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!