Delaware Court Strikes Down State’s Voting-by-Mail Law

Delaware Court Strikes Down State’s Voting-by-Mail Law
An election worker opens envelopes containing vote-by-mail ballots in a file photo. (Jason Redmond/AFP via Getty Images)
Matthew Vadum

A state court blocked voting by mail in Delaware on Sept. 14 after ruling that the state’s mail-in voting practices violate the Delaware Constitution.

Barring further judicial or legislative action, the ruling means mail-in voting will not be available in the upcoming general elections in Delaware on Nov. 8.

Republicans were critical of mail-in voting measures enacted at the height of the pandemic and accused election officials across the country of ignoring the U.S. Constitution and state constitutions by allowing it and promoting it heavily to the public. They claim this departure from the usual election procedures allowed Democrats to cheat.

The Democratic-controlled Delaware General Assembly hurriedly passed the voting-by-mail law in June after failing to secure enough Republican support to amend the state constitution to enshrine the policy. Lawmakers previously approved a separate voting-by-mail law during the pandemic in 2020, invoking emergency powers that allowed the statute to escape the usual constitutional scrutiny.

But lawmakers didn’t reference any emergency authority when passing the new law, which allowed the state judge to rule it was unconstitutional.

Former U.S. Department of Justice civil rights attorney J. Christian Adams, whose organization launched the legal challenge, hailed the court’s decision.

‘Election Officials Must Follow the Law’

“This ruling upheld the rule of law in Delaware when not long-ago election officials across the country were ignoring the law,” Adams, president of the Public Interest Legal Foundation (PILF), said in a statement obtained by The Epoch Times.

“This law violated the election protections in Delaware’s Constitution. Election officials must follow the law. When laws are followed, even losers of elections can agree with the outcomes. Consent of the governed increases when the election rules are followed.”

PILF describes itself as “the nation’s only public interest law firm dedicated wholly to election integrity.” The nonprofit organization “exists to assist states and others to aid the cause of election integrity, and fight against lawlessness in American elections.”

Delaware Attorney General Kathy Jennings, a Democrat whose office defended the 2022 law in court, didn’t respond to a request for comment by press time.

An official vote-by-mail ballot packet in Irvine, Calif., on May 16, 2022. (John Fredricks/The Epoch Times)
An official vote-by-mail ballot packet in Irvine, Calif., on May 16, 2022. (John Fredricks/The Epoch Times)

PILF filed a lawsuit earlier this year against the vote-by-mail law. The complaint alleged that Delaware’s mail-in voting and same-day registration statutes ran afoul of Delaware’s Constitution. One of the plaintiffs was whistleblower Michael Mennella, who has served as an inspector of elections for the Delaware Department of Elections.

In Higgin v. Albence, court file 2022-0641, Vice Chancellor Nathan Cook of the Court of Chancery of the State of Delaware ruled (pdf) that “Article V, Section 4A of the Delaware Constitution ... provides for absentee voting in certain enumerated circumstances.” State courts “have consistently stated that those circumstances are exhaustive.”

As a trial judge, “I am compelled by precedent to conclude that the Vote-by-Mail Statute’s attempt to expand absentee voting to Delawareans who do not align with any of Section 4A’s categories must be rejected.”

Cook turned down the challenge to the state’s same-day registration statute but said the vote-by-mail statute “presents a much thornier issue.”

‘They Abdicated Their Responsibility’

In 2020, as pandemic-era measures curtailing individual liberties took effect, the Delaware Legislature enacted “a very similar vote-by-mail law under its emergency powers, which was upheld by this Court.” But the current statute wasn’t justified as an emergency measure, he wrote, suggesting it didn’t deserve the same judicial deference.

Although the plaintiffs probably wouldn’t have standing under federal rules to challenge the mail-in voting law, they do have standing under Delaware law because they “represent various parts of the election process” and “have a substantial interest in this court reaching a decision on the merits, particularly given the fundamental nature of voting,” he wrote.

Cook wrote that in light of his ruling on the merits, “there would be irreparable harm in the absence of injunctive relief and that the balance of the equities favors entry of an injunction.”

Attorney Jane Brady, who served as co-counsel on the case, told The Associated Press that voting by mail “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 said. “In my view, they abdicated their responsibility.”

Brady, a Republican, was attorney general of Delaware from 1995 to 2005.