Delaware is a national outlier in that proposed amendments to the state constitution are not submitted to voters for their approval or rejection. Instead, amendments are adopted after approval by two consecutive legislatures, separated by a general election. Delaware does require that notice of proposed amendments be given to the public, but the state supreme court has held that only substantial requirements with these publication requirements is required.
BACKGROUND INFORMATION
What forms of direct democracy are available, and when?
Statewide Ballot Measures in Delaware
Delaware does not have statewide initiatives, veto referendums, or legislatively referred amendments.
X Initiatives – Statutory
X Initiatives – Constitutional
X Veto Referendums
X Legislatively Referred Amendments
Voter approval is not required to amend the Delaware Constitution, making Delaware a national outlier. Instead, an amendment must be agreed to by 2/3 of the members elected to each house of the legislature, in two consecutive general assemblies. Del. Const. art. XVI, § 1.
Delaware lacks all forms of statewide direct democracy that are the focus of this report. Similar to other states, the Delaware legislature may submit to voters the question of whether to hold a constitutional convention. See Del. Const. art. XVI, § 2.
Election Timing
As noted, constitutional amendments are not submitted to Delaware voters. However, the constitution requires that there be one general election between the amendment being proposed and the amendment being approved by a subsequent general assembly. Del. Const. art. XVI, § 1.
BALLOT PREPARATION
What is included on the ballot, and who prepares it?
- Not applicable
INFORMATION TO VOTERS
What information is provided to voters before the election, and how?
Publication
After a proposed amendment is agreed to by each house of the legislature for the first time, the proposed amendment must be disseminated to the public not less than 90 days before the next general election and not more than 120 days before the next general election “as provided for by an act of the General Assembly.” S.B. 38, 152d Gen. Assemb., 1st Reg. Sess. (Del. 2023) (amending Del. Const. art. 16, § 1).
A statute further specifies the qualifications of eligible newspapers through which the proposed amendment may be disseminated and requires that the proposed amendment be disseminated online. Del. Code Ann. tit. 29, § 914(a)–(b).[1] The statute further designates the Secretary of the Senate and the Chief Clerk of the House of Representatives to disseminate amendments proposed by Senate bills and House bills respectively, provides for notices to be reviewed and approved by the Secretary of the Senate, the Chief Clerk of the House of Representatives, the State Election Commissioner, and the Director of the Division of Research, and requires the designated individual disseminating the notice to provide notice of dissemination to several state officials and indicate which newspapers and websites the disseminated notice has been published Id. sub. (c)–(e). sub. (c)–(e).
Voter Information Pamphlet
- Not applicable
JUDICIAL REVIEW
When and how can the court step in?
- Not applicable with respect to ballots or voter informational materials
The Delaware Supreme Court has opined that only substantial compliance with the state’s publication requirements is required; literal compliance is not, so long as the electorate has not been misled and the rationale behind publication has been fulfilled.
Sample case: Opinion of the Justices, 275 A.2d 558 (Del. 1971) (advisory opinion) (upholding the validity of constitutional amendments which were published, though tardily; but finding that proposed amendments that were not published at all—for which there was no compliance—were not valid constitutional amendments).
[1] The Delaware Code can be found online. The Delaware Code Online, https://delcode.delaware.gov/ (last accessed Oct. 29, 2023).