Frankford incumbents retain seats as controversy continues

Frankford’s town council election for 2012 was held as scheduled on Saturday, Feb. 4, despite a late effort from four of seven candidates to postpone it. Results from last Saturday’s voting – still unofficial as of Coastal Point press time – meant that incumbents Ron Atherton, Charles Shelton and Jesse Truitt will keep their seats in Frankford for two more years.

Atherton received 52 votes. Shelton received 58. Truitt received 61. The challenging candidates – Edward “Skip” Ash, Greg Johnson, Jerry Smith and Greg Welch – received 11, 15, 20 and 20 votes, respectively.

Regardless of their outcome, the 2012 elections in Frankford raised many issues regarding voters and the conduct of the elections, ranging from how the eligibility of voters and candidates are determined to what kind of information candidates should have access to.

The four challengers were signatories to a letter to the Frankford Board of Elections last week that asked the Board to postpone the Feb. 4 election, due to a variety of such issues.

Welch had successfully argued on Jan. 26 that the Town and Sussex County Department of Elections had incorrectly declared him not to be eligible to run as a candidate for the town council. The 4-0 vote by the board that night secured Welch’s right to run for a council seat in 2012.

Welch subsequently argued that the Town would be failing to comply with the rules governing the election by holding it as scheduled on Feb. 4, without his name being advertised as a candidate for the required 20 days ahead of voting.

That complaint was heard by the town’s Board of Elections on Feb. 2, but the four-member board voted 3-1 against postponing the 2012 election. However, Welch now contends that the Town had incorrectly advised the town’s Board of Elections that it did not even have the authority to postpone the voting.

Welch wrote this week that the Town conduct of the 2012 election “raises serious questions about how our Town has elections.” He alleged that, among other issues, the Town used the Town and County building permit process to claim that he and his wife are not residents of the town and thus deem him ineligible to run.

“They claimed that these permits deny us the right to occupy our home,” he wrote in a letter to the editor of the Coastal Point this week.

After Welch contended that he had improperly been deemed ineligible to run for a seat on the council, the town Board of Elections met on the evening of Jan. 26 to formally determine the status of Welch’s candidacy. It reversed the prior finding by town staff and the Department of Elections that he was not eligible and deemed him a qualified candidate based on an opinion received from Deputy Attorney General Ann Woolfolk that day.

Woolfolk had stated in her opinion that Welch and officials considering the issue had incorrectly relied upon Welch’s voter registration status with the Town – which was itself contested – instead of using the qualification of being a qualified “elector,” which is how the qualification appears in state code. She found Welch to be a qualified elector in the Town of Frankford and deemed him an eligible candidate, which was confirmed by the unanimous vote of the Board of Elections on Jan. 26.

However, because of the questions of his eligibility as a candidate, he was not advertised as a candidate until after the Jan. 26 decision by the town’s Board of Elections. Welch also argued that he was denied the ability to campaign effectively because of his battles to be declared a legitimate candidate.

Welch was joined by Ash, Johnson and Smith in signing the letter to the board that asked that the election be postponed “to allow a proper period to allow voter registration and candidacy registration and a discussion on town issues.” Smith, for his part, also had complaints about the challengers’ access to information about registered voters, all of which were subsequently set to be addressed by the board at a Feb. 2 meeting.

Board of Elections voted not to postpone election

At the Feb. 2 meeting, Peggy Schaeffer was the lone board member who said she didn’t see anything wrong with postponing the election.

“There was a situation this year that we don’t usually have,” she said, referencing the questions regarding Welch’s eligibility as a candidate. “This is not New York City. I was on [town council] long enough to know I don’t want it,” she said of a seat on the council, adding that the Town should actually be encouraging more people to run.

Town Solicitor Dennis Schrader asked Welch last Thursday if he had been campaigning since he was deemed a qualified candidate, and Welch said he had not.

“How do you feel you have been handicapped?” Schrader asked him.

“They didn’t advertise me until six days before the election, and everybody else was 22 days. I spent my time arguing the process, not issues of the town,” replied Welch.

“And if [Town Clerk] Terry [Truitt] asked for guidance from the Department of Elections and got an email confirming that, and she relied on that and it wasn’t reversed until Woolfolk reversed it, what did Terry do wrong?” Schrader asked Welch.

Welch said he believed that Terry Truitt had “immediately started digging for reasons to disqualify me.”

Later, Truitt asserted that she had not been “fishing” for reasons to disqualify Welch but that she has a duty to notify would-be candidates of potential problems with their candidacy as soon as possible, and that she had treated Welch’s filing just as she did the others – by answering questions asked of her by the Sussex County elections commissioner. She said Welch was the only one of the 2012 candidates who had a potential problem with his eligibility, because he was not in the town’s Book of Registered Voters.

Schrader asked Welch if he thought the Frankford Board of Elections could stop the election, as he had requested. “The charter says the election ‘shall be held on the first Saturday in February,’” noted Schrader, adding that that language means the Board does not have the authority to override the charter and postpone voting.

“The charter says a lot of things,” retorted Welch. “It also says 20 days before an election, candidates must be advertised.”

Schrader told the Coastal Point this week that, while state code declares provisions of municipal charters and ordinances that are inconsistent with the state code to be repealed, the state code is silent about filing deadline requirements.

“When there are inconsistencies with the charter and state law, state law wins,” he explained, except for when the code specifically states that the charter should be used instead, as it does in certain other chapters.

Schrader added that the situation that the town encountered – with Welch having filed to run on the last day candidates could file, being denied candidate status that day and then having that decision being reversed – isn’t referenced anywhere in the town’s charter or ordinances, or in state code.

