Delaware Entity Voting Should Sound Alarm Over Corporate Power

If prediction markets existed 16 years ago, when the US Supreme Court decided Citizens United v. Federal Election Commission, bets would have been laid that we were on the cusp of corporations voting in political elections. The idea might be startling but it was already happening—in a few limited places, legal entities could already cast real ballots. The practice had never been tested by the courts.

Now, entity voting has survived its first legal test. ACLU of Del. v. Town of Fenwick Island sustained Delaware’s principle of “one person, one entity, one vote.” The new precedent has potential relevance to states beyond Delaware and revives concerns about corporate political power.

The case was brought by the ACLU of Delaware, which sued the Town of Fenwick Island, a small Delaware municipality, on the ground that entity voting in Fenwick’s local elections diluted the votes of real people, violating the Elections Clause of the Delaware Constitution. The provision, which dates to 1832, comprises a single sentence: “All elections shall be free and equal.” It is replicated, word-for-word, in the constitutions of Arizona, Kentucky, Illinois, and Indiana, among others. Delaware’s main corporate competitors, Texas and Nevada, lack the provision.

In a remarkable opinion, Delaware Superior Court Judge Craig A. Karsnitz asked “What is a ‘person’?” and then proceeded to answer that corporations are persons, not merely for the standard requisites—the ability to buy and sell property, to sue and be sued—but for political rights, too, if the Delaware General Assembly says so.

Entity voting in Fenwick predated Citizens United, but it is still a relatively recent development. When Fenwick was incorporated in 1953, its charter allowed nonresident voting for property owners. It wasn’t until 2008 that Delaware’s General Assembly amended Fenwick’s charter to make it clear that artificial entities could vote as nonresidents.

Under Fenwick’s charter, a human resident can’t vote until they’re 18, but an artificial entity can vote from birth. (Karsnitz doesn’t appear to have considered whether this undermined “free and equal” elections.)

While it’s tempting to view “one entity, one vote” as a logical extension of “one person, one vote,” the bedrock principle of US democracy, this is a serious error.

Allowing artificial entities to cast real votes introduces plutocratic voting to politics. Plutocratic voting is stake-based: The greater one’s stake, the more votes one can cast. If it seems familiar, this is because stake-based voting (one-share-one-vote) is the rule in corporate governance, where the “jurisdiction” (the organization itself) is divided into stock shares that each carry a vote.

One-share-one-vote works in corporate governance because of fiduciary duties, which the corporation’s leaders owe to all shareholders. The reason the corporation’s leaders don’t pillage the corporation for the plutocrats’ benefit is because they can be sued for breaching their fiduciary duties to minority holders.

Political leaders don’t owe analogous fiduciary duties to their constituents. This makes plutocratic governance especially risky to import into politics.

In Fenwick, an adult individual can exercise a single vote on the traditional, “one person, one vote” basis. But if that person also owns or manages an artificial entity that owns property in Fenwick, they will have input on a second vote. A single individual could create multiple entities to hold multiple parcels and control multiple votes, with virtually no transparency.

Entity voting thus provides a means for wealthy individuals to translate their wealth into votes. Jurisdictions that adopt entity voting aren’t merely expanding the franchise to tax-paying neighbors who happen to be companies or trusts.

They are replacing the rule of political equality among human people with a different rule. A system that creates a formal means for some people but not others to exercise discretion over multiple votes isn’t “one person, one vote.”

The new case underscores how vulnerable our politics are to being remade on a corporate model. It also shows the incremental but relentless process of legal change in the US that has overwritten governance laws from the early republic—plutocratic voting didn’t become the dominant rule in corporate law until after the Civil War, for example—to make our governance systems increasingly effective at concentrating power.

It used to be black-letter law that corporations couldn’t even vote in corporate elections, because corporations were forbidden from owning stock. Holding and voting stock were privileges reserved for individual humans.

In Delaware, corporations obtained the statutory right to hold stock in other corporations, and obtained the statutory right to hold stock in corporations and to cast votes in corporate elections, at the end of the 19th century. This was significant because it made holding companies and parent-subsidiary arrangements possible for the first time.

But it was also a major catalyst of the first “race to the bottom” among the leading jurisdictions of incorporation—New Jersey, New York, West Virginia, and Delaware—as they competed by reworking their corporate laws to make them attractive to big companies. A second “race to the bottom"—among Delaware, Nevada, and Texas—is happening now. Entity voting may not become part of that race, but the first legal hurdle has been cleared.

Of course, all of this is happening at a moment when traditional political voting rights, which are those belonging to human people, are buckling under pressure from changes to the Voting Rights Act, winner-take-all gerrymandering, threats to mail-in voting, and experiments in corporate-style internet platform voting. Karsnitz’s opinion even gestured toward this trend when he noted that vote dilution cases under Section 2 of the Voting Rights Act are likely “no longer viable,” citing the Supreme Court’s recent decision in Louisiana v. Callais.

Now vote dilution cases under Delaware’s Election Clause appear to have met a similar fate.

The case is ACLU of Del. v. Town of Fenwick Island, Del. Super. Ct., No. S25C-12-003 CAK, decided 5/26/26.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Sarah Haan teaches corporate law at Brooklyn Law School and focuses on the intersection of corporate governance and democracy.

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