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Young v. Red Clay Consolidated School District

Court of Chancery of Delaware

May 24, 2017

REBECCA YOUNG, ELIZABETH H. YOUNG and JAMES L. YOUNG, Plaintiffs,
v.
RED CLAY CONSOLIDATED SCHOOL DISTRICT, Defendant.

          Date Submitted: February 23, 2017

          Richard H. Morse, AMERICAN CIVIL LIBERTIES UNION OF DELAWARE, Wilmington, Delaware; John W. Shaw, Karen E. Keller, Jeffrey T. Castellano, David M. Fry, Nathan R. Hoeschen, SHAW KELLER LLP. Counsel for Plaintiffs.

          Barry M. Willoughby, William W. Bowser, Michael P. Stafford, Margaret M. DiBianca, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware. Counsel for Defendant.

          OPINION

          LASTER, Vice Chancellor.

         In February 2015, Red Clay Consolidated School District ("Red Clay") held a special election in which residents were asked to approve an increase in the school-related property taxes paid by owners of non-exempt real estate located within the district (the "Special Election"). Red Clay prevailed in the Special Election, with 6, 395 residents voting in favor and 5, 515 against.

         The plaintiffs are residents of Red Clay who did not vote in the Special Election because they were unable to access the polls. They filed suit, asserting that Red Clay violated the provision of the Delaware Constitution which guarantees that "[a]ll elections shall be free and equal."[1] They also contend that Red Clay's actions violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution.[2] This court previously held that the plaintiffs' theories stated claims on which relief could be granted.[3] This decision only addresses their state law claim. It does not reach their federal claims.

         The plaintiffs proved at trial that to secure a favorable result in the Special Election, Red Clay violated the Elections Clause. Red Clay held seventy-five events on election day, in the school buildings that served as polling places, that drew families with children to the polls. The purpose and effect of these events was to reward families of Red Clay students for voting. By Red Clay's own calculation, at least 6, 383 people attended these gatherings. Several of the evening events drew hundreds of people.

         The Elections Clause, a related constitutional provision, and two related statutory provisions evidence an unwavering Delaware public policy against both overt and covert rewards for voting. When a government provides a targeted reward for voting to a group it believes will favor its position, the election is not "free and equal."

         The election day events also had the unfortunate consequence of interfering with access to the polls. The many families who attended the events jammed the parking lots at the schools that served as polling places. The evidence at trial showed that at least some elderly and disabled residents did not vote because they could not find accessible parking. Having heard the Red Clay representatives testify, I am convinced that they did not intend to discriminate against elderly and disabled residents. They recognized that the events would generate crowded parking lots, and they took some steps to mitigate this effect, but they failed to anticipate the serious problems that elderly and disabled residents would face. They also did not monitor the parking places designated for voters, as required by Red Clay's contracts with the Department of Elections, to ensure that they remained available.

         Delaware case law, a statutory provision governing electioneering, and evidence of custom and practice in Delaware elections demonstrate that for an election to be "free and equal, " voters must be able to access the polls. An election in which the government obstructs the ability of elderly and disabled residents to vote is not "free and equal."

         Red Clay also rendered the Special Election unequal by engaging in four months of one-sided get-out-the-vote efforts. Starting in November 2014, Red Clay aggressively targeted the voters it believed would support the tax increase. Red Clay consciously avoided using communication channels that would inform the public as a whole and make the Special Election a debate. In particular, Red Clay used its access to confidential information about Red Clay families to promote voting by parents of Red Clay students. Red Clay's assigned each school a goal number of "YES" voters, had each school canvass its parents to find those "YES" voters, and used targeted followed-up communications to get these voters to the polls. Red Clay also employed a variety of other tactics to mobilize student families. Although Red Clay directed some communications to the community at large, they were comparably minimal and generally required by law.

         The Delaware Supreme Court has held that when a school district conducts a referendum, the "expenditure of public funds in support of one side" must remain "within reasonable limits, " and the school district's speech should not venture "beyond [a] factual presentation" to the point of "overstatement and emotional appeals."[4] In the Dismissal Ruling, I suggested that societal developments since that decision warranted loosening those restrictions. On the facts of this case, however, the extent and intensity of Red Clay's targeted campaign speech, particularly when considered in conjunction with the election day events, resulted in the Special Election not being "free and equal."

         Although this case focuses on Red Clay's election-related conduct, it stems from dysfunction in Delaware's system for funding public schools. The proper operation of that system depends on the regime for determining property values for tax purposes. By statute, the assessed value is supposed to reflect a property's current market value. In practice, assessments in New Castle County remain pegged to values from 1983. This means that Red Clay's tax base has remained flat for nearly thirty-five years.

         Red Clay's operating expenses have not remained flat for nearly thirty-five years. They increase every year, both because of inflation and because society regularly asks the public schools to take on greater burdens. When the value of the tax base is fixed, the only way to raise revenue is to increase the tax rate. By statute, school districts cannot raise the tax rate unilaterally; they must ask district residents to approve the increase.

         In this case, without a favorable vote, Red Clay faced a looming deficit. Prevailing in the Special Election was therefore crucial, and the Red Clay administrators were under a great deal of pressure to achieve that result. Unfortunately, their understandable desire to obtain adequate funding to fulfill their mission led them to undermine the electoral process. But their actions must be evaluated in light of the difficult situation they faced.

         The question for decision in this case is not only whether Red Clay violated the Elections Clause, but also whether those violations warrant invalidating the Special Election. Extensive precedent makes clear that proving electoral misconduct does not lead ineluctably to invalidation. In this case, a balancing of multiple factors convinces me that the Special Election should stand. This decision therefore results in a declaration that Red Clay violated the Elections Clause, but it does not award any greater relief.

         I. FACTUAL BACKGROUND

         A three-day trial took place from October 31 to November 2, 2016. The parties introduced 327 exhibits. Eighteen fact witnesses and five expert witnesses testified live. The following facts were proven by a preponderance of the evidence.

         A. Property Taxes And Public Schools

         Understanding why Red Clay intervened in the Special Election requires some background knowledge about how Delaware funds its public schools. School districts in Delaware receive the majority of their operating revenue from a combination of state and local funds. State funds come from the General Assembly.[5] Local funds come from property tax revenue generated within each school district. "Local funds touch every aspect of the school district budget from employee salaries and benefits, to supplies and materials[, ] to maintenance and security and transportation."[6]

         To generate local revenue, owners of non-exempt real property in a school district pay property taxes on the assessed value of their real estate at a rate set by the school board and approved by residents.[7] The amount of available local revenue thus depends on two variables: the assessed value of the property and the tax rate per dollar of assessed value. The Delaware Code provides that "[a]ll property subject to assessment shall be assessed at its true value in money."[8] The Delaware Supreme Court has held that the concept of a property's "true value in money" is "the same as its fair market value."[9] "Fair market value" is "the price which would be agreed upon by a willing seller and a willing buyer, under ordinary circumstances, neither party being under any compulsion to buy or sell."[10]

         The Delaware Code requires the annual preparation of an assessment roll showing the values ascribed to properties for purposes of taxation.[11] In New Castle County, where Red Clay is located, the Department of Land Use is obligated to "assess all property subject to taxation by the County and maintain appropriate records."[12] The Department also must "prepare tax rolls, including those required by any . . . school district."[13]

         To oversee the process of preparing the assessment roll, the Delaware Code establishes a Board of Assessment Review.[14] To emphasize the point that its members are supposed to ensure that property is valued at its "true value in money, " the Delaware Code contemplates a per-property fine for departures from that standard.[15]

         The statutory framework calls for the Department of Land Use each year to "prepare and present to the Board of Assessment Review a copy of the assessment roll for [that] year."[16] The Board of Assessment is charged with hearing appeals by individual property owners who have challenged the assessment of the property.[17] The Board of Assessment also is charged with "[r]eview[ing] the methods by which the general manager of the Department of Land Use has established the assessments and the results thereof as reflected by the assessment roll."[18]

         So far, this system makes sense. Property must be assessed at its "true value in money, " which is synonymous with its "fair market value."[19] The Department of Land Use conducts the annual assessment.[20] The Board of Assessment oversees the system to keep everything on track.[21]

         Yet in New Castle County, "property assessments are based upon 1983 property values."[22] That fact is sufficiently astounding to merit repeating. Property assessments are not based on fair market value in the year of the assessment, but rather on their value as of June 1, 1983, nearly thirty-five years ago. That date carries talismanic significance because it was when New Castle County's last general reassessment became effective for tax purposes.[23]

         Reflect momentarily on how much has changed since 1983. Back then, the Governor of Delaware was Pete DuPont. The President of the United States was Ronald Reagan. The Soviet Union still existed, and the federal government regarded it as the "evil empire." A new Star Wars movie was in theaters, but it was Return of the Jedi. MTV still played music videos, and Michael Jackson's Thriller made its premier. The two teams in Super Bowl XVII were the Washington Redskins and the Miami Dolphins. On a personal note, I started high school.

         Property values have changed dramatically since the early 1980s. The following data from judicially noticeable sources provides a sense of the magnitude of the change:

• In 1983, the House Price Index for New Castle County, published by the Federal Housing Finance Agency, was 159.59. By 2016, the House Price Index had climbed to 499.49. The 2016 figure represents an increase of 340% over the 1983 figure and an annualized gain of 9.44%.[24]
• Measured in 2017 dollars, the inflation-adjusted median sales price of a new home in Delaware in January 1980 was $126, 455. In January 2000, it was $187, 596.[25] In January 2010, the median value of all owner-occupied housing in Delaware (not just new homes) was $273, 000.[26] The 2010 figure represents an increase of 116% over the 1980 figure and an annualized gain of 3.86%. That was seven years ago.
• Measured in 2017 dollars, the inflation-adjusted median sales price of a new home in the United States in January 1980 was $196, 331. In January 2000, it was $235, 214, and in January 2010, it was $244, 535. In January 2017, the median sales price of a new home was $308, 000.[27] The 2017 figure represents an increase of 56.9% over the 1980 figure and an annualized gain of 1.54%.
• Measured in 2017 dollars, the median value of an owner-occupied housing unit in New Castle County in 2000 was $195, 652. In 2015, it was $260, 600.[28] The 2015 figure represents an increase of 33.2% over the 2000 figure and an annualized gain of 2.2%.

         Yet despite these significant gains, the assessed value of New Castle County's underlying tax base remains flat. In Red Clay, the average assessed value of a residential property is stuck at the 1983 level of $80, 100.[29]

         It should be obvious that assessing properties as of 1983 is a far cry from determining their "true value in money" as of the current year.[30] The Delaware Supreme Court indicated in 1977 that at some point, assessed values could become so stale as to be statutorily infirm.[31] But to date, no one has brought a county-wide challenge.[32]

         Ironically, a well-intentioned state-level scheme for providing additional funds to less-wealthy school districts creates a powerful disincentive for any civic-minded official to take the lead in reassessing property values. Each year, the Department of Education recommends that the General Assembly authorize an aggregate state-wide appropriation based on the number of "units of pupils" in each school district.[33] The General Assembly allocates appropriations in three buckets. Division I funds pay for administrators, teachers, and other personnel.[34] Division II funds primarily pay for textbooks, furniture, and other classroom equipment, but can be used for any lawful purpose.[35] Division III funds are budget equalization funds that are allocated based on a formula designed to provide matching funds to less wealthy districts.[36] Because districts that generate less local funding receive more Division III funding, there is a disincentive for any county to take the lead in reassessing property values. Although a general reassessment would yield more local funds, the county's school districts would receive less state funds. Everyone has a reason to keep the existing values in place.

