Delaware vote-by-mail law is unconstitutional, judge rules

DOVER, Del. — A Delaware judge ruled Wednesday that a new vote-by-mail law enacted earlier this year is unconstitutional and that voting by mail cannot be used in upcoming November election.

Vice Chancellor Nathan Cook ruled that the law, the result of legislation that Democrats rammed through the General Assembly in less than three weeks this past June, violates a provision in Delaware’s constitution that spells out the circumstances under which a person is allowed to cast an absentee ballot.

“Our Supreme Court and this court have consistently stated that those circumstances are exhaustive,” Cook wrote. “Therefore, as a trial judge, I am compelled by precedent to conclude that the vote-by-mail statute’s attempt to expand absentee voting … must be rejected.”

While declaring vote by mail unconstitutional, Cook upheld the state’s new same-day voter registration law.

Julianne Murray, an attorney for plaintiffs challenging the vote-by-mail statute, said she was glad that the judge carefully studied Delaware’s constitution and court precedent in making his determination.

“He started on the Constitutional Convention of 1897 and worked his way through,” said Murray, who is the Republican nominee for attorney general in November.

Jane Brady, a retired judge and former Delaware attorney general who also represented plaintiffs in the lawsuit, said mail-in voting “does not comport with the constitution.”

“I believe that the legislature has known from day one that they needed a constitutional amendment to do this,” she added, noting that lawmakers acknowledged during debate on the legislation that it could likely face a court challenge.

“In my view, they abdicated their responsibility,” said Brady, who is also chair of the state Republican Party.

A spokesman for Democratic Attorney General Kathleen Jennings, whose office represented the Department of Elections in the lawsuit, referred questions to the elections agency. State Election Commissioner Anthony Albence declined to comment.

Democratic lawmakers introduce the vote-by-mail bill after failing to win Republican support to amend the constitution. A constitutional amendment requires a two-thirds vote by each chamber in two consecutive General Assemblies. The first leg of a constitutional amendment to eliminate limitations on absentee balloting cleared the legislature in 2020, after initially being defeated in the Democrat-controlled Senate, but the second leg failed to win the necessary majority in the Democrat-led House last year.

Republican Sen. Colin Bonini, who spoke out vehemently against the vote-by-mail bill in June and introduced 25 amendments in an effort to change it, said the Chancery Court did “the right thing.”

“I think it was clear that it was unconstitutional,” said Bonini, who finished last in a three-way GOP primary contest on Tuesday and will give up the Dover-area seat he has held for 28 years. “I’m disappointed that the court also didn’t strike down same-day registration.”

Wednesday’s ruling comes two years after a different Chancery Court judge rejected a challenge by the state Republican Party to the constitutionality of a law allowing universal voting by mail in the 2020 election. Vice Chancellor Sam Glasscock III said in that ruling that the General Assembly’s decision to use its emergency powers to declare that voting by mail was necessary to protect public health and ensure continuity of governmental operations during the coronavirus epidemic was not “clearly erroneous.”

In passing that bill, Democrats asserted that voting by mail was “necessary and proper” during the pandemic, and that conforming to the requirements of Delaware’s constitution, including its explicit limitations on absentee voting, “would be impracticable.”

Glasscock said the constitutional provision authorizing the General Assembly to exercise emergency powers acted as a “safe harbor” allowing it to authorize “general absentee voting” that otherwise would be prohibited under the state constitution.

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