Undemocratic Democracy

Allowing Voting By Corporations Is Unconstitutional And Just Plain Wrong

Seaford, Delaware, wants to give corporate persons the right to vote in local elections.

Seaford’s city council is considering whether to allow businesses the right to vote in municipal elections, making the western Sussex County city the largest municipality in the state to consider such a measure.

Thus Seaford gives us another reason why discussions of “legal personhood” for corporations are always timely and relevant—in matters large and small, we are constantly being challenged on where to draw the line distinguishing between the rights of “natural persons” (i.e., actual flesh and blood people) and “artificial persons” (i.e., businesses and non-profits). Corporate personhood as an issue goes far beyond “big” discussions such as RFK, Jr’s, proposal to ban Big Pharma ads from television.

RFK, Jr. Wants To Ban Big Pharma Ads

Surprisingly, Seaford is not the first municipality in Deleware to consider granting businesses and “artificial entities” the right to vote. Henlopen Acres¹ extended the franchise to artificial entities in 2001. Fenwick Island² followed suit in 2008. Seaford is merely the largest municipality in Delaware proposing to give businesses a vote in local governance³.

The core proposition within each of these pieces of legislation is to modify the premise of “one person, one vote”, to become “one person/entity, one vote”. Henlopen Acres’ enabling legislation is quite to the point in this regard:

(1) Every property owner, whether an individual, trust, partnership, corporation or limited liability company shall have one vote.

1. A entity other than an individual shall vote by a person named in a certificate signed by the president, vice-president or person with authority, attested by the secretary or an assistant secretary, and with the corporate or appropriate seal affixed. A partnership shall vote by a person named in a certificate signed by all of the general partners. No vote shall be cast by a person named in a certificate given pursuant to this paragraph until the certificate is filed with the Town Manager. A new certificate shall be required for each election.

2. Every citizen of the United States, State of Delaware, and Town of Henlopen Acres who is not a property owner but who is a bona fide resident of the Town of Henlopen Acres, and is over the age of eighteen (18) shall have one vote

Fenwick Island’s enabling legislation is wordier but arrives at the same point:

A.                  Voter qualifications.

(1)                 Resident:  Every natural person, who is a citizen of the United States, age 18 or before the date of the election, a bona fide resident of the Town as of March 1 prior to the annual municipal election, and registered to vote, if provided by ordinance, shall have one (1) vote.

(2)                 Non-residents.  Every property owner as of March 1 prior to the annual municipal election, whether a natural person or artificial entity, including but not limited to corporations, partnerships, trusts, and limited liability companies, and who is registered to vote, if provided by ordinance, shall have one (1) vote.  A natural person shall be a citizen of the United States and age 18 on or before the date of the election.  An artificial entity shall be a domestic entity in the State of Delaware.

(3)                 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 (1) vote; where a voter is entitled to vote by ownership of two (2) or more parcels of real property, that voter shall be entitled to only one (1) vote.

(4)                 Any legal entity, other than a natural person entitled to vote, must cast its vote by a duly executed and notarized power of attorney from the legal entity granting the authority to cast its vote to its designated attorney-in-fact.  Such power of attorney shall be surrendered to the election officials who shall file the same in the office of the Town.  Such power of attorney so filed shall constitute conclusive evidence of the right of said person to vote in the election on behalf of the legal entity granting the power.  The person casting the ballot for such entity shall be age 18 on or before the date of the election and a citizen of the United States.

Seaford’s proposed legislation is similarly verbose:

(A) Voter Qualifications.  

At such Annual Election,   the following shall be permitted to vote:

(1) Residents.   Every natural   person, male or female who shall have attained the age for voting as established by the State of Delaware for voting in a General Election and who shall be a bona fide resident of the City of Seaford as of the day of final registration next preceding the Annual Election and each non-resident natural person of the City of Seaford who shall have obtained the age for voting established by the State of Delaware for voting in a General Election   shall have 1 vote. For purposes of this provision, “bona fide resident” means a permanent full-time resident of the City.

(2) Non-residents   . Every owner of property in the City   as of the day of final registration next preceding the Annual Election , whether a natural person or artificial entity, including but not limited to corporations, partnerships, trusts, and limited liability companies, and who is registered to vote in the book of registered voters maintained at City Hall, shall have one (1) vote. An artificial entity shall be a domestic entity in the State of Delaware and be in good standing.

