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PaperclipPerfector  21d ago (text post)   21250 thread views

Culture War Roundup for the week of May 25, 2026

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A Delaware judge has ruled that corporations have a right to vote. I have not yet had time to read the decision yet, but this seems to upend a lot of norms around voting in the US.

Corporations, partnerships, trusts, limited liability companies, and other “artificial entities” have the right to vote in Delaware elections under some circumstances, a judge said in a novel ruling Tuesday.

Judge Craig A. Karsnitz rejected an ACLU challenge to a charter permitting voting in local elections by the entities that own most of the property in the Town of Fenwick Island, one of several municipalities in the state with similar provisions. Karsnitz dismissed the lawsuit from Delaware’s Superior Court, citing “the principle of one person/entity/one vote.”

My immediate question is what... what the hell? This seems like a fairly bold decision on the part of the judge, and one that normally would not be issued by a state Superior court judge. Is there some kind of inside baseball that I'm missing here? I know that Delaware is very friendly to corporate interests, but this seems like an escalation. Is this a decision that's meant to be overturned?

Oh this is a terrible article. Non-human entities already can vote - in certain circumstances, such as for example shareholder's vote - if an entity owns shares, it is entitled to voting rights in accordance to their shares. It doesn't mean they get to vote in presidential elections and such - not everything that is called a "vote" is the same, and the asshats at Bloomberg deliberate confuse the issue, because they are partisan assholes. In this particular case, certain tiny town has a provision that property owners can vote in municipal elections - which makes sense, I mean they pay all the taxes (most municipalities live on property taxes) why wouldn't they be able to vote? ACLU claimed only human property owners get to vote, which may be a sensible approach, but not what the charter of that particular town took. ACLU wanted to force them to change their charter, because apparently "liberty" nowadays means "do what I say, or else". The court told them to take a hike. That's what happened, not "corporations have a right to vote".

This sounds like clickbait. And… sûre enough.

It helps to read the decision. Relevant background:

In 2008, the Delaware General Assembly amended the Charter of the Town of Fenwick Island ("Fenwick"), a small coastal community, to allow Fenwick to expand it's voter registration rolls to allow individuals to cast votes on behalf of trusts, limited liability companies, partnerships, and corporations that own property in Fenwick. Today, the overwhelming majority of legal entity property owners in Fenwick registered to vote, and on whose behalf votes are cast, are trusts.

In this action the American Civil Liberties Union of Delaware, a corporation ("Plaintiff"), challenges these provisions, asserting that Fenwick's Charter violates the Elections Clause of the Delaware Constitution by way of "vote dilution;" i.e., the dilution of votes of human beings by votes of artificial legal entities.

The judge did not find some generalized right to vote for corporate entities. Rather:

1. In 2008 the Delaware legislature amended a town's charter to permit voting by certain corporate entities that owned property in that town.

2. The ACLU sued claiming the Delaware constitution only permitted natural persons to vote.

According to the judge's analysis:

1. The Delaware Constitution's Election Clause consists, in its entirety of "All elections shall be free and equal."

2. Who is eligible to vote in a municipal election is generally governed by a municipality's charter (under Delaware state law).

3. Permitting non-natural-person voters does not violated the text of the Election Clause in the Delaware Constitution.

Apparently, there are other municipalities in Delaware that have similar arrangements. The judge mentions the City of Wilmington explicitly. The judge only briefly mentions the corporate personhood thing since it's not essential to their analysis, but the ACLU argument relies heavily on it.

The question is less "do corporations have the right to vote?" and more "does the Delaware constitution forbid the Delaware legislature from giving corporations the power to vote in municipal elections?"

I'm finally sitting down over lunch to read the decision. What would stop a company from forming 10,000 subsidiaries that jointly owned a single piece of property in common?

Probably the simple fact that disrupting municipal elections in a town with population of 343 is not going to be worth the effort, and if some crazy person decides to spend millions of dollars on doing that, it's relatively simple to amend the charter to prevent it, e.g. by allowing to more than one vote per piece of property.

