In a Battle Between the Delaware General Assembly and a Municipality, The Legislature Won: How A New Delaware Law Prevents Municipalities from Establishing Burdensome Registration Requirements for Municipal Elections

By: Ecker Owen

According to a fairly recent survey conducted by the United States government, some 25.7 percent of Americans traveled to the beach over the preceding twelve-month period.  Moreover, in the mid-Atlantic region of the United States, the beach season typically is considered to be between Memorial Day and Labor Day.  Therefore, many people from the surrounding areas and states take a week off of work in the summertime, travel to towns along the beach with their friends and families, and then go back to their normal existences after their vacations have concluded.  But in all of this seasonal transiency, there are several questions that the average vacationer would never even bother think about: what happens to beach communities during the other approximately nine months out of the year, and who continues to live in those places during that non-summer time period?  The fact remains that a sizeable number of individuals live in beach communities during non-peak months.  Furthermore, like other, more static communities, beach communities require the existence of local governments to provide services and write ordinances that protect their constituents.  Obviously, these municipal governments necessitate the presence of elected officials to execute the governing process.  However, problems arise over the question of whether individuals existing within these communities for short periods of time should have the right to vote in these municipal elections.

The City of Rehoboth Beach, Delaware is one of those aforementioned beach communities.  With a permanent population of 1,327 according to the 2010 United States Census, Rehoboth’s total population exponentially increases during the beach season, both in terms of vacationers and those working in seasonal jobs that are added to accommodate the vacationing populace.  Fearing the influence that a temporary population could have on local politics and with a desire to protect both the “locals” and those with a vested interest in the community (non-resident property owners), Rehoboth’s municipal government enacted legislation requiring individuals wanting to vote in the municipality’s yearly August elections to have, at least six months prior to the election, either bought property, signed a long-term lease, or established residency in Rehoboth.  In addition to meeting that first requirement, potential voters were only able to register up until sixty days before the scheduled municipal vote.  Though the premises that individuals coming to an area for temporary work or leisure do not have a long-term stake in the city and are not well-informed about local issues may sound salient, the Delaware legislature found fault with these requirements at a fundamental level.

Sensing the unconstitutionality of Rehoboth’s actions given the Supreme Court precedent in the 1972 case Dunn v. Blumstein (declaring Tennessee’s lengthy residency rules similar to Rehoboth’s to be unconstitutional) and 1973 case Marston v. Lewis (identifying that Arizona’s fifty-day residency rule was constitutionally permissible, given the existence of special problems and the state’s legitimate need to correct those problems), the Delaware legislature enacted Delaware House Bill 395: An Act To Amend Title 15 Of The Delaware Code Relating To Municipal Elections (HB 395).  That Act, which becomes effective January 1, 2017, enjoyed bipartisan support, evinced by it passing the Delaware Senate by a 17-2 margin, passing the Delaware House by a 36-0 margin, and being signed into law by the Governor of Delaware on August 10, 2016.  Observed at a macroscopic level, the Act does not do anything revolutionary; it merely “brings Delaware’s municipal voting laws in line with the federal constitutional standards.”  Nevertheless, the Act guts both aspects of Rehoboth’s municipal elections voter requirements and prevents other municipalities from deviating from the prescribed voting standards as set forth in this act.  No longer can a municipality have a durational residency requirement greater than thirty days, which has the effect of eviscerating Rehoboth’s aforesaid six-month ownership, rental, or residency requirement.  Also under the Act, the deadline for voter registration can now be no greater than thirty days from any scheduled municipal election, which invalidates Rehoboth’s sixty-day or earlier registration provision was invalidated.

As a reaction to the Delaware legislature’s creation of this new law, some full-time residents have expressed dismay over the increased sway that temporary residents could now have on this small beach community’s future.  The mayor of Rehoboth, himself, opposed the law even though he conceded that lengthy residency periods are unconstitutional.  The mayor believed that the maximum one month residency requirement mandated by HB 395 is not sensible, because “seasonal workers and partial-year tenants aren’t usually well-informed about the city’s politics.”  Additionally, some individuals questioned the actions of the legislature in its pursuit of bringing HB 395 into effect: “the speaker tried to rush a bill through the Legislature that would directly affect the city of Rehoboth . . . with no regard for the viewpoints of Rehoboth residents.”  Regardless of the personal sentiments of the individuals that may be affected by this act, it does appear that Rehoboth was getting away with a probable constitutional violation.  The Delaware legislature merely was trying to comport with the United States Constitution and has done so by taking the proactive step of closing an existing gap–exploited by at least one municipality–in Delaware’s laws.

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