(a) Pursuant to the procedure set forth in § 8105 of this title, any election policy or practice that is contained in a charter provision approved by the General Assembly or any other enactment containing any election policy or practice for a specific political subdivision that is approved by the General Assembly may be invalidated if it violates the Delaware Constitution. This procedure does not preclude any other procedures that may be used to amend or invalidate charter provisions or other enactments approved by the General Assembly.

(b) Pursuant to the procedure outlined in § 8105 of this title, any provision, municipal ordinance, or other election policy or practice of a political subdivision that is enacted without approval by the General Assembly may be invalidated if it violates § 8102 or § 8103 of this title.

(c) Pursuant to the procedure outlined in § 8105 of this title, any action of the Department of Elections, election officers, or officials within a political subdivision with authority over elections, including a municipal Board of Elections, acting within their discretionary authority without explicit legislative authorization, may be invalidated if it violates § 8102 of this title.

85 Del. Laws, c. 421, § 3; 

(a) A political subdivision, a state agency, or an official of a political subdivision or a state agency may not engage in voter suppression as set forth in this section.

(b) Prohibited voter suppression is the implementation, imposing, or enforcing of any election policy or practice that results in, is likely to result in, or is motivated in whole or in part by the intent to result in either of the following:

(1) A material disparity affecting protected class members in voter participation, access to voting opportunities, or the opportunity or ability to participate in any stage of the political process, as a result of the policy or practice.

(2) Based on the totality of circumstances, an impairment of the equal opportunity or ability of protected class members to participate in any stage of the political process.

(c) A violation of subsection (a) of this section must be attributable to an action of a political subdivision or the Department of Elections. A violation of subsection (a) of this section may include, but is not limited to, any of the following:

(1) Discriminatory designation and substitution of polling places and early voting locations, and the discriminatory assignment of voting machines therein.

(2) Discriminatory establishment, division, or combination of election districts and the discriminatory furnishing of necessary materials, voter information, and supplies therein.

(3) Discriminatory distribution of public notices pertaining to elections.

(4) Discriminatory instruction provided to election officers as well as any discriminatory discretionary use of authority by an election officer.

(5) Discriminatory handling of administrative complaints pertaining to elections.

(d) Prohibited voter suppression cannot be found under subsection (b) of this section if the political subdivision or the Department of Elections demonstrates by clear and convincing evidence that both of the following apply:

(1) The election policy or practice is necessary to significantly further an important and particularized governmental interest.

(2) There is no alternative election policy or practice that results in a smaller disparity between protected class members and other members of the electorate.

(e) Prohibited voter suppression may be established through direct or circumstantial evidence of intentional discrimination; however, evidence of intentional discrimination, including evidence concerning the intent of electors, elected officials, or public officials to discriminate against protected class members, is never required under this section.

85 Del. Laws, c. 421, § 3; 

(a) A political subdivision may not employ a method of election that has the effect, is likely to have the effect, or is motivated in whole or in part by an intent to dilute the vote of protected class members.

(b) Prohibited vote dilution is when both of the following are met:

(1) One of the following is found:

a. Elections in the political subdivision exhibit racially polarized voting resulting in an impairment of the equal opportunity or ability of protected class members to nominate or elect candidates of their choice.

b. Based on the totality of circumstances, the equal opportunity or ability of protected class members to nominate or elect candidates of their choice is impaired.

(2) Another method of election or change to the existing method of election exists, that could be constitutionally adopted or ordered under § 8106 of this title, which would likely mitigate the impairment.

(c) Prohibited vote dilution may also be established through direct or circumstantial evidence of intentional discrimination; however, evidence of intentional discrimination, including evidence concerning the intent of electors, elected officials, or public officials to discriminate against protected class members, is never required under this section.

85 Del. Laws, c. 421, § 3; 

(a) Where a totality of the circumstances test applies under § 8102(b)(2) or § 8103(b)(1)b. of this title, factors that may be considered include all of the following:

(1) The history of discrimination in or affecting protected class members within the political subdivision.

(2) The extent to which the protected class members have been elected to office.