What would stop a company from forming 10,000 subsidiaries that jointly owned a single piece of property in common?

The law which says "Don't be a wise-ass." Or, more formally, the legal principle which says that laws should be construed so as to do justice.

The law which says "Don't be a wise-ass."

Which law would that be?

There is a reason that the US constitution is about 4500 words instead of just

  1. All elections shall be free and equal.

  2. Laws should be construed so as to do justice.

The point of having fine-grained, specific laws is that "the judge already knows what outcome is just, and will just reach for some law to justify it" is a terrible procedure. It gets you decisions like Roe v Wade, where reproductive freedom hangs on a very shaky legal decision until some later SCOTUS takes the common sense approach that the amendments did not mention abortion at all.

Nobody sane would campaign for the biggest employer in some town also getting a single vote, because that would not change anything -- they clearly have a vested interest in the local politics, and can trivially spend money on donations or campaigns on a scale which will give them a lot more influence than a single vote ever could.

"One man, one vote" is a very simple Schelling point. There is always some quibbling over details, and we end up at something like "one adult, non-felon citizen of any gender whose primary residency is registered in the municipality at the reference date", with the voting rights of alien permanent residents being up for debate.

It is also somewhat robust, because people are very expensive. Sure, a company could just pay politically sympathetic people to settle in their town, but they might spend northwards of 100k$ per vote that way, so it is much cheaper to just pay bribes to the voters already there.

By contrast, corporate entities are very cheap to create and maintain -- Delaware LLCs pay 300$ in taxes a year. So @birb_cromble's question is exactly the right one: how does this scale?

Even if there is a limit to one corporate vote per property lot, that would still leave a lot of loopholes. A family living in their own house might decide to form a holding company which leases their home back to them for a dollar a year, then cast that company's vote. Landlords would wield a lot of votes. (Seriously, who looks at the present system and says "the problem with that is that landlords have too little political power"?)

There is a reason that the US is not organized as a stock company, where everyone starts out with one share and the federal government can simply emit more stocks to raise funds, and voting power is simply the amount of shares you own. This would lead to the effective disenfranchisement of the majority. At least in a democracy, the 1% will have to spend money on campaigns to get the 99% to vote for them, and different 1%ers might be competing with different political visions rather than just their budgets.

Seriously, who looks at the present system and says "the problem with that is that landlords have too little political power"?

That would be me. Renters protections are excessive. Rent control is destructive and sadly becoming more common.

I think the bigger problem is that land is simply not a good where markets work very well, because there is no supply elasticity.

The mean time between expropriations (e.g. through war, revolution, commie takeover) in most of the Western world is probably upwards of a century. This means that city land is a good investment even if you don't collect rent for it.

The Georgian fix would be to simply tax the income from unimproved land at 100%, to the point where an investor would be indifferent between owning the same building in a big city or the countryside because he would not see a single cent of the rent difference.

Fixing rent prices is just treating the symptoms, and making everything worse in the process.

Nor do I think a land value tax would fix everything. Suburban home owners would have reason to become even more NIMBY towards higher density housing, as it would also raise the LVT they would have to pay for their single family homes.

an investor would be indifferent between owning the same building in a big city or the countryside because he would not see a single cent of the rent difference.

An investor wouldn't be indifferent between owning the same building in a big city vs countryside because there is more potential for building improvements (higher density, etc.) to net a substantial return on investment due to capturing a higher rate of return (rents from tenants) than costs (land tax). Land tax isn't a per-plot demand thing, it is a per-region demand thing and individual plots can make more than they can expect to lose in tax. (Which is exactly the reason LVT is said to be good for development and growth)

Suburban home owners would have reason to become even more NIMBY towards higher density housing

In theory they should become more YIMBY for high-density housing as it soaks up demand for housing for those who are willing to settle for less space and thus lowers land rents of the region by proxy.

Renters protections are excessive.

Washington state assigns publicly-funded counsel to low-income people who are being evicted. I can't imagine trying to be a landlord there.