         The upshot is that the value of the underlying tax base in each school district remains flat. But the cost of running a school district does not. Inflation reduces the purchasing power of a school district's budget every year. Even if a school district does not introduce any new initiatives and just maintains the status quo, the absence of regular and systematic reassessments inevitably generates a funding gap. At a macro level, since 1983, the purchasing power of a school district's tax base in constant dollars has declined by nearly 60%. Put differently, it requires $2.44 in 2017 to buy the same amount of goods and services that $1.00 would buy in 1983.[37]

         This leaves school districts with one lever to pull. The Delaware Code empowers the school board for each district to set the amount of tax per dollar of assessed value that a property owner must pay.[38] Using this authority, the school board can increase the tax rate so that the same assessed value generates more revenue. But the school board cannot levy the tax unilaterally. The school board first must "call a special election to be held at the polling place or places designated by the Department of Elections conducting the election."[39] The outcome of the special election determines whether the tax can be levied.[40]

         The relentless effect of inflation combined with the increased expectations and demands that our society places on public schools means that school districts in Delaware must regularly seek tax increases from their voters. Generally speaking, in Delaware, a school district needs to prevail in a referendum every three to five years.[41]

         The frequency of tax referendums generates negative reactions. Some residents object as a matter of principle to having their taxes raised. More object if they think their tax dollars are not being used wisely. Delaware's complex system for funding public schools is not easily understood. The natural reaction of some citizens to regular requests for tax increases is to suspect that school officials are wasting money. A review of decades of referendums reveals that they often fail the first time, then pass when presented a second time after supporters recognize the need to make it a priority to vote.[42]

         The Delaware public schools, including Red Clay, recognize the problems created by this system. When responding to questions from legislators about Red Clay's conduct during the Special Election, Superintendent Mervin Daugherty started by calling out the underlying problem with Delaware's mechanism for funding public schools:

It is important to note that the election process and requirement for a Referendum is one that is set by the legislature, not school districts. The public school districts believe the established system is an ineffective way to fund education, especially in light of recent years in which the State has cut funding for public schools. We recognize, however, that we all must work within the confines of the existing law.[43]

         I would go one step further. The referendum process results from a combination of a legislative framework and a property assessment system that currently does not function as the statutes contemplate.

         In my view, Delaware's statutory framework is not supposed to force school districts into a vicious cycle of regular referendums. If New Castle County conducted periodic general reassessments-which the Delaware Code appears to contemplate and which seems to have been the practice until 1983-then the underlying tax base would rise as property values increased. The same tax rate would generate more money for the school district, and the district would not have to seek a tax increase as frequently. Or if New Castle County simply used the current year as the base year and brought values forward to the current year rather than back to 1983-whether using the Consumer Price Index or some other measure-then at least the values would increase by inflation year-over-year, and school districts would not have to call referendums just to keep up. Or the General Assembly could solve the problem with legislation that would create a more serviceable framework.[44] But without action by the political branches, school districts must resort to the only tool they have: the referendum process.

         B. Red Clay Is Forced To Seek A Tax Increase.

         In summer 2014, Red Clay's senior administrators concluded that the district needed more local tax revenue to cover its operating expenses. They did not make this decision lightly. They decided to "go to referendum" (the colloquial phrase) only because there was no alternative.

         Red Clay had held its last operating referendum in 2008, when voters approved a twenty-five cent increase phased in over three years.[45] Because of New Castle County's approach to property tax assessments, Red Clay's local operating revenue had not increased materially since 2010. Over those four years, inflation deprived Red Clay's local operating revenue of 5% of its purchasing power.[46] Meanwhile, Red Clay's student population grew by 10%.[47] Measured by units of pupils, Red Clay's enrollment grew by 17%.[48]

         Red Clay received approximately 40% of its operating budget from local funds and 60% from the state.[49] The state funds had not made up the growing local shortfall. By 2014, Red Clay received less discretionary state funding than it had in 2008.[50]

         To operate under these conditions, Red Clay cut costs. By 2014, however, Red Clay projected that without additional revenue, the district would end 2016 with a deficit. By 2018, the cumulative deficit would reach $24.7 million.[51] To balance its budget without new revenue, Red Clay would need to cut approximately $9 million in recurring expenses, representing 15% of the operating budget.[52] This would require eliminating at least forty teachers. It also would mean fewer school resource officers, reading specialists, and other staff positions. The cuts would affect virtually every aspect of programming, including after-school sports, technology programs, and arts offerings.[53]

         After evaluating their options, Red Clay's senior administrators concluded that the district had "stretched as long as we can."[54] They recommended that the Red Clay Board of Education (the "School Board") call a special election.

         In October 2014, the School Board scheduled the Special Election to take place on February 24, 2015. The purpose of the Special Election was to obtain approval from district residents to raise the tax rate on non-exempt real property by a total of thirty-five cents per $100 of assessed value. The proposal initially called for the rate to rise by $0.25 in 2016, $0.05 in 2017, and $0.05 in 2018. It was later modified to $0.20 in 2016, $0.10 in 2017, and $0.05 in 2018.[55]

         At the time, the owner of an average taxable parcel in Red Clay paid $1, 419 per year in school-related property taxes. After the three-year phase-in, the owner of an average parcel would pay approximately $280 more per year, or roughly $23 more per month. The proposal thus contemplated an approximately 20% increase in the school-related taxes paid by the average property owner. The first-year increase would generate an incremental $10.5 million for Red Clay. The second-year increase would generate another $5.2 million, and the third-year increase would add another $2.6 million. When fully implemented, the tax increase would yield $18 million annually in operating funds.[56]

         Once a referendum is called, the Department of Elections designates buildings to be used as polling places.[57] When selecting polling places, the Department of Elections gives "prime consideration" to the suitability, convenience, and accessibility of the locations for voters.[58] The statute identifies public schools as recommended polling places.[59] The Department of Elections designated twenty-five polling places for the Special Election.[60]Twenty-three were Red Clay public schools.[61]

         C. The Campaign Team

         In Delaware, school tax referendums frequently fail.[62] In 2007, a Red Clay referendum failed. The district made $8 million in cuts and took out a loan to cover expenses. The district held its last successful referendum the following year.[63]

         Red Clay's financial situation made the Special Election a high stakes matter.[64] Red Clay's administrators thought that obtaining a successful vote was an "uphill campaign by its very nature."[65]

         Not surprisingly, given the stakes, Red Clay planned and carried out a campaign to secure passage of the tax increase. Superintendent Daugherty was the final decision-maker, but he delegated primary day-to-day responsibility to three senior administrators: Ted Ammann, the Assistant Superintendent for District Operations; Patti Nash, the Public Information Officer, and Jill Floore, the Chief Financial Officer.[66]

         Each administrator's role in the campaign matched their job with the district. Ammann took charge of operations. He ensured that the school principals supported the campaign, instructed them to develop and submit school-specific referendum plans, reviewed and signed off on their plans, and oversaw their implementation. He mobilized Red Clay personnel to volunteer for various referendum-related projects, including making get-out-the-vote calls, stuffing report card envelopes with referendum materials, and putting out pro-referendum signs.[67] He caused Red Clay personnel to generate the student call lists that the callers used.[68] He also dealt with a variety of logistical matters.[69] He was in charge of election day arrangements and interactions with the Department of Elections, including arrangements for parking.[70]

         Nash took charge of communications. She developed and ran a telephone campaign to identify likely "YES" voters among Red Clay student households, then follow up with those likely "YES" voters to get them to the polls.[71] She organized and ran a social media campaign.[72] She spearheaded the creation of campaign materials, including pro-referendum video clips.[73] She also helped organize a pro-referendum rally on the night before the Special Election.[74]

         Floore provided expertise regarding Red Clay's finances. Internally, she served as a third key decision maker. Externally, she explained the district's finances and consequent need for the Special Election to numerous groups and the media.[75]

         The Red Clay administrators did not openly lead the campaign. They believed there were limitations on what district employees could do, such as not directly asking residents to vote "YES."[76] They also believed that by establishing a broader organization that included Red Clay parents, they could expand the campaign's reach and generate greater support.[77] The administrators therefore formed a Referendum Steering Committee.[78] To chair the committee, they recruited two community members: Yvonne Johnson, whose children had attended Red Clay schools, and Nate Schwartz, whose children were still attending Red Clay schools.[79] They also formed a political action committee called "Friends of Red Clay Referendum, " chartered for the purpose of "rais[ing] funds to support successful referenda in the Red Clay school district."[80]

         During and after the campaign, Red Clay representatives tried to depict these organizations as grassroots, parent-led efforts rather than something Red Clay engineered.[81] In fact, the entire campaign was a Red Clay operation. Of the nineteen members of the Steering Committee, fourteen were current Red Clay employees: five were Red Clay administrators, three were principals, five were teachers, and one was a current member of the School Board. Of the five who were not current Red Clay employees, one was a retired teacher and former president of the School Board.[82] The treasurer of the political action committee and the signatory on all of its filings was a Red Clay employee, [83] and Nash drafted the invitation for its fundraiser.[84] Internally, Red Clay personnel did not distinguish between the district administration and the Steering Committee. The Baltz principal testified that "the steering committee and the district kind of meshed together."[85]

         The core day-to-day leadership team for the campaign was Ammann, Nash, Floore, Johnson, and Schwartz.[86] When push came to shove, Ammann, Nash, and Floore were the day-to-day decision-makers, with Superintendent Daugherty having final authority.[87]

         D. The Overall Campaign Strategy

         To obtain a favorable vote, the Red Clay team developed a campaign strategy that involved identifying groups that were likely to favor the tax increase, then engaging in efforts to convert those likely supporters into actual votes.[88] In crafting and carrying out the campaign, the Red Clay team viewed individuals with ties to the Red Clay schools as more likely to support the tax increase. In particular, they believed that parents of current Red Clay students would be supportive.[89] Their reasoning was straight-forward: Parents likely want a good education for their children, so they should be willing to support a tax increase to achieve that goal.[90] The Red Clay team appears to have adopted this view as a matter of common sense, based on their intuitions about human nature and their experience from past referendums in which mobilizing the parent vote provided the key to success.[91]Data that the Red Clay team gathered during the campaign confirmed their assessment.[92]

         At the same time, the Red Clay team viewed elderly and retired residents as less likely to support the tax increase.[93] Their reasoning was again straight-forward: Many elderly and retired residents live on fixed incomes, so they cannot easily accommodate additional expenses. The Red Clay team appears again to have adopted this view as a matter of common sense, based on their intuitions about human nature and their experience from other referendums in which elderly and retired residents vocally opposed tax increases.[94]

         Importantly, the Red Clay team did not adopt a simplistic view in which they expected every parent to vote "YES" and every elderly resident to "NO." They recognized that many factors affect how an individual votes. A parent might oppose the tax increase because of a negative experience with a public school, personal financial limitations, or a strong ideological opposition to tax increases. Or an elderly voter might support the tax increase because of a positive experience with a public school, ample income, or a civic-minded belief that funding public education benefits the community.[95] But the Red Clay team understood that there are tendencies in the electorate, and they wanted to mobilize the groups that were most likely, on average, to support the tax increase. At bottom, the Red Clay team believed that by increasing the number of parents who voted, they increased their chances of success. They likewise believed that by decreasing-or at least not increasing-the number of seniors who voted, they increased their chances of success.[96]

         To this end, Red Clay's strategy focused primarily on mobilizing parents of existing Red Clay students and getting them to the polls. But the Red Clay team also identified and targeted other groups that were likely to be supportive, such as parents with children under five years of age, graduates of the Red Clay schools, and current students who were old enough to vote. Conversely, Red Clay focused on not doing things that might mobilize the opposition, particularly seniors.

