Posted: Feb. 8, 2012
CONSTITUTIONAL BUT WRONG?
By Celia Cohen
After Election Day, there are going to be patches of people who are represented by officeholders that none of them ever voted for.
It sounds strange, hardly fit for the State That Started A Nation.
Still, it will happen in all three counties in a sort of reverse twist on the old British "rotten boroughs." They were little shriveled pockets that kept sending members to Parliament whether people lived there or not. Here in Delaware, people get officeholders whether they live there or not.
The British got rid of the rotten boroughs in the 19th Century. In Delaware in the 21st Century, the situation is on hold.
The blame for it goes to redistricting. The defense for it goes to the state constitution.
Redistricting comes along every 10 years after the national census. The districts for the state General Assembly, the New Castle County Council, the Kent County Levy Court and the Sussex County Council are jiggered to rebalance them for population in keeping with the principle of one-person-one-vote.
The 2012 election is the first for the new districts. In the state legislature, all of its members will be on the ballot, so no problem there. In the counties, about half of them will be, and the rest will hold over, even if their new districts take in people they never represented before.
The legislature had made provisions. The representatives, as always, are being elected for two-year terms. The senators typically have staggered, four-year terms, but the ones who were elected in 2010 got two-year terms. The senators will run for either two-year terms or four-year terms on Election Day to reset the staggered schedule. This happens after every redistricting.
The counties, however, are rolling merrily along with four-year terms for all. They have staggered terms, so people elected in 2010 are not up until 2014, new district or no new district.
It does not sound right to John Atkins, the Democratic state representative from Millsboro.
"How do you legally represent a district you weren't elected in? I think you should elect your County Council members, not inherit them. Every council member should have to run," Atkins said.
The state constitution has something to say about that. It protects officeholders from having their terms slashed. Redistricting be damned.
"There are constitutional ways someone can be removed from office, and that is not one of them," said Dave Swayze, a Wilmington lawyer who has spent considerable time in the corridors of government. "You cannot dispossess someone from office without following with exactitude the mandates of the constitution, and it usually involves high crimes and misdemeanors."
Not that these unelected anomalies never occur, anyway. Nobody ever voted for Gerald Ford for president. No polling place ever had a ballot with Ted Kaufman as the U.S. senator for Delaware.
Atkins is unwilling to give in. "It doesn't mean you can't change the law," he said.
Even if it has to wait until the next round of redistricting for 2022.