At this point purchasing a rental property in California is like opening a strip club in Kabul. Merely losing your investment is the best case scenario.

Out of curiosity I googled and found Washington state passed rent control last year.

Washington state has sweeping statewide rent stabilization laws limiting how much landlords can increase residential rent. Most rent increases are capped at 7% plus inflation (or 10% total, whichever is lower). The Washington Department of Commerce sets the precise maximum cap, which is currently limited to 9.683%.

Of course they did. It is a bit more nuanced than this, but strictly bad with some nuance softening the blow of terrible policy.

"Democrats are the technocratic party" proven wrong again.

Historically in many societies, landlords had the right to use corporal punishment on their tenants. I wonder how a grand bargain of combining rent control with corporal punishment would affect the market. This is real radical centrism.

Of course they did. It is a bit more nuanced than this, but strictly bad with some nuance softening the blow of terrible policy.

I think the one of the biggest problems is that laws like this signal to potential landlords that the legislature is potentially hostile. I mean, given the current rate of inflation, being limited to annual rent increases of 9.5 percent isn't too big of a hit. For me, the real question is what is the probability that in a few years the legislature (or the executive branch) will decide to really punish landlords.

That would be me. Renters protections are excessive.

In general I agree. A lot of nice real estate (which could be rented out) sits empty because the owners don't want to take the chance of getting royally screwed by an eviction moratorium; rent control laws; etc. Even if they do rent out apartments, landlords need to charge everyone a hefty premium as a result of these serious risks.

Landlord freedom combined with a liberalization of zoning / planning rules would solve the housing cost situation. The former without the latter wouldn’t do much. To harness greed you need to allow people to do business, which in residential construction means making it cheap and fast to build. Capitalism can take care of the rest.

Landlord freedom combined with a liberalization of zoning / planning rules would solve the housing cost situation. The former without the latter wouldn’t do much.

I tend to disagree with this. Even before the 'Rona, it was significantly cheaper and easier to rent commercial real estate in Manhattan compared to residential real estate. Logically, it seems likely that a big part of the reason for this discrepancy is that commercial tenants have far fewer rights than residential tenants.

I do agree that from the perspective of overall housing cost, relaxed zoning would tend to help.

Even before WFH commercial real estate, particularly office real estate, has the ‘pressure valve’ of a move to the suburbs. Sure, Goldman Sachs isn’t going to relocate its trading floor and Vogue isn’t going to relocate its editorial team to Long Island or Jersey City, but the marginal finance or law firm back office, mid level accounting firm, healthcare provider, insurance company, tech firm, state or municipal (or federal) government office, or medium to large sized corporate headquarters can move out to either Jersey or LI city, or to one of the countless super cheap strip mall offices all around the further reaches of the outer boroughs and the more distant suburbs that are still within commuting and driving distance. This limits price increases for office space in Manhattan to some extent. Many employees may even already live nearer these places and so support this kind of move.

By contrast the residential real estate dynamics are different because of zoning. A lot of housing around cheap suburban office parks on Long Island is super expensive because it’s single family zoned for wealthy PMC in the burbs of one of the richest cities in the world. There’s also far greater sentimentality attached to residential real estate by residents obviously.

More comments

Which law would that be?

If you were hoping that I would provide a cite to the Delaware Code, then I'm sorry for disappointing you. The "Don't be a wise-ass" rule is typically not codified.

The point of having fine-grained, specific laws is that "the judge already knows what outcome is just, and will just reach for some law to justify it" is a terrible procedure.

To a large extent, I agree with you. But at the same time, it's impossible to foresee every last situation, especially if there are a lot of rules lawyers trying to find clever loopholes in order to twist things in ways that are plainly abusive. Judges need to be given some degree of discretion, although yes, if judges are given discretion it can be expected that there will be a problem with judges abusing their discretion.

In any event, you seem to be making a normative argument here, i.e. you are making an argument about how the law should be structured and applied. By contrast, I was making a descriptive argument. I was talking about what would happen in practice if someone got cute and tried to take over the town by buying a piece of property and setting up 10,000 corporations to co-own the property.

