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State attorneys defend law allowing universal voting by mail

September 18, 2020 GMT

DOVER, Del. (AP) — Attorneys for the Delaware Department of Elections are asking a Chancery Court judge to reject the state Republican Party’s challenge to a new law allowing universal voting by mail in the November election.

The GOP filed a lawsuit last month arguing lawmakers in the Democrat-controlled legislature exceeded their constitutional authority in invoking emergency powers to pass the measure, which was signed into law July 1, less than three weeks after being introduced.

Vice Chancellor Sam Glassock III has scheduled a Thursday hearing on the GOP’s request for an injunction to prevent vote-by-mail ballots from being counted.

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Attorneys for the state argue that the lawsuit should be dismissed as being filed too late because the plaintiffs, the state GOP and two individual voters, waited for seven weeks to challenge the law. They also argue that the plaintiffs have no standing to sue because they cannot demonstrate that they would be injured in a concrete and particular way, and that any alleged injury stemming from universal voting by mail would be shared by all members of the public.

Finally, state attorneys argue that the plaintiffs’ request for an injunction should be denied because they cannot succeed on the merits of their claim. They argue that courts must give deference to decisions of the General Assembly, and that the laws it passes are presumed to be constitutional unless their invalidity is beyond doubt.

“Even if the General Assembly’s judgment that voting by mail is necessary and proper for the continuity of governmental operations during the COVID-19 pandemic could be considered ‘fairly debatable,’ ‘legislative judgment must be allowed to control,’” they wrote, citing a 1951 Delaware Supreme Court ruling.

Supporters of the bill said the coronavirus pandemic justifies allowing everyone in the state to vote by mail, rather than having to go to local polling places or request an absentee ballot. State attorneys argue that if the vote-by-mail law is struck down, Delaware residents — who are routinely leaving their homes to go shopping, dine out, attend church and engage in other activities despite the coronavirus — “would face the Hobson’s choice of either voting and risking a potentially fatal illness, or not exercising their franchise.”

They also suggest that, even though all polling places will be open and there is no prohibition against in-person voting, not allowing universal voting by mail could interfere with the “free and equal” elections guaranteed by the constitution.

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“Impermissible restrictions on the free and equal right to vote can arise in the form of the threat posed by a potentially-fatal disease, as well as from threats from other sources,” they wrote.

Under the new law, the Department of Elections was required to send applications for mail-in ballots to all registered voters in Delaware by Sept. 4. Those ballots can be counted beginning Oct. 4.

As of Sept. 1, there were 729,888 registered voters in Delaware. But in their Sept. 16 court filing, submitted nearly two weeks after the deadline for applications to be mailed, state attorneys said only about 529,580 applications had been sent. Nevertheless, elections commissioner Anthony Albence said in a sworn affidavit accompanying the state’s court filing that the Department of Elections had mailed vote-by-mail applications and accompanying cover letters to all registered voters. The reason for the discrepancy was not immediately clear.

Republicans, meanwhile, have said the law could lead to problems with election security and the vote count. They contend that lawmakers improperly expanded the specific allowances for absentee voting that are contained in the constitution.

“In so doing, they upset a time-tested, dependable, and constitutional voting process and replaced it with a haphazard, flood-the-market electoral experiment that threatens to disenfranchise eligible voters due to ... untimely delivery of mail, ballots being rejected for non-compliance, and invites voter fraud, such as double voting,” attorney Julia Klein wrote on behalf of the plaintiffs.

The plaintiffs point to a 1972 opinion in which the Delaware Supreme Court said that, by expressly including certain classifications of voters allowed to cast absentee ballots, the drafters of the constitution impliedly excluded all other classifications.

“It is beyond the power of the legislature, in our opinion, to either limit or enlarge upon the ... absentee voter classifications specified in the constitution for general elections,” the court wrote.

But lawmakers asserted that voting by mail is “necessary and proper for insuring the continuity of governmental operations,” and that conforming to the traditional constitutional limitations on absentee voting “would be impracticable.”

In their findings justifying passage of the law, lawmakers also that the CDC has recommended that nursing homes, long-term care facilities, and senior living residences not be used as polling places to minimize COVID-19 exposure among individuals and those with chronic medical conditions.

Despite that finding, at least four senior centers and one assisted living facility were among the polling places for Tuesday’s primary election.