Why Should Delaware Care?
A new lawsuit is challenging who – or what – can vote in general elections in Delaware. There are a handful of towns that allow owners of LLCs and other artificial entities to vote in town elections even if they don’t live there, potentially swaying election outcomes.
A new lawsuit by the American Civil Liberties Union of Delaware against the town of Fenwick Island seeks to answer one of the most foundational questions: Can non-residents vote in town elections?
While conventional wisdom may be that residents are able to vote in town elections, Fenwick Island is one of five Delaware towns that also extends that right to owners of corporations, limited partnerships, trusts and limited liability companies that own property in town limits — regardless of whether they are permanent residents.
The lawsuit, filed in Delaware Superior Court on Thursday, cites a conflict with the Elections Clause of Delaware’s Constitution and seeks to prohibit such voting, which the ACLU said “unnecessarily risks the dilution of votes cast by natural persons,” before the next municipal election on Aug. 1.
It’s believed to be the first time anywhere in the country that the ACLU has challenged a government’s recognition of voting rights for artificial entities in a general election.
“Our idea of representative government is ‘by the people, for the people’ and corporations are not part of that equation,” Andrew Bernstein, the lead voting rights attorney for the ACLU who filed the case, told Spotlight Delaware.
It’s not an idle provision for the small beachfront town, as nearly a quarter of votes cast in the last municipal election in 2024 – or 109 in total – were cast by owners of entities like LLCs rather than full-time residents.
In beach communities, it is common for many homes to be owned by LLCs as investment properties or second homes for part-time residents. For Fenwick’s largest northern neighbors in Rehoboth Beach and Lewes though, that property ownership does not convey additional voting rights.
There are four other small Delaware towns – Henlopen Acres, Dagsboro, Bethel, and Dewey Beach – that allow for artificial entities to vote in municipal general elections, or elections that choose mayors or town councils. Others allow for such entities to participate in certain special elections.
Fenwick Island Mayor Natalie Magdeburger declined to comment on the lawsuit when reached Thursday, saying she hadn’t yet read it.
What does Fenwick allow?
Fenwick’s town charter provides that any artificial entity that owns property in the town as of March 1 prior to an annual municipal election can cast a ballot.
A person can only vote once in the town election, regardless of whether they cast a ballot as the owner of an artificial entity or as a town resident. That is different from the situation uncovered in Newark in 2019, when a single developer voted 31 times on behalf of his many LLCs in the city and led officials to ban the voting by artificial entities there.
However, there are no limits on the number of artificial non-human entities eligible to vote based on their ownership interest in any single property parcel nor is there a minimum share of a property required to register. That means if several LLCs jointly own a beach home in Fenwick Island, all of the owners can register to vote, regardless of how little a stake.
The ACLU, which noted that it has members in Fenwick who have participated in the elections there, argues that artificial entity voting could sway election outcomes.
The town’s 2024 election was a contest between four candidates running for three council seats, and the third-place candidate was only 55 votes ahead of the losing candidate.
“This means that the votes cast on behalf of non-human artificial entities could have determined the outcome of the election,” the ACLU wrote in its lawsuit.
In 2023, the town election was a contest between eight candidates running for four seats. Then the fourth-place finisher, who earned a town council seat, beat the fifth-place finisher by only 42 votes – a margin that the ACLU also believed could have been affected by non-resident voters.