(3) The use of any election policy or practice that may enhance the discriminatory or dilutive effects of a relevant election policy, practice, or method of election in the political subdivision.

(4) The extent to which protected class members vote or register to vote at lower rates than other voters.

(5) The extent to which protected class members are disadvantaged or otherwise bear the effects of public or private discrimination in areas that may hinder their ability to participate effectively in any stage of the political process, such as education, employment, health, criminal justice, housing, transportation, land use, or environmental protection.

(6) The use of overt or subtle racial appeals, whether in the course of political campaigns or by government officials, or in connection with the adoption or maintenance of the election policy or practice.

(7) The extent to which candidates who are protected class members face hostility or barriers with respect to campaigning, getting on the ballot, receiving financial support, or receiving any other support for an election due to their membership in a protected class.

(8) The lack of responsiveness by elected officials to the particular needs of protected class members or a community of protected class members.

(9) Whether the election policy or practice is necessary to significantly further a compelling and particularized governmental interest.

(10) The extent to which protected class members have historically made campaign contributions at lower rates.

(11) Any other relevant factor.

(b) No particular number or combination of factors under subsection (a) of this section are required to determine that a violation of § 8102 or § 8103 of this title occurred. There is no requirement that evidence must affect all subgroups within a protected class to be relevant.

(c) For alleged violations pertaining to a political subdivision, evidence of the factors under subsection (a) of this section is most probative when it relates to the political subdivision in which the alleged violation occurred but is still probative if it relates to Delaware generally or to the geographic region in which that political subdivision is located.

(d) To determine whether elections in the political subdivision exhibit racially polarized voting under § 8103 of this title, the following may be considered:

(1) Elections for offices of the political subdivision; elections held in the political subdivision for other offices, such as state or federal offices; referenda; and other electoral choices that bear on the rights and privileges of the protected class.

(2) No set number or combination of elections are required to establish the existence of racially polarized voting.

(3) Evidence of nonpolarized voting in elections for offices outside the political subdivision does not preclude a finding of racially polarized voting based on elections for offices within the political subdivision.

(4) Nonstatistical or nonquantitative evidence does not preclude a finding of racially polarized voting based on statistical or quantitative evidence.

(5) Low turnout or registration rates among protected class members does not preclude a finding of racially polarized voting.

(6) When assessing the combined candidate preferences, political preferences, or electoral choices of a protected class comprised of 2 or more groups of voters, there is no requirement that the electoral preferences of each protected class or any subgroup within a protected class be separately polarized from those of other voters.

(7) The causes of or reasons for racially polarized voting, including partisan explanations or discriminatory intent, are not relevant.

(e) The following factors do not preclude a finding of a violation under § 8102(b)(2) or § 8103(b)(1)b. of this title:

(1) The total number or share of protected class members on whom the election policy or practice does not impose a material burden.

(2) The degree to which the election policy or practice has a long pedigree or was in widespread use at some earlier date.

(3) The use of an identical or similar election policy or practice in other jurisdictions.

(4) The availability of forms of voting unimpacted by the election policy or practice.

(f) A state interest in preventing voter fraud or bolstering voter confidence in the integrity of elections is not relevant to a violation of § 8102 or § 8103 of this title unless there is substantial evidence that criminal activity by individual electors has occurred in the political subdivision in substantial numbers and the connection between the election policy or practice and a state interest in preventing voter fraud or bolstering voter confidence in the integrity of elections is supported by substantial evidence.

(g) Evidence concerning the intent of electors, elected officials, or public officials to discriminate against protected class members is not required under § 8102 or § 8103 of this title.

(h) Whether protected class members typically elect candidates of their choice to the governing body in approximate proportion to their total number or share of the population may be relevant under § 8103 of this title.

(i) For the purpose of satisfying § 8103 of this title, it is not necessary for the total number or share of protected class members to exceed any numerical threshold in any district or in the political subdivision as a whole.