"One man, one vote" is a very simple Schelling point

I agree, but sometimes there is tension between what is simple and what is fair. This town in Delaware is a seaside town; I gather that there is a very small number of full time residents and a large number of property owners who, although they pay taxes, are only seasonal residents. "One man one vote" would lead to a very significant taxation without representation kind of situation. It reminds me of an article I read about the City of Industry in California. Apparently, it was set up so that there would be a very small number of actual residents combined with large amounts of commercial non-residential property. The actual residents are able to give themselves extremely cushy jobs in local government.

(Seriously, who looks at the present system and says "the problem with that is that landlords have too little political power"?)

I can't speak for others, but I certainly do. Maybe it's because I live in the Northeastern United States and I see the way the laws are often stacked in favor of tenants. To the point where a lot of people are disincentivized to invest in and add to the residential rental real estate market. To the point where incumbent tenants have so many rights that it becomes hard for newcomers to rent a decent place at an affordable price.

By contrast, corporate entities are very cheap to create and maintain -- Delaware LLCs pay 300$ in taxes a year. So @birb_cromble's question is exactly the right one: how does this scale?

The rule could be that an incorporated entity gets a vote if and only if it is the sole owner of a parcel of land.

I think the bigger deterrent is that there's simply no reason for anyone to participate in such a scheme. I neither live in Fenwick Island nor own property there, and as a consequence, I do not care about who sits in local government offices. I doubt you care either. Someone may theoretically be able to hatch a scheme where they subdivide their property a thousand ways and give votes to 999 people who otherwise wouldn't be able to vote, and structure the transactions so that these minority owners wouldn't have any rights to the property that would prejudice the controlling owner, but I don't know how I could be induced to participate. Rental income split that many ways isn't much of an inducement. If a property rents for $10,000/week on average, which is generous considering that in the off season there are likely going to be several weeks where it doesn't rent at all, and half of that income goes to the rental company and to pay taxes and maintenance costs, a 1/1000 owner is getting about $5/week. If it's not being rented, try coordinating use with 1,000 other people. In exchange for that $5/week and the right to vote in local elections, you're taking on liability.

Of course, you're not actually going to get that $5/week, because no rental company is going to agree to leasing a property with a thousand owners, and no insurance company is going to underwrite such a property. Even if it's vacant property, and the controlling owner agrees to pay the property taxes, what do you do if he doesn't pay? The taxing authority doesn't give a shit about your agreement, so you'd better be prepared to pay the taxes yourself and sue him for reimbursement. What do you do if someone injures themself on your uninsurable property and sues you?

Getting to your concerns, though, even if somebody did that and somehow found thousands of participants, why would someone structure a transaction for the sole purpose of giving votes to out-of-towners? It would certainly look like the controlling owner was giving these shares away under the presumption that the minority owners would vote for his preferred candidate, at which point one wonders if any other inducements were used to encourage participation, which makes it look less like a real estate deal and more like a sophisticated form of electoral fraud, in which case having the registrations invalidated would be the least of their concerns. One expects that even if the registrations are allowed to stand, such a scheme would only invite an investigation from the attorney general before the first vote is even cast. I am not willing to subject myself to such an investigation and possible prosecution for the privilege of being able to vote for Fenwick Island town council or whatever, and I doubt most other people would be willing to either.

I think the bigger deterrent is that there's simply no reason for anyone to participate in such a scheme. I neither live in Fenwick Island nor own property there, and as a consequence, I do not care about who sits in local government offices. I doubt you care either.

I myself don't particularly, but I can definitely think of situations where people absolutely would engage in (and participate in) such a scheme if they could get away with it. For example, in a situation like that of the East Ramapo Central School District. And yes, if a respected ultra-Orthodox Rabbi instructed his congregants accept the role of partial owner of a piece of property and vote for a particular slate, it would happen.

