“We had a code that was working and working very nicely,” said Bethany Beach Vice-Mayor Tony McClenny on March 15 to members of his Charter and Ordinance Review Committee (CORC). McClenny was speaking of the town’s election code, which is up for a major revamp thanks to state legislators’ decision last year to change the state election code after problems were cited in other Delaware towns.
With the passage of House Bill 410 into state code, the towns are now on a timetable to complete changes that will make their own election codes compatible with the new state code. Those changes must be completed and passed at least 60 days prior to their next municipal elections, which means June for Bethany Beach, where council elections come in September.
Still up in the air are changes to how town handles absentee ballots — procedures that were swept away by the new state code. Under HB 410, there is no provision for the mailing of an absentee ballot to an out-of-town resident who happens to be a property owner and therefore qualified voter in Bethany Beach and other coastal towns. The state lists other reasons for the ballots to be provided, but not due to mere residency in another location.
Most towns statewide do not share the practice of allowing non-resident property owners to vote, so the provision to mail absentee ballots to such people was not included in the new state election code.
Officials in coastal towns noticed the problem after the legislation was initially drafted and have since worked with their peers in the Sussex County Association of Towns (SCAT) and Delaware League of Local Governments (DLLG) to sort out the discrepancy. Language that would have fixed the problem was included in a final draft of the new Title 15, but was later eliminated when the document was streamlined.
So for the past half-year, officials in the coastal towns have continued their efforts to work through the situation, again with the support of SCAT and the DLLG. The issue has made its way to the desk of the state’s attorney general, but no formal response has arrived in the towns as of yet. Legislators have also promised to sponsor an amendment that would resolve the problem, but that is being held out as a last resort.
As the clock ticks down on drafting Bethany’s new election code, CORC members have been eagerly awaiting some word, but McClenny told them the issue was still pending at the state level as of March 15, with no formal response from the state legislature as a whole.
McClenny said the DLLG had further requested that the legislature change the effectiveness date of the new election code for the towns, putting it off until Jan. 1, 2008, so they would have more time to adapt. Rehoboth Beach is dealing with the changes even sooner than Bethany, with elections set for July.
McClenny said CORC would tackle the issue at the first meeting held after a state response has been received, which could be in April. Trying to deal with it before then, he said, would be premature. “We want to be perfect on this.”
Town Clerk Lisa Kail, McClenny noted, was also due to attend a town clerks’ association meeting this month, where the issue was also slated to be discussed.
Resident Dan Costello, who attended the March 15 meeting out of interest in the absentee ballot issue, was concerned that the committee was putting off addressing it. He said the issue needed “to be addressed regardless of the state’s decision.”
Costello was among those expressing deep concern about a number of absentee ballot irregularities in the 2006 council elections. The council seats were, in the end, decided by only a single vote, and Costello said a number of voters had had their ballots rejected for problems that perhaps shouldn’t have resulted in the votes’ nullification.
Subsequently, four of five CORC members filling out a sample ballot to test the situation were determined to have done so incorrectly and in ways that would have led to their hypothetical ballots being rejected.
Costello said he wanted CORC to attempt to resolve those problems while the town awaits the state’s decision on the absentee ballot issue it is handling.
“I have to disagree,” McClenny responded, saying he felt the state would eventually respond with a set of absentee ballot procedures that would make moot work done by CORC in the meantime. He said the state’s procedures would likely prove superior to Bethany’s existing absentee ballot standards and procedures — including working to prevent the very problems that caused concern in September 2006.
Election code draft includes much state language
While the absentee ballot issue was put on the back burner for the meantime, CORC members on March 15 did run through the new state code page by page, considering how to adapt the town’s code to be compatible with the state’s mandates.
In many cases, the changes involved adding entire sections of the state code language to the town code. Such areas include the training and duties of Board of Elections members, the inclusion of terms of office for town offices, ways a voter can request assistance at the polls, a definition of “electioneering,” the addition of contact information for Board of Elections members in public postings of their identities and the complaint procedure for an election.
In other areas, CORC members determined the town code to already be in full compliance or that the section of state code simply didn’t apply to the town, such as those referencing the duties of the Department of Elections.
ID restrictions could pose additional problems
The only area where the committee members were at an uncomfortable standstill was over the issue of what forms of identification are permissible for voters to use. The state’s new Title 15 specifies that only Delaware state driver’s licenses are suitable for that particular form of ID. Out-of-state licenses are not included on the list of permitted IDs.
Council and CORC member Jerry Dorfman noted that the town had had cases in the past where voters had been refused access to the polls over a lack of identification. “It’s a flaw,” he concluded.
Indeed, Dorfman said with a note of amusement, McClenny — not a council member at that time, but serving on the board of elections — had once refused his own wife the right to vote because she had left her ID at home. She had returned later with her ID and was allowed to vote, McClenny noted.
He pointed out that some voters in the town had previously been allowed to cast ballots after signing a statement attesting to their identity. And the new Title 15 also permits forms of ID to include a utility bill, credit card bill or lease, for example. But the lack of ability to simply use an out-of-state driver’s license is yet another complication that is unique to the state’s shore towns and their non-resident voters.
“This is what your Delaware state legislators have given us to work with,” McClenny said in response to Costello’s suggestion that CORC make its own change to the town code to allow out-of-state licenses as identification. “We were much better off before they got involved.”
Indeed, while CORC members praised much of the work behind the new state code and were ready to adopt segments of that code for the town, the consensus was that the changes were being forced upon them when they hadn’t really been needed, complete with some elements that create problems for the town and its neighbors on the coast.
One of those elements includes what might be seen as a simple requirement to hold the office of mayor: residency in the town of at least one year.
However, with majority non-resident property ownership, Bethany Beach is one of the few towns in the state where it could be argued that a non-resident might be a suitable mayor. No non-resident has held that position and the town itself already requires six months of residency, but a well-known non-resident who retires might find their candidacy for the mayorship curtailed for a year longer under the new state law.
That change, the ID issue and the absentee ballot provisions are all areas where the coastal town’s unique populations and rules have come into conflict with the new state code. The two areas might be classified as a minor problem, but town officials are deeply concerned as to how the question of mailing absentee ballots will be dealt with now that the legislature is aware there is a conflict.
The town is awaiting word on that decision and could work to take action to complete the changes to the town code as soon as CORC’s April meeting. Then, CORC members will also provide any additional input on the proposed election code changes, after having reviewed the town code for any conflicts during the intervening weeks.
They hope to have the final code drafted and ready for the required first and second readings before a council vote that would, as it now stands, have to come by the end of June.