Residents’ appeals over election practices denied

Following a special meeting of the Frankford Board of Elections related to two complaints, submitted by residents Jerry Smith and Greg Welch, an appeal was held before State Election Commissioner Elaine Manlove last week.

In his complaint, Smith argued that voting in the municipality’s scheduled election could not end before 4 p.m.

“You’ll see that the date of the election is in the Charter. However, there is no time of the poll hours,” Smith said, adding that the new Charter instructed Town Council to set the times. “My argument is that it has not been set by town council. There was never a vote by the majority of the council [for what] are going to be the hours of the election.”

Smith said the hours are not lawful because they are not in the code or charter, nor did council vote to establish it, emphasizing that he could not locate the setting of the hours in council minutes.

“We have, like, 115 percent more votes than we had in 2009,” said Smith, citing an increase from about 86 to 200. “One to 4 [p.m.] is a very short time for the voters to come to that poll.”

In her opinion, Manlove noted that her authority was limited as regarded Smith’s specific complaint. She said that Delaware Code states municipal elections shall be provided by the Town’s Charter and/or ordinance.

“Frankford evidently argued, and the Board of Elections agreed, that the hours of the election — 1 p.m. to 4 p.m. — were contained in the Frankford charter until 2012, and Frankford determined to continue this practice… This interpretation may not condone a wise practice, but it does not violate 15 Del. C. § 7551(a).

“The intent of the Municipal Election Law was to remove barriers for voters. Limiting the hours of election, especially without the addition of absentee voting, is certainly not a hallmark of a good election,” Manlove admonished.

She added that the Board in its decision had recommended that the town’s charter be amended to correct the deficiencies and also offer citizens the opportunity to vote by absentee ballot, which Smith and Welch argued should be available to residents, which it was not for the 2015 election.

“We have adopted absentee voting clearly in our Charter,” argued Welch. Because it’s mentioned in the Charter, he said, it must exist.

“I concur with Frankford that the words in its charter reading ‘the conduct of general elections of the Town of Frankford and absentee voting shall be governed by the laws of Delaware’ do not create the right to vote by absentee ballot,” Manlove said. “I do note with approval that the Board of Elections for Frankford recommends that such right be expressly conferred through a charter change.”

Smith also questioned the legality of the appointments to the Town’s Board of Elections, noting that prior town charters, from 1937 and 1980, were referenced in the Board’s Jan. 31 decision. Welch’s complaint voiced similar concerns.

“My contention is, if we’re going to use the prior charter, let’s use the part that doesn’t require a voter to be a U.S. citizen. The Town meeting we just had on Feb. 2, … the Town under [Town Solicitor Dennis Schrader’s] guidance would not do that. They rejected about 20 voter registrations because now one had to be a U.S citizen to vote in Frankford. Let us use the pre-June 2012 charter, which allows someone to run as a candidate even though they’re not registered…” he said, referencing an issue that has prevented Welch from running for the council.

“The Town wants to use excised portions of the previous charter when it’s convenient or it’s something they want to do,” Welch argued.

Regarding the appointment of the Town’s Board of Elections, Manlove stated she had no power to review the interpretation by Frankford that its Charter permits board members appointed in 2009 to be held over until their successors are appointed.

“This interpretation may not condone a wise practice, but it does not violate 15 Del. C. § 7551(a),” she said.

Smith also argued that the posting of the names and numbers of the Board members was not done in a timely manner. Welch’s complaint echoed Smith’s concerns.

“By making it public, it is to make sure those people chosen to serve … fulfill the qualifications,” Smith said. “If it’s not made in a reasonable amount of time, people can’t look it over, can’t decide if those people are suitable election board members.”

In her Feb. 4 decision, Manlove stated that, while Delaware Code does require a municipality to post the names and contact information for its Board of Elections in the town hall and on the municipality’s website, if it has one, “Frankford is correct that the statute does not contain deadlines for such postings.”

Smith also argued that the Town’s 2015 election notices were deficient.

“Notices are deficient because they are decided and set by one person, with no town council involvement in the process,” with dates and deadlines set by one person, Smith argued.

The Frankford Town Council received election notices at its Dec. 8 meeting; however, Smith said, the notices had already been advertised, on Nov. 28, 2014.

“They’re … incorrect and illegal, because they were decided and set by an employee of the municipality. If the dates, times and deadline were in the charter or code, they would not need to be voted on by the council. There is no evidence the council voted to approve the dates, times and deadlines.”

Town Administrator Terry Truitt testified that, in her approximately 15 years with the Town, her duties have included supervising the election — explaining that she has sat down with a pencil, calendar and laws to figure out the schedule every year she’s worked for the Town.

“It is not unusual for the governing body to delegate … then accept the recommendation,” Schrader later said.

“Mr. Smith does not argue that the notices are inaccurate,” wrote Manlove in her Feb. 4 decision. “Indeed, he expressly admitted that the notices were accurate. He contends that Frankford violated its own Rules of Procedure for all Boards, Commissions and Agencies, and therefore, the notices are deficient. I cannot rule that this complaint is founded.”

Welch also opined that the Town and State had misrepresented the voter registration process.

At the hearing, Deputy Attorney General Ann Wookfolk asked Welch if he had registered to vote since his last hearing over the Town’s election rules, in 2014.

“I have registered several times, but I am not registered,” he replied.

Welch asked, if there’s an application process, then who is granted to authority to accept and reject applicants?