Anyway, as I alluded to above, I don't think it very much matters whether a person gets cute by means of setting up a thousand corporations or by recruiting a thousand ultra-Orthodox Jews. Either way, the "don't be a wise-ass" rule would get applied. And it seems like you more or less agree.

I believe the law provides that a single parcel of land is only entitled to a single vote, and you don't get multiple votes for owning multiple pieces of property:

These provisions shall be construed in accordance with the principle of “one person/entity, one vote.” Where a voter is entitled to vote by virtue of being both a resident and as an owner of real property, that voter shall be entitled to only one vote; where a voter is entitled to vote by ownership of two or more parcels of real property, that voter shall be entitled to only one vote.

And since the division of land into parcels is presumably controlled by the government, you wouldn't be able to run your electoral hydra scheme without the cooperation of the city/county.

the law provides that a single parcel of land is only entitled to a single vote

It does not.

you wouldn't be able to run your electoral hydra scheme without the cooperation of the city/county

So you're saying there's a chance!

The town would sue the company behind it, and the judge would likely rule that any number of companies with the same ultimate beneficiary counts as a single vote.

While it's been a while since I did my business cources in college, not all Judges are idiots.

Just most of them.

I'm finally sitting down over lunch to read the decision. What would stop a company from forming 10,000 subsidiaries that jointly owned a single piece of property in common?

I assume it works in a similar fashion to voting for home owner's associations. The household as a whole gets a vote regardless of how many owners there are.

Edit: I was curious and checked the town charter. Unless I misread the document, it does seem like if multiple corporations own a property, they get multiple votes as non-residents. Similarly it seems like if multiple people own a property (e.g. a husband and wife) then they both get to vote. Although I would think that if someone tried to abuse this system, the town charter would get amended pretty quickly.

if someone tried to abuse this system, the town charter would get amended pretty quickly.

Before, or after that abuse let them illegitimately affect the system?

Before, or after that abuse let them illegitimately affect the system?

I don't know, but I would guess the most likely scenario is the following:

(1) the town clerk observes thousands of new voter registrations coming in, all associated with the same address;

(2) the town clerk refuses to accept the registrations;

(3) the "homeowners" file suit;

(4) in the meantime, the town charter gets amended to make clear that an incorporated entity gets to vote if and only if it is the sole owner of a property;

(5) the judge sides with the town clerk, finding that the attempted registrants are not bona fide owners and that there registrations are a sham. And that in any event, the town charter has been clarified, making clear that multiple corporate registrations for a single property are impermissible.

My impression is the 10,000 subsidiaries would get one joint-vote. The charter has provisions for the case where a single voter is entitled to vote as both a resident and property owner (still only one vote) and where a voter owns multiple pieces of property (still only one vote). It is a little unclear to me what the legal arrangement looks like where a piece of real property has multiple owners but I suspect they would still only get one vote.

Nothing obvious. But what would stop a natural person from splitting a property between 10,000 natural people in the same manner?

This is, roughly, how George Clinton and the anti-Federalists rigged elections in early-US New York.

Square footage, I assume

That isn't how tenancy in common works. You own a 1/10,000 share of the entire 10,000-ft2 property, not a single 1-ft2 piece of that property.

It wouldn't be practicable. The more people who own a piece of property, the harder it gets to make decisions about the property, and get the owners to contribute money for upkeep. A dispute would inevitably develop, and the result would be that one of the owners files a partition action and the whole property is sold.

I'm imagining a situation where one person owns an outright majority of the property and each of the other 9999 owns only a minuscule proportion, so that the majority owner has more than enough wealth on his own to conduct maintenance unilaterally and to thwart a partition action by buying out the objector.

And what's the motivation for the majority owner to do this? He'd be giving equal access to the property to 9999 other people while being prepared to do unilateral maintenance, and if they don't contribute he's going to pay a 5-figure sum to conduct a partition action where he might not even be the high bidder. So he can...give his friends votes for the Fenwick Island town council? If I'm one of the 9999 I'm there to get access to the property and I could probably care less about some local election.

a partition action where he might not even be the high bidder

I was assuming that such a partition would work like the procedure laid out in the Uniform Partition of Heirs' Property Act, in which the judge orders an appraisal and the majority owner can buy out the objector at that price without any bidding. But obviously I am misunderstanding how partitions work.