         The Red Clay team documented their overall strategy in a presentation to the Steering Committee during that group's first meeting, held on November 6, 2014. In advance of the meeting, Superintendent Daugherty made the official nature of the meeting clear when some principals asked whether they needed to attend. He responded, "Everyone should attend - They must realize the importance of this Referendum."[97] Kelly Penoyer, the Baltz principal, understood that the Steering Committee meeting was a mandatory event for all Red Clay principals.[98] Eric Mathis, the Richardson Park principal, only attended the meeting because it was mandatory.[99]

         As described in the presentation to the Steering Committee, the Red Clay campaign strategy had four principal planks:

• Work from past experience
• Work on the Yes not the No
• Inform and engage all parents
• Vote Goals[100]

         "Work from past experience" meant that in prior referendums, success resulted from mobilizing parents and other supportive groups.[101] "Work on the Yes not the No" meant that converting members of supportive groups into actual votes was more important than trying to convince negative voters to change their minds.[102] "Inform and engage all parents" recognized that parents of Red Clay students were the group most likely to support the tax increase. "Vote Goals" referred to specific numbers of likely "YES" voters that the Red Clay team established for each school to turn out based on the school's student population and voting patterns from past referendums.[103]

         Implementing this strategy required a school-by-school effort. The assembled principals were told that they each "needed to have an event" on the day of the Special Election.[104] They also were told that each school would have a parent leader whose responsibilities included:

• Texting, Social Media and Letters to the Editor
• Coordinating call sessions
o Get out the vote information calls
o Reminders 2 days before
• Yard Signs
• Working with Principals for Referendum Day Events[105]

         The school principals were in charge of implementing the campaign plan at each school. Ammann required that each principal prepare a School Referendum Plan on a form he created. The form required that each principal provide (i) a communication plan, (ii) a list of activities leading up to the Special Election, and (iii) "school activities planned for the day of the 2015 Referendum."[106] Every school principal submitted a plan, and every school held at least one and typically multiple "Referendum Day Events."[107]

         E. Specific Campaign Tactics

         Red Clay mounted a vigorous election campaign that involved a series of tactics designed to generate a favorable vote. These included (i) hosting seventy-five "Referendum Day Events" at the schools designated as polling places to bring families of Red Clay students to the polls, (ii) calling the households of Red Clay students to identify likely "YES" voters, then following up with the likely "YES" voters to get them to the polls, and (iii) sending targeted communications to Red Clay households and other groups that Red Clay believed would be likely to support the tax increase. At the same time, Red Clay avoided communications with groups that Red Clay believed would oppose the tax increase, particularly seniors, to avoid "waking up" the opposition vote.[108]

         1. The Family-Focused Events

         Red Clay's signature tactic was to hold events on the day of the Special Election, in the schools designated as polling places.[109] The events were designed to appeal to families of Red Clay students, thereby providing the parents with an inducement to come to the polls.[110] Because of their purpose and effect, the Dismissal Ruling called them the "Family-Focused Events."

         Ammann oversaw this aspect of the campaign. He required that each school principal submit a School Referendum Plan on a form he created, and the plan had to identify "school activities planned for the day of the 2015 Referendum."[111] Ammann instructed the principals that "activities should be scheduled between the hours of 10:00 am and 7:00 pm."[112] Ammann provided examples such as "homeroom breakfast, lunch with your child, [and] after school activities."[113] Ammann reviewed and approved the plans, sometimes asked for changes, then sent them to Johnson for her review.[114]

         Each of the twenty-three schools designated as polling places held Family-Focused Events on the day of the Special Election.[115] The one school that was not designated as a polling place did not hold any family-oriented events on the day of the Special Election.[116]The principal of that school wrote in his School Referendum Plan, "Since we are not a polling site, I will support [Stanton] for any activities."[117]

         In total, the Red Clay schools held seventy-five Family-Focused Events on the day of the Special Election.[118] During the school day, many schools scheduled luncheons for parents.[119] In the evening, many schools scheduled fun activities for children. Baltz hosted a "Pajama Jammie Jam" dance party with pizza and a raffle.[120] Linden Hill hosted "Blizzard Blues Beach Bingo."[121] Marbrook hosted a "Winter Carnival."[122] Shortlidge hosted "Family Line Dancing."[123] Skyline hosted a family pizza dinner and a staff versus students basketball game.[124] A.I. duPont and Mote held "Family Fun Nights."[125] Highlands held a "Family Fitness Night."[126] Free food was provided for attendees at twenty-four of the events.[127] At two other sites, the parent-teacher organizations solicited pizza orders from parents in advance.[128] Needing to pick up a pizza that you had pre-ordered gave parents good reason to attend those schools' Family-Focused Events.

         The principals and staff understood that the purpose of the Family-Focused Events was to get likely "YES" voters to the polls. The principal of A.I. duPont wrote in his plan, "We will find opportunities during the studnet [sic] day to draw families in."[129] A teacher at Heritage explained to a parent that the "Author's Teas" were "one of the activities to help get parents in to school so they will vote in the referendum."[130]

         The principal at Richardson Park was particularly candid in his communications. He planned a luncheon event at which parents would get a free meal.[131] He instructed a volunteer to remind parents "to vote first then eat."[132] For the evening, he planned a bingo night with over $1000 in prizes, two movies, and "1 free uniform pass for each voting adult."[133] He testified that because Richardson Park was a uniform school, the "no-uniform pass" was about the most valuable reward he could offer his students.[134] For the evening event, he instructed a volunteer to organize a team to "catch" parents attending the "Bingo/Movie night" and "make sure they vote prior to 'having fun.'"[135] The principal believed that these events would "make it a very incentivized night for parents and kids to come out."[136] He also believed that "if parents come out most will vote yes (I hope)."[137]

         Johnson perceived the direct connection between the Family-Focused Events and getting parents out to vote. On February 14, 2015, ten days before the election, she sent out the following email to the Red Clay team, including the Red Clay principals:

         School Events!!!

All your school events for the day of the referendum should be planned and invitations/announcements to your entire school community should have been sent home via email, phone, or paper. Principals, when your families arrive I know you will be reminding your families to go into that poll and vote! Very important, please be sure to get these folks to the polls before the event begin[s]. The polls could be closed when the event is over![138]

         After the election, Nash told a reporter from NBC10 News that the Family-Focused Events were "get-out-the-vote events."[139] Superintendent Daugherty agreed that the Family-Focused Events were "get-out-the-vote events."[140]

         At trial, some Red Clay witnesses attempted to suggest that Red Clay held the Family-Focused Events for the general community to showcase the Red Clay schools.[141]That testimony was contrary to the weight of the evidence. The Family-Focused Events were not advertised to the general community, only to the families of the schools hosting the events.[142] For some events, the schools only permitted family members to attend because of security concerns.[143] During her post-Special Election, pre-litigation interview, Nash noted that the events technically were open to voters without children, but she qualified her statement by observing, "I don't know that they [i.e., voters without children] would . . . have [a] desire to come to Family Bingo Night."[144] She described the events more accurately as "parent events that [were] open to every parent."[145]

         For purposes of this litigation, Red Clay listed the seventy-five Family-Focused Events held on the day of the Special Election. Only three identified the "community" or the "public" as part of their target audience: a high school drama production, a musical showcase, and an arts concert. For every other event, the target audience was students, parents, and families.[146]

         2. Identifying "YES" Voters Among Red Clay Families

         A second Red Clay campaign tactic was to identify likely "YES" voters in Red Clay student households, then follow up with targeted get-out-the-vote communications designed to get them to the polls. Red Clay did not make similar efforts to communicate with other voters.

         Beginning in December 2014, every Red Clay school made an initial round of scripted calls to Red Clay student households to determine how the adults were likely to vote.[147] Each school was assigned a specific goal for the number of "YES" voters it needed to identify; the calls were used "to find your goal 'yes' votes."[148] During an early debate over making direct telephone calls to households, Nash explained the purpose of the calls:

The phone calls aren't meant as a way to keep in touch through the campaign, that can occur with social media, etc. What we have done in the past was use the calls to find our goal yes votes and remind them to vote. It allows us to track where we are, and whether we are close to our goal. I think the phone campaign - even in our era of social media - remains really important.[149]

         Throughout the campaign, internal communications stressed using the calls to identify the goal number of "YES" voters so they could be targeted later with reminders to vote.[150]

         The Red Clay team asked teachers to make the initial voter identification calls.[151]The team adopted this strategy because "most parents will listen to what teachers have to say."[152] Consistent with the purpose of identifying a goal number of "YES" voters, teachers could send emails instead of making personal calls only if the teachers asked for and received responses saying how the adults in the home planned to vote.[153] Parent volunteers supplemented the teachers' efforts using the same script.[154]

         To facilitate the calls, Ammann had Red Clay personnel generate call lists from classroom rosters.[155] The lists identified the student, the adults in the family, and their contact emails and phone numbers.[156] Red Clay organized call center nights at its schools, many of which provided dinner for the callers.[157] Although teacher participation was nominally voluntary, Ammann charged the principals with getting the calls done. They in turn put pressure on their teachers, some of whom felt "bullied or guilted" into working on the Special Election.[158]

         Nash drafted the script that the Red Clay callers used.[159] At the outset, the caller identified herself as a parent, teacher, or other capacity "AND volunteer."[160] The caller then asked the person reached how they intended to vote. If the person expressed support, the caller thanked them, told them their vote was important, and gave them information about when and where to vote. If the person did not seem supportive, the caller would ask about their concerns and try to address one or two points. If the answer was "no" or they were still undecided, the caller would "thank them for their time and hang up" without giving information about when and where to vote.[161] After each call, the caller recorded how the person planned to vote so that Red Clay could send follow-up communications to "YES" voters.[162]

         As planned, Red Clay used the voter identification data it obtained for subsequent get-out-the-vote efforts. On the Sunday and Monday before the Special Election, Red Clay made follow-up reminder calls and sent reminder emails to the households that expressed support.[163] On February 14, 2015, ten days before the Special Election, Johnson gave the Red Clay team the following instructions:

         Callers!!

