 at 9:30 a.m. she said.

The legality of it all

Town can determine their own voter eligibility in their charters, provided that eligibility doesn’t conflict with any state laws.

Delaware Code specifically forbids the revocation of non-resident voting rights: “No municipal corporation charter which permits nonresident persons to vote in any municipal election or to hold any municipal office shall be amended … so as to eliminate or limit the right of nonresident persons to vote or hold office” (Title 22, Chapter 8, Subchapter VI, Subsection 835 (b)).

But, as Lee said, that already occurred for some Fenwick voters in 2008.

Delaware Code also “shall not permit the amending of a municipal charter so as to … change the qualifications of those entitled to vote at municipal elections” (Title 22, Chapter 8, Subchapter VI, Subsection 835 (a)(3)).

The Delaware Department of Justice would not specify whether that relates only to existing voters (who already have the right to vote, and who could be “grandfathered” in to future elections) or to blanket changes on all future potential voters.

When Coastal Point asked for further interpretation, both the Department of Justice and the State Election Commissioner hesitated to comment on town government, basically saying the municipalities make their own rules.

“We don’t represent towns and municipalities like we represent most state agencies, and the decision on who votes lies with the municipality itself,” said DOJ Public Information Officer Carl Kanefsky. But, historically, in many towns, residents complaining about the legality of local town policies have turned to Department of Elections or the Attorney General’s Office.

As it stands, the changes put forward by the ad-hoc committee in Fenwick will be considered by the Charter & Ordinance Committee before any vote to approve them will take place.