Delaware judge asked to allow counting of late mail ballots

October 6, 2020 GMT

DOVER, Del. (AP) — The Delaware League of Women Voters is asking a judge to override state election law and allow absentee and mail-in ballots received after the state-mandated deadline in November’s election to be counted.

The judge heard arguments Tuesday in a complaint filed by the ACLU and a Wilmington attorney on behalf of the League.

Delaware law has long required that absentee ballots be received by the time polls close at 8 p.m. on Election Day. The same deadline applies to ballots cast under a universal vote-by-mail law enacted by the General Assembly specifically for this year’s elections because of the coronavirus.


Attorneys for the League of Women Voters say the new law is unconstitutional as applied because, even though it makes voting much easier, voting by mail is a burden for some people. They want Vice Chancellor Sam Glasscock III to force officials to count ballots received up to 10 days after Election Day.

Attorneys for the Department of Elections argue that only the General Assembly can alter the deadline.

“What’s at stake in this case is whether the long-standing statutory and constitutionally based Election Day deadline ... can be judicially second-guessed,” said Max Walton, a Wilmington attorney hired to represent the state.

“It’s the General Assembly’s job to make the rules,” he said.

Glasscock plans to issue a decision by the end of the week. He also indicated that, rather than ruling for one side or the other, he could put the case on hold until after Election Day to see whether a significant number of ballots are not counted because they were received too late. If so, the votes received late, which are not immediately discarded, could eventually be counted.

Last week, in a separate case, Glasscock rejected a Republican Party challenge to the vote-by-mail law, noting that “legislation enjoys a presumption of constitutionality.” The GOP had argued that lawmakers in the Democrat-controlled legislature exceeded their constitutional authority in invoking emergency powers to declare that conforming to the requirements of Delaware’s constitution, which has explicit limitations