There has been a lot of discussion about election integrity over the past two years, and about the laws that govern voting, not only nationally, but also in Delaware. After the extensive use of absentee ballots and mail in voting last year, there is a lot of confusion about what the rules will be for the election this November.
Importantly, you should know that the rules that the Legislature passed that allowed for mail-in voting no longer apply. Those provisions expired in January 2021. There is no mail-in voting in Delaware for this year’s election.
The Delaware Constitution is the supreme law of our state. Any statute must be consistent with the terms of the Constitution. There are very specific provisions about election laws in the Constitution, although it is significant that they only apply to the general election in November, and not to any special election or primary. The Constitution provides that a registered voter must vote on election day, the first Tuesday after the second Monday in November, at their regular polling location in the district in which they live. The Constitution then allows for absentee voting under certain, specific circumstances:
“… 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.”
The General Assembly has enacted laws that appear to violate the provisions in our Constitution. One is a statute that permits early voting, which became effective in January of this year. It provides that voting sites be set up at least 10 days before the day of the election for early voting. It does not require that a voter meet the criteria set out in the Constitution to qualify to vote absentee.
The General Assembly also has enacted a law that allows a voter to request “permanent absentee” status. That law does not require a voter to request a ballot again for any election held after the date they have been placed on permanent absentee status, and a ballot is mailed to them without further action on their part. The list of those who are considered permanent absentee voters grew substantially last year, when every voter in Delaware was mailed an application for an absentee ballot that included an option to request permanent absentee status. That list now contains over 23,000 voters, and included among those names are people who have died or have moved and are no longer eligible to vote. But, a ballot will be mailed to their address because the Department of Elections still has their names on the list.
There is now litigation pending challenging those two laws. The contention is that the law cannot violate the Constitution, and when a law does, it is invalid. A decision is expected before the November election.
Another bill that is currently pending in the General Assembly would also affect the Constitution and voting. That law would amend the Constitution and place determination of all voting matters into the hands of the General Assembly. A simple majority of our legislators could change the rules, and as each Party gained a majority, they could change them again. Such uncertainty does not generate public confidence in the process.
The provisions in the Delaware Constitution have served to give the public confidence in the integrity of our elections for more than a century. We should honor that legacy, leave those provisions intact, and enforce them properly.
Jane Brady is a former Attorney General of Delaware and former Judge of the Delaware Superior Court. She currently serves as Chair of the Delaware Republican Party.