Everyone should have made their first round of calls. You should all be thinking about the reminder calls. The reminder calls should be done Sunday (2/22) or Monday (2/23) before the referendum. Calls [are] to remind the "yes" voters to vote. As a reminder we do not call back folks that said they are voting "no."[164]

         In addition to personal calls, Red Clay used the School Messenger system to send automated follow-up calls to "YES" voters reminding them to vote.[165] Red Clay also sent text messages on the day of the Special Election to "YES" voters reminding them to vote.[166]Only the "YES" voters received the follow-up calls and reminders.[167]

         3. Other Targeted Communications Directed To Red Clay Parents

         In addition to the voter identification campaign, Red Clay used other communication channels to target the parents of Red Clay students.[168] The effort began in November 2014 and continued steady through January 2015, then ramped up dramatically during February 2015. The effort included the following activities:

• Red Clay representatives spoke about the Special Election at PTA or PTO meetings, school-organized information sessions, and school activities, such as concerts and athletic events.[169]
• Principals sent flyers and newsletters home with students.[170]
• Principals sent reminder emails to parents using their school-email distribution systems.[171]
• Principals sent telephone messages to parents using their School Messenger auto-dialer systems.[172]
• Red Clay staff members stuffed copies of a "Referendum Fact Sheet" in students' report card envelopes because "report cards are one piece of mail that parents look at right away."[173]
• Superintendent Daugherty sent a letter in January 2015 to all Red Clay families asking them to support the tax increase.[174]
• Red Clay held a pep rally on the night before the Special Election.[175]
• On the day of the Special Election, Superintendent Daugherty made an automated call to all parents using the School Messenger system.[176]
• On the day of the Special Election, Red Clay teachers placed stickers on their elementary school students as a reminder for parents to vote.[177]
• On the day of the Special Election, Red Clay organized teams to distribute push cards at morning drop-off lines and afternoon pick-up lines. Volunteers and district employees walked car-to-car to encourage parents to go inside and vote.[178]

         Each of these communications focused on parents of current Red Clay students. None of them were directed to the electorate as a whole.

         4. Targeted Communications Directed At Other Likely "YES" Voters

         Another Red Clay campaign strategy was to identify other groups that were likely to favor the tax increase. Red Clay sent targeted communications to those groups in an effort to generate favorable votes.

         The Red Clay team identified recent Red Clay graduates as one group of voters who would be likely to support the referendum.[179] In December 2014, Red Clay had each high school principal send a letter to Red Clay graduates asking them "to support your former classmates and school district by voting YES to fund a much needed operating referendum."[180] The letter asked graduates living in Red Clay to come to the polls and provided information about where and when to vote; the letter asked graduates who were "away at college or serving in the military" to vote by absentee ballot.[181] The letter stressed the need to "[m]ake your voice count" because "[w]e anticipate a close race and your support of Red Clay schools could make all the difference."[182]

         The Red Clay team also identified parents of pre-school-age children as likely to support the tax increase. On February 18, 2015, Red Clay sent a letter from Superintendent Daugherty to parents living in the district with children under the age of five.[183] The letter described the Special Election as a "critical upcoming vote" and argued that "[a]s a future Red Clay parent, you have perhaps the largest stake in this referendum and ensuring our schools offer the highest quality education to our children."[184] The letter described various programs and said they were "the very things we are in danger of losing."[185] The letter asked the parents "to come to the polls on Feb. 24 from 10 a.m. to 8 p.m. at any Red Clay school and cast a vote for your child's future."[186]

         In the final days before the vote, the president of the School Board suggested "reaching out to the local colleges with [education] programs to gain support for the referendum" on the theory that "[i]f it doesn't pass, we will not only have no job openings, but we will have experienced teachers laid off and first [in] line for the next openings."[187]He specifically recommended this as a possible strategy "to get votes in the last days."[188]Floore quickly worked up a "blurb" and asked the Red Clay staff who worked with Red Clay's student teachers to email it out to their colleges and universities.[189] The email included a link so that Red Clay residents could easily request absentee ballots.[190]

         The Red Clay team also recognized that current Red Clay students who were old enough to vote were likely "YES" voters.[191] Ammann organized this part of the effort. In January 2015, he provided each principal of a Red Clay high school with a list of students who would be eighteen on the date of the Special Election. Ammann further facilitated student voting by telling the principals that "[i]f they [the students] [d]o not have a driver's license or other id, your counselor can print or sign something from eschool showing address and age."[192]

         5. The Ghostwritten Media Campaign

         Yet another Red Clay campaign tactic involved ghostwriting content for parents. Nash organized a social media campaign in which she generated much of the content, but made it appear as if it came from parents.

         To implement the campaign, Nash created a Facebook account called "Red Clay Parents for Students" and a Twitter handle called "RedClayParents."[193] She organized parents to submit posts, designated several people at each school to share and like the posts, and established a "Response Team" of five parents to counter any negative posts.[194] She mapped out a schedule that contemplated having posts submitted every other day from February 2 until February 15, every day from February 15 through February 24, and every half-hour on February 24.[195]

         Nash drafted posts for parents to submit as their own.[196] She similarly prepared ghostwritten letters to the editor-the old-school version of social media-for parents to submit.[197] The lack of attribution was intentional: Nash believed "it was more real and would resonate more with voters if it came from parents."[198]

         6. Relations With Likely "NO" Voters

         In contrast to Red Clay's efforts to mobilize likely "YES" voters, the Red Clay team took steps to avoid bringing out likely "NO" voters.[199] Red Clay recognized that there were identifiable groups of opposition voters and, although the Red Clay team rarely came out and said it, they associated the opposition primarily with elderly and retired residents. For example, in February 2015, Nash prepared a draft of the letter that eventually went out to parents of pre-school-aged children. The draft stated, "As a future Red Clay parent, you have a large stake in this referendum, larger perhaps than the many residents who typically come out to vote against any school funding increase."[200] Nash sent the draft to Floore and Ammann, noting that it "kind of mention[s] the senior vote, without saying seniors, " and asking if it went "too far."[201] The text did not appear in the final version of the letter.[202]

         To avoid mobilizing the "NO" vote, the Red Clay team minimized and, when possible, delayed district-wide communications:

• The team delayed having parents send letters to the editor in support of the referendum because "the letters might 'wake up' the 'no' voters."[203] Even after the News Journal ran a story about the Special Election, the team considered waiting until anti-referendum letters to the editor appeared.[204] Once they did, the team debated whether "the 'pro' letters would wake up even more seniors??"[205]
• The team limited the number of posts about the Special Election on the district's social media sites as part of "a conscious decision to keep it from becoming a debate."[206]
• For the same reason, despite making four pro-referendum videos, the Red Clay team decided not to distribute them on the district's social media platforms.[207]
• When filming a pro-referendum video with Floore and Johnson, Nash told them to focus on the "big picture" rather than on the details of the campaign because publicizing the details "MAY TRIGGER AN ORGANIZED OPPOSITION . . . ."[208]
• The team sought to avoid discussing the Special Election on a particular radio talk show because the host's audience historically had been "the anti-vote."[209]
• The team delayed putting up any yard signs until the Sunday evening before the vote, because widespread signage "could bring out the no voters."[210]
• When the team did put out signs, they only placed them on school property near pickup and drop-off locations so they could serve "for our voters as a reminder which is mostly families."[211]

         The desire to avoid stirring up opposition extended to distributions of the Red Clay Record, the district's newsletter. The Red Clay team initially planned to send the February 2015 edition only to the student households in the district.[212] Later, the Steering Committee decided to send the February 2015 edition to all Red Clay residents.[213] That decision was driven by (i) an inquiry from the Department of Elections about whether Red Clay was sending a mailing to the entire district, and (ii) a desire to pre-empt the charge that Red Clay was running "a secret campaign."[214]

         The Red Clay team's concern about senior opposition proved prescient. After Red Clay mailed the February 2015 edition of the Red Clay Record, and after the News Journal began running stories on the Special Election, seniors began objecting.[215] One described the referendum as "yet another attack on the Senior Citizens of the district, state, and the nation."[216] Another said he would vote against the referendum because "Our Governor wants to cut the school tax for senior citizens."[217] A News Journal article quoted an opponent who was a retiree. She complained that "[t]here are so many costs that people want to place on us seniors, and we just can't afford it."[218] A News Journal article about a contemporaneous referendum in the Christina School District quoted a community leader who similarly objected that "[w]e have a lot of seniors saying 'we can't afford this increase right now.'"[219] Johnson told the other members of the Red Clay team that objections from seniors had been "coming in since the red clay record landed."[220]

         F. Referendum Day: Red Clay's Perspective

         On February 24, 2015, Red Clay held the Special Election. From Red Clay's perspective, the day went largely as planned. The seventy-five Family-Focused Events, the targeted communications, and the get-out-the-vote efforts drew large numbers of parents to the schools that served as polling places. According to Red Clay, at least 6, 383 people attended the Family-Focused Events, a figure that uses the low end of Red Clay's estimates and does not include attendees at twenty-two events where the attendance was listed as "Unknown."[221] Many of the evening events drew hundreds of people, including approximately 300 people at Baltz, 300 people at Linden Hill, and 700 people at Brandywine Springs.[222] Testimony at trial focused on the Family-Focused Events at Baltz and Richardson Park.

         Baltz held three Family-Focused Events: two "Literacy Coffeehouses" around lunch time and a "Pajama Jammie Jam" in the evening.[223] The coffeehouses involved families visiting the school so that students could present what they were learning. They were solely for the parents, not for the public. Red Clay estimated that approximately fifty people attended.[224] Food was provided free of charge.[225]

         The "Pajama Jammie Jam" was held from 6:00 to 8:00 p.m. It was a fun event so that students could wear their pajamas and dance.[226] Food again was provided free of charge.[227] For security reasons, the Pajama Jammie Jam was only open to Baltz students and their families; it was not open to the community.[228] Baltz sent home approximately three flyers to its families to advertise the event. Baltz also used the Alert-Now system to send a recorded telephone message to its families to remind them about the event.[229]

         Red Clay estimated that approximately 300 people attended the Pajama Jammie Jam.[230] Baltz stationed staff members at a table at the main entrance to the school to greet families as they entered.[231] A sign behind the table stated, "If you care for the Baltz Bear Vote Yes!"[232] Although there was a separate entrance for voting, voters often used the main entrance.[233]

         Upon entering the building, each family received a check-off card.[234] The card had three boxes labeled, respectively, "I ate, " "I voted, " and "I danced." Below the boxes were lines for the "Student Name, " the "Parent Name, " and a phone number.[235] One of the purposes of the card was to give each family a checklist of the things they were able to do.[236] Teachers and staff had stamps to check off items on the card. They asked to look at the cards and encouraged families to check off activities that they had not yet completed, such as voting.[237] At the end of the night, the checklists served as raffle tickets, and the person whose card was selected won a prize.[238]

         Richardson Park held two Family-Focused Events: a luncheon for parents during the day and a bingo and movie night in the evening.[239] Approximately seventy-five parents attended the luncheon, and approximately 300 people attended the bingo and movie night.[240]

