As published on WDEL 9/14 at 11:00 pm
Sean Green, WDEL
Delaware’s new vote-by-mail system has been struck down by a Delaware’s Chancery Court decision Wednesday.
Vice Chancellor Nathan Cook’s injunction came just hours after the system was used in Tuesday’s primary election, where 10,586 of the 50,521 votes (21%) for Democratic State Auditor were either absentee or vote-by-mail. The state’s Department of Elections website did not distinguish between the two categories.
In comparison, just 3,840 absentee votes were cast out of 79,202 (4.8%) in the 2018 Democratic U.S. Senate primary between Tom Carper and Kerri Harris.
The Delaware legislature passed SB 320 in June after a lengthy discussion over the constitutionality of creating a system where Delawareans could request a ballot with 30 days before the election.
At the time, Speaker of the House Pete Schwartzkopf (D-Rehoboth) ended the debate after lawyers representing both parties hit a stalemate.
“I don’t know whether it’s constitutional or not constitutional, and neither do you guys, or anybody else in here. The best way to get this thing done is hear this bill, move forward, and let a challenge go to the courts, and let them decide it.”
The constitutionality question went to the courts after five plaintiffs, who were represented by GOP Party Chairwoman Jane Brady and Republican Attorney General Candidate Julianne Murray, filed a lawsuit in Delaware’s Chancery Court.
Murray ran against John Carney in the 2020 governor’s race and received about 6,500 fewer votes than Carney in the machine vote tally (166,169 to 159,633), but lost 126,734 to 30,639 in the absentee/vote-by-mail count, with the latter being permitted while the COVID-19 State of Emergency was in place.
The statute that permitted vote-by-mail in 2020 expired in January 2021.
Judge Cook ruled that based on Article V, Section 4A of the Delaware Constitution (see below) he had to go off of the precedent that the Supreme Court and Chancery Court have “constantly stated that those circumstances are exhaustive.”
“The General Assembly shall enact general laws providing that any qualified elector of this State, duly registered, who shall be unable to appear to cast his or her ballot at any general election at the regular polling place of the election district in which he or she is registered, either because of being in the public service of the United States or of this State, or his or her spouse or dependents when residing with or accompanying him or her because of the nature of his or her business or occupation, because of his or her sickness or physical disability, because of his or her absence from the district while on vacation, or because of the tenets or teachings of his or her religion, may cast a ballot at such general election to be counted in such election district.”
Cook said without the precedent:
“I would likely conclude that the plain text of the constitution, coupled with the strong presumptions in favor of constitutionality of legislative acts, lead me to a different result.”
The lawsuit, and ruling, were aimed directly at the general election, and have no bearing on the results of Tuesday’s primary election.
A constitutional amendment which would have changed that section to create broader language for absentee balloting failed to receive the two-thirds required majority, opening the door for the challenge.
A second part of the lawsuit sought to cancel same-day registration at polling places, which was also passed by the Delaware Legislature late in the June session.
Cook ruled that a 1925 constitutional amendment by the Delaware Legislature to delete language saying registration must “be completed” by a certain period of time before a general election allows same-day to qualify.
Cook said the plaintiffs failed to explain by there was that change, so he could not say there was “clear evidence” of a constitutional violation.
He did open a door for a possible appeal on the vote-by-mail portion. The Delaware Department of Elections pointed to cases of vote-by-mail in permitted in Pennsylvania and Massachusetts as a reason it should be legal in Delaware. But Cook said while he believes the Delaware Supreme Court could use those cases in an appeal, he was bound by the Delaware Constitution.
The Department of Elections had been preparing to deliver vote-by-mail ballots on October 10. Those who cannot make it to the polls in November can still request an absentee ballot.