Fun fact about a Delaware coastline celebrated for its iconic boardwalks, lively arts scene, and hordes of vacationing politicians each summer: You don’t have to be human to vote there.
A first-of-its-kind court decision affirming that some Delaware businesses can participate in municipal elections is stoking alarm and confusion about the explosion of corporate political clout at a precarious moment for voting rights nationwide. The ACLU, which unsuccessfully challenged a town charter provision allowing “artificial entities” to vote, said Tuesday it plans to appeal.
Dozens of municipalities allow some version of entity voting, including the state’s largest city, Wilmington, and Rehoboth Beach, where President
Judge Craig A. Karsnitz appears to be the first public official to “clearly articulate the ideological connection between Delaware’s ‘corporate franchise’ and its enfranchised corporations,” said University of Delaware historian Dael Norwood. “That connection has been indirect—at least until Judge Karsnitz wrote an opinion that said the quiet part out loud.”
The ruling upheld a provision authorizing voting by in-state corporations, LLCs, trusts, and partnerships owning property within the tiny town of Fenwick Island, population 401. Karsnitz, writing for Delaware’s Superior Court, acknowledged that entity voting may conjure dystopian science fiction “visions of faceless large corporations or even HAL controlling a small town.” But it’s permissible under the principle of “one person/entity, one vote,” he said.
That eyebrow-raising neologism has increasingly found its way into the discourse around nonhuman voting, according to Norwood, who called the phrase an “ugly oligarchic kludge.”
Andrew Bernstein, the ACLU attorney who led the case, rejected the judge’s framing.
“One person, one vote,” he said in a statement Tuesday. “Allowing corporations to vote in Delaware, where over two million artificial business entities are incorporated, can drastically undermine the voting power of real, human Delawareans.” The state’s population is about 1 million, according to the latest US Census.
Property Rights
Delaware’s corporate voting policies briefly made headlines in 2023, when officials in Seaford tried to lure businesses to a town where only a few hundred people show up on Election Day. Newark, home to the University of Delaware, repealed entity voting after a 2018 scandal involving a landowner who voted 31 times through single-purpose LLCs.
The “one person/entity, one vote” formulation, however clunky, was conceived as an antidote to that type of mischief.
Defenders often point to the custom’s historical roots in a sparse region where residency and property ownership frequently diverge, rather than in modern conservative ideas about corporate rights.
The practice descends from policies connecting property rights to questions like bond issues and territorial annexation, said Norwood, who’s been looking into entity voting. About 40 towns and cities authorize voting by some landowning entities in certain circumstances, according to his research.
A handful of communities go further, allowing corporations and LLCs to take part in general elections for government officials. Fenwick Island Mayor Natalie Magdeburger told Bloomberg Law most entities eligible to vote there are family trusts or small businesses.
“A property owner who pays taxes and is subject to our ordinances should have a say in who represents them,” Magdeburger said via email.
Cross-Pollination
Critics usually assail entity voting on the same local terms, focusing on the prospect of artificial votes distorting the results in low-turnout elections. Fenwick Island saw 109 nonhuman votes cast in 2024, 23% of the total, according to the ACLU.
It’s not necessarily “a Citizens United-on-steroids problem because it comes from this peculiar local municipal charter based on property ownership,” said Southern Methodist University law professor Carliss Chatman, referring to the US Supreme Court decision that extended First Amendment protections to corporate political spending.
Delaware’s status as the US corporate capital “magnifies the story,” according to Lawrence Cunningham, director of the University of Delaware’s Weinberg Center for Corporate Governance. “If this happened in any other state,” Cunningham said, “it would be a yawn.”
It’s unclear exactly what function the broader doctrine of corporate personhood served in Karsnitz’s decision, which seemed to draw on the idea mainly for flavor and texture.
But technical imprecision can be a feature rather than a bug in a judicial system that vibe-coded its way to constitutional rights for businesses through careless analogies cross-pollinating political and economic concepts, according to Chatman.
“Corporate personhood has existed since the Greek city-states,” she said. “The real problem comes from conflating legal personhood with human-ness. In Citizens United, the Supreme Court makes this proclamation without thinking through how it impacts every other aspect of government. This new decision shows how dangerous it can be to let corporate personhood migrate into constitutional law.”
‘Greatest Fear’
Despite their distinct lineages, entity voting “tracks pretty closely with national trends in conservative jurisprudence,” according to Norwood.
The move to ensure corporate ballot access in Delaware comes just weeks after the US Supreme Court delivered landmark defeats to minority voting rights by gutting the Voting Rights Act and turbocharging a gerrymandering arms race nationwide.
Meanwhile, the seeds of Citizens United continue to bear fruit, flooding the political system with corporate cash and dark money.
“Are we going to continue to see limiting rights for human marginalized persons and increased rights for artificial entities?” Chatman said. “It really is my greatest fear about Citizens United come to life.”
Of course, what happens with Delaware corporations rarely stays in Delaware. The decision “sets a legal precedent for allowing nonhuman entities like corporations and LLCs to vote,” the ACLU said Tuesday.
“In a country with thousands of judges, who knows,” said retired University of Delaware professor Charles Elson, a former Weinberg Center director. “The Delaware Supreme Court should clarify that corporations don’t have political rights. If they won’t, then the legislature should.”