         The bingo games offered prizes valued at over $1, 000. More importantly, each child who attended the event received a "no-uniform pass" for "each adult who voted."[241] If a parent did not vote, then the child was not supposed to get a no-uniform pass, but the school did not monitor that closely. The passes served their purpose by incentivizing people to get to the polling place. Because the passes could be used on picture day, they functioned as a reward for the whole family.[242]

         During both events, Richardson Park had parents circulating to "tell people to vote yes."[243] Richardson Park used parents for this purpose because the principal did not believe that he or his staff could ask people to vote "yes."[244] Teachers also circulated during the events. They told parents how important the vote was and "how little time it will take to make a difference for students."[245]

         G. Referendum Day: The Community Witnesses' Perspective

         For a series of witnesses from the community, the Special Election did not go smoothly. Plaintiff Rebecca Young described her experience attempting to vote at North Star. She brought her parents with her so that they could vote as well. At the time of the Special Election, Rebecca Young was sixty-seven years old, her father James Young was ninety years old, and her mother Elizabeth Young was eighty-eight years old. Both of Rebecca's parents have mobility issues. They initially tried to vote in the morning at approximately 10:00 a.m. As Rebecca explained at trial, "The parking lot was completely packed, jammed, congested. There was no place to park where I could reasonably expect my parents to walk into the -- the polls."[246] They tried again around 3:00 p.m. and found the same situation.[247] Because of the lack of parking, Rebecca and her parents were unable to vote. They had never encountered that problem before.[248]

         Mary O'Neill, a non-party witness, testified about her experience attempting to vote at Marbrook. She attempted to vote twice, first at approximately 10:30 or 11:00 a.m., and a second time around 3:30 or 3:45 p.m.[249] Each time, O'Neill found a packed parking lot and no spaces.[250] O'Neill suffers from fibromyalgia and lower back pain, so when she could not find a convenient space, she "gave up" and "[w]ent home."[251] She called the Department of Elections the next day to complain, and she also contacted her state representative. She felt she had "every right to vote" but was prevented because Red Clay had "'events' going on at the school."[252]

         State Representative Deborah Hudson testified as a fact witness in addition to serving as one of the plaintiffs' experts. She also testified about voting at Marbrook. She arrived at Marbrook between 5:30 and 6:30 p.m. and found that the parking lot was full. She circled two or three times, then waited for someone to leave. She also saw a bus that was parked in the circle in front of the school.[253] When she entered the school, she saw "[b]ig crowds" and "a lot of people" that included "[m]ore adults than [she was] used to seeing" for an election.[254] But despite the crowds, there was not a long line to vote.[255]Someone asked her if she was there to vote or to attend the Winter Carnival, and she decided to check out the carnival. In the "cafetorium, " she saw a well-run event with games for children and people in the center of the room eating. Her immediate reaction was that the event was a planned activity that Red Clay arranged in an attempt to get "persuadable" voters to vote in favor of the tax increase.[256]

         David Pickering, a non-party witness, testified about his efforts to vote. He left work around 5:00 p.m. and was planning to pick up his parents and take them to vote at H.B. duPont. When he drove by the school on his way to get them, he saw that the parking lot was full of cars. He told his parents that "the polls were very busy, " and they decided at that point not to try to vote.[257] After that, Pickering drove to Skyline. When he got there, he saw another full parking lot. He called a friend who was voting inside at the time. His friend told him that "the voting line wasn't bad, " but that "[t]here w[ere] a lot of people in there for some kind of event."[258] Pickering then drove to Marbrook where the "[p]arking lot was packed."[259] He also saw buses in the circle driveway. He eventually parked in the fire lane. When he got inside, there was virtually nobody voting; everyone was there for an event. After voting, Pickering called the Department of Elections to complain and emailed State Senator Karen Peterson. He "felt it wasn't right to have the parking lot so full of cars when [he] was trying to get in there to vote."[260]

         Mary Ellen Fitzpatrick, a non-party witness, testified about her experience voting at Linden Hill. She drove to the school around 1:30 p.m. She found a "packed" parking lot, cars parked illegally in the circle in front of the school, and cars lining both sides of the street leading to the school. On a second trip through the lot, she decided to park at the end of a line of spaces in the circle, even though it was not a legal space.[261] No other spaces were available. When she got inside, the multipurpose room was full of people, and she initially thought it would take a long time to vote. Then she saw a separate sign saying "vote here, " where there were approximately four people in line. She voted and left. She had never encountered similar problems with parking when trying to vote.[262]

         Russell Schnell, a non-party witness, testified about his experience voting at McKean. He arrived at approximately 5:30 p.m. He discovered that the parking lot was "completely full" and that one of the sidewalks was under construction. After spending approximately five minutes circling the lot several times, he parked beside a construction barricade in an area that was not a parking spot.[263] He expected there would be a long line to vote, but there were only three or four people voting. After he got home, he sent a note to the American Civil Liberties Union because he was concerned about how the election was being conducted.[264]

         Sean Boyle, a non-party witness, testified about his experience voting at Brandywine Springs. He arrived around 7:00 p.m. The parking lot was full, and he drove around for five to ten minutes before finding a spot. Other cars were also circling the lot. When Boyle entered the school, he saw lines of people waiting to enter a choral production. To the right, he saw the voting area, where there were perhaps three people waiting to vote. A few days later, he saw an article in the News Journal about problems with voting, so he reached out to Senator Peterson and described his experience.[265]

         Several Red Clay witnesses who were involved with the Special Election sought to rebut the testimony from the community witnesses. Johnson testified that she visited a series of schools on the day of the Special Election and did not see any parking problems, including at Cab Calloway around noon, Marbrook around 1:30 p.m., H.B. duPont around 2:00 p.m., Brandywine Springs from 3:00 to 4:30 p.m., Linden Hill from 5:30 to 6:30 p.m., and North Star around 6:30 p.m.[266] Only two schools held Family-Focused Events during those times, and those events only drew twenty-three and twenty-four attendees.[267] Johnson's testimony did not rebut the community witnesses' accounts. Floore testified that she voted at North Star around 10:00 a.m. and did not see any parking problems.[268] The plaintiffs testified that the parking lot was full at the time. The accounts can be reconciled if the witnesses were slightly off about the time. The Youngs may have been at North Star somewhat later in the morning. North Star held six Family-Focused Events during the day, but Red Clay could not say when any of them took place.[269] If some took place after Floore left when the Youngs tried to vote, then both witness accounts can be credited.

         Ammann was in charge of ensuring that there was adequate parking at the polling places, and he understood that Red Clay needed to ensure access for voters.[270] He recognized that with the large turnout Red Clay hoped to generate, there could be parking problems at some locations. To avoid congestion at Forest Oak and Linden Hill, he had teachers park in nearby commercial lots.[271] For similar reasons, at Richardson Park, teachers and staff were not permitted to park in the front and side lots.[272]

         Ammann also coordinated with the Department of Elections to meet their parking requirements. Their regulations contemplated using five "Voter Only" parking signs to secure ten to twenty spaces.[273] The Department asked Ammann to have the spaces monitored so that they remained available for voters. Ammann prepared a parking plan for each school, and the Department of Elections approved his plans.[274]

         The process fell short in the implementation. Ammann admitted that he did not instruct the principals to monitor the parking situation, which led to the principal at Marbrook not taking any action to address the buses that were parked in her school's circle driveway for a period of time on election day.[275] Ammann testified that he instructed the custodial staff at each school to monitor the parking lots to ensure that the spots designated for voters remained available, but there is no contemporaneous evidence that he gave that instruction, even though Ammann used email as a primary means of communication.[276]Ammann did not follow up on this instruction during the Special Election, and no one explained how custodians would have distinguished a voter's car from an event attendee's, particularly when those categories overlapped. Superintendent Daugherty testified that Red Clay did not monitor who was using the parking spaces.[277]

         H. Complaints About The Election

         Very few issues were reported to the Department of Elections on the day of the Special Election itself.[278] On the day after the Special Election, the Department of Elections was "slammed" with complaints.[279] Voters also contacted their state legislators, including Senator Peterson and Representative Hudson.[280]

         On March 3, 2015, the Board of Elections for New Castle County met to consider whether to certify the results of the Special Election.[281] The Department of Elections reported on the complaints it had received. The Board of Elections determined that it did not have authority to investigate the complaints or take them into account when certifying the election.[282] It referred isolated issues to the Attorney General for investigation. The Attorney General only reviewed the events for criminal violations and determined not to pursue any criminal charges.

         I. The Certified Results

         On March 10, 2015, the Board of Elections certified the results of the Special Election. There were 6, 395 votes in favor of the tax increase and 5, 515 votes against.[283]The winning margin of 880 votes amounted to 7% of those who voted. The 11, 910 votes cast represented about 7% of the approximately 165, 000 residents in the district and about 12% of its 93, 905 registered voters.[284] The winning margin thus amounted to less than 0.5% of the district's residents and less than 1% of its registered voters.

         As previously noted, Red Clay estimated that the Family-Focused Events drew at least 6, 383 people to the polls. That figure uses the low end of Red Clay's estimates for three events and does not include any attendees for twenty-two events where Red Clay listed the attendance as "Unknown."[285] Using the high end of Red Clay's estimates, the attendance figure rises to 6, 593 people. The average attendance figure for the fifty-three events for which Red Clay provided estimates was 120 people. Using that number for the twenty-two events where Red Clay listed the attendance as "Unknown" adds another 2, 640 attendees. A more realistic estimate for the Family-Focused Events is that they brought between 9, 023 and 9, 233 people to the polling places. The mid-point of that range is 9, 128 attendees.

         Red Clay's low-end attendance figure of 6, 383 means that the number of people who attended the Family-Focused Events was approximately equal to the 6, 395 votes that Red Clay received in favor of the tax increase. Using the low-end attendance figure, the winning margin of 880 votes represented approximately 14% of the people who attended the Family-Focused Events.

         The more realistic attendance figure of 9, 128 means that the number of people who attended the Family-Focused Events exceeded the 6, 395 votes that Red Clay received in favor of the tax increase. Using the high-end attendance figure, the winning margin of 880 votes represented approximately 10% of the people who attended the Family-Focused Events.

         J. Procedural History

         On March 27, 2015, the plaintiffs filed their initial complaint and sought an expedited hearing on an application for a preliminary injunction that would block the tax increase from taking effect. I denied the motion to expedite, holding that even if the tax increase went into effect, a post-trial remedy could be crafted if the plaintiffs prevailed.

         On April 13, 2015, the plaintiffs filed an amended complaint. Red Clay moved to dismiss the amended complaint for failing to state a claim on which relief could be granted. After briefing and oral argument, the matter was submitted for decision on July 10.

         On October, 7, 2015, I issued the Dismissal Ruling, which held that the plaintiffs had stated a claim on which relief could be granted. The matter proceeded to trial. After post-trial briefing, post-trial argument was held on February 23, 2017.