(j) The General Assembly intends that the legal tests for voter suppression and vote dilution under §§ 8102 and 8103 of this title and the remedies provided in § 8106 of this title provide a framework for identifying and remedying violations of § 3 or § 21 of Article I of the Delaware Constitution, including facial constitutional challenges under § 8101(a) of this title and as-applied challenges under § 8101(a) of this title alleging that a statute enacted by this State has an unconstitutional impact in a particular political subdivision or electoral context.

85 Del. Laws, c. 421, § 3; 

(a) An action to cure a violation of § 8102 or § 8103 of this title may be brought in a court of competent jurisdiction by an individual aggrieved by such violation, an organization aggrieved by such a violation, or the Attorney General. Members of 2 or more protected classes may jointly file an action. In furtherance of § 9 of Article I of the Delaware Constitution, this section must be construed liberally to confer standing broadly.

(b) An organization aggrieved by a violation of the Delaware Constitution or § 8102 or § 8103 of this title includes an organization whose membership includes individuals aggrieved by a violation, an organization whose mission would be frustrated by a violation, an organization that would expend or divert resources to fulfill its mission as a result of a violation, or an organization that would expend greater resources or efforts to advocate before an elected body that is less responsive to the organization or its members due to a violation. An organization shall not be compelled to disclose the identity of any specific member to pursue a claim on behalf of its members, except, however, if an organization asserts standing on the basis that members of the organization are aggrieved, a court may compel the organization to provide affidavits from impacted members sufficient to satisfy these requirements if it is not satisfied with any initial organizational affidavit or other proof lacking identifying membership information. Such court order must allow for an organization to produce any necessary records or portions thereof under seal or in any like manner recognized by court rules in which confidential information is protected from public view so long as the organization demonstrates good cause by providing any credible statement that its members privacy or safety interests would be negatively impacted by public knowledge of their membership in the organization or involvement in the lawsuit. Such sealed or confidential records shall remain under seal indefinitely following final judgment.

(c) In an action involving a districting plan, an individual who is a protected class member or an organization with a protected class member who resides in the defendant jurisdiction, whether or not the individual resides in any particular district, may challenge the districting plan as a whole.

(d) Except as set forth in subsection (e) of this section, before filing an action under § 8101 of this title, a party described in subsection (a) of this section, other than the Attorney General, must send a notice letter to the political subdivision or the Department of Elections identifying with specificity the potential violation of § 8102 or § 8103 of this title or the Delaware Constitution, the type of remedy the plaintiff believes may address the potential violation, and relevant facts and evidence that the prospective plaintiff relied upon when evaluating whether a potential violation is present. The party may not file an action within 50 days after sending the notice letter. The party may file an action if the constitutional or statutory deficiency persists 50 days following the sending of the notice letter.

(1) The political subdivision or the Department of Elections may work with the party that provided notice to implement a remedy that cures the potential violation. If the legislative body of the political subdivision adopts a resolution identifying a remedy, affirming its intent to enact and implement a remedy, and establishing a timeline and specific steps it will take to do so, the party may not file an action within 120 days after sending the notice letter.

(2) In response to a notice letter, the political subdivision may adopt a resolution denying that a violation exists, or otherwise formally deny a violation, which will abrogate the 50-day waiting period otherwise required and permit the party who sent a notice letter to file an action immediately.

(3) If, under the laws of this State, the legislative body of a political subdivision lacks authority to enact or implement a remedy identified in such a resolution, the political subdivision may nonetheless enact and implement a proposed remedy upon approval of a court of competent jurisdiction.

(4) Following the party’s submission of a notice letter, the party may file an action if the political subdivision has not enacted or implemented a remedy within the time periods designated by this subsection or the political subdivision has enacted or implemented a remedy that does not remedy the violation identified in the party’s notice letter.

(e) A party with standing under subsection (a) of this section may file an action against a political subdivision or the Department of Elections without first sending a notice letter under any of the following circumstances:

(1) The party is seeking preliminary relief with respect to an upcoming election.

(2) Another party has already submitted a notice letter alleging a substantially similar violation and that party is eligible to file an action.

(3) The prospect of obtaining relief under subsection (d) of this section would be futile.

(4) The party has received an initial written decision regarding the alleged violation of § 8102 or § 8103 of this title from either a municipal Board of Elections or the State Election Commissioner pursuant to § 7552(a) and (b) of this title.

