Dealing with changes to how state election law handles absentee ballot requirements was one of the top items on the agenda for Bethany Beach’s Charter and Ordinance Review Committee (CORC) at their Jan. 18 meeting. But action on the issue was put on hold as the town awaits additional guidance from the state attorney general’s office.
Town Council Member and CORC Chairman Tony McClenny reported at the meeting that town officials had asked Town Solicitor Terence Jaywork to inquire with the AG’s office as to a number of elements of the revised election law passed last summer by state legislators and how it impacts one of the few towns in the state to offer voting rights to its non-resident property owners.
Town Council Member and former CORC Chairman Lew Killmer reported that he had met on Nov. 20 with Delaware Election Commissioner Frank Calio and officials from Dewey Beach and Rehoboth Beach to discuss their unique concerns regarding the absentee ballot issue.
Under the revised Title 15, Killmer noted, being a resident of another state is not a reason for which the state now authorizes the mailing of an absentee ballot to otherwise legal voters in municipal elections. Killmer and other Delaware League of Local Government members had attempted to address the problem with language they managed to have added to the draft legislation before it was voted upon.
“But the bill was too long,” Killmer reported this week. He said legislators had decided to delete the DLLG-drafted section, among others, before the final bill was passed.
That has left the coastal towns, and their unique non-resident voters, up in the air as to how to handle what were pretty well established local procedures related to voter registration, eligibility and the obtaining of absentee ballots. Killmer said they were even unsure how a change to the new legislation to allow for the mailing of absentee ballots to non-resident voters could be enacted.
A DLLG-affiliated attorney was drafting an amendment that would handle the issue if adopted by state legislators, Killmer reported, but he said they were also waiting on an opinion from the AG as to whether such an amendment was even needed to correct the problem for the state’s coastal towns.
Killmer said at the Jan. 20 Bethany Beach Planning Commission meeting that local legislators had assured him the issues regarding absentee ballots and non-resident voters would be resolved.
As it stands, the state law trumps all local election law and renders null any charter or voting statutes that conflict with the new Title 15. The town will have to follow whatever procedures the state has in place as municipalities and the state alike gear up for this year’s election season — including Bethany’s council elections, which are set for September.
An additional complication for Bethany focused on concerns about the existing absentee ballot, which sharpened in the wake a close election in September of 2006 that eventually fell to a single vote to decide which of two incumbents would fill a seat. In a later test of the ballot by CORC members, most failed to fill out the ballot precisely as instructed, rendering their pseudo-votes void.
That has meant that, regardless of the change in state law, the town was looking at least at a ballot redesign.
All voting procedures must be in place 60 days prior to an election, meaning that the town has until June to draft its new election procedures into law and adopt them, including the requirement for first and second readings of draft legislation before any council action to formalize a change. That means the clock is already ticking, with just a couple months to get any changes headed down the pipeline.
New requirements a mixed bag for municipalities
Under the current Title 15, the state absentee ballot procedure requires would-be voters to request an absentee ballot application form. They would then self-affirm their identity and eligibility to vote on the form and mail it back to election officials, or they could do so in person. That done, they would be given the ballot if applying in person or have the ballot mailed to them, and they could then cast their ballot in person or mail it back in.
The final legislation eliminated a draft requirement to have the would-be voter’s identity certified by a notary public on their application. That could actually serve to simplify Bethany’s absentee ballot process by no longer requiring two individual envelopes to separately contain the cast ballot and eligibility-affirming documentation. A requirement for a photo ID would come into play instead.
But the issue that is tripping up the local towns is whether election officials are even allowed to mail a ballot request or the ballot itself to non-resident voters. Right now, “It’s not up for debate,” Killmer emphasized. They simply can’t, because non-residency was never included as a legitimate reason to request an absentee ballot.
Killmer and other local officials are hoping to eliminate that hurdle, recognizing that requiring a non-resident property owner to come into their town halls to request and/or cast an absentee ballot is just one more thing that will depress final voter turnout and deny a voting voice to the coastal towns’ unique and predominant populations of non-resident citizens.