Partitions are generally governed by the common law of property. The act you cite is a relatively recent reform that has only been adopted in about half the states and only applies in specific situations. One unfortunately common issue, particularly among lower income populations, is when a property owner dies and no estate is opened, and the property they own simply continues to be occupied by whatever family members happen to occupy it. After a few generations, some long lost relative finds out they own an interest and files a partition suit, whereby the property is sold at a cash auction for less than market value, often to an investor, with the result often being that someone who has been living in the house a long time finds themselves dispossessed. The model act is intended to keep the property in the family by allowing an heir to purchase at market value in a normal transaction, which has the side effect of preserving the full value of the property.

From what I cal tell three states have applied this process to all partition actions, but Delaware never enacted the model legislation to begin with. And from what I can tell, it's unlikely that any additional states will, because there's some controversy over how effective the legislation is. One unintended side effect is that all of the additional safeguards have added expense to the process, which was already expensive to begin with.

Generally speaking, you need to be careful when relying on model uniform legislation. Some things, like the Uniform Commercial Code, have been adopted nearly universally and can be cited chapter and verse without too much concern of running afoul of some local variation. Others, like the Uniform Probate Code, have only been adopted by a minority of states, with reforms being incorporated piecemeal in others. And then there are cases like the Model Penal Code, which is considered successful model legislation since the spirit of the reforms have been adopted, but the actual legislation varies widely among jurisdictions, with no state that I'm aware of adopting the actual statutory language.

I was assuming that such a partition would work like the procedure laid out in the Uniform Partition of Heirs' Property Act, in which the judge orders an appraisal and the majority owner can buy out the objector at that price without any bidding. But obviously I am misunderstanding how partitions work.

I would imagine that --in theory -- one could draft a detailed tenancy in common agreement to get around these sorts of issues. The minority owners would lease back their occupancy rights to the majority owner; they would agree that in lieu of partition, they could demand a reasonable payment in exchange for their ownership rights; and so on.

The bigger problem -- in my opinion -- is that the whole thing is an obvious sham. When 1000 voter registrations showed up at the town clerk's office, all based on ownership of the same property, there's a good chance that the town clerk would simply refuse to process them. And that if you brought suit, the judge would find a reason to rule against you. Even if somehow you got the voter registrations accepted, it's highly likely that the legislature would amend the voter rules in short order.

Coordinating that and managing the people involved, who would then have standing for adventures like minority shareholder lawsuits, would be much more troublesome.

A Delaware judge has ruled that corporations have a right to vote.

I'm not sure I would characterize the decision that way. Rather, I would say this:

A Delaware judge has ruled that the legislature can permit corporations to vote.

In other words, the judge is not saying that corporations must be permitted to vote. Rather, he's saying that if the legislature decides to give corporations a vote, it's not necessarily a constitutional problem.

The article you link to doesn't give much context, but I think I can make some guesses. First, the elections at issue were in a small municipality on a barrier island. So I'm guessing that most of the property is owned by non-residents. Apparently the law at issue gave all property owners the right to vote in the election, as opposed to having the vote limited to year-round residents. This seems totally reasonable to me; the alternative is to have a small number of year-round residents set policy for the entire town, a sort of taxation without representation situation. Since some of the property is owned through trusts, corporations, etc., it's reasonable to let those entities vote in the election.

First, the elections at issue were in a small municipality on a barrier island. So I'm guessing that most of the property is owned by non-residents

The City of London (the one-square-mile financial district which has its own sui generis local government which has maintained institutional continuity since time immemorial) has the same issue - most of the property is owned by businesses and the employed population vastly exceeds the resident population. The franchise since the 19th century (which survived the abolition of votes for nonresident property owners in the rest of the country in 1969) was voting-age natural persons owning or leasing property in the City, which didn't cause problems when most of the businesses in the City were partnerships - the partners qualified to vote. But the transition from traditional partnerships to either corporate ownership (the banks) or LLCs and such-like (the law and accountancy firms) meant that the business property franchise had ceased to represent the real business City, so they changed the rules in 2002 to say that property-owning businesses (regardless of corporate form) should designate electors who work in the city to vote on their behalf. The system avoids some of the abuses mentioned elsewhere in the thread by tying a business's voting power to the number of full-time employees it has who work in the City.