(3) 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 a resident or an owner of real property, that voter shall be entitled to only one (1) vote; where a voter is entitled to vote by ownership of two (2) or more parcels of real property, that voter shall also be entitled to only one (1) vote.

  (4) Any legal entity, other than a natural person entitled to vote, must cast its vote by a duly executed and notarized power of attorney,     corporate resolution, or authorization affidavit duly executed from the legal entity granting the authority to cast its vote to its designated   attorney-in-fact. Such power of attorney shall be surrendered to the election officials as of the day of final registration next preceding the Annual Election and the election officials shall file the same at City Hall. Such power of attorney, corporate resolution, or authorization affidavit duly executed so filed shall constitute conclusive evidence of the right of said person to vote in the election on behalf of the legal entity granting the power. The person casting the ballot for such entity shall be age 18 on or before the date of the election and a resident of the State of Delaware. In order for the City of Seaford to eliminate incidence of opportunities for violations of the “one person/entity/one vote principle and in accordance with The Federal Corporate Transparency Act after January 1, 2024, artificial entities shall be required to provide the City of Seaford with a completed CERTIFICATION OF BENEFICIAL OWNER(S) pursuant to Section 1020.230 of Title 31 of the United States Code of Federal Regulations (31 CFR 1020.230). All beneficial owners listed on the submitted CERTIFICATION OF BENEFICIAL OWNER(S) shall be cross-referenced with the voter registration listing provided by the State of Delaware and the Book of Registered Voters of the City of Seaford. Any related entities with common ownership shall be eliminated from voting more than once in Municipal Elections.

Unsurprisingly, the Seaford bill has more than a little opposition. Claire Snyder-Hall, Executive Director of Common Cause Delaware, is urging Delaware residents to tell their state legislators to vote down the bill.

Ten years ago in Delaware, after a major campaign finance scandal that sent people to prison, Chief Justice Norm Veasey issued a report calling for a law that prohibits artificial entities from making campaign contributions. His recommendation has never been implemented, but HS 1 for HB 121 doubles down in the wrong direction. It puts artificial entities on steroids by giving them the right to vote, a right that should be reserved for flesh-and-blood human beings. 

The Seaford mayor supports the right of businesses to vote. “There are people who have invested a ton of money in our town – in businesses – and then wonder why they can’t vote … just because they live outside of city limits," he said. “They can’t vote … but their employees can.”  

With all due respect to the mayor, that is absurd. People who don’t live in Seaford – or even in Delaware – should not get to vote in town elections, even if they own a business in Seaford. And of course, the employees get to vote. They live there! That’s how it works. People get to vote where they live – and not because they own property, but simply because they live there.  

Additionally, there is competing legislation pending in the state legislature⁴ that would prohibit corporations from gaining the franchise anywhere in Delaware, closing this apparent voting loophole for good. An op-ed in Delaware progressive media outlet Blue Delaware is urging the swift passage of that legislation.

Earlier this year, some misguided legislators introduced a bill that would allow certain artificial entities, like LLCs and Corporations, to vote in Seaford’s muncipal elections. They literally took Mitt Romney’s “Corporations are people, my friend” gaffe to its logical conclusion.

Fortunately, that bill has gone nowhere since it was released from committee, and House Bill 189 aims to void that bill and all others like it forever. The bill makes clear that corporations and other artificial entities may not be given a vote in municipal elections.

Whether the Seaford bill or the opposing bill will pass remains to be seen.

However, even if the Seaford bill should pass, the validity of that legislation—and the validity of the Henlopen Acres and Fenwick Island legislation—is hardly a given. Even within the remit of the Delaware state constitution, the constitutionality of corporate voting rights is not at all certain.

While municipalities largely govern their own local elections, they are still obligated to conform to Delaware state election law for municipalities⁵.

In §7554(d), voter identification requirements are plainly set forth as follows:

(d) Persons appearing to vote shall present proof of identity and address. The identification shall be 1 or more of the following items that individually or together show the identity and address of the person:

(1) A current State of Delaware driver’s license or ID card;

(2) A uniformed service ID card;

(3) Another current photo ID issued by the State of Delaware; U.S. Government; the voter’s employer, high school or higher education institution;

(4) A current utility bill, bank statement, credit card statement, a paycheck or pay advice, or another type of bill or statement;

(5) A lease or sales agreement; and/or

(6) Any other documentation that a person can reasonably and commonly accept as proof of identity and address.