Bethany Beach changed its own election procedures in recent years to help maximize turnout, eliminating the requirement to register in advance if the would-be voter’s name is on its property ownership rolls. Thus, only town residents not owning their residence — i.e., renters — have been required to register to vote in order to be able to cast their ballots in the town. And absentee ballots are mailed freely to eligible voters who request them.
Education key as voters prepare to cast ballots
Additionally, Bethany allows representatives of a trust to vote, as does Dewey Beach, but Rehoboth Beach does not. Corporate owners are not eligible to vote in Bethany. But Bethany will currently mail an absentee ballot form to eligible voters, while Rehoboth Beach requires the would-be voter to show up in person. And there is also a question of whether those linked to a trust — eligible voters in Bethany — can be elected to serve on the town council.
Those differences only serve to expand the difficulty for the towns in how they modify their election laws to conform to the new state law and educate their constituents on the voting process. Killmer said Calio plans to have a “Cliff’s Notes” version of the election procedures drafted into a booklet for voters and to have members of his staff tour the entire state and make presentations on the voting law changes as the summer and fall election seasons near.
Notably, Calio himself will not preside over the upcoming election seasons, with plans to retire on June 30, before the new law actually impacts the local towns. Regardless of his efforts to educate voters on the new law before he leaves office, Killmer said, “It behooves the town to advertise these changes to the citizens.”
With some of the issues still up in the air, McClenny put off dealing with the town’s election laws and absentee ballot issues until at least CORC’s February meeting.
Referendum reforms discussed
While they put absentee ballot changes on hold, CORC members on Jan. 18 did address reforms to how the town handles petitions calling for referendum and any resulting referendums themselves.
After the summer’s contentious petition drive to call for a referendum on the town’s recently enacted roof pitch incentive — an increased roof height allowance — focus also came to how the petition and referendum process works in Bethany Beach.
McClenny said he had incorporated on a list the issues and concerns previously discussed by the committee, and Jan. 18 was a time for additional input before CORC set about trying to draft new ordinances to cover the procedures.
In addition to CORC members, resident Dan Costello, who led the petition drive and call for referendum, had some input as well and continued to do so at this week’s meeting.
The core concern for most related to exactly how such a petition should read when circulated for signatures. “The critical question is that what is actually going to appear on the (voting) machine has to be on the petition people are going to read. It has to be a yes or no question, not a position on an issue,” Killmer opined.
As it stands, the town’s referendum law requires that such a petition mention exactly what piece of legislation is up for being repealed through a referendum vote.
It does not specify that the entirety of the legislation be included on the petition. Nor does it prohibit additional information or assertions by the petitioners from being on the same page. Both issues lead to the possibility that petitioners are being presented less with unbiased information than they are told why a certain bit of legislation is bad, according to the petitioners’ view.
That is how Costello’s petition was perceived by some town officials and citizens, though CORC members tried on Jan. 18 to avoid specific references to what is still a divisive issue and sore spot for many in the town. That petition was deemed successful, and the council voted to directly repeal the new ordinance rather than hold a formal referendum.
Costello noted that he had adhered to the existing law in specifying what law was being questioned and insisted his petitioners had tried to be as accurate as possible in describing the issues involved. However, “There was some confusion as to what the question was,” Killmer asserted.
Council and CORC member Jerry Dorfman said he thought some sort of synopsis of the legislation in question should be included with the referendum, rather than simply a title or text of the actual code and the question of yes or no on its repeal. “This is not as simple as voting for purple houses,” he offered by way of example. “You want them to sign with an understanding of it.”
But other committee members were concerned that even a brief synopsis could be seen as partisan. And the committee eventually settled into the consensus that a middle ground between legislation titles and synopses could be the way to go.
Elaborating on the issue of the petitions, committee members also considered what kind of identification or status requirements should be placed on petition circulators and signers.
Should non-residents be allowed to sign a petition, or to circulate one? Should local business owners who aren’t eligible to vote? Should the only people involved be eligible voters? Should signers of a petition be required to produce identification to that effect? Should those circulating it?
Those questions remained unresolved this week, but McClenny said he would write up a draft containing the ideas expressed thus far, to be discussed further at CORC’s February meeting.