There is a joke that the City of London is the only place where introducing multiple votes for corporations could be a positive democratic reform.

Bloomberg link to opinion

Non-Bloomberg, official link (though it's still one of those infuriating "secured" PDFs that forbid copying text out of them)

The Elections Clause of the Delaware Constitution states, in its entirety: "All elections shall be free and equal." The clause is eloquent in its simplicity but lacks specific direction in application.

Under Delaware's Home Rule statute for municipalities, the State of Delaware defines "qualified voters" to mean "those persons who, under the terms of a municipal charter, shall be authorized to vote in elections within that municipal corporation".

Laws enacted by the Delaware General Assembly, such as Fenwick's Charter, are presumed to be constitutional. To overcome this presumption of constitutionality, Plaintiff must provide "clear and convincing evidence" that there is no set of circumstances under which the contested status could be constitutional. Plaintiff argues that I should subject Fenwick's Charter to "strict scrutiny" review. However, Plaintiff framed its Complaint not as an equal protection or due process claim, but rather as a declaratory judgment action. Under Delaware law, courts apply a "sliding scale" in voting rights cases. Where the state's alleged burden on voting is not severe, the state's intervention need only have served a legitimate interest. Indeed, Delaware courts have found a rational basis for expanding the voting franchise.36

36See Dupont v. Mills; see also Del. Op. Atty. Gen. 09-IB05 (finding the precedent of cases applying rational basis test to nonresident vote dilution cases to be "overwhelming").

The Delaware General Assembly has expressly authorized, by way of charter, voting on behalf of entity property owners in several jurisdictions other than Fenwick.37 [Ditto for special elections of annexation in Wilmington.] While this is not dispositive of this case, it does show that the General Assembly's treatment of Fenwick is not unique, different, or unusual.

37See, e. g., Town of Henlopen Acres, City of Rehoboth Beach, Town of Dewey Beach.

Plaintiff's ultimate argument appears to be that voters who are human beings are being deprived of their rights, or at least having the impact of those voting rights diluted, by the votes of artificial entities—or, put more bluntly, such artificial entities should not be entitled to vote. In its Answering Brief, Plaintiff devotes a significant amount of its argument to emphasizing the words person, people, humans, citizens, popular, and the like. In my view, even if those words as used in statutes and cases are acknowledged to be people-centric or person-centric, that does not support a legal argument that the Elections Clause of the Delaware Constitution supports Plaintiff's expansion of traditional vote dilution law to encompass what it calls the "debasement" of "the right of human voters" through "artificial entity voting".

Trusts, partnerships, limited liability companies, and corporations are expressly recognized as "persons" in the Delaware Code.…

I need not rule in this case as to whether entity property owners are constitutionally required to have their votes count or constitutionally precluded from doing so. Rather, I need only rule whether Plaintiff has met its burden of providing clear and convincing evidence that there is no set of circumstances under which Fenwick's Charter, as adopted and amended by the Delaware General Assembly, could be constitutional. It has not.

I appreciate that Plaintiff may disagree with Delaware's policy of authorizing certain municipalities to allow voting on behalf of entity property owners. Visions of faceless large corporations, or even HAL, controlling a small town are frightening and the stuff of science fiction. However, plaintiff has not demonstrated that this policy violates the principle of one person/entity, one vote. Plaintiff points to no other persuasive independent authority than the Elections Clause of the Delaware Constitution itself. And matters of policy are appropriately left to legislative bodies, not the courts.

That was the inevitable end game in the whole corporate personhood thing.

