soapbox

roughest draft of letter to delaware elections commissioner. Office of the State Election Commissioner State Election Commissioner: Anthony J. Albence 905 S. Governors Ave Ste 170 Dover DE 19904 (302) 739-4277 coe_vote@delaware.gov cc: Department of Elections · New Castle County Office County Director: Tracey N. Dixon Carvel State Office Building 820 North French St Suite 400 Wilmington DE 19801 PO BOX 7079 Wilmington DE 19803-0079 votencc@delaware.gov Dear Sirs: I learned recently that in 2012 or 2013 the elections commission adopted a policy of censoring political signs and flyers, by compelling inclusion of a disclaimer, and perhaps also a pointer to the election commission's website for committee reports. I expect to be writing shortly with a formal request for an advisory opinion. This letter has a more limited scope. I am writing first to ask whether there has been any advisory opinion from the election commissioner on this topic of disclaimer requirements for campaign literature. I did not see one when look at the commissioner's web site, but I may have overlooked something, so I am asking. Second, has there been any delaware attorney general opinion discussing the 2012 changes to the disclaimer statute? Previously, the Delaware Attorney General had ruled that the disclaimer statute was unconstitutional and unenforcable in light of McIntyre v Ohio Election Commission, which held that disclaimer statutes are as unconstitutional in elections as they are generally. The amended statute has a new number, but the proscribed conduct is the same as in the older version. The Supreme Court held, and the attorney general agreed, that under the First Amendment states may not compel political speech, and may not require disclaimer on political signs and pamplets. This is in line with the Delaware Supreme Court's construction of the Delaware constitution as protecting anonymus speech, Opinion of the Justices 1972. So when I brought suit, Anonymous v Delaware (2000), seeking a declaratory judgment that the statute was unconstitutional and void, the court held that there was no case or controversy, because all parties were in agreement that the policy was void and unenforcable. So it was a shock to me to learn in 2020 that you have been doing so since about 2013, and without notice to me. My third question is whether the commission has engaged in any formal or informal enforcement of its new policy, such as fines or compliance orders. A fourth question is whether your policy applies to the internet, in light of cases such as Reno v ACLU. I realize you are at a busy time of the year, but I would appreciate a prompt response. My general take is that your behavior, as evidenced by policy statements on the web page, is unlawful, illegal, unethical, tortious, and constitutes malfeasance in office. But it may be that there is some official opinion wich might provide some basis for qualified immunity, so I thought it would be a good idea to ask about that before proceeding further. Sincerely, Robbin Stewart. gtbear at gmail.com. 302.[redacted] 28 Marsh Woods Lane Wilmington 19810. notes to first draft: link to website. does it apply to internet? del const: or who, being an officer of election or registration officer, shall knowingly and wilfully violate said person's official duty; or who shall by force, threat, menace or intimidation, prevent or hinder, or attempt to prevent or hinder, any person qualified for registration from being registered or any person qualified to vote from voting according to said person's choice at any 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, or shall suffer both fine and imprisonment within said limits, at the discretion of the court; 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; § 3. Free and equal elections. Section 3. All elections shall be free and equal. § 5. Freedom of press and speech; evidence in libel prosecutions; jury questions. Section 5. The free communication of thoughts and opinions is one of the invaluable rights of man. The press shall be free to every citizen who undertakes to examine the official conduct of persons acting in a public capacity; and any citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. In prosecutions for publications, investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the jury may determine the facts and the law, as in other cases. sec 16 yet the citizens have a right in an orderly manner to meet together, and to apply to persons intrusted with the powers of government, for redress of grievances or other proper purposes, by petition, remonstrance or address.

FAQ: Do I have to put the words “Paid for by…” on our campaign signs? § 8021. Identification of purchaser - All campaign advertisements having a fair market value of $500 or more, except printed items with a surface of less than 9 square inches, shall include prominently the statement: "Paid for by [name of political committee or other person paying for such advertisement.]." For purposes of this section, "campaign advertisements" shall include any communication by a candidate committee or political party that would otherwise qualify as an independent expenditure or an electioneering communication but for the fact it was made by a candidate committee or political party. (also refer to CF Regulations 7.1-7.7.3 for additional requirements)

billing note 6:30-7:30 oct 31. 1 hr.

nov 1 4 am. rough draft of second letter. Dear sirs, This is my request for an advisory opinion as to what the election commission's position is with regard to disclaimers on poitical literature. An undisclosed client of mine was planning to spend over $500 on signs and literature in new castle county this election season, generally of the format "vote for smith", but was deterred by the threat of enforcement on your website of disclaimer requirements. He/She/They are not willing to include any compelled speech on the signs. In light of the threat, they cancelled plans for the signs until we get this worked out. They plan to be active in the next election cycle. Some of the background to this request is that in 1960 the Supreme Court found disclaimer rules unconstitutional in Talley v California. In 1972 the Delaware Supreme Court, in Opinion of the Justices, ruled that anonymous speech is protected by the Delaware constitution. I am having difficulty finding this opinion, but I have read it before and know it exists. In 1995 in McIntyre v Ohio Elections Commission, the U S supreme court clarified that there is no elections exception to the rule in Talley that the constitution protects anonymous speech. Subsequent to McIntyre decision, the Delaware Attorney general issued an opinion that Delaware's disclaimer statute was unconstitutional, void, and would not be enforced. In 1997 a federal court ruled that my sign which read "Robbin Stewart for Township Board - Vote Tuesday" had been illegally confiscated,and that Indiana's statute was unconstitutional per Mcintyre. In 2000 I was plaintiff's counsel in Anonymous v Delaware, which chalenged the disclaimer rule. In that case, the court ruled that since both sides agreed the rule was unconstitutional under McIntyre, there was no live case or controversy,and dismissed the case. The anonymous plaintiff in that case was Vermont resident Scott Huminski. Huminsky at the time was involved in a dispute regarding his signs at a Burlington Courthouse, and was concerned about retaliation, so proceeded anonymously in the Delaware case. Represented by Robert Corn-Revere, he was later awarded $900,000 in the Vermont case. He is not a party to the current dispute. In or around 2012, minor non-material amendments were made to the void unconstitutional statute, and enforcement began. I was given no notice or opportunity to comment, and did not learn of this until during this past month. In recent years the Supreme Court has made several rulings about poitical signs. In Town of Vincent v Gilbert, the court reiterated that the standard of review is strict scrutiny, resolving some confusion resulting from Citizens United v FEC. In Becerra v NIFLA, the court found a different kind of disclaimer statute unconstitutional because of the well established principle that the government may not compel speech. Barnette, Wooley v Maynard, Riley v Federation of the Blind, AID v. Open Society, Tornillo v Miami Herald, Buckley v ACLF, Watchtower v. Stratton. In light of these controlling cases covering both the state and federal constitutions, and given that you have sworn an oath to uphold the constitutions, I am seeking an advisory opinion as to the enforcability of the statute regulations and rules concerning disclaimers by your office. One of the factors in the dismissal of the case in 2000 was that we had not obtained an advisory opinion from the Election Commissioner before filing the suit. So this time I am doing so. Sincerely, Robbin Stewart.