Delaware Supreme Court ACLU v. Town of Fenwick Island, Case No. 26-229

Audio Arguendo

This episode captures the oral arguments before the Delaware Supreme Court in the case of ACLU v. Town of Fenwick Island. The legal dispute focuses on

Key takeaways

• Andrew Bernstein (ACLU) argues that artificial entities lack the 'natural political rights' required to participate in elections without diluting natural persons' votes.
• Luke Mehta (Town of Fenwick Island) contends that the ACLU lacks standing because they cannot identify a specific member whose vote was uniquely diluted.

Main topics

• Delaware Elections Clause
• Vote dilution theory

Notable quotes

All elections shall be free and equal.

Conclusion

The transcript offers a high-level look at the technicalities of const

Transcript preview

Speaker 1 (0:10) The court is now open. God save the state and the honorable court. Please be seated. Speaker 7 (0:21) Good morning, everyone. Thank you Capitol Police for being here today introductions before we get started Speaker 5 (0:27) Good morning, Speaker 7 (0:28) may please the court Speaker 5 (0:29) Luke Mehta Brock said man Dallas Federico on behalf of the defendant below the appellee on this appeal the town of Fenwick Island With me at council table today are my colleagues Joe grub and mark Denny Welcome everybody Speaker 4 (0:44) Good morning, and may it please the court. Andrew Bernstein, representing the American Civil Liberties Union of Delaware, with me at council table is Jared Silbert Lee. Speaker 7 (0:54) Okay, welcome, and Mr. Bernstein, you may proceed. When Speaker 4 (1:12) the framers of Delaware's first constitution met, they swore an oath to form such a system of government for the people of this state as may best be adapted to promote their happiness and secure to them the enjoyment of their natural, civil, and religious rights and privileges. This commitment of government for the people of this state has persisted in Delaware's constitution ever since. It now resides in Delaware's Elections Clause, which states that all elections shall be free and equal. It is now at risk in the town of Fenwick Island where artificial entities have been granted the right to vote. Fenwick Island is harming its natural person voters, including ACLU's members residing there, by reducing the weight of their votes. This harm is constitutionally offensive under the Elections Clause because artificial entities' interest in the general governance of the town of Fenwick Island, no matter how sincerely held, is constitutionally insufficient in its source and nature. Speaker 7 (2:09) So I'm sorry to sidetrack you right off the bat here, but... As we've said in a number of cases that we typically address the issue of standing as a threshold matter. So could you, and I'm sorry for taking you out of order, could you tell us why they're standing in this case? Speaker 4 (2:28) There is standing in this case, because this court has, it falls under this court's definition recently adopted in the case of Albence v. Manella of a dilutive voting harm. In that case, this court defined a dilutive voting harm as reducing the weight of a certain person's ballot without actually preventing them from casting it. So there are two key aspects of standing here. There is reducing the weight of the vote, and that... weight reduction happening to an identifiable population. Here, when Fenwick Island changed who was eligible to vote in the town, it changed the denominator. It changed the number of eligible voters. And that had... Speaker 7 (3:11) The ACLU is not a registered voter in the Fenwick Island election. I think we can all agree with that, right? So tell us why the organization has standing. Speaker 4 (3:22) Yes, this is an associational standing claim the ACLU is making. So the element of associational standing that appears to be most in dispute between the parties is whether the harm is concrete and particularized. And that is what I was getting at in my response preview of standing in the Manella case. ACLU of Delaware has standing through its members. But Speaker 6 (3:45) it does affect all non-entity voters equally, correct? Speaker 4 (3:50) Yes, it does affect all natural person voters equally. So Speaker 7 (3:55) isn't that fatal to your standing? Speaker 4 (3:57) No, it is not fatal to standing because the identifiable population of voters who are unimpacted here are the artificial entity voters that the right has been expanded to. And to provide further evidence for this, this court generally adopts Article 3, generally looks to Article 3 standing determinations, recognizing that there is a heightened standard in federal courts and non-resident landowner voting cases, which the ACLU of Delaware is not bringing in this instance, recognize or at least haven't contested. questions standing in somewhat similar circumstances. For Speaker 3 (4:38) associational standing, don't you need to identify at least one member who actually is a natural person eligible to vote in Fenwick Island? Speaker 4 (4:49) Your Honor, we do need to recognize that, but we do not need to specify who that person is. The Brickner affidavit submitted to the Superior Court did indicate that the ACLU of Delaware has members and supporters in the town who are on the voter rolls and have cast ballots in recent Fenwick Island elections. Speaker 3 (5:14) And what's your source for... The position that that's sufficient for associational standing. It Speaker 4 (5:22) appears to track with this court's precedents in cases like Dover Historical Society that there was no requirement