Del. GOP lawsuit says state’s new vote-by-mail law ‘unconstitutional’

Delaware legislators passed a coronavirus-inspired law in late June that expands access to mail-in voting. The process was used for the recent presidential primary, and is being employed for the state primary and general elections.

But the Republican State Committee of Delaware and two GOP members are challenging the law in Chancery Court, saying its use in the Nov. 3 general election violates the state constitution.

The new procedure “upsets established constitutional means for voting absentee by flooding all registered voters with unsolicited applications to receive a voting by mail ballot, allowing any voter for any reason [or no reason at all], to vote by mail,” the lawsuit alleges.

Under the Delaware Constitution, people can submit an “absentee’’ ballot if they won’t be able to vote in person at their polling place because:

• They will be in the “public service” of the state or nation or working elsewhere.
• Have an illness or physical disability.
• They will be on vacation.
• Of the “tenets or teaching” of their religion.

The new law acknowledges that constitutional clause but uses another part of the constitution. That clause allows the government to adopt measures “for insuring the continuity of government operations’’ in “periods of emergency resulting from disease” when not to do so “would be impracticable or would cause undue delay.”

The new law stipulates that “due to the highly contagious nature of COVID-19 and the need to protect the electors and polling workers in this state from infection of COVID-19, voting by mail is necessary and proper.”

The Senate passed the measure 18-3, with all Democrats and six of the nine Republicans voting yes. It was approved 25-13 in the House, with no GOP support.

Republicans are outnumbered nearly 2 to 1 by Democrats in Delaware, and currently hold none of the nine statewide elective offices.

Under the procedures since implemented by the state Department of Elections, there is “no excuse needed” should voters request a vote-by-mail ballot.

The lawsuit is not challenging the procedure for Delaware’s Sept. 15 state primary, noting that the constitution doesn’t address such elections.

But beyond alleging that the new law violates the constitution’s limited use of absentee ballots for the general election, the court filing argues that the new process isn’t needed to ensure government operations.

That’s because Elections Commissioner Anthony Albence has said publicly that all polling places would be open for the election — a position Albence reiterated Wednesday in response to an inquiry from WHYY News.

“There is no disruption of the election process by virtue of any current issue,’’ state GOP chairman Jane Brady, a former Delaware attorney general and Superior Court judge, told WHYY.

The new law is also “unnecessary,” Brady said.

“The constitution calls for voting in public or absentee, for specific reasons. One of these is health. We are not objecting to people requesting an absentee ballot and voting remotely. We’ve had absentee balloting in Delaware forever and we have never had an issue with fraud.”

The lawsuit seeks an injunction halting the expanded vote-by-mail process for November, and ultimately wants it overturned.

Albence, who is named in the lawsuit, would not comment on the case.

The law’s chief legislative sponsor, House Majority Leader Valerie Longhurst (D-Bear), would not agree to an interview but issued a statement saying that the law “mirrors’’ one used for decades in Delaware “by our military, overseas residents, the sick and those with disabilities … We want to make sure voters have the ability to cast their ballots without risking their health and safety.”

Gov. John Carney, who signed the bill into law, did not address the lawsuit during his weekly coronavirus briefing Tuesday, but said it was “passed so that we could encourage people to vote safely in the context of a COVID-19 pandemic.”