Councilwoman Diane Tingle was the first to broach the topic of Fenwick Island’s voter registration process at the July 24 town council meeting, using the “old business” segment of the meeting to refresh memories about an ordinance the Town adopted in 2008, as part of efforts in Fenwick and other municipalities statewide to comply with changes in Delaware election law.
She noted that the Town had, in August of 2008, notified all of its potential voters that they were required to register or re-register with the Town as part of the changes, as the Town’s existing voter registration rolls were being restarted with a blank slate.
Among the changes included in the state election laws that year was a requirement that voters representing artificial entities, such as trusts and limited-liability corporations (LLCs), were required to have a notarized and executed power-of-attorney proving that they were authorized to vote on the entity’s behalf before they could vote in any election.
But some potential voters weren’t aware of that change and may be surprised to learn they’re not be eligible to vote on Aug. 1 if they didn’t re-register or haven’t gotten the paperwork needed to prove they have the right to vote in Fenwick, former councilman Peter Frederick and a number of other citizens complained during comments from the public at the end of the July 24 meeting.
Non-residents’ voting rights remain sticky issue
Fenwick is one of a handful of towns in Delaware that allows non-resident property owners to vote in municipal elections, nearly all of them being the area’s beach towns, with their large percentages of part-time residents and investment buyers.
Before a series of reforms in the last decade, having a town official know someone was part of a family that owned property in the town had been enough to ensure Fenwick property owners were allowed to vote at the polls.
By the time the statewide reforms were made in 2008, formal documented proof of eligibility to vote was a requirement in local towns, even setting up situations in which an election official might have to send their own spouse home for their driver’s license before they were allowed to vote.
However, Fenwick Island hasn’t had a town council election in all those years.
“It’s a lot of hard work, because we haven’t had an election in a long time,” Tingle said last Friday of getting the Town’s voter rolls up to date for the 2015 election, which will fill four of seven council seats.
That work has been getting done by the town manager and town clerk, who serve as registrar and assistant registrar, and a preliminary voter list was approved by the council on May 29 and handed off to the town board of election for ongoing updates until the close of voter registration. An in-person registration deadline of June 30 and mailed registration deadline of July 8 allowed for additions to that list for more than a month afterward.
But Frederick argued on July 24 that the changes resulting from the 2008 law may have resulted in the disenfranchisement of as many as 60 percent of the town’s property owners, despite the memo sent out to everyone in 2008.
“This was done legally, but I’m talking about the image,” he said, noting recent council decisions made in the off-season by a council dominated by full-time residents. He noted the impact of property ownership legalities on voters, when a couple owning property jointly would have had two votes but owning property via a trust would have just one.
Frederick argued that, while the law was adopted in 2008, it was never actually “implemented” until someone registered to vote under the new rules.
“People are finding out ‘I’m not allowed to vote, and if I am allowed to vote, I have a single vote, and I have to have a power-of-attorney.’ I would suggest that since people didn’t start registering to vote until the last three months — I think we made a mistake by not notifying the public and assuming, what we did in 2008, people would remember now,” he said.
Frederick argued that the town code requires a voter list to be presented to the council and that the council then decide how to handle the cases of people proposed to be dropped from the list, whether because of death, sale of property or other reasons. He said those people dropped from the list would need to be notified and be able to appeal.
“Has anybody put together a list with no-longer-eligible voters?” he asked. “People are excited to participate in this election, and that’s good; but when they go in to vote and find out they can’t, I don’t think the Town is doing a service to its property owners.” He argued that the Town hasn’t followed its own code as regards to such notification and appeals.
With the election set for just a week later, he said, “I do know people who tried to vote absentee” and weren’t permitted to, because they didn’t get a power-of-attorney notarized.”
Frederick said notice about eligibility in some cases was sent to a home address elsewhere, when the property owner in question was in Fenwick for the near-term.
Town solicitor sees no irregularities in process
Town Solicitor Mary Schreider-Fox said that, while she hadn’t been working with the Town at the time of the changes in 2008, “I can say, pursuant to my review of the historical information I have, there doesn’t seem to be anything irregular when those changes were made.”
Regarding notification about the change, she said, “I’m not aware of any special notice that has to go out when there is a charter change. It is effective when passed by the legislature. And, as long as it is properly noticed when passed, after hearings and a vote of the town council, it becomes effective.”
