Proposed state-wide changes to election rules appear to be on the way, but Bethany Beach Town Council Member Lew Killmer is working with representatives of other municipalities to ensure the changes will not adversely affect Delaware’s smaller and coastal towns.
Killmer reported on the effort at the Feb. 16 meeting of the town’s Charter and Ordinance Review Committee (CORC), which he chairs. He said representatives of 10 towns had met Feb. 14, at a Delaware League of Local Governments (DLLG) gathering that was planned to last two hours but went beyond four hours.
Municipal governments around the state have rejected the proposed changes to state Title 15 legislation that sets rules for elections, saying that violations found in Smyrna were isolated and do not affect the rest of the state. Moreover, the added degree of oversight and requirements posed by the changes would create problems instead of solving them, Killmer opined.
He said DLLG members had focused on making an alternative proposal to the existing draft legislation — one that would eliminate problem areas, fine-tune others and accept some needed changes.
“The biggest problem is that they’ve tried to make this one-size-fits-all,” Killmer said. “But coastal towns are totally different from interior towns.”
One of the key problems for towns in the state’s coastal area is that there is no allowance for non-residents to obtain absentee ballots through the mail. While non-resident voting is uncommon across the country, it’s commonplace in the state’s resort towns, where non-resident and out-of-state property owners are often given a voice in elections but cannot always travel to the towns where they own property to vote on the day of an election.
Currently, state code does not include distant residence as a reason for which an absentee ballot can be mailed, and there is no provision for such in the new legislation, though many towns currently provide the service.
In Bethany Beach, absentee ballots make up nearly half of the votes cast in an average election, so the effect on town elections could be devastating in terms of total voter turnout and perhaps even after the end results of elections.
The draft legislation also allows people to register as voters with only a 15-day residency requirement. With a hefty rental economy, Killmer noted that would leave the town wide open to abuse, since anyone renting a home for more than two weeks would potentially share the same resident voter status as someone renting the same home for a full year or more. Bethany Beach currently requires six months of residency for non-property owners to vote — the same residency requirement currently in state code.
And with so many non-resident voters, Bethany Beach could also see problems with the selection of a mayor. The proposed legislation would require three years of residency for a mayor. In Bethany Beach, it would easily be possible to seat a full council of non-resident property owners and full-time residents of less than three years and, as a result, have no council member eligible to be mayor. Bethany currently requires only a year of residency for council officers, including the mayor.
Killmer also cited problems with requirements for posting notices of elections and election-related meetings. The proposed legislation sets the locations at which the notices are posted. But Killmer said a requirement to post the notice at fire departments, for instance, could be a problem in areas where the fire department is on private property and therefore not technically open for access by town officials, as is the case in Bethany Beach.
Further, Killmer said requirements for the town hall to be open in the evenings and on weekends for voter registration would be burdensome for town staff and election officials. And he was concerned that the required charter changes to put the new election rules into effect in each municipality could prove financially burdensome to small and less-wealthy towns than Bethany Beach.
Towns not complying — and quickly — with the new Title 15 requirements would be in double trouble, according to Killmer. He said the legislation specifies that town charters not in compliance would be rendered “null and void,” putting a tremendous burden on the towns to get the changes done in accordance with the new legislation, and quickly.
Some elements of the election process do need to be changed, Killmer allowed — particularly in the areas of how pre- and post-election problems are handled and the process for how towns deal with challenges to election results.
Bethany Beach, for instance, often holds a reorganizational meeting for the town council within 20 minutes of a vote count being finalized. There is no formal challenge period between that final vote count and the swearing in of new council members, and certainly not enough time for someone not already in the town to make a challenge. Indeed, many voters find out the results of an election days or weeks later, when newspapers reporting the results are published and arrive at their homes.
The proposed legislation would require a three-business-day waiting period, followed by a public meeting of the Board of Elections, during which challenges could be heard before the election is officially certified and any new council members are seated. Challenges would have to, if sustained, change the results of the election. Challenges that would make no substantive changes would not be heard.
Killmer noted the three-day period was restrictive for the town in terms of advertising a public meeting, since most local newspapers are published weekly. He said the town would most likely handle that by advertising the post-vote Board of Elections meeting in advance of the election.
In the end, Killmer said, the DLLG group had advocated keeping most of the election requirements the same as those currently in place, with only the minimum required changes to be made. “We don’t want to throw out the bathwater with the baby,” he said. The group and attorneys leading the effort plan to present an alternative piece of legislation that would serve that purpose.
As it stands, the proposed changes to Title 15 are expected to be presented in the legislative docket in March. Killmer said the idea is currently to implement the new rules within 90 days of passage — something he said is simply impossible. Attorneys for the DLLG effort said six months to a year was more realistic, especially if changes are to be made.
Either way, Killmer said he expected Title 15 changes would come to CORC for incorporation in the town charter by the end of the year. “When it does come,” he said, “it will come with urgency.”
Killmer noted that the city of Wilmington has already been exempted from the new rules as part of the draft legislation. He said Dover is making an appeal for a similar exemption, while Ardens, with its self-government and direct democracy, would also be exempt. The rest of the state would need to comply with any new rules that become law.
Also at the Feb. 16 CORC meeting, Killmer postponed discussion of changes to the town code regarding water and sewer, with the absence of the head of the town’s water department. The expert advice was needed for the review of that section of code, Killmer said, and would be planned for the committee’s next meeting.
Work on ways the town can better force contractors to take responsibility for damage done to private property is headed to the town’s legal aspects. Focused on certificates of occupancy and operating licenses as enforcement elements, the issue will be the subject of a future “white paper” for the town council, with input of Town Solicitor Terrence Jaywork. Currently, the guideline to repair or make reparations for damage to private property is part of the town’s contractor checklist, but enforcement elements do not exist in the town code.
CORC members also discussed how best to break the town’s code book up into two or more sections, for ease of portability. The tome currently weighs seven pounds and nears the maximum capacity of the containing binder.
The committee also agreed to return to investigating possible design requirements for streetside bins containing garbage containers. Former Mayor Joe McHugh, present at the meeting, said he worried that bins with tall sides pose a health risk for the backs of town employees who empty them. The issue had previously been handed over to the town administration and Public Works but had apparently been determined to not require any changes. CORC may now take action on it.