15 Del. C. § 8104: Guidelines and relevant circumstances [Effective July 1, 2027].

(a) Where a totality of the circumstances test applies under § 8102(b)(2) or § 8103(b)(1)b. of this title, factors that may be considered include all of the following:

(1) The history of discrimination in or affecting protected class members within the political subdivision.

(2) The extent to which the protected class members have been elected to office.

(3) The use of any election policy or practice that may enhance the discriminatory or dilutive effects of a relevant election policy, practice, or method of election in the political subdivision.

(4) The extent to which protected class members vote or register to vote at lower rates than other voters.

(5) The extent to which protected class members are disadvantaged or otherwise bear the effects of public or private discrimination in areas that may hinder their ability to participate effectively in any stage of the political process, such as education, employment, health, criminal justice, housing, transportation, land use, or environmental protection.

(6) The use of overt or subtle racial appeals, whether in the course of political campaigns or by government officials, or in connection with the adoption or maintenance of the election policy or practice.

(7) The extent to which candidates who are protected class members face hostility or barriers with respect to campaigning, getting on the ballot, receiving financial support, or receiving any other support for an election due to their membership in a protected class.

(8) The lack of responsiveness by elected officials to the particular needs of protected class members or a community of protected class members.

(9) Whether the election policy or practice is necessary to significantly further a compelling and particularized governmental interest.

(10) The extent to which protected class members have historically made campaign contributions at lower rates.

(11) Any other relevant factor.

(b) No particular number or combination of factors under subsection (a) of this section are required to determine that a violation of § 8102 or § 8103 of this title occurred. There is no requirement that evidence must affect all subgroups within a protected class to be relevant.

(c) For alleged violations pertaining to a political subdivision, evidence of the factors under subsection (a) of this section is most probative when it relates to the political subdivision in which the alleged violation occurred but is still probative if it relates to Delaware generally or to the geographic region in which that political subdivision is located.

(d) To determine whether elections in the political subdivision exhibit racially polarized voting under § 8103 of this title, the following may be considered:

(1) Elections for offices of the political subdivision; elections held in the political subdivision for other offices, such as state or federal offices; referenda; and other electoral choices that bear on the rights and privileges of the protected class.

(2) No set number or combination of elections are required to establish the existence of racially polarized voting.

(3) Evidence of nonpolarized voting in elections for offices outside the political subdivision does not preclude a finding of racially polarized voting based on elections for offices within the political subdivision.

(4) Nonstatistical or nonquantitative evidence does not preclude a finding of racially polarized voting based on statistical or quantitative evidence.

(5) Low turnout or registration rates among protected class members does not preclude a finding of racially polarized voting.

(6) When assessing the combined candidate preferences, political preferences, or electoral choices of a protected class comprised of 2 or more groups of voters, there is no requirement that the electoral preferences of each protected class or any subgroup within a protected class be separately polarized from those of other voters.

(7) The causes of or reasons for racially polarized voting, including partisan explanations or discriminatory intent, are not relevant.

(e) The following factors do not preclude a finding of a violation under § 8102(b)(2) or § 8103(b)(1)b. of this title:

(1) The total number or share of protected class members on whom the election policy or practice does not impose a material burden.

(2) The degree to which the election policy or practice has a long pedigree or was in widespread use at some earlier date.

(3) The use of an identical or similar election policy or practice in other jurisdictions.

(4) The availability of forms of voting unimpacted by the election policy or practice.

(f) A state interest in preventing voter fraud or bolstering voter confidence in the integrity of elections is not relevant to a violation of § 8102 or § 8103 of this title unless there is substantial evidence that criminal activity by individual electors has occurred in the political subdivision in substantial numbers and the connection between the election policy or practice and a state interest in preventing voter fraud or bolstering voter confidence in the integrity of elections is supported by substantial evidence.

(g) Evidence concerning the intent of electors, elected officials, or public officials to discriminate against protected class members is not required under § 8102 or § 8103 of this title.

(h) Whether protected class members typically elect candidates of their choice to the governing body in approximate proportion to their total number or share of the population may be relevant under § 8103 of this title.

(i) For the purpose of satisfying § 8103 of this title, it is not necessary for the total number or share of protected class members to exceed any numerical threshold in any district or in the political subdivision as a whole.

(j) The General Assembly intends that the legal tests for voter suppression and vote dilution under §§ 8102 and 8103 of this title and the remedies provided in § 8106 of this title provide a framework for identifying and remedying violations of § 3 or § 21 of Article I of the Delaware Constitution, including facial constitutional challenges under § 8101(a) of this title and as-applied challenges under § 8101(a) of this title alleging that a statute enacted by this State has an unconstitutional impact in a particular political subdivision or electoral context.