(f) In any action alleging a violation of § 8102 or § 8103 of this title, in which a party seeks preliminary relief with respect to an upcoming election, a court must grant relief if it determines both of the following:

(1) Plaintiffs are more likely than not to succeed on the merits.

(2) It is possible to implement an appropriate remedy that would resolve the alleged violation in the upcoming election and such remedy would not substantially increase the risk that eligible voters will be prevented from voting or having their ballots counted.

85 Del. Laws, c. 421, § 3; 

(a) Upon finding a violation of the Delaware Constitution or § 8102 or § 8103 of this title, a court of competent jurisdiction may order 1 or more appropriate remedies that are tailored to address the violation and ensure protected class members have equitable opportunities to fully participate in the political process notwithstanding any other law. Appropriate remedies may include any of the following:

(1) Changes to the method of election.

(2) Changes to any election policy or practice.

(3) New or revised redistricting plans.

(4) Elimination of staggered elections.

(5) Reasonably increasing the size of the elected body.

(6) Additional voting days or hours.

(7) Additional polling places.

(8) Holding of special elections.

(9) Additional voter education.

(10) The restoration or addition of individuals to registry lists.

(11) Retaining jurisdiction for such period of time as the court may deem appropriate.

(b) The court must consider remedies proposed by any parties to an action filed under § 8102 of this title and by other interested persons who are not parties to the action. The court may not give deference or priority to a remedy proposed by a political subdivision or the Department of Elections simply because it has been proposed by a defendant political subdivision or the Department of Elections.

(c) Where a constitutional violation is found, the court has authority to order that a political subdivision implement 1 or more remedies that may be inconsistent with the provisions of any municipal charter or a legislative enactment containing an election policy or practice for a political subdivision where the inconsistent provisions would otherwise preclude the court from ordering an appropriate remedy.

(d) Upon a court order of any remedy under this section, a prevailing plaintiff party is entitled to reimbursement of attorneys’ fees and for the costs associated with bringing the case. A party must submit a claim in writing and substantiate the claim with financial documentation, including a detailed invoice for any demography services or analysis of voting patterns. A defendant must reimburse such party for reasonable costs claimed or for an amount to which the parties agree.

(e) When a political subdivision plans to voluntarily adopt a new election policy or practice after receiving a notice letter, a complaint under this subchapter, or the filing of a lawsuit, the political subdivision must hold at least 1 public hearing at which members of the public may provide input regarding the proposed new election policy or practice. Notice of the public hearing must be published at least 3 weeks prior to the date of the public hearing. In advance of each public hearing, the political subdivision must conduct outreach to members of the public, including to language minority groups, to explain the method of election or districting process and to encourage input.

(f) When voluntary adoption of a new election policy of practice occurs following a political subdivision’s receipt of 1 or more notice letters sent in accordance with the requirements of § 8105 of this title, a party who sent a notification letter may submit a claim for reimbursement from the political subdivision for reasonable costs associated with producing and sending the notification letter. A party must submit a claim in writing and substantiate the claim with financial documentation, including a detailed invoice for any demography services or analysis of voting patterns. Reimbursement amounts for attorney fees are limited to amounts calculated using a lodestar methodology. Any such claim made for reimbursement is capped at $60,000, adjusted in accordance with any change in the consumer price index for all urban consumers as published by the United States Department of Labor, Bureau of Labor Statistics. Upon receipt of any claim, the political subdivision may request additional financial documentation if the information provided by a party is insufficient to substantiate the costs. If the parties fail to agree to a reimbursement amount, either party may file an action for a declaratory judgment with a court of competent jurisdiction for a clarification of rights.

(g) After the adoption of any remedy, the political subdivision must hold at least 1 public education event during which the political subdivision explains changes to elections resulting from the remedy. Notice of the public education event must be published online on the Board of Elections webpage and social media pages at least 3 weeks prior to the date of the public education event.

(h) A remedy ordered under this section must be implemented in the next relevant election, scheduled or ordered, wherever possible.

85 Del. Laws, c. 421, § 3;