Schreider-Fox said that, if there are certain extra things the Town can do, it might be a good idea, but that just because there might have been a failure for someone to receive notification, that didn’t make the election or registration process unlawful. “I’m very sure the Town staff has been doing its best to follow the charter and code as closely as possible. As far as I know, each notice that has been required … has been done.”
With the adoption of the voter rolls on May 29, she added, the council had taken action on any changes. Town Manager Merritt Burke said that a list of anyone having been determined to be deceased had been given to the board of election and the town clerk for reference in registrations.
“Were the people who were stricken notified?” Frederick asked.
Tingle offered that she had a friend who had asked her if they were registered, and she had told them to check with town hall, and they were registered now.
“That is not what the charter says you do,” Frederick replied. “It says you have to notify them.”
Others present at the July 24 meeting said they weren’t sure two weeks before the election was sufficient notice of not being eligible and that some people had received such a notice in the last two weeks.
Schreider-Fox asked if they were asserting that, in a case when a property was jointly owned in the past and was now held in a trust or LLC, the Town needed to notify the property owner that their voting right had changed.
She said it was an issue of “constructive notice,” with there being a practical issue of the Town knowing or notifying someone when their individual rights were affected. “Once laws ... become effective, the whole public is deemed to be on notice,” she said.
“The Town can’t be required to be aware of each person’s situation. The Town has asked people to update their registration, and they have discovered it has changed. If they filed a trust a month ago and it changed, or if their residency status changes, the Town might not know about it. The approach the Town took was to notify people to update their registration.”
Schreider-Fox said changes in voter eligibility were noted as people updated their information with the Town. With the adoption of the voter rolls on May 29, town staff said, the only changes since had been to add new registrants, and not even the newly deceased had been removed from the list. Only if someone tried to register to vote as an LLC were they told they needed a power-of-attorney, they said, as the staff has no way of knowing if “John Smith” represents an artificial entity unless they review individual tax records.
Schreider-Fox added that she would have to review individual cases to see if particular individuals who were on the May 29 list were still allowed to vote, and some of them may need that power-of-attorney to do so if they aren’t already voting as residents. She also pointed out that the power-of-attorney isn’t a requirement for registration, but rather a requirement for such a person to be eligible to cast a vote.
Recommendation is not to cancel election
Councilman Bill Weistling asked Schreider-Fox to make a recommendation as to how to handle the election, given the controversy.
“I don’t want to advise you to cancel. If your inclination is to cancel it, we’ll have to consult with the state election commissioner,” she said. “In any election, if somebody feels anything is improper, they can challenge it. It would go to a judge, and theoretically they could set the election aside.”
Frederick emphasized that his objective in raising the issue hadn’t been to embarrass the Town. “I just don’t want people to come to vote and be told they can’t vote. There has to be a way to agree to a list,” he said.
Schreider-Fox noted that, under Town code, registration is not complete until it is approved and accepted by the registrar, so even once the paperwork is submitted, the registrar has to be satisfied with the proof of eligibility provided, which may not always be the case at that instant.
“The code says it’s up to that person to bring it in,” she said. “They have moved, in some cases, to get that proof, and some have brought it in on their own. But my reading of the code supports the process the Town has followed.”
She said that when people have experience with prior rules, changes can cause chaos. “They’re making a technical reading of the requirements and following them as closely as they can,” she said of Town staff. “The Town staff is proceeding appropriately, as far as I can tell.”
Resident Paula Mumford aimed to put the issue in perspective. “We’ve all learned something from this; but at some point you have to be responsible, and they’ve reminded people to register and reminded them again. You have to take responsibility to ensure you’re registered.”
Schreider-Fox said that, as long as the documentation a would-be voter provides satisfies the details of requirements of the election, “you’re good to go” for voting on Aug. 1.
Frederick asked whether, in the potential event of someone needing to get a document notarized as part of that requirement, the Town could make a notary public available on-site during in-person voting on Saturday. Burke said he would ensure that a notary was present.
“Well, that will solve some of that,” Frederick said, concluding discussion of the issue on July 24.
Voting in the 2015 town council election runs from 1 to 5 p.m. at town hall on Saturday, Aug. 1.