Delaware Supreme Court finds vote by mail, same-day registration unconstitutional

The Delaware Supreme Court on Friday struck down recent vote-by-mail and same-day voter registration legislation, overturning a signature achievement by Gov. John Carney and Democrat lawmakers.

The court’s decision comes a month ahead of the Nov. 8 general election and while the Department of Elections was preparing to send mail ballots to voters on Oct. 10. The ruling means this will not happen and Delaware will return to its more limited, pre-pandemic voting setup where one must vote in person or have an excuse to vote absentee and one must register weeks in advance of an election to cast a ballot. Delawareans must now register to vote by Oct. 15.

Debate over the legitimacy of the voting changes, enacted by lawmakers this past summer, centered on whether the state’s constitution would allow all registered voters to cast their ballot through the mail as well as whether allowing people to register to vote all the way up to Election Day is allowed by the provisions of that document.

The court heard arguments on the issue Thursday. Friday’s ruling was only three pages long, and the justices wrote that a more thorough opinion explaining their logic will be issued soon.

The justices wrote that the vote-by-mail legislation “impermissibly expands the categories of absentee voters identified” in the state constitution. The same-day registration law also conflicts with articles of the constitution, the justices wrote.

A spokesman for Gov. John Carney said he was “disappointed” with today’s ruling.

THE ARGUEMNTS:Is vote by mail constitutional? As election looms, the Delaware Supreme Court will decide

“The governor’s position has been simple and consistent,” she said. “We should make it easier – not harder – for all eligible Delawareans to vote and participate in our democratic process.”

While Republicans across the state praised the court’s unanimous ruling, Democrats and voting rights advocates decried the decision as a setback for democracy in the First State.

Attorney General Kathy Jennings, whose office argued in favor of the new voting system in the court, criticized Delaware Republicans for “working to make it harder and less safe for people to vote.”

“Whether it’s pulling votes on a constitutional amendment, withholding them on popular vote by mail legislation or suing to restrict ballot access, the Delaware Republican Party is showing us the lengths they’ll go to stop the people from voting,” she said.

“Extremists are celebrating today at voters’ expense.”

Attorney General Kathy Jennings speaks at a press conference on Monday, Oct. 11, in front of the Leonard L. Williams Justice Center.
Attorney General Kathy Jennings speaks at a press conference on Monday, Oct. 11, in front of the Leonard L. Williams Justice Center.

Jane Brady, chair of the Delaware Republican Party and former state attorney general who argued the case on behalf of those challenging the law, said the fight was over “rule of law” and not politics.

“I am very pleased that the court recognized the language of the constitution means something and it was important that the ruling they issued was supported by law,” Brady said.

Brady rejected the idea that her party was seeking to limit electoral participation in a state where registered Republican voters are greatly outnumbered by registered Democrats.

As well, Julianne Murray, the Republican candidate challenging Jennings for attorney general in November and an attorney who represented those challenging the vote-by-mail changes, said the lawsuit was not about politics. Murray noted that absentee voting was allowed and expanded by decades-old amendments to the state’s constitution and argued the expansion of mail voting should have followed the same path.

“This had no political undertones. This was always about process and following that process,” Murray said. “Those that say this is about trying to suppress the vote, I absolutely disagree.”

The ruling is the latest turn in years of efforts by the Democratic-controlled Legislature to try to amend the constitution in order to expand absentee voting. The state constitution requires registered voters to provide an excuse in order to cast an absentee ballot.

The path forward has now become more difficult for Democrats, as the Supreme Court has made it clear that the expansion of voting access in the state will require constitutional amendments – which have previously been attempted and successfully blocked by Republicans.

In order to pass a constitutional amendment, the General Assembly needs to pass the bill in two consecutive legislative sessions with two-thirds support. An attempt to do this has already failed.

In 2019, a vast majority of House Republicans voted for the bill. Following the 2020 election, Delaware Republicans changed their stance. None of them voted for it in 2021, which successfully blocked it.

This year, Democrats deployed a new strategy. In the final weeks of session, Democrats passed legislation that would allow registered voters to vote by mail if they request such a ballot from state officials.

Republicans were adamantly against this legislation and vowed that it would be litigated in court. A lawsuit was filed shortly after.

Senate Republican Leader Gerald Hocker and Senate Republican Whip Brian Pettyjohn, in a statement celebrating the court’s decision, said Democratic lawmakers “ignored our concerns, dismissed expert legal testimony and passed both pieces of legislation anyway.”

Vice Chancellor Nathan Cook ruled in September that the law violates provisions of the state constitution that dictate the circumstances in which a resident is allowed to vote absentee. The decision from the Court of Chancery judge landed one day after the primary election last month, in which Delawareans were allowed to vote by mail.

Cook upheld the state’s same-day voter registration law, which was also recently passed by the General Assembly. Yet the Supreme Court reversed this decision pertaining to same-day voter registration.

In 2020, lawmakers, citing emergency powers, temporarily expanded absentee voting by mailing ballots to registered voters, due to concerns at the time of high COVID-19 infection rates. This differed from the state’s typical absentee system, in which voters needed to provide an excuse in order to vote by mail.

Stephen Friedman, a law professor at Widener University’s Delaware Law School, believes this 2020 temporary change might have backfired on the state. During oral arguments on Thursday, some justices questioned the state’s decision and if its current argument was a contradiction.

“That came back to haunt the Legislature to some degree,” he said. Friedman also believes that a 1972 advisory opinion by the Supreme Court on this issue, though not binding, might have been hard for the court to ignore.

The ruling by Delaware’s highest court is significant, Friedman said, given recent rulings in other states. The Pennsylvania and Massachusetts supreme courts, this summer, both upheld voting by mail legislation, rejecting arguments from Republicans that it violated the respective state’s constitution.

Despite the blow, Democratic leadership in both legislative chambers vowed on Friday to continue to push for these policies. Sen. Kyle Evans Gay, the sponsor of the vote-by-mail legislation, said in an interview Friday that though the decision is disappointing, it has given lawmakers a “clarity of purpose.”

“We now know that we need to either modify (the state constitution) or set up the system differently so that we can continue to increase access,” she said.

But that will not be easy.

Mike Brickner, executive director of the Delaware ACLU, said there are also concerns about the future of early voting, which is also being challenged in court. The ruling will also likely bring confusion to voters, which could affect participation.

“Now that the state Supreme Court has ruled this way,” Brickner said, “it's really made it more difficult for the Legislature to really do anything beyond passing a constitutional amendment.”

“It's important to remember how difficult that is here in the state of Delaware.”

Even if Democrats were able to achieve this, it wouldn’t be until after the next presidential election.

This article originally appeared on Delaware News Journal: Delaware vote-by-mail ruled unconstitutional by state Supreme Court