         K. The Present Status Of The Tax Increase

         On July 1, 2015, Red Clay began receiving incremental revenue from the tax increase. During the 2015-16 tax year, Red Clay received approximately $10.5 million in additional tax revenue, reflecting the initial $0.20 increase. During the 2015-16 tax year, Red Clay received approximately $15.8 million in additional tax revenue, reflecting both the initial $0.20 increase and the next $0.10 increase. The full $0.35 tax increase will go into effect on July 1, 2017.[286]

         II. LEGAL ANALYSIS

         The Dismissal Ruling evaluated the plaintiffs' complaint. In doing so, it set out a legal framework for analyzing the legal issues presented by the case. As often happens, the evidence presented at trial differed in some respects from the less-informed allegations of the complaint. At the pleading stage, the plaintiffs primarily challenged the Family-Focused Events as a means of enhancing turnout by parents of Red Clay students while suppressing turnout by elderly and disabled residents. They alleged that Red Clay engaged in excessive advocacy and targeted campaign speech, thereby violating the principles established in Brennan v. Black.[287] They were not aware of the full scope of Red Clay's targeted campaign speech.

         In light of the Dismissal Ruling and the evidence presented at trial, the plaintiffs no longer meaningfully challenge Red Clay's broadly directed campaign speech. They challenge the Family-Focused Events and Red Clay's targeted campaign speech.

         A. The Primacy Of The Plaintiffs' State Law Claim

         The plaintiffs assert that Red Clay's electoral interventions violated both federal and state law. As their federal theory, they contend that Red Clay violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution.[288] As their state law theory, the plaintiffs contend that Red Clay violated the Elections Clause.

         Red Clay has asked the court to consider the state constitutional claim first and only reach the federal constitutional claims if necessary. This approach comports with Delaware Supreme Court jurisprudence, which generally gives primacy to specific guarantees in the Delaware Constitution.[289] It also makes logical sense. The Dismissal Ruling concluded that "[t]he Elections Clause has independent content that is more protective of electoral rights than the federal regime."[290] It is therefore possible that an electoral intervention could pass muster under the federal constitution and yet violate the more specific guarantee provided by the Delaware Constitution.[291]

         This decision consequently starts with the Elections Clause. Because the plaintiffs have proven that Red Clay violated the Elections Clause, this decision does not reach the federal claims.

         B. Distinguishing Among The Types Of Electoral Interventions

         The plaintiffs challenge Red Clay's electoral interventions as a whole, contending that they violated the Elections Clause when viewed in the aggregate. For analytical clarity, however, it is helpful to consider the Family-Focused Events separately from Red Clay's other interventions, all of which involved varying degrees of government campaign speech.

Government involvement in elections creates difficult line-drawing problems.
A government that intervenes in elections to protect electors and prevent private parties from using force, coercion, bribery, or intimidation does not undermine the legitimacy of the election. That type of government activity enhances the electoral process by making it possible for more electors to participate freely and express their views. Different and more difficult issues arise if a government uses its powers to encourage or facilitate voting by electors who might be thought to favor the government's positions, or to discourage or interfere with voting by electors who might be thought to oppose the government's views. Along similar lines, a government that provides factual information to voters acts in an election-enhancing capacity. The potential for concern grows as the tenor, volume, and extent of the government's advocacy increases. Whether listeners object may well depend on whether they agree with the substance of the government's views. What one voter might call helpful information, another might label propaganda.[292]

         Recent allegations that a foreign state influenced a national election by altering the information available to voters has brought home the extent to which subtle interventions can affect an electoral outcome.

         This decision distinguishes targeted incentives and disincentives for voting from government campaign speech. The latter term refers to "speech to the public (rather than to other government entities) that expresses the official view of a governmental branch or body, such as speech issued collectively in the form of a resolution or proclamation, or speech by an official empowered to speak for that governmental entity."[293] Government campaign speech can take a variety of forms.

         The least problematic type of government campaign speech is directed broadly to the electorate as a whole and openly identified as coming from a government source. Red Clay engaged in this type of campaign speech. Examples included:

• The two mailings of the Red Clay Record.
• Postings on the district's official website and official social media channels.
• Videos distributed through the district-sponsored cable television channel.
• Presentations by self-identified Red Clay representatives at public meetings and workshops that were advertised and open to the public.
• Signs in Red Clay schools or in the community asking for support.
• Statements by Red Clay representatives to the press.

         Red Clay also engaged in broadly directed government campaign speech that did not openly identify its source. Instead, Red Clay took steps to mask this speech to look like it originated from parents. Examples included (i) the social media campaign that Nash ran using the Facebook account called "Red Clay Parents for Students" and the Twitter handle called "RedClayParents" and (ii) ghostwritten letters to the editor. These forms of campaign speech became problematic because Red Clay masked their source.

         A more serious type of electoral intervention involves "targeted government campaign speech, which is directed to identifiable groups within the electorate."[294] By communicating more vigorously with identifiable subsets of the electorate, the government can encourage voting by groups that are likely to favor its position, thereby increasing turnout among those groups.[295] This type of intervention involves the government making distinctions among groups and attempting to affect the outcome of the election by shaping the demographic characteristics of those who vote.[296]

         Red Clay engaged in extensive campaign speech that was targeted at identifiable groups. Most of it targeted parents of Red Clay students, whom Red Clay believed would support the tax increase. These efforts included:

• Superintendent Daugherty's letter to Red Clay student households in January 2015.
• Presentations by Red Clay representatives at events that parents primarily attended, such as school concerts and athletic events.
• The flyers and newsletters that Red Clay personnel sent home with students. • The "Referendum Fact Sheet" that staff members stuffed into student report cards.
• The reminder emails that principals sent to parents using their school-email distribution systems.
• The reminder messages that principals delivered to parents using the School Messenger auto-dialer system.
• Superintendent Daugherty's referendum-day reminder message delivered to parents using the School Messenger auto-dialer system.
• The "VOTE" stickers that Red Clay school teachers put on elementary students.
• The teams that Red Clay organized to distribute election push cards and encourage parents to vote during morning drop-off and afternoon pick-up.

         Red Clay also targeted other groups that Red Clay believed would support the tax increase. These efforts included:

• The December 2014 letter to Red Clay graduates.
• The February 2015 letter to parents of children under five years of age.
• The February 2015 email to local colleges with teacher education programs.
• The facilitation of voting by high school students who were old enough.

         An even more serious type of targeted government campaign speech moves from identifiable groups to individual voters. This type of speech involves the government seeking to identify how particular individuals will vote and then taking steps to convert supportive individuals into actual votes. It therefore involves the government discriminating among individuals and attempting to affect the outcome by influencing their behavior.

         The Dismissal Ruling did not discuss individualized government campaign speech because the plaintiffs did not know it had occurred. During discovery, the plaintiffs learned that Red Clay gave each school a specific number of "YES" voters to identify among its parents. When Red Clay representatives reached "YES" voters, they provided information about how to vote and added the voters to a list for follow-up. When Red Clay representatives reached "NO" voters, they did not provide information about how to vote. Just before the election, Red Clay contacted the "YES" voters to get them out to vote.

         So far, each level of government intervention has only involved campaign speech. The focus of the speech has narrowed, starting with the electorate as a whole, then moving to identifiable groups, and then reaching individual voters, but the exclusive medium has been speech. A qualitatively different intervention targets an identified group with a concrete incentive or disincentive to vote. Like targeted government campaign speech, this type of intervention involves the government discriminating among identifiable groups by choosing to favor some and disfavor others. It also involves the government trying to influence the outcome of the election by shaping the demographic characteristics of those who vote. But the intervention goes beyond speech by putting a thumb on the scales of the decision to vote.

         Much of the legal scholarship and case law has involved disincentives for voting. Historical examples involved poll taxes, literacy tests, and other hurdles that were superficially neutral but operated as impediments to identifiable groups.[297] More recent efforts involve voter identification requirements, which appear neutral but may operate in practice as a disincentive for identifiable groups.[298]

         But a government also can provide an incentive to an identifiable group. This type of intervention transfers something of value to a subset of the electorate in return for the act of voting. Conceptually, it resembles a bribe. As the Dismissal Ruling recognized, some have argued that to increase turnout, governments should be able to provide a reward for voting to all voters.[299] Several states allow payments for voting, so long as the payment is not designed to induce a voter to favor a particular candidate or result.[300] No one appears to favor a government having the ability to provide rewards to a particular subset of the electorate that the government believes will favor its preferred outcome.

         As described in the Statement of Facts, the seventy-five Family-Focused Events were intended to and operated as an inducement for the families of Red Clay students to vote. Red Clay held Family-Focused Events at every school that was designated as a polling location. Their purpose was to draw parents of Red Clay students to the polls. The incentive was a tangible reward in the form of child-focused activities. Although the events were nominally open to everyone, Red Clay recognized that adults without children would not have a desire to attend.

         Red Clay's decision to convey the rewards in the form of events did not change their status as a reward for voting. Consider the free food that was made available at twenty-four of the events, or the carnivals and family fun nights that various schools held.

Instead of hosting the dinner and carnivals themselves, the schools could have given families coupons to a local restaurant, arcade, or family fun park. Or in lieu of providing coupons, the schools could have handed out money and encouraged families to spend it at a local restaurant, arcade, or family fun park. If the schools had handed out coupons or money, then the exchange of something of value for the act of voting would have been readily apparent. By hosting the dinner and carnivals themselves, the schools simplified the exchange by providing the benefits directly.[301]

         I recognize that some may not immediately perceive the Family-Focused Events as a reward for voting. Or some may feel that because public schools need money, and because public schools are indisputably a public good, the end justifies the means. A thought experiment involving a different issue may offer perspective:

• Imagine a state-wide referendum on an issue relating to gun rights, such as a proposal to allow universal concealed carry.
• Posit that the state Department of Elections designates gun ranges as polling places, which is permitted by law.
• Envision that the separate state agency that focuses on gun regulation engages in a state-wide, pro-referendum campaign that culminates in each gun range offering every adult of voting age free range time and a box of free ammunition on the day of the referendum.

         As with the Family-Focused Events, the gun range events are facially neutral and open to everyone. Nevertheless, I would expect many would regard this type of intervention as a means of increasing turnout by voters who would favor the referendum. The same is true for the Family-Focused Events. What matters for legal analysis is not whose political ox is gored, but the effect on the electoral process.

         In practice, the Family-Focused Events did more than just operate as an incentive to vote for parents of Red Clay students. They also functioned as a disincentive for voting by the elderly and disabled. The Family-Focused Events caused the school parking lots to be packed with cars. The full lots made it difficult for elderly and disabled residents to find accessible parking spots. Although Red Clay did not purposefully create this obstacle, the Family-Focused Events had this effect.

         Because the Family-Focused Events provided an incentive for voting by parents of Red Clay students while creating a disincentive for voting by the elderly and disabled, this decision analyzes them separately from Red Clay's government campaign speech. In ultimately deciding whether Red Clay's conduct affected the election, this decision considers Red Clay's interventions as a whole.

         C. The Family-Focused Events

         The Elections Clause provides that "[a]ll elections shall be free and equal."[302] The plaintiffs proved that the Family-Focused Events violated the Elections Clause. By holding seventy-five events on the day of the Special Election, in the schools that served as polling places, Red Clay provided a targeted incentive for parents of Red Clay students to vote. At the same time, Red Clay created a disincentive for elderly and disabled residents to vote. The Family-Focused Events rendered the Special Election unfair and unequal.

