Delaware Chancery Court Suggests Red Clay Redo Their Last Referendum In Legal Opinion

Delaware Chancery Court, Red Clay Consolidated School District, Referendum

This hasn’t been discussed in mainstream media too much, but the Delaware Chancery Court just wrote a legal opinion concerning Red Clay’s last referendum.  The Red Clay Consolidated School District wanted to case dismissed, but the Chancery Vice Chancellor Laster denied the dismissal on October 7th. The entire opinion can be read here.  Keep in mind this is not an actual verdict, merely an opinion by a judge. Key highlights from this legal opinion are as follows:

Finally, to the extent this decision has erred by treating the Family-Focused Events as a reward for voting, at a minimum they were selectively targeted get-out-the-vote events designed to appeal to a readily identifiable group that Red Clay believed would support the tax increase. Viewed as such, the Complaint states a viable challenge under the Elections Clause to the Family-Focused Events. The Abbott decision stated that the purpose of the Elections Clause ―is to ensure that the right of citizens to vote in an election is unfettered.‖ 2008 WL 821522, at *19 (Del. Ch. Mar. 27, 2008.

The opinion goes into great detail about the events going on at various Red Clay schools the same day as the referendum.

Using the Family-Focused Events, Red Clay encouraged and facilitated voting by families with school-aged and pre-school-aged children. By doing so, Red Clay made the election unequal, not through traditionally negative means, but through positive means. Whether Red Clay‘s conduct went too far is necessarily a matter of degree, but for pleading-stage purposes, the plaintiffs have stated a claim under the Elections Clause.

The heart of the complaint behind this case was a woman brought her elderly parents to a school to vote.  She claimed parking was a huge issue and there were empty school busses taking up spots.  She claims her parents, who are disabled, were not given unfettered access to the polling booth.

Moreover, in the current case, Red Clay‘s selective get-out-the-vote efforts had negative effects on the elderly and disabled. As the Abbott decision recognized, a potential violation of the Elections Clause exists if the plaintiffs allege that ―their access to the polls was disturbed….‖ 2008 WL 821522, at *20.

Vice-Chancellor Laster denied the dismissal request by the Red Clay attorneys:

In challenging Red Clay‘s electoral interventions as a whole, the Complaint states a claim on which relief can be granted under both federal and state law. Red Clay‘s motion to dismiss is therefore denied.

The Vice Chancellor basically said if Red Clay does the Referendum again without some of the contested events taking place, and they have the same results, it would render the case moot.

Red Clay has the option of addressing the plaintiffs‘ contentions by returning to the electorate. This decision has concluded that the plaintiffs would not be able to state a claim for relief if Red Clay only engaged in certain types of conduct and avoided others, such as the Family-Focused Events and electioneering in close proximity to the voting rooms. If Red Clay called for a new special election and limited its electoral interventions, and if Red Clay‘s voters ratified the result of the February 2015 election by voting in favor of the tax increase, then this litigation would be moot.

This will certainly be an interesting case to watch if it does make it to trial.  There was a lot of heat put on Red Clay based on the events of this referendum, and even though Attorney General Matt Denn did not find anything wrong, several Delaware legislators did.  The final decision in this could change the way referendums in Delaware occur.  Or maybe someone will finally get the good sense to do away with it for good!

7 thoughts on “Delaware Chancery Court Suggests Red Clay Redo Their Last Referendum In Legal Opinion

  1. The events that the Red Clay School District had that night were ingenious. Our illustrious leader, Markell himself, attended several. It was a great opportunity to have more people vote. After a hard day’s work, going back out to vote isn’t very appealing, but if it’s to see your kid doing something, that’s different. They weren’t standing in the gym offering free lollipops to anyone that voted yes. The official elections people were running the polls, not district people. All they did was provide more incentive to get to the school. …not to vote. …not to vote yes. Just to get to the school.


  2. It’s called…. “get out the vote”, and has been used since America began voting.

    The filer of the complaint is a dork… I can only think the judge in this case is allowing it go forward solely in order to ridicule this imbecile in public, thereby preventing this tactic being used by all future losers in an election..

    If it goes to trial, and the defendant’s lawyers lecture the judge, jury, press, and citizenry on the American history of “getting out the vote”, the plaintiff and backers will get to absorb all court costs which should be enormous… and that should squelch this campaign of challenging every school referendum vote you don’t like, as being unfair.

    I say bring it on and lets squelch this apparent little communist who is so against democracy, period.


  3. Bigger picture – as discussed by the most clever people in the world on DE Education: our PDD panel Wednesday night – get rid of referendums for school operating expenses.

    Thoughts for alternatives? Either law-makers can
    – make funding operating costs automatic – include operations as a category of tax increases that is under the authority and power of boards or
    – make the state foot the bill.

    Liked by 1 person

  4. I worked at the Polls inside an elementary school devoted to Spanish speaking students. There were posters within feet of the voting machines in Spanish urging yes votes with large Xs.
    The Central American parents avoided the election like the plague, until they came out of the back room “meetings’. Once they were sure immigration was not around they voted to spend the taxpayers money.
    School buses were parked all around the entrance, although the students had disembarked hours earlier.
    Later, everyone carried 4 boxes of pizza in stacks after recording their votes. The RC District needs to be divided up so everyone is voting to spend “their” own money.
    Shame on those mocking the rigging of an election at the expense of tax paying land owners. We resent FRAUD! Hold referendums during general elections!


      1. Unfortunately, it’s all real the referendum was rigged by the administrative FAT CATS that are the true beneficiaries of increased taxes. Any system that will not allow children to be taught how to print, or even the proper way to hold a pencil, is not working for the pubic good.


  5. What ticks me off is all of these complaints about how the events gave parents of children an advantage. Um, aren’t they the ones that the vote impacts the most? Aren’t their children benefiting from the increase? Who paid for your education when you were a child? Lets talk about how the parents who drop off their kids at school in the morning before going to work CAN’T vote because of all the complaints the Legislators received from non-parents. Yes, that’s right, I have to drive back to vote because God forbid anyone have to deal with a lot of cars at the school in the morning! The school referendum process has been gerrymandered and is why districts are losing. The referendums are the only voting process in the state that starts at 10 am. So you know what? I vote for getting rid of that process. Its not fair and its clearly not working.


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