“The statute doesn’t contemplate someone making an appeal and being declared eligible,” he said.

Jason P. Miller, public information officer for the Delaware Department of Justice, this week addressed some of the issues involved in the Frankford elections. He said he believed that the Town had complied with one aspect of the election requirements but, despite any “good-faith effort,” had failed on another.

“Frankford complied with the charter mandate, which is state law, that the election be held on Feb. 4. Frankford did not comply with the state law which requires that a complete list of candidates be posted 20 days before the election,” he said.

Despite that failure, Miller said, the election results would be considered valid, unless challenged in the state’s Court of Chancery.

The Town, he said, “is not in compliance with the law, but it does not invalidate the election.”

Miller said the 2012 election results could be invalidated if the Chancery Court rules them to be invalid. In order to obtain such a finding, the results would have to be contested before the Chancery Court. State law mandates that winning candidates in an election not be certified and sworn in until at least seven days after the election, specifically to allow results to be contested in such cases. Welch did not say this week whether he planned to contest the results of the Feb. 4 voting.

Miller also confirmed this week that current state and local law are both lacking elements that would deal with situations such as occurred in Frankford’s election this year. The town charter doesn’t specifically grant the Board of Elections the ability to postpone an election when other requirements are not met, but neither is any other body – other than the Chancery Court – currently empowered to do so.

“When the Department of Justice provided its advice, the Department of Elections and the Frankford Board of Elections followed it,” he said of Woolfolk’s opinion regarding Welch’s eligibility. “We do believe there are issues to be clarified,” he added, noting that a bill currently pending before the General Assembly grants the state Departments of Elections the authority to postpone elections where inadequate notice is given.

Otherwise, Miller said, it is up to the Town to deal with any lacks or conflicts in the town charter and its ordinances. Schrader said this week that he was already working on changes that would resolve such issues should the circumstance arise again.

Voter information issues stir concerns

The Frankford Board of Elections on Feb. 2 also heard a complaint filed by challenging candidate Jerry Smith regarding registration of voters and the conduct of the 2012 election. Smith, who was not present at the Feb. 2 meeting, wrote in an email to the board that the Book of Registered Voters “shall contain the pertinent addresses of the voters” and that he believed the addresses were not necessarily pertinent and were certainly less pertinent than water billing addresses.

Schrader read Smith’s complaint and presented it to the board on Feb. 2, in Smith’s absence.

Smith wrote that he had visited town hall on Jan. 24 to get a list of registered voters from the Book of Registered Voters, and that he was given access to index cards with voter information but that there was no way to tell if the local address was the voter’s mailing address, “since some registered voters had a rural delivery address, which is no longer useful.”

Smith argued that a more accurate mailing address would be the address that is on water bills, but that is something to which not all candidates had access.

“Their address to send pamphlets to via mail, making known one’s candidacy, which is customary, would be on water bills and could be connected to the physical address of a voter to have the correct mailing address,” Smith asserted. “At least one candidate,” he said, referencing Jesse Truitt, “and his wife, the town administrator, have access to such, while some other candidates, including myself, do not. I believe this is a grave disadvantage going into this election,” he wrote in his complaint.

Smith further referenced the fact that Welch’s candidacy was posted for less than the 20 days required and asked that “for at least these reasons stated herein, this election should be postponed at least until March to be more in compliance with subsection IV and to provide fairness and equal opportunity in a democratic election.”

At the Feb. 2 meeting, Schrader asked Truitt if Smith had asked her for a copy of the water bills and she said that he had not.

The board eventually voted 4-0 not to postpone the election on the basis of Smith’s complaint.

But the lack of access to the water billing information wasn’t the only issue raised by Smith’s efforts to get addresses for registered voters for his campaign. Schrader asked Terry Truitt what was on the voter registration cards, and she said the information on the cards includes such things as a physical description of the voter and his or her address, as well as Social Security numbers.

Board Chair Pam Hoban asked why someone was allowed to view cards that had such personal information on them.

“I wouldn’t be happy with it either, but with Freedom of Information…” answered Truitt. “I wasn’t comfortable with it,” she reiterated about allowing Smith to access the cards.

Several of those present in the audience for the Feb. 2 meeting questioned that, as well.

“Whether the cards have too much information or not, no doubt,” Schrader said, adding that he thought the Town should take the issue up “the next chance we get.”

Miller said access to voter information is limited to what is considered “public information.” He did not offer a list of exactly which items of information are considered public. But he did say that all candidates would have the right to access to the public information.

Vast majority of town’s residents not registered to vote

While the election of 2012 has been completed, Welch also stated this week that he is concerned about the lack of registered voters in the town. While 83 of 118 registered voters did vote on Feb. 4, according to Truitt, the 2010 U.S. Census records that Frankford has a population of 847 – meaning less than 14 percent of the town’s residents are registered to vote in municipal elections.

During his efforts to prove his eligibility as a candidate, Welch had asserted that he should have been listed as a registered voter, and when he went to vote on Feb. 4, Welch was reportedly allowed only a provisional vote, with his name among seven voters placed on a list of those who believed they should have been eligible to vote but who were not listed in the Book of Registered Voters.

While eligibility requirements for voters vary from town to town, all local towns do require a separate registration with a municipality in order for eligible electors to become registered voters.

Frankford will hold its February regular meeting and annual reorganizational meeting on Monday, Feb. 13, at 7 p.m. in the meeting room at the Frankford Volunteer Fire Company.