  • -14

That ruling did not give corporations rights. It preserved the rights of individuals acting as a group.

You talking about all the hoopla over Citizens United? I remember that case pretty well. Citizens United was decided based on a first amendment framework which supersedes congresses power to legislate.

You’d need a constitutional amendment to reverse CU and there’s no way that’s happening. Even so, it’s unclear that an amendment to overturn CU would be a good idea. If you actually read the decision (and let’s be honest, 99.99% of people have not), it’s a good piece of judicial thought and reasoning. Even the ACLU thinks CU was a good piece of jurisprudence.

(You can read the case here) CU was a major decision that impacts a ton of things, including the upcoming SCOTUS battles over net neutrality and ‘digital first amendment’/‘the right to post’ arguments.

This was the gist of it: individuals have first amendment rights. No argument there. Two people, working together, collectively have individual first amendment rights and as a group they have a right to expression. Same with 4 people all the way up 400,000 people, etc. So we can agree that groups of people working together have a collective set of first amendment rights. This concept already has a long and detailed history in the US; for example during the civil rights movement, people tried to shut down the NAACP/SPLC/SBLC/etc., by attacking them on an institutional level. SCOTUS (rightfully) said ‘Lol. Nice try, but no’.

So then take a step back: groups of people organized together under a common purpose have first amendment rights, we should all agree there. But isn’t a ‘company’ from a mom and pop restaurant up to Google and Amazon, simply a collection of people organized for a common goal? Just because a company is for-profit, it doesn’t mean that the government should be free to restrict their speech.

There’s a lot of people that try to be clever and say ‘corporations are people’, but this willfully misses the point. The real point is that corporations are simply a collection of people and those people have basic civil rights, so a group of people also has those same rights. Restricting political speech by the government simply because a group of people are pursuing profit doesn’t pass the ‘strict scrutiny’ test that all impingement to first amendment must pass. So SCOTUS struck down the FEC law.

It was a good decision. Keep in mind the alternatives: whatever the ruling was in CU v FEC was also going to be applied to groups you might care about, such as NAACP, EFF, Sierra Club, etc.

Now what about ‘commercial speech?’ Commercial speech falls into a weird category called ‘intermediate scrutiny’ where companies do face some restrictions but are largely free to say what they want. The important part is that CU v FEC specifically ‘only’ covers political speech. Commercial speech just wasn’t part of the debate.

At the end of the day, look at why people get upset at CU v FEC. It’s always the exact same argument dressed up slightly differently: “somebody is going to say something or believe in something I don’t like!” It’s always, “but Amazon is going to oppose Medicare for all!” Or “that power plant is going to advocate for coal!” People that fight against CU want to use it as a way to suppress speech they disagree with. That’s precisely why we have a first amendment and why it’s so important.

Any legislative act to reverse CU is going to be judged against the fact that it’s actively stripping first amendment rights from a group. Any judicial review by SCOTUS is going to be framed as the court stripping rights from people. People clearly want to argue that CU is bad, but pretend you are arguing before SCOTUS: what’s your legal theory behind why certain groups of people should have their speech suppressed? There’s not any really good arguments.

what’s your legal theory behind why certain groups of people should have their speech suppressed

Because by creating LLC they have deliberately separated themselves from the company. Or more specifically if the person doesn't wear the brunt of the liability and is shielded, then stripping the corporation of rights doesn't infringe on the owner's rights.

Notably, the Citizens United organization is a 501(c)4, not an LLC. If you think that "stripping the corporation of rights" isn't a constitutional infringement, the ACLU is also a 501(c)4: can we silence them during election season too?

Yes to your points and also the matter under dispute was if the Federal government can ban a documentary that was critical of Hillary Clinton. The government's representatives were arguing that they can and additionally have the power to ban books that have even a small portion political advocacy. Even one sentence of political advocacy is enough to trigger this power. They claimed they hold these powers during election season but not during other times.

It is a travesty that four justices agreed that the government can strip us of our first ammendment rights if a group makes something critical of Hillary Clinton before an election.

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