Delaware justices nix vote-by-mail, same-day registration

October 7, 2022 GMT

DOVER, Del. (AP) — New state laws allowing universal voting by mail and Election Day registration are unconstitutional, Delaware’s Supreme Court ruled Friday.

In a three-page order, the justices said the vote-by-mail statute impermissibly expands the categories of absentee voters identified in Delaware’s constitution. The same-day registration law conflicts with the registration periods spelled out in the constitution, they said.

The order, which will be followed later by a formal opinion, came after justices heard arguments in the case Thursday.

Vice Chancellor Nathan Cook last month upheld the same-day registration law but said the vote-by-mail law, the result of legislation Democrats rammed through the General Assembly in less than three weeks, violates constitutional restrictions on absentee voting. Both bills were passed in June, each receiving exactly one Republican vote, and were signed by Democratic Gov. John Carney in July.

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Democratic Attorney General Kathleen Jennings appealed Cook’s ruling striking down the vote-by-mail law. Republican attorneys representing voters, a state House candidate and a Department of Elections employee appealed Cook’s decision upholding same-day registration.

The Supreme Court upheld Cook’s ruling on the vote-by-mail law but said his decision allowing same-day registration should be reversed.

“I am very pleased the court recognized that the language of the constitution really matters. This is a win for the rule of law,” said state Republican Party chair and former attorney general Jane Brady. Brady and Georgetown lawyer Julianne Murray, the GOP nominee for attorney general, represented plaintiffs challenging the new laws.

Jennings, who faces Murray in the November election, took a defiant tone, suggesting that Republicans will go to any length to “stop” people from voting. She also implied that she believes opponents of the laws that were struck down by the justices on constitutional grounds are political extremists.

“Extremists are celebrating today at voters’ expense,” Jennings said in a prepared statement.

Democratic leaders in the state House and Senate expressed disappointment with the ruling.

“Unfortunately, the Supreme Court’s decision reinforces that our previous efforts to amend Delaware’s constitution for voting is more important now than ever,” House Speaker Pete Schwartzopf and Majority Leader Valerie Longhurst said in prepared statement.

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Republican minority leaders in the state Senate noted that GOP lawmakers had argued in floor debates that both bills were unconstitutional.

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

Democratic lawmakers introduced the vote-by-mail bill after failing to win Republican support to amend the constitution. A constitutional amendment requires a two-thirds vote by each chamber in two consecutive General Assemblies. The first leg of a constitutional amendment to eliminate limitations on absentee balloting cleared the legislature in 2020, after initially being defeated in the Democrat-controlled Senate, but the second leg failed to win the necessary majority in the Democrat-led House last year.

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The constitution says a person is allowed to vote absentee if unable to go to the polls on Election Day because of his or her public service, business or occupation. Spouses and dependents who live with or accompany people in those circumstances also are allowed to vote absentee. Sickness or physical disability, vacation, and the tenets or teachings of a person’s religion are the other allowances.

The attorney general’s office argued that mail-in voting is not absentee voting. At the same time, however, it claimed that the constitution’s absentee voting provision does not preclude the General Assembly from allowing universal voting by mail.

In 2020, however, when they invoked their emergency powers to allow universal voting by mail that year because of the coronavirus pandemic, lawmakers explicitly acknowledged that the constitution’s list of reasons for absentee voting is “exhaustive,” meaning no other reasons are allowed. They also acknowledged that they must comply with the constitution in invoking their emergency powers unless doing so would be “impracticable” or cause undue delay. They then declared that conforming with the constitution’s absentee voting provision would be “impracticable.”

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Regarding voter registration, the constitution says the registration period for a general election cannot begin more than 120 days, or less than 60 days, before the election. It also cannot end more than 20 days, or less than 10 days, before the election.

Justice Karen Valihura pointed out during Thursday’s arguments that the 10-day period was intended to allow the registration rolls to be corrected and for anyone denied the ability to register to appeal. The constitution states that any correction must be done “prior to the day of holding the election.”

“How is it that the same-day statute doesn’t completely eviscerate the provision?” she asked.