The Seaford bill states that corporate voting shall be done by a person duly authorized to vote on behalf of the legal entity, laying out the documents establishing that authorization. Henlopen Acres and Fenwick Island have virtually identical provisions. An artificial entity votes through an appointed “attorney-in-fact”—which it of course must because a corporation has no actual “person”, no physical aspect which can enter a polling place nor provide any of the documents cited under Delaware state law. The capacity of a municipality to add to the list of additional acceptable identifiable documents is very much in doubt, as the phrasing of §7554(d) presents the list of identifying documents as a comprehensive one, with only (6) providing any flexibility.

The utility of (6) for satisfying the statutory voter ID requirements by means of a corporate resolution, power of attorney, or authorizing affadavit seems dubious, because such authorizing documents are neither proofs of identity nor proofs of address, nor could it ever be said that such documents could be “reasonably and commonly" accepted as such.

Nowhere in the Delaware code is there a provision indicating that any form of proxy voting is permissible—and proxy voting is the only mechanism by which any artificial entity can vote

This view would seem to be amplified by a recent ruling of the Delaware Supreme Court striking down voting by mail. In Albence v Higgins⁶, the state Supreme Court declared a recent vote-by-mail statute unconstitutional, holding, among other things, that the statute was an improper expansion of the constitutionally stated requirements for casting an absentee ballot.

But it is not history alone that persuades us that the Vote-by-Mail Statute violates Section 4A. Our construction of Section 4A also comports with two time-honored principles of interpretation. Under the linguistic canon known as “expressio (or inclusio) unius,” the expression of one thing—here the categories of absentee voters provided in Section 4A—suggests the exclusion of others.191 Of course, this canon “must be applied with great caution, since its application depends so much on context[] . . . .”192 Here, however, the context of Section 4A’s enactment and amendment as described above weighs heavily in favor of its application. Thus, Section 4A’s enumeration of absentee-voter classifications suggests the exclusion of additional classifications.

The complete list of eligibility requirements for absentee voting are enumerated in Article 5, Section 4A of the Delaware Constitution⁷. Those requirements are specifically targeted at “electors” who are prevented from appearing in person to cast a ballot.

Section 4A. The General Assembly shall enact general laws providing that any qualified elector of this State, duly registered, who shall be unable to appear to cast his or her ballot at any general election at the regular polling place of the election district in which he or she is registered, either because of being in the public service of the United States or of this State, or his or her spouse or dependents when residing with or accompanying him or her because of the nature of his or her business or occupation, because of his or her sickness or physical disability, because of his or her absence from the district while on vacation, or because of the tenets or teachings of his or her religion, may cast a ballot at such general election to be counted in such election district.

It goes without saying that a corporate artificial entity is automatically “unable to appear to cast his or her ballot”. As a matter of practical application, does not the use of a duly authorized attorney-in-fact to cast a vote on behalf of a corporate entity constitute an unconstitutional expansion of the list of reasons a person might qualify to vote by absentee ballot to include being a corporate entity? If a Vote-By-Mail statute is an unconstitutional expansion of absentee voter eligibility, then how is corporate voting not also an equally unconstitutional expansion of that same voter eligibility?

While Albence addressed Vote-By-Mail for state elections, and as such address state election absentee voting requirements in Section 4A in the constitution, those requirements are substantially identical to the absentee ballot eligibility requirements for municipal elections details in Subchapter V of Delaware State Election Law⁸.

§ 7571. Persons eligible to vote by absentee ballot.

Any person qualified under the provisions of a municipal charter to vote by absentee ballot in any municipal election held in that municipality (“elector”) may vote by absentee ballot for any reason authorized by that municipality’s charter or ordinances and for any of the following reasons:

(1) Because such person is in the public service of the United States or of this State, or is a citizen of the United States temporarily residing outside the territorial limits of the United States and the District of Columbia, or such person’s spouse or dependents when residing with or accompanying the person, or is absent from this State because of illness or injury received while serving in the armed forces of the United States; or

(2) Because such person is in the armed forces of the United States or the Merchant Marines of the United States, or attached to and serving with the armed forces of the United States in the American Red Cross or United Service Organizations; or

(3) Because of the nature of such person’s business or occupation, including the business or occupation of providing care to a parent, spouse or that person’s child who is living at home and requires constant care due to illness or injury; or

(4) Because such person is sick or physically disabled; or

(5) Because such person is absent from the municipality while on vacation; or

(6) Because such person is unable to vote at a certain time or on a certain day due to the tenets or teachings of that person’s religion.

