Delaware justices nix vote-by-mail, same-day registration

The court said the vote-by-mail statute expands the categories of absentee voters identified in Delaware's constitution.

Friday, October 7, 2022
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DOVER, Delaware -- Delaware's Supreme Court ruled Friday that new state laws allowing universal voting by mail and Election Day registration are unconstitutional.

In a three-page order, the court said the vote-by-mail statute impermissibly expands the categories of absentee voters identified in Delaware's constitution. The justices said the same-day registration law also conflicts with the registration periods spelled out in the constitution.

The order came one day after the justices heard arguments in the case on Thursday.

A Court of Chancery judge last month upheld the same-day registration law but said the vote-by-mail law, the result of legislation Democrats rammed through the General Assembly in less than three weeks, violates restrictions on absentee voting in Delaware's constitution.

Democratic Attorney General Kathleen Jennings appealed the ruling striking down the vote-by-mail law. Republican attorneys representing voters, a state House candidate and a Department of Elections employee appealed Cook's decision upholding same-day registration.

The Supreme Court upheld Vice Chancellor Nathan Cook's ruling on the vote-by-mail law but said his decision allowing same-day registration should be reversed.

Attorneys representing state elections officials argued that the General Assembly has broad powers to enact voting laws, and that opponents had no standing to challenge the laws.

Attorneys challenging the laws contend that members of the General Assembly circumvented constitutional restrictions on their powers by trying to pass new laws instead of amending the constitution to allow voting by mail and same-day registration.

Democratic lawmakers introduced 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.

The constitution says a person is allowed to vote absentee if unable to go to the polls on Election Day because of his or her public service, business or occupation. Spouses and dependents who live with or accompany people in those circumstances also are allowed to vote absentee. Sickness or physical disability, vacation, and the tenets or teachings of a person's religion are the other allowances.

The attorney general's office argued that mail-in voting is not absentee voting. At the same time, however, it claimed that the constitution's absentee voting provision does not preclude the General Assembly from allowing universal voting by mail.

In 2020, however, when they invoked their emergency powers to allow universal voting by mail that year because of the coronavirus pandemic, lawmakers specifically acknowledged that the constitution's list of reasons for absentee voting is "exhaustive," meaning no other reasons are allowed. They also acknowledged that they must comply with the constitution in invoking their emergency powers unless doing so would be "impracticable" or cause undue delay. They then declared that conforming with the constitution's absentee voting provision would be "impracticable."

Regarding voter registration, the constitution says the registration period for a general election cannot begin more than 120 days, or less than 60 days, before the election. It also cannot end more than 20 days, or less than 10 days, before the election.

Chief Deputy Attorney General Alexander Mackler nevertheless argued Thursday that the constitution doesn't prohibit people from registering to vote more than 120 days before the election, or less than 10 days before the election.

Justice Karen Valihura pointed out the 10-day period was intended to allow the registration rolls to be corrected and for anyone denied the ability to register to appeal. The constitution states that any correction must be done "prior to the day of holding the election."

"How is it that the same-day statute doesn't completely eviscerate the provision?" she asked.