Legislators pass absentee ballot amendment


Bethany Beach officials and citizens who have been closely monitoring state legislators’ consideration of amendments to state election code got a welcome bit of news late in the day on June 14, with the passage of House Bill 120 by the state Senate.

“This also makes us very happy,” Bethany Beach Vice-Mayor Tony McClenny noted on Friday at the town’s regular council meeting.

HB 120 came about specifically to address concerns from Bethany Beach and other coastal municipalities in which non-resident voting has long been the rule.

When legislators attempted to make election law and procedures consistent statewide under modifications to Chapter 15 of the state code last year, accompanying recommended code that would have protected the right of the coastal non-resident property owner to obtain and vote by absentee ballot didn’t make the final cut.

Local officials have spent much of the intervening year worried about a resulting disenfranchisement of the bulk of their voter base and how they could get the state to correct the oversight, as well as getting their own charters and election procedures into compliance with the new state law prior to this year’s set of local elections.

In the case of Bethany Beach, the clock is ticking, with Sept. 8 set for the town’s annual council elections.

Changes to the election laws must be completed no less than 60 days prior to an election, according to state law, so Charter and Ordinance Review Committee members have been working through 2006’s set of changes to state election law so that they’d have their own local changes adopted before the second week of July. Those initial changes have already been recommended to the town council for adoption.

What remained unknown when the committee met in Bethany Beach on June 14 was whether state legislators would deal with the issue of absentee balloting in time for the town to officially adopt any related changes and meet that 60-day deadline.

The state House of Representatives had passed HB 120 on May 3, sending it on to the state Senate, which only brought it out of committee on June 13. Still, senators jumped right on the floor vote, passing the change about 5:30 p.m. on June 14 without a single opposing vote.

Title 15 of the state election code officially supersedes any conflicting sections of municipal code, but Bethany Beach officials this week were eager to make sure their municipal code was in full compliance in time to meet the 60-day deadline, so as to avoid any questions about which code should be referenced by would-be voters.

Change opens ballot availability to non-residents

As HB 120 reads: “This Bill rewrites existing law on absentee voting in municipal elections to permit absentee voting by non-residents of a municipality where permitted by that municipality’s charter, replaces the statutory duty of the Department of Justice to approve affidavit and envelopes and write instructions for absentee voters for each municipality with the duty of the Commissioner of Elections to create one form of such documents to be used by the municipalities as a guide, and repeals the applicability of provision of Chapter 55 that are inapplicable to municipal elections.”

For local municipalities, the passage of HB 120 means that the towns can now define not only who is a qualified voter but who is allowed to request an absentee ballot, beyond the reasons now allowed by state elections law.

In Bethany Beach, South Bethany, Dewey Beach and Rehoboth Beach, voting is not restricted just to full-time residents, as is the case with state-wide offices and in most inland towns inside Delaware. One or more property owners who do not reside in Delaware are generally allowed to vote in each of those municipalities. Such property owners generally make up the clear majority of coastal-town property owners, making the issue one unique to the resort area.

While last year’s changes to state election law didn’t specifically restrict the ability of non-resident property owners to vote in a municipal election, they did restrict who could receive an absentee ballot and how it could be requested and received.

Those eligible to receive an absentee ballot from the state include only those unable to vote in person on the day of the election, for only the following reasons:

(1) Because such person is in the public service of the United States or of this State, or is a citizen of the United States temporarily residing outside the territorial limits of the United States…; or

(2) Because such person is in the Armed Forces of the United States or the Merchant Marines of the United States, or attached to and serving with the Armed Forces of the United States in the American Red Cross or United Service Organizations; or

(3) Because of the nature of such person’s business or occupation, including the business or occupation of providing care to a parent, spouse or that person’s child who is living at home and requires constant care due to illness or injury; or

(4) Because such person is sick or physically disabled; or

(5) Because such person is absent from the municipality while on vacation; or

(6) Because such person is unable to vote at a certain time or on a certain day due to the tenets or teachings of that person’s religion.

Nowhere on the list of the state’s permitted reasons to request an absentee ballot is being a property owner who resides outside the state. Being at one’s primary residence on the date of the election, and having the election be in a place where one normally vacations is certainly not on the list, though the inverse is there.

That’s perhaps understandable on a state level, since non-resident property owners simply don’t get a vote in elections for state offices.

But for a property owner in Bethany Beach who resides in Virginia, they have long been used to requesting an absentee ballot from town hall and mailing it back in with their vote for town offices and ballot questions.

New procedures identified

The procedure was as simple as a phone call and a postage stamp, though the related absentee ballot forms have proven to be problematic, resulting in some rejected votes for those who didn’t follow detailed instructions.

McClenny was hoping that the state’s new absentee balloting procedures would eliminate that issue, with clear directions and a set of differentiated envelopes that he believes should help eliminate the issue of ballot errors for Bethany Beach’s absentee voters.

But, first, those voters have to get their ballots. And now that HB 120 has been passed, the procedure is at least available, if not quite as simple as in the past.

Those seeking to vote by absentee ballot now will have to request their ballot in writing or electronically, by filling out an affidavit that testifies to their identity and their reason for not being able to vote in person.

Any qualified voter, as determined by the municipality, is eligible to receive one, provided that the town itself allows the provision of an absentee ballot for the reason specified — a list that is likely to include being a qualified voter living outside the state, once town charters are amended to coincide with the passage of HB 120.

If the would-be absentee voter returns their affidavit to the town less than 60 days and at least four days prior to the election, the towns will, under HB 120, be required to mail an absentee ballot — at town expense — to the voter requesting it, if they turn out to be eligible.

Affidavits returned to the towns less than four days prior to the election and up until noon on the day prior to the election can still be used to obtain an absentee ballot, but the ballot will have to be picked up in person and also returned prior to the period of in-person voting.

Bethany Beach Council Member Lew Killmer, who has been actively involved over the past year in pushing for the change from state legislators, confirmed on June 15 that the town still plans to try to adopt all related changes to its voting laws in time to meet a deadline around July 10.

On June 14, with that deadline and the only planned council meeting prior to July 10 looming, CORC members had recommended that the council and town staff take whatever measures needed to adopt state policies according to the fate of HB 120. But by the time it came to pass their recommendation to the council on June 15, state legislators had resolved much of the concern, excepting the desire of town officials to formally change their election code prior to the deadline.

Regardless, the passage of HB 120 this week all but guarantees that the changes in absentee balloting for non-resident property owners in the area’s coastal towns will be minimal, and likely for the best.

New ballots hailed as an improvement

The chief of those will be the shift to a state-designed format for absentee ballots and related documentation. State elections officials are to expand the existing — and generally preferred — state documents as a template that will likely see few changes at the municipal level.

Required under HB 120 is that the ballot package include the absentee ballot, instructions for completing the ballot and a ballot envelope to contain the completed ballot. The ballot envelope will itself include an affidavit statement of eligibility that is to be signed by the voter.

The streamlined package will, in Bethany Beach, succeed a combination of two envelopes, a ballot, instructions and an affidavit that succeeded in confusing most of the members of the town’s Charter and Ordinance Review Committee during a test of procedures late last year. The majority of their test ballots were rejected for failing small required steps, such as sealing both envelopes.

Thus it was the McClenny praised the change to state-developed procedures, if not the problems the town discovered with who could obtain an absentee ballot under the new Title 15. With HB 120 now passed, both problems should be resolved, putting Bethany and its fellow coastal towns well on the way to some easier elections.