If the Seaford bill were to pass, absentee ballot eligibility would be fundamentally altered for Seaford municipal elections, even though the Seaford charter would not have been specifically amended with regards to absentee balloting.

This creates a conflict similar to the one addressed in Albence, as §7551(g) of Subchapter IV⁹ explicitly obligates the municipal Board of Elections to administer absentee balloting as specified in the municipal charter or in accordance Subchapter V.

(g) Unless otherwise provided in the municipality’s charter or code, the municipality’s Board of Elections shall oversee the absentee ballot process for elections conducted in accordance with subchapters IV and V of this chapter.

The Seaford bill’s only mention of absentee balloting¹⁰ is that Deleware state law is controlling.

(C) Absentee voting shall be permitted in all municipal elections in conformity with Chapter 75 of Title 15 of the Delaware Code.

With the Seaford charter not amended to provide for different absentee ballot elegibility, and Subchapter V not expansive enough to encompass voting by an attorney-in-fact, corporate voting becomes the same sort of back-door expansion of absentee voter eligibility shot down by Albence.

To my layman’s eye, the Seaford bill (and the earlier Henlopen Acres and Fenwick Island bills) comes up short in terms of statutory compliance with the Delaware election code. With or without House Bill 189 banning corporate voting, such defects would be permanently lethal to corporate voting in Delaware.

Yet even if there are not problems reconciling corporate voting to Delaware state election law, existing judicial opinions on corporate personhood and how that applies in law create additional difficulties for the concept—beginning with, ironically, the Fourteenth Amendment to the United States Constitution’s “equal protections” clause.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

To consider a corporate right to vote necessarily entails consideration of the corporation as a legal person—and to realize that the distinction cuts both ways.

If we look back over the evolution of corporate personhood doctrines, in cases such as Paul v Virginia¹¹, the Supreme Court was particularly concerned that the corporate structure not present additional “privileges and immunities” not enjoyed by actual citizens of a particular state (As Paul predates the Fourteenth Amendment, the discussion is presented in light of the “privileges and immunities” clause in Article VI of the US Constitution). In elucidating the relevance of the Constitution’s “privileges and immunities” clause, Paul had this to say (emphasis mine):

It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this.

However, as Paul continues, there are limitations to how far such “equal protection” may go.

But the privileges and immunities secured to citizens of each State in the several States by the provision in question are those privileges and immunities which are common to the citizens in the latter States under their constitution and laws by virtue of their being citizens. Special privileges enjoyed by citizens in their own States are not secured in other States by this provision. It was not intended by the provision to give to the laws of one State any operation in other States. They can have no such operation, except by the permission, express or implied, of those States. The special privileges which they confer must, therefore, be enjoyed at home, unless the assent of other States to their enjoyment therein be given.

Without some sort of delimiter, an untrammeled application of “equal protection” would quickly metastasize into corporations (and, potentially, natural persons), enjoying privileges and immunities within a state not enjoyed by natural persons who are simply citizens or residents of that state.

If, on the other hand, the provision of the Constitution could be construed to secure to citizens of each State in other States the peculiar privileges conferred by their laws, an extraterritorial operation would be given to local legislation utterly destructive of the independence and the harmony of the States. At the present day, corporations are multiplied to an almost indefinite extent. There is scarcely a business pursued requiring the expenditure of large capital, or the union of large numbers, that is not carried on by corporations. It is not too much to say that the wealth and business of the country are to a great extent controlled by them. And if, when composed of citizens of one State, their corporate powers and franchises could be exercised in other States without restriction, it is easy to see that, with the advantages thus possessed, the most important business of those States would soon pass into their hands. The principal business of every State would, in fact, be controlled by corporations created by other States.

We should note that the Supreme Court case where corporations were declared to have benefit of the Fourteenth Amendment, Santa Clara County v Southern Pacific Railroad¹², did not overrule nor even address the holdings in Paul v Virginia. It merely extended the Fourteenth Amendment’s “equal protections” clause to corporations unremarked and undifferentiated. Consequently, within the notion of granting corporations the Fourteenth Amendment’s guarantee of the equal protection of the laws, we still have the understanding from Paul that such equal protection—which Paul explicitly stated was among the “privileges and immunities” guaranteed in Article VI of the Constitution—applies both ways.

If corporations are therefore allowed to authorize an attorney-in-fact to cast a vote on their behalf, should not natural persons also be allowed to do so? Would not the Fourteenth Amendment’s guarantee of equal protection in fact demand it?