“Who approves these people? Who has the right to reject them?” Welch asked. “Does the applicant have to respond to any and everybody’s challenge, or do they have to go through a process of challenging it? Does one person challenge it? Is there a law that authorizes a certain person?

“If there’s no process of rejecting, if this is rejected in that 30 days, you can’t register. If you’re not rejected properly, they can just throw it away. This can go on forever. The reason I refuse to just continuously fill it out is because I’ve got documentation right here that I’ve filled it out several times,” Welch explained.

“This was last year’s hearing. Let’s not do that again. … And you have not attempted to register in that time,” Woolfolk said.

Welch responded that he’s “attempting to register right now,” but Manlove informed him he was now beyond the registration deadline for the 2015 election.

“You would submit a form to register to vote today?” Schrader asked.

“If I could vote in this election, I would,” Welch said.

“Last year, we had the same form for you to use, and you wouldn’t do it,” Manlove said.

Welch said that was because, even if he filled out the form, he would have been unable to run in that year’s municipal election.

“But then you could have been in this year’s election,” Manlove said.

“I could have,” said Welch “but if they took it and threw it away, at this point in time I wouldn’t be.”

Manlove referred to her 2014 decision, stating the matter could not be opened again under the legal doctrine of “res judicata,” meaning that it had previously been decided.

Welch also argued the procedure by which the Town had decided cut-off dates for voter and candidate registration was wrong.

“The deadline isn’t established anywhere,” argued Welch. “Now it’s 31 days, because Terry factored in advertising for the newspaper. As you stated in last year’s opinion to me, they don’t have to advertise in the newspaper … they can fulfill their requirements by posting it on their board and two places around town. So Terry has made this date without the parliamentary procedure, when it used to be 10 by the Town and 20 by the State.”

Welch argued that, because of the problems, the Town’s 2015 election should be postponed until a proper election could be held.

“It is the responsibility of the Department of Election to review the dates and make sure they’re correct,” stated Welch. “They’re not set the way they’re supposed to be set. They’re not in town charter because the town charter changed and brought all these problems. The solution that the board wanted was to change the town charter again. And the changes they’re asking for are good.

“I agree with them, but you don’t just keep changing. You gotta have a fair election. And the remedy outlined in state law is, when these dates are materially incorrect, you delay the election and have a proper election.”

“As set forth above, Frankford evidently construes its charter to grant its clerk the power to create the required notices. The construction is an interpretation of the Frankford charter, and I have no jurisdiction to review this issue,” wrote Manlove in her decision.

While she asserted her lack of jurisdiction to force a delay in the 2015 election over some of the issues, Manlove nonetheless took the Town to task over a number of the problems cited in the residents’ complaints.

“More troubling, however, is Mr. Welch’s allegation that the deadlines are wrong. He asserts, and Frankford does not disagree, that Frankford imposed a Dec. 31 cutoff for voter registration, which is longer than the 30-day deadline set forth in its charter. This, too, is a charter compliance issue that I have no jurisdiction to hear. Nonetheless, this conduct by Frankford is egregious, and I am compelled to comment upon it.”

Manlove went on to state that Frankford’s Charter, both before and after the 2012 amendment, “expressly requires voters to have resided in Frankford for 30 days prior to the election.”

“Even if Frankford labels this 30-day durational residency requirement an administrative need to prepare voter rolls, it is hard to imagine that a town with fewer than a total of 200 voters requires 30 days — much less 37 days — to prepare the voter rolls.”

The Town’s requirement of U.S. citizenship to register to vote was also discussed at the hearings.

Truitt said Jean Turner, deputy director of the Department of Elections for Sussex County, had requested that the U.S. citizenship requirement be added to the election notices, following a request regarding the supply of an interpreter for the Town’s election.

Manlove asked Truitt how citizenship was determined, and Truitt explained that the current voter registration application asks for the individual’s state or country of birth.

With an estimated 128 voters on record, Truitt said about 60 were added this year, and around 20 of those had indicated a foreign country as their birthplace.

“Did they say they were citizens?” Manlove asked.

“They did not say anything. They didn’t even bring their own cards in,” responded Truitt about the voter registration applications.

She added that a certified letter had been sent to those 20 people, asking for proof of their citizenship, with assistance from Schrader and Council President Joanne Bacon.

“But did you send it to everybody … that registered?” Manlove asked.

“No, because everybody else who registered prior or in conjunction to them had a birthplace of a state in the United States. There were probably 18 of them from Mexico, two from Guatemala and three from Turkey. All we asked was for them simply supply something that showed they had obtained naturalization or had citizenship,” said Truitt, noting that the deadline for them to respond was Jan. 26. “Not one person responded.”

Schrader added the letter sent out roughly mirrors the process State law has for verifying citizenship. He stated that requirement of U.S. citizenship is not uncommon in Sussex County, as at least 10 municipalities have the requirement.

Although Manlove emphasized that she does not rule over town charters, just State election law, she acknowledged that there have been inconsistencies between other town codes and State law. Manlove said she has held hearings regarding other towns, although she noted that Frankford’s three hearings seemed excessive.

“As discussed at the hearing, I plan to work with municipalities statewide to create a uniform amendment to municipal charters to correct recurring issues. If the uniform amendment process proves ineffective, I expect to seek amendments to Title 15, Chapter 75, to correct those issues,” wrote Manlove in the two decisions.

Smith and Welch subsequently appealed Manlove’s decision to the state Superior Court, but those appeals were also denied. Frankford’s municipal election was held, as scheduled, on Saturday, Feb. 7.