to specifically name an individual in that instance. And it makes sense that that would carry forward here where in a highly charged issue pertaining to elections and voting, individuals might fear. reprisal or stigma if they were to put their name on something like this. What Speaker 6 (5:52) would the nature of that reprisal look like? Speaker 4 (5:55) It might arise in the sense that social stigmatization in the town where individuals would not feel comfortable or safe in the same way identifying themselves in front of their neighbors as having this kind of fear. having this kind of complaint about how the town's elections are ran. But further, I think what would be instructive for standing here is to look at very similar cases brought in the non-resident landowner voting context, such as in the case site in the briefing, the Fourth Circuit cases site in the briefing, such as Locklear. May versus town of Mountain Village, where in those instances, groups of voters were able to bring this claim and federal courts did not question the standing of the parties bringing the claim. And we Speaker 2 (6:54) go back to the affidavit that was filed. It speaks, says I can attest to the fact that eight. Active members, donors, and supporters appear on the town's voter registration list, and six appear on the 2024 election sign-in sheet. How can I be confident that there are actually members as opposed to donors and supporters who are on those lists? Speaker 4 (7:19) Your Honor, because, well, the number includes members. The 33 figure from my reading of it includes an aggregate of members, donors, and other supporters. And it does include more than one active member of the ACLU of Delaware. Speaker 4 (7:46) If I may turn to the substance of the clause, the clause has a history. Could I ask Speaker 2 (7:53) you one more question about standing? Thank you. You brought up sort of a policy-based reason as to why individuals don't need to be identified. It's this fear of reprisal. From the court's perspective in satisfying our duty to ensure their standing, how can we be certain that none of these members? that have gone unnamed or supporters or donors themselves don't own a property in Fenwick through an LLC? In other words, how can we be sure that they are suffering the injury in fact that you are attributing to them? Speaker 4 (8:28) Your Honor, the membership of the Asylum of Delaware, to my knowledge, does not include LLCs, corporations. I'm Speaker 2 (8:38) sorry, the person who is the controller of those LLCs. How do I know they're not? And none of the members on your list, in essence, control the vote of an LLC in Fenwick. Speaker 4 (8:48) Your Honor, their vote would not be directly implicated here because they do reside in the town. If the relief the Acesilio of Delaware is seeking were granted, as members residing in the town of Fenwick Island, they would still be able to vote as natural person residents. So their interests are accounted for here. Speaker 4 (9:17) But to just spend a moment on the substance of the clause, the clause tracks with the historical development in Delaware of recognition of political rights for natural persons, of protection of popular sovereignty. The clause, as the Court of Chancery in the Young decision recognized, can be analyzed by looking to its antecedents. And of particular purchase here are Sections 1, 4, and 6 of the Delaware Declaration of Rights. Section 1 stated that government of right originates from the people. Section 4 stated that the people of the state have the sole exclusive and inherent right of governing and regulating the internal police of the same. And then section six, the direct antecedent of the elections clause stated that all elections ought to be free and frequent and every free man having sufficient evidence of permanent common interest with and attachment to the community hath a right of suffrage. This is expansive guarantees with intentional language. of protecting popular sovereignty and the natural rights of individual persons. And they carry through from the Declaration of Rights to later iterations of the Delaware Constitution, which included the Elections Clause. So for example, just to define the terms, where sections one and four spoke to the people, prominent dictionary of the time would define people as men or persons in general. And where Section 6, the direct predecessor of the Elections Clause, spoke to free men, that was defined as one not a slave, not a vassal, one partaking of rights, privileges, or immunities. And then community, also used in Section 6, was defined as the commonwealth, the body politic, and importantly, the state contrary to property or appropriation. So it's clear that that original Declaration of Rights, which was carried through to Delaware's subsequent constitution, had a particular... had particular protections for natural rights and popular sovereignty. The Declaration of Rights was incorporated into the preamble of the Delaware Constitution of 1792, where Section 1 stated that government of rights originates from the people. The preamble of the 1792 Constitution said power is inherent in people. Speaker 3 (11:56) Mr. Bernstein. Before you go too far down the path of a Jones or a Hunt analysis, I understand your argument to be that the Superior Court erred in not conducting that analysis. Is that correct? Speaker 4 (12:10) Yes, Your Honor. Speaker 3 (12:11) Okay. And so if we were to reach the merits of your appeal and agree with you that Jones or Hunt was the appropriate framework here, are you asking us to conduct that? Finding