Delaware Supreme Court strikes down no-excuse mail-in voting

(AP Photo/Matt Rourke, File)

(AP Photo/Matt Rourke, File)

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The Delaware Supreme Court wasted no time banning no-excuse mail-in voting, which lawmakers had approved in June for use in this year’s elections.

The justices issued their expedited ruling Friday, just one day after the justices held a hearing on whether to affirm or overturn a Sept. 15 ruling from a Chancery Court judge who said the new law violated the Delaware Constitution.

“The vote-by-mail statute impermissibly expands the categories of absentee voters identified’’ in the constitution, the justices ruled in a unanimous vote.

The court will issue a full opinion later, but said it “enters this abbreviated order in recognition of the impending election scheduled for November 8, 2022, and the Department of Election’s desire to mail ballots to voters by or around October 10, 2022.”

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The ruling did not affect the mail-in ballots used in the Sept. 13 primary election, when about one-fifth of the approximately 50,000 votes were sent by mail.

Vice Chancellor Nathan Cook had ruled last month that state courts have consistently stated that absentee balloting is only permissible as spelled out in the state constitution when a voter can’t get to their polling location for these reasons:

  • Public service to the state or nation
  • Business or occupation for themselves, or when accompanying a spouse or dependent to work.
  • Illness or injury

In addition to the mail-in vote decision, the high court also negated a new law that allows people to register and vote on Election Day. The deadline to register to vote will be the fourth Saturday before the election, which is Oct. 15.

Lawmakers responded swiftly, with Senate Republican leaders who opposed the laws praising the decision, and Democrats who control both the House and Senate and pushed the measures expressing disappointment.

GOP senators Gerald Hocker and Brian Pettyjohn, both of Sussex County, reiterated that Republicans “correctly argued during the flood debates” that both measures violated the constitution.

“The sponsors and Democrats ignored our concerns, dismissed expert legal testimony, and passed both pieces of legislation anyway. Today, however, the rule of law prevailed,’’ they said.

House Speaker Pete Schwartzkopf and Majority Leader Valerie Longhurst called the ruling a blow “to us and all voting rights advocates out there. At a time when voting rights across the nation are under attack, Delaware has repeatedly attempted to be a positive example of how to enfranchise residents and make it easier and more convenient for them to exercise their constitutionally protected right to vote.”

Democrats had tried to pass a constitutional amendment to authorize mail-in voting but failed, so instead they passed a law that Chief Deputy Attorney General Alexander Mackler argued Thursday was not an expansion of absentee rights, but an action that complied with the Legislature’s broad powers to craft election laws.

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“Unfortunately, the Supreme Court’s decision reinforces that our previous efforts to amend Delaware’s Constitution for voting is more important now than ever,’’ Schwartzkopf and Longhurst said. “Democrats have steadfastly supported these attempts, which would ultimately improve access and opportunities for all voters, and we will continue to push for these critical changes to our electoral laws.

Democratic Senate leaders Dave Sokola, Bryan Townsend, and Elizabeth Lockman said the ruling “will effectively make voting harder and less convenient for working people in the First State, whom we believe should enjoy the same rights held by voters in dozens of other states across the country.”

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