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Civil Division-New Castle County
October 28, 1997
Mr. William G. Burke, Sr.
Administrative Director
Mr. Howard G. Sholl, Jr.
Deputy Administrative Director
Department of Elections for New Castle County
820 N. French Street
Wilmington, DE 19801
Re: Mailing of Absentee Ballots
Dear Gentlemen:
Fifteen Del. C. § 5505 provides that the Department of Elections
shall mail an absentee ballot to an elector and that such mailing
shall be made "not more than 60 nor less than 3 days prior to a
general or special election." The Department of Elections asks
whether the election day is counted as the third day for purposes
of this statute. By way of example, the Department asks whether,
where election day is Saturday, the Department must mail absentee
ballots through the previous Wednesday. We answer this inquiry in
the affirmative. Using the example of the Department of
Elections, we conclude that the Department must mail absentee
ballots through the close of business on Wednesday for a Saturday
election.
There are no cases directly on point on this issue in Delaware
and case law from other jurisdictions is not strictly consistent.
However, the majority view is that the general rule for the
computation of time applies, unless there is evidence of contrary
legislative intent. Under the general rule, the first day of the
time period in question is excluded and the day on which an act
is to be performed is included. The words "at least," "not less
than," and "prior to" are most commonly found not to evidence a
legislative intent to alter the general rule for the computation
of time. Barron v. Green, N. J. Super., 80 A.2d 586, 587 (1951)
("at least 40 days prior to any other municipal election"); State
v. Appling, Or. Supr., 355 P.2d 760, 761 (1960) ("not less than
70 days before the *** general election"); Harris v. Latta, N.C.
Supr., 259 S. E. 2d 239, 240 (1975) ("at least sixty (60) days
prior to March 5, 1976"). To the contrary is State v. Beermann,
Neb. Supr., 523 N.W. 2d 518, 522 (1994), which held that the
words "prior to" require the exclusion of the terminal date.
While we acknowledge the Nebraska case, we believe that the law
in Delaware is the majority view, which would count the day of
the election as the third day prior to the election.
The operative words of 15 Del. C. § 5505 are "prior to." No
Delaware court has interpreted exactly those words. However, the
Delaware Supreme Court has ruled that the words "at least" within
a statute that reads "at least fifteen days notice" do not change
the general rule that the first day should be excluded but the
day on which the act to be done should be included. Santow v.
Ullman, Del. Supr., 166 A.2d 135, 137-138 (1960). In reaching
this decision, the Supreme Court of Delaware relied upon
decisions from New Jersey that ruled that the words "at least
forty days prior to" (emphasis added) do not change the ordinary
rule for the computation of time. Id. at 138, citing Barron v. Green, N.J. Super., 80 A.2d 586 (1951). In reaching our conclusion that the date of the election is counted as the third day for the computation of time for purposes of 15 Del. C. § 5505, we rely upon other principles of law, as well. In past elections, the Department of Elections for New Castle County has consistently counted election day as the third day for purposes of 15 Del. C. § 5505. The other county Departments of Elections have as well. Our conclusion that this is the correct interpretation of Section 5505 both continues the past administrative practice and promotes consistency among election procedures. Moreover, when the minor administrative burden of mailing absentee ballots for an additional day is weighed against the fundamental right to vote, we believe that the scales tip heavily in favor of our conclusion that the election day itself is the third day for purposes of 15 Del. C. § 5505. We trust that this resolves all of the issues raised by the Department's opinion request. Please do not hesitate to contact us if we can be of further assistance. Very truly yours, Malcolm S. Cobin Assistant State Solicitor A. Ann Woolfolk Deputy Attorney General Approved: Michael J. Rich State Solicitor cc: Thomas J. Cook, Elections Commissioner