Citizens appeal Frankford election rulings

Two Frankford citizens have appealed to Delaware State Election Commissioner Elaine Manlove following two decisions reached by the Town’s Board of Elections after a special meeting was held to address complaints regarding the Town’s upcoming election.

The hearing was held on Jan. 30 before Frankford BOE members Elma Gray, Peggy Schaffer and Pamela Hoban.

A three-page complaint from resident Jerry Smith to Council President Joanne Bacon and Town Solicitor Dennis Schrader, dated Jan. 20, stated that the “hours of the election are no longer delineated in the charter. The ‘Town Council’ has not decided and established what the hours of the election are to be — a requirement of the current charter. Frankford is attempting to use the hours established under the excised portion of the previous Charter.”

In a separate four-page complaint, dated Jan. 15, Frankford resident Greg Welch stated that there are several issues that are “denying our community a fair election,” many of which he believes were created with the Town’s 2012 Charter change.

“The 2012 Charter amendment made it a requirement to be a registered qualified voter of the Town to be a council member. Prior to this amendment, neither the Town or State had that requirement. The 2012 Charter amendment discarded the established voter registration and candidacy filing deadlines without adopting or establishing current deadlines. The 2012 Charter amendment adopted the State’s procedure for absentee voting, as outlined in Delaware Title 15. The Town is not allowing absentee voting in this year’s election,” wrote Welch in his complaint.

At last Friday’s special meeting, Welch said he had written formal complaints to former Delaware state Rep. John Atkins and former state Sen. George Bunting regarding his concerns.

In their complaints, both residents argued that absentee balloting should be available to the Town’s residents.

In their decision, the board stated that there is “an ambiguity” in the Town’s Charter and Delaware Code, “where one relies upon the other to make a determination as to whether or not absentee balloting exists in the Town of Frankford and neither provision does so.”

The board went on to state that, “in the absence of a specific provision by a charter or ordinance and in the absence of historical precedent upon which to rely, it does not appear that there is or will be authorization for the use of absentee balloting in the upcoming general election.”

The board did, however, recommend that council specifically authorize the use of absentee ballots for future elections.

Both complaints also opined that the election notices provided by the Town were deficient.

During the special meeting, Smith said a vote from council to approve the hours of the election did not occur, and that the council was only provided with one election date. He added that the cutoff date for voters to register was “materially incorrect.”

“The council needed to have a discussion and vote to set the poll hours,” he said.

At the meeting, Welch also stated the hours for the election were insufficient without allowing residents to vote by absentee balloting.

“People have to work Saturday. People have birthday parties they have to go to on Saturdays,” said Welch.

During the hearing, Town Administrator Terry Truitt testified that the Town’s election notices, including dates, had been provided to the Department of Elections in November, and that she was later informed that the Town met the requirements for the notices.

Both Welch and Smith argued that if there was high voter turnout near the closing time of the polls, it would be possible that election officials could turn away voters.

“We have never denied anyone their right to vote,” said Schaffer in a statement that was met with nods from her fellow board members.

Truitt also stated that the Town must meet certain deadlines created by the State to be in compliance with State Code.

In their decision, the board stated that, while the Rules of Procedure require “three affirmative votes shall be required to approve any matter within the jurisdiction of the agency,” there is not a charter or code provision mandating the approval of the notices.

“The board is not persuaded to enforce a rule where the custom and practice is to have the notices provided to the council in advance of its December meeting, and the council did not question and has acquiesced in their posting. During that meeting, the council made announcements based upon their content.”

The board recommended to council that the charter be amended to establish the date of the general election as the second Saturday in March.

Both residents also questioned the legality of the appointments to the Town’s Board of Elections.

“I am of the opinion the Frankford Board of Elections doesn’t exist,” said Smith during last Friday’s special meeting.

Smith also argued that the names and contact information for the board members was not posted in town hall or on the Town’s website, as is required by State Code.

In their decision, the board stated that, while the posting of names and contact information of the board members is required by Delaware Code Title 15 § 7551, “it does not state when such postings shall occur.”

Truitt testified that the names of the board members and their contact information had been posted since November on the bulletin board in town hall, and had recently been posted on the Town’s website, but could not give a specific date of the posting.

“While this pre-election action could have occurred sooner, it is not contrary to the requirements of subchapters IV and V of Chapter 75, Title 15 of Delaware Code…” wrote the board in its decision, noting that the current members of the Board were appointed by the council on Jan. 5, 2009, and have served since “without interruption.”

The board also said that Delaware Code Title 15 § 7551 does not contain a requirement that a new Board of Elections be appointed following the Town’s 2012 Charter chance.

The board recommended the council reaffirm their appointment of a Board of Elections for a term of three years, and the appointment of election officers.

In Welch’s complaint, he also argued that Frankford’s advertised voter registration deadline was not legally established and is incorrect.

Truitt testified that, in order to act in accordance with the Freedom of Information Act, the Town counts backward from the date of election to meet deadlines set forth by State law, as well as the advertising deadlines of area newspapers.

“The advertising deadlines of newspapers on their cutoffs is what’s complicated it, and is what made it legally incorrect,” said Welch. “The State says you don’t have to advertise it in the newspaper. So, the remedy is to set a law, set a date, and advertise it properly.”

The board found that for the Town, which has 196 registered voters and “one full-time employee, the Dec. 31 deadline for voter registration is not unreasonable.”

In his complaint, he also said that Town and State officials were misrepresenting the voter registration process.

“The State Election Commissioner is also misrepresenting the voter registration process… At my 2014 eligibility hearing the Attorney General’s Office, State Election Commissioner, and town solicitor misrepresented that our council has the authority to reject voter applications. This was employed to reject my voter application and used to deny me candidacy in our municipal election.”

Welch argued that he previously established he registered to vote in the Town’s election.

“The Town and State are spending thousands of dollars to misrepresent and misuse these deadlines and processes to deny our town fair election,” he wrote. “Our town and state could avoid a lot of acrimony and save a lot of money by abiding by the law. They continue to spend tax dollars to misrepresent the election laws to intentionally deny our town fair elections.”

Welch said he would not fill out the voter card because the voter registration list is exposed to anyone who walks into town hall.

“Your Social Security number and your address [are on the card],” he said.

Board members responded stating that the Social Security numbers of registered voters have been blacked out. He recommended the Town adopt the Motor Voter Laws.

Schrader asked Welch if, at the hearing held before Manlove in January 2014, he was given the opportunity to register to vote.

“I was,” responded Welch.

“And did you,” asked Schrader.

“I did not. You know why — because I couldn’t run in that election and I couldn’t vote in that election because of these illegal deadlines and illegal cutlines,” said Welch.

Schrader asked Welch if he knew if there were any other times during the calendar year that he can register to vote.

“I don’t care when I can, it’s when I can’t that I care about,” responded Welch.

In their decision, the board wrote, “This matter is the same matter previously raised by Mr. Welch in connection with his eligibility to vote and is subject to the doctrine of res judicata and the decision of the State Election Commissioner, dated Jan. 30, 2014.

“In that decision, Commissioner Manlove found that Welch was unwilling to register to vote and that his refusal to simply fill out the required registration card ‘drives the outcome of this case.’ That is, that Mr. Welch is not a registered voter in the Town of Frankford.”

In responding to both complaints, the board recommended the Town council amend the Town Charter to establish the date of the general election as the second Saturday of March; establish the filing deadline for candidates; establish the State’s Voter Registration system in lieu of the current Town system; reaffirm the appointment by the Town Council of a Board of Elections for a term of three years and of Election Officers; and to specifically authorize the use of absentee ballots.

Both residents requested the Board postpone the Town’s election. The board stated that, while they agree the two residents have legitimate complaints, the board would not take any action.

Both chose to appeal the Board’s decisions to the State Election Commissioner. Their hearings were scheduled for Wednesday morning, with no decision available as of the Coastal Point’s press deadline on Wednesday. Manlove issued a decision for both complaints on Wednesday night, denying both residents' appeals but noting her support for the changes recommended by the board.

The election remains scheduled for Saturday, Feb. 7, from 1 p.m. to 4 p.m.