Background
In 2008, the Delaware General Assembly amended the charter of the Town of Fenwick Island, a small coastal community, to allow trusts, LLCs, partnerships, and corporations that own property in the town to register to vote and cast ballots in municipal elections through designated representatives. Today, the majority of these entity voters are trusts. Each entity property owner gets one vote, just as each natural person registered to vote gets one vote.
The ACLU of Delaware filed suit in December 2025, seeking a declaratory judgment that this “non-human artificial entity voting” violates the Elections Clause of the Delaware Constitution, which states simply: “All elections shall be free and equal.” The ACLU also sought a permanent injunction barring Fenwick from counting entity ballots in its upcoming August 2026 election. The ACLU framed the case as one of “vote dilution” — arguing that the votes of human beings are debased when artificial legal entities are permitted to cast ballots alongside them.
Fenwick Island moved to dismiss the complaint on four grounds: lack of standing, lack of subject matter jurisdiction for the injunction, failure to join necessary parties (other Delaware municipalities with similar provisions), and failure to state a claim. The court chose to address only the fourth ground, finding it dispositive.
The Court’s Holding
The court granted Fenwick’s motion to dismiss, holding that the ACLU failed to state a claim upon which relief could be granted. Judge Karsnitz surveyed the sparse Delaware caselaw interpreting the Elections Clause and found that existing decisions address “free” elections in terms of freedom from fraud, coercion, intimidation, and impediments to voting — none of which the ACLU alleged. On the “equal” elections prong, prior cases define equality as each ballot being equally effective, with no vote weighted more than another. The ACLU did not allege that entity property owners received special treatment, that natural persons’ votes counted less, or that any malapportionment existed. Fenwick’s charter expressly provides for one person or entity, one vote.
The court emphasized the strong presumption of constitutionality that attaches to laws enacted by the Delaware General Assembly, including municipal charters. To overcome this presumption, the ACLU needed to provide “clear and convincing evidence” that Fenwick’s charter could not be constitutional under any set of circumstances. It failed to do so. The court also noted that several other Delaware municipalities have similar provisions authorizing entity voting, and that Delaware law broadly recognizes trusts, partnerships, LLCs, and corporations as “persons.”
Even addressing an equal protection theory the ACLU did not formally raise, the court found no viable claim. The ACLU alleged no racial discrimination, no political partisanship, no malapportionment, and no discriminatory intent to “fence out” natural person voters. The traditional “one person, one vote” doctrine, rooted in legislative apportionment cases, did not map onto the facts here.
Key Takeaways
- Delaware’s Elections Clause — “All elections shall be free and equal” — has very limited caselaw, and existing precedent interprets it narrowly to address fraud, coercion, and impediments to voting, not the expansion of the franchise to legal entities.
- Municipal charters enacted by the Delaware General Assembly carry a strong presumption of constitutionality, and challengers bear the heavy burden of showing by clear and convincing evidence that no valid application exists.
- The court left open the deeper philosophical question of whether legal entities are constitutionally entitled or forbidden to vote, deciding the case on the narrower ground that the plaintiff simply failed to meet its burden.
Why It Matters
This decision is notable for what it does not decide as much as for what it does. The court avoided ruling on whether artificial entities have a constitutional right to vote or are constitutionally barred from doing so. Instead, it held only that the ACLU’s complaint, as framed, could not overcome the presumption of constitutionality afforded to a General Assembly-enacted charter. For property owners who hold real estate through trusts, LLCs, or other entities in small Delaware towns, the status quo remains intact — their entities may continue to vote in municipal elections.
The opinion also signals that any future challenge to entity voting would need to be far more specific. A challenger would likely need to allege concrete harm — perhaps that entity votes actually swung an election outcome, or that the scheme was adopted with discriminatory intent — rather than relying on abstract theories of vote dilution. With the U.S. Supreme Court’s recent decision in Louisiana v. Callais potentially curtailing traditional vote dilution claims under the Voting Rights Act, the path forward for such challenges may be narrowing on multiple fronts.