Given that the explicit finding in Albence v Higgins that Delaware’s voting laws specified in-person voting, for corporate voting to be permissible in Delaware the Delaware state constitution arguably has to be amended to allow what is known as “delegated voting”¹³—which is the only mechanism by which a corporation can ever cast a ballot on anything. Delegated voting is exactly what it sounds like: you give someone else authority to vote on your behalf. As Albence shows, delegated voting is not within the permissible voting scenarios in the state of Delaware.

Can Delaware extend the franchise to “artificial persons” such as corporations without simultaneously permitting delegated voting, which it currently does not allow? I do not see how it can.

While the current state of US law is that legal personhood exists for corporations, that is not to say that corporations are equivalent to natural persons in all regards.

In fact, even in modern Supreme Court cases touching upon corporate personhood, the Court has drawn fairly clear distinctions about the nature of corporate personhood, and it remains certain that corporate “artificial” persons are not the same as natural persons, even if upon some occasion corporate persons and natural persons should find themselves availing themselves of a common right. Citizens United v FEC¹⁴, for example, did not take issue with drawing a distinction between corporate “artificial persons” and “natural persons”.

If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form. The Government contends that Austin permits it to ban corporate expenditures for almost all forms of communication stemming from a corporation. See Part II–E, supra; Tr. of Oral Arg. 66 (Sept. 9, 2009); see also id., at 26–31 (Mar. 24, 2009). If Austin were correct, the Government could prohibit a corporation from expressing political views in media beyond those presented here, such as by printing books. The Government responds “that the FEC has never applied this statute to a book,” and if it did, “there would be quite [a] good as-applied challenge.” Tr. of Oral Arg. 65 (Sept. 9, 2009). This troubling assertion of brooding governmental power cannot be reconciled with the confidence and stability in civic discourse that the First Amendment must secure.

There would be little need for the Court to specify both “citizens” and “associations of citizens” if it were intended that corporations and citizens were legally identical in all regards.

The common thread throughout the evolution of legal personhood doctrines within the United States is this understanding that incorporated entities are essentially associations of people. Because they are understood to be an amalgamation of people they necessarily take on certain legal privileges and immunities applicable to the corporations members and corporators—which is also to say they do not take on all legal privileges and immunities. Corporations do not have a Fifth Amendment right against self-incrimination¹⁵, for example, because corporations cannot give testimony. However, corporations do have a Fifth Amendment right under that Amendment’s “takings” clause¹⁶, because corporations can and do own property.

Similarly, is there any real operative logic to giving corporations a right to vote, even though corporations are physically unable to present themselves as a polling place except through a designated proxy—a voting mechanism that is currently not extended to voters in the United States (and certainly not in Delaware)? That is not how legal personhood has been historically applied to corporations. The concept of legal personhood has always been predicated on the understanding that where corporations can and do act in the manner of natural persons, it is sensible and prudent to regard them before the law as if they were natural persons. Where corporations cannot possibly act in the manner of natural persons, it is hardly sensible or prudent to regard them before the law as if they were natural persons.

There is no corporation anywhere that can physically cast a ballot on its own. Corporations can not, in the most literal sense of the term, cast a vote. It is irrational in the extreme, therefore, to grant them the right to vote.

1. Senate Bill 117 (April 10, 2001), available at https://legis.delaware.gov/BillDetail/11759

2. House Bill 402 (May 1, 2008), available at https://legis.delaware.gov/BillDetail/18461

3. House Substitute 1 for House Bill 121 (June 1, 2023), available at https://legis.delaware.gov/BillDetail/140451

4. House Billl 189 (June 2, 2023) available at https://legis.delaware.gov/BillDetail/140507

5. 15 Del. C. §§7550 et seq.

6. Albence v. Higgin, No. 342 (Del. Dec. 13, 2022)

7. Delaware Constitution, Article V, §4A

8. 15 Del. C. §§7570 et seq

9. 15 Del. C. §7551(g)

10. House Substitute 1 for House Bill 121 (June 1, 2023), available at https://legis.delaware.gov/BillDetail/140451

11. Paul v. Virginia, 75 U.S. 168 (1869)

12. Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886)

13. Yamakawa, Hiroshi, Michiko Yoshida, and Motohiro Tsuchiya. "Toward delegated democracy: Vote by yourself, or trust your network." International Journal of Human and Social Sciences 1.2 (2007): 146-150.

14. Citizens United v. FEC, 558 U.S. 310 (2010)

15. Hale v. Henkel, 201 U.S. 43 (1906)

16. Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931)