         1. The Family-Focused Events As A Targeted Incentive For Voting

         The Family-Focused Events operated as targeted incentives for voting by parents of Red Clay students. By providing a reward for voting to the group most likely to support the referendum, Red Clay violated the Elections Clause.

         a. The Relevant Content Of The Elections Clause

         An election in which the government provides a particular group with targeted incentives to vote is neither fair nor equal. This conclusion flows from multiple sources.

         i. The Text Of The Elections Clause And Pertinent Judicial Interpretations

         The Dismissal Ruling analyzed the text of the Elections Clause and Delaware decisions that have discussed voting rights.[303] The one Delaware decision to address the Elections Clause states that its purpose is "to ensure that the right of citizens to vote in an election is unfettered."[304] Other Delaware decisions on voting rights call for interpreting election-related laws liberally to protect voters.[305] These decisions suggest that the Elections Clause should be interpreted broadly, but they do not provide more concrete guidance.

         The Dismissal Ruling also examined decisions from other jurisdictions that have interpreted their comparable constitutional provisions.[306] These decisions observe that the operative question under the Elections Clause is whether the outcome represented "a full, fair, and free expression of the popular will upon the matter, whatever it may be."[307] They also teach that that it does not matter "whether the cause that prevented persons legally entitled to vote from exercising the right of suffrage was due to some imperfection or insufficiency in the statute regulating the conduct of elections or to fraud, intimidation, violence, bribery, or other wrongdoing."[308] One precedent states that "[e]lections are free when the voters are subjected to no intimidation or improper influence, and when every voter is allowed to cast his ballot as his own judgment and conscience dictate."[309] These decisions indicate that the Elections Clause protects against improper, external influences on voting, but they offer little more.

         Having reviewed these authorities, the Dismissal Ruling sought more specific sources of authority:

When imbuing terms like ["free" and "equal"] with content, I believe a judge should strive to be guided by more than the judge's own subjective views about what they should mean. The judge instead should look to embodiments of those concepts that have been deeply and widely endorsed, such as indications from other provisions of the Delaware Constitution (including its overall structure), state statutes, and longstanding doctrines of common law.[310]

         For purposes of analyzing incentives to vote, the most pertinent sources are the history of the Elections Clause, a related provision in the Delaware Constitution that criminalizes bribery in elections, and Delaware statutes addressing similar electoral misconduct. These authorities point towards a longstanding Delaware public policy against voters receiving rewards for voting in elections.

         ii. The Legislative History Of The Elections Clause

         If the meaning of a constitutional provision is unclear, a court may consider its legislative history.[311] The legislative history of the Elections Clause "is largely coterminous with the development of the Delaware Constitution."[312] Delaware has had four constitutions, adopted respectively in 1776, 1792, 1831, and 1897. They are not separate and independent, but rather linked.[313] The Constitution of 1897 continues in force today.

         "The antecedents of the Elections Clause can be seen in Delaware's first constitution."[314] "In May of 1776 the Continental Congress passed a resolution that advised the colonies to form new governments."[315] "A widespread concern before the Declaration of Independence had been a desire for popular control over the process of governing."[316]The Constitutional Convention that convened in August 1776 began by drafting a Declaration of Rights and Fundamental Rules of the Delaware State (the "Declaration of Rights"), which the delegates adopted on September 11.[317] The Declaration of Rights emphasized the role of the people and the importance of elections. Section 1 stated that "all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole."[318] Section 6 contained a predecessor to the Elections Clause, which stated that "the right in the people to participate in the Legislature, is the foundation of liberty and of all free government, and for this end all elections ought to be free and frequent."[319] When the delegates adopted Delaware's first constitution on September 20, 1776, they incorporated the Declaration of Rights.[320] Article 30 stated: "No article of the declaration of rights and fundamental rules of this state, agreed to by this convention, . . . ought ever to be violated on any pretense whatever."[321]

         "After the ratification of the United States Constitution, states began the process of re-writing their own constitutions."[322] Delaware's Constitutional Convention took place in two sessions, one in 1791 and a second in 1792.[323] Most significantly for present purposes, the drafters of the Constitution of 1792 updated the Declaration of Rights.[324] The Elections Clause remained part of the new declaration.[325]

         The next significant development for the Elections Clause was the Constitution of 1897.[326] "Concern about the legitimacy of state and local elections played a significant role in the prompting Delaware to convene a constitutional convention.[327] "[E]lections and election politics, which had been a powerful impetus for calling the convention, were never far from [the delegates'] minds."[328] One of the convention's standing committees was the Committee on Securing the Purity of the Ballot.[329]

         Despite their focus on electoral issues, the delegates did not make changes to the Elections Clause. The report from the committee charged with reviewing the Declaration of Rights stated:

This [Declaration of Rights] is regarded, astonishingly and with great unanimity, by the Members of the Convention, as almost the same document. Gentlemen of the Convention are so earnest and anxious that they may transmit this valuable relic of the former centuries to their children and grandchildren, and they might point to themselves with pride, that they have left it simply intact, scarcely a dot from the i or a cross from the t being omitted.[330]

         Rather than changing the Declaration of Rights, they addressed elections elsewhere.[331]

         One key provision became Section 7 of Article V of the Constitution of 1897 (the "Anti-Bribery Clause"), which defined substantive election offenses and fixed the penalties for violations. It stated:

Every person who either in or out of the State shall receive or accept, or offer to receive or accept, or shall pay, transfer or deliver, or offer or promise to pay, transfer or deliver, or shall contribute, or offer or promise to contribute, to another to be paid or used, any money or other valuable thing as a compensation, inducement or reward for the giving or withholding, or in any manner influencing the giving or withholding, a vote at any general, special, or municipal election in this State, or at any primary election, convention or meeting held for the purpose of nominating any candidate or candidates to be voted for at such general, special or municipal election . . . shall be deemed guilty of a misdemeanor, and shall be fined not less than one hundred dollars nor more than five thousand dollars, or shall be imprisoned for a term not less than one month nor more than three years . . .; and shall further for a term of ten years next following said person's sentence, be incapable of voting at any such general, special, municipal or primary election or convention or meeting . . . .[332]

         Under this clause, it became a constitutional offense to provide money or any other valuable thing as a means of influencing in any manner the giving or withholding of votes.

         The breadth of the Anti-Bribery Clause reflected the "practices of early nineteenth- century politicians who roused their followers to partisan enthusiasm with plentiful and free liquid requirements."[333]

Since the voter had to be a taxpayer, the candidate who had money was tempted to help a poor but faithful supporter by paying his tax bill. He might go a bit further, by giving him a drink of liquor and perhaps two dollars. Sometimes a hat, a coat, or a pair of boots would do as a gift, or a dress for a man's wife.[334]

"Another path for corruption was the Voters' Assistant Law of 1891, which was intended to provide a legitimate service for illiterate or otherwise handicapped voters by authorizing each political party to provide a voters' assistant in a polling place who could help a voter who asked in marking his ballot."[335]

The voter who wanted to sell his vote would request assistance in marking his ballot. When he had properly marked and deposited his ballot, he would be given some token as a sort of receipt for his vote, along with instructions as to where to find the party treasurer, who would exchange an agreed sum for the token. In one case that became notorious because it was described in a court of law, the payoff token was a salted chestnut, handed at the polls to a voter who would then exchange it for his payoff-usually five or ten dollars-at a nearby livery stable.[336]

         To address these practices, the Anti-Bribery Clause made it a constitutional offence to use "any money or other valuable thing" to "influenc[e]" voting or as a "compensation, inducement or reward" for voting.[337] A violation of the Anti-Bribery Clause does not require a "corrupt motive."[338]

         When the delegates adopted the Anti-Bribery Clause, statutes proscribing bribery in elections already existed in Delaware. "Despite the existence of these statutes, the delegates to the Constitutional Convention of 1896-97 regarded the integrity of elections as a serious problem."[339] So they made it a constitutional criminal office to provide "any money or other valuable thing" as a "compensation, inducement or reward" for voting.[340]

         Viewed as a whole, the evolution of the Delaware Constitution from 1776 until 1897 evidences consistent concern for the integrity of the electoral process, particularly in response to widespread nineteenth-century practices in which voters received items of value in return for votes. The legislative history indicates that that an election in which certain voters receive an inducement for voting is not "free and equal."

         iii. Related Statutory Frameworks

         The Delaware statutory frameworks that govern elections also provide guidance for applying the Elections Clause. Civil and criminal statutes that regulate elections reflect public policy determinations about what free and equal elections should look like. Criminal statutes in particular provide evidence of the floor for permissible electoral conduct.[341] In other areas of the law, courts have used criminal statutes to inform how the civil law should apply[342] and to flesh out constitutional parameters.[343]

         Delaware has several statutory frameworks for challenging particular types of elections.[344] For most elected offices, the statutory procedure permits the losing candidate to challenge the election "[w]hen the person whose right is contested has given to any elector . . . any bribe or reward or shall have offered any bribe or reward for the purpose of procuring his or her election."[345] This provision is part of Title 15, the purpose of which is "to assure the people's right to free and equal elections, as guaranteed by our state Constitution."[346] Widespread conduct that violates the provisions of Title 15 is therefore inconsistent with the "right to free and equal elections." It follows that an election in which one side provides voters with widespread rewards for voting violates the Elections Clause.

         Title 14 of the Delaware Code proscribes certain conduct in school elections. It includes the following prohibition:

No person who receives or accepts or offers to receive or accept, or pays, transfers or delivers, or offers or promises to pay, transfer or deliver, or contributes or offers or promises to contribute to another to be paid or used, any money or other valuable thing as a compensation, inducement or reward for giving or withholding or in any manner influencing the giving or withholding a vote at any public school election, shall vote at such election . . . .[347]

         Based on this provision, if a participant in a school election has engaged in a widespread practice of providing "any money or other valuable thing" as an inducement for voting, then the election has not been "free and equal" under the Elections Clause.

         As with the evolution of the Delaware Constitution, the statutory schemes governing elections indicate that the Elections Clause prohibits inducements to vote. An election in which certain voters receive money or other valuable things as an inducement for voting is not "free and equal."

         b. Application To The Trial Record

         The Family-Focused Events provided parents of Red Clay students with an inducement to go to the polls and vote in the Special Election. The inducements did not appeal to other parts of the electorate. As such, the Family-Focused Events functioned as targeted rewards for voting and violated the Elections Clause.

         From the outset, the Family-Focused Events were a central part of Red Clay's campaign strategy. Superintendent Daugherty required that all Red Clay principals attend the campaign kick-off meeting on November 6, 2014, [348] when the principals were told that they "needed to have an event" on the day of the Special Election.[349] They also were told that each school would have a parent leader whose responsibilities included "[w]orking with Principals for Referendum Day Events."[350] Ammann required that each principal submit a School Referendum Plan that included "school activities planned for the day of the 2015 Referendum."[351] Every school principal submitted a plan.[352] Ammann reviewed the plans, approved them or asked for changes, then forwarded them to Johnson.[353]

         Every school that was a polling place held at least one-and typically two or more- Family-Focused Events.[354] The one school that was not designated as a polling place did not hold any family-oriented events on the day of the referendum.[355] The principal of that school explained in his School Referendum Plan, "Since we are not a polling site, I will support [Stanton] for any activities."[356]

         In total, the Red Clay schools held seventy-five Family-Focused Events on the day of the referendum.[357] These events were intended to bring parents into the schools to vote.[358] They were not designed to appeal to the community in general. Baltz held a "Pajama Jammie Jam"-a pajama dance party with pizza and raffles.[359] Other evening events similarly targeted students and their families, such as "Bedtime Stories, " a "Winter Blues Beach Bingo, " a "Winter Carnival, " and "Family Fun Night."[360]

         Some Family-Focused Events were nominally open to the public, but Red Clay did not expect them to attract anyone other than students and their families.[361] Of the seventy-five Family-Focused Events, only three identified the "community" or the "public" as part of their event's target audience.[362] Some events, like the Pajama Jammie Jam, were closed to the public due to security concerns.[363]

         Although all of the Family-Focused Events functioned as rewards for parents to visit the polls, some schools offered more tangible rewards. One example was the "no-uniform" passes at Richardson Park. Each student received one no-uniform pass for each "voting adult."[364] There was no limit on how many passes a child could accumulate, so if a child brought four voting adults, the child received four passes.[365] The principal explained that because Richardson Park was a uniform school, the "no-uniform pass" was perhaps the most valuable reward he could provide for his students.[366] He believed the passes also served as a reward for the students' families, because one of the no-uniform days was "Picture Day, " which provided "a chance for families to get their child's picture out of uniform!"[367] Richardson Park also offered prizes in its bingo games valued at over $1, 000. The principal believed that the passes, prizes, and activities would "make it a very incentivized night for parents and kids to come out."[368]

         Baltz took a similar approach. When a family entered the school, they received a checklist with boxes for "I Ate, I Voted, I Danced." Below the boxes were lines for the "Student Name, " the "Parent Name, " and a phone number.[369] One of the purposes of the card was to give each family a list of things to do.[370] Teachers and staff had stamps to check off items on the card. At the end of the night, the completed checklists doubled as raffle tickets.[371] Although the Baltz principal denied that families had to check off all three boxes to enter the raffle, a community witness testified that adults near the voting area were checking off the boxes, and other adults were asking the children whether their parents voted before they entered the line for free pizza.[372]

         The trial record established that the Family-Focused Events operated as a targeted reward that induced parents of Red Clay students to vote. As such, they violated the Elections Clause.

         2. The Family-Focused Events As Impediments To Voting

         The Family-Focused Events also operated as impediments to voting by the elderly and disabled. Through this mechanism, they violated the Elections Clause.

         a. The Relevant Content Of The Elections Clause

         The Elections Clause prohibits widespread impediments to voting. An election in which a government inhibits voting by particular groups is neither fair nor equal. That is particularly true when the group is part of a protected class, like the elderly and disabled.[373] The conclusion that the Elections Clause prohibits widespread impediments to voting flows from multiple sources.

         i. Traditional Legal Authorities

         Both case law and analogous statutory frameworks indicate that a government violates the Elections Clause when it inhibits voting by particular groups. The first source is the Abbott decision, which held that the purpose of the Elections Clause is "to ensure that the right of citizens to vote in an election is unfettered."[374] The court dismissed the claim in that case because the candidate had not alleged that voters' "access to the polls was disturbed"[375] The Abbott decision indicates that sufficiently serious and widespread impediments to accessing the polls could result in an election that was not "free and equal."

         Another source of authority is Section 1087 of Title 14, which prohibits "[e]lectioneering as described in § 4942 of Title 15 . . . in any public school election."[376] Section 4942(a) of Title 15 states:

No election officer, challenger or any other person within the polling place or within 50 feet of the entrance to the building in which the voting room is located shall electioneer during the conduct of the election. No political headquarters or gathering shall be permitted within that building during the conduct of the election.[377]

         Under the statute, electioneering includes but is not limited to

political discussion of issues . . . or partisan topics, the wearing of any button, banner or other object referring to issues . . . or partisan topics, the display, distribution or other handling of literature or any writing or drawing referring to issues . . . or partisan topics, the deliberate projection of sound referring to issues . . . or partisan topics from loudspeakers or otherwise into the polling place or the area within 50 feet of the entrance to the building in which the voting room is located.[378]

         Based on this provision, when widespread electioneering interferes with voters' ability to access the polls, the election has not been "free and equal" for purposes of the Elections Clause.[379]

         ii. Evidence of Custom and Practice

         An equally important source of authority regarding impediments to voting is Delaware custom and practice.[380] Barbara Lippincott of the Department of Elections testified at trial. She has overseen thirty-five school referendums since 1999, including the Special Election.[381]

         To govern the use of Red Clay schools as polling places, the Department of Elections and Red Clay entered into a "standard polling place contract" for each of the schools where voting took place.[382] Lippincott explained that under the contracts, schools are permitted to have events during the referendum, and the Department of Elections understands that "generally events will be held on the day of [a] referendum."[383] This makes sense, because a school referendum does not take place on a weekend or holiday. School is in session, and school activities continue.

         Each polling place contract provides, however, that any activities conducted in the building designated as a polling place must not "interfere with the voting process."[384] Each contract likewise provides that the activities cannot "hinder[] access to the voting area and/or building."[385] Lippincott confirmed that a school cannot "hold an activity that interferes with the voting process."[386] She similarly confirmed that the "activities within the building also cannot hinder access to the voting area and/or the building."[387] During the lead-up to the Special Election, Lippincott warned Ammann against conflicts between activities at the schools and the voting process.[388]

         The standard polling place agreements and the Department of Elections' custom and practice make clear that the limitation on obstructing voter access applies to any entrance to the building where the voting room is located and requires a fifty-foot electioneering-free zone around the voting room, including inside the building where the voting room is located. Each of the polling place agreements designated the school building as the polling place for purposes of the Special Election.[389] Lippincott agreed that for the Special Election, each school building was the operative polling place.[390] Each of the polling place agreements also specified that electioneering cannot take place "within 50 feet of any entrance to the building in which the voting area is located."[391] This restriction applied by its terms to any entrance to the building, not just those specifically designated for use by voters. Lippincott confirmed that the ban on electioneering applied not only to the specific entrances designated for voting, but to "any entrance used by a voter."[392]

         Each of the polling place agreements further specified that any activities held in the buildings could not involve "[g]atherings advocating or opposing any proposal or candidate on the ballot."[393] Lippincott agreed that the ban on electioneering is "not just limited to the area outside the building."[394] Lippincott further agreed that because the tax increase was a proposal on the ballot for the Special Election, an event advocating in favor of the proposal should not have been held in a school that was designated as a polling place.[395]

         Lippincott also explained that the need to ensure access to the polls extends to parking. The Department of Elections expects that the spaces designated for voters will be reserved for voters and not used by individuals attending other activities at the polling place.[396] When communicating with Ammann about the spots, Lippincott instructed Ammann to monitor the spaces "so that event attendees will not occupy those spaces."[397]

         Lippincott's testimony and the content of the polling place agreements indicate that an election is not "free and equal" when a government holds gatherings inside the buildings designated as polling places, on the day of the election, that promote the government's position on an issue being considered by the voters. Gatherings of this type interfere with the ability of electors to vote by turning the polling places into partisan outposts. The interference becomes more pronounced when residents are subjected to electioneering activities from within the polling places. The same sources indicate that an election is not "free and equal" when widespread activities inside the polling places have the practical effect of impeding physical access to the polls.

         b. The Family-Focused Events Interfered With Voter Access.

         The plaintiffs proved at trial that the Family-Focused Events interfered with voter access to a degree that violated the Elections Clause. The Family-Focused Events were partisan gatherings held in polling places on the day of the election, they resulted in electioneering activity inside the polling places, and they produced parking problems that hampered the ability of the elderly and disabled to access the polls.

         In substance, the Family-Focused Events were partisan gatherings. Red Clay held the seventy-five Family-Focused Events on the day of the Special Election in the school buildings designated as polling places. The events were designed to support the tax increase that was on the ballot, contrary to the terms of the polling place agreements.

         They Family-Focused Events involved electioneering activity inside the polling places and within fifty feet of the entrances to the polling places. One clear example was the "Support the Baltz Bear" sign that the Baltz principal placed behind a table at the main entrance to the school, despite knowing that voters often used that entrance.[398] Another example took place at Richardson Park, where the principal recruited parents to tell other parents to vote "YES" and encourage them to bring other "positive voters" to the polls.[399]He also instructed his teachers to "mingle" with parents "to make sure they voted" and to "say how passing the referendum will help children" because "[h]aving someone ask if they voted yet and telling the importance of the vote and how little time it will take to make a difference for students is important."[400]

         Red Clay did not present any evidence suggesting that these were the actions of two rogue principals. Ammann himself approved the placement of the Baltz sign using an overly narrow interpretation in which electioneering only was prohibited within fifty feet of an entrance specifically designated for use by voters.[401] Recruiting parents to promote the tax increase was part of the Steering Committee's plan to drive pro-referendum communications through parent volunteers.[402] From a big picture standpoint, the whole purpose of holding seventy-five Family-Focused Events was to support Red Clay's preferred outcome.

         The Family-Focused Events also interfered with the voting process by hindering the ability of elderly and disabled residents to access the polls. Thousands of students and their family members attended the Family-Focused Events, with many of the evening events drawing hundreds of people.[403] The Family-Focused Events resulted in packed parking lots that prevented elderly and disabled residents from finding accessible parking.

         The plaintiffs presented unrebutted testimony about parking congestion at seven different schools.[404] They also presented unrebutted testimony that the congestion prevented would-be voters from casting ballots.[405] Despite having employees at every school that was a polling place, Red Clay did not present any persuasive evidence to the contrary. Red Clay's own attendance estimates supported the plaintiffs' contentions. For example, Richardson Park's parking lot could hold about 150 to 200 cars.[406]Approximately 300 people attended the bingo and movie night, [407] or enough to fill the parking lot. Other evening events similarly drew hundreds of people.[408]

         Red Clay did not fulfill its obligation to monitor the parking spaces designated for voters. Superintendent Daugherty testified that Red Clay did not monitor who was using the parking spaces.[409] Ammann admitted that he did not instruct the principals to monitor the parking situation.[410] The plaintiffs proved that parking problems prevented some elderly and disabled residents from voting.[411]

         An election is not "free and equal" when one side holds partisan events in the polling places on election day, when the events subject voters to electioneering within the polling places themselves, and when the events interfere with the ability of elderly and disabled residents to access the polls. Consequently, regardless of whether or not the Family-Focused Events operated as impermissible rewards for voting, the Family-Focused Events violated the Elections Clause.

         3. The Family-Focused Events As A Delaware Tradition

         In a final effort to justify the Family-Focused Events, Red Clay called its former superintendent, Robert Andrzejewski, as an expert witness. Andrzejewski currently serves as superintendent of the Christina School District and has presided over six referendums. He opined that it is "standard practice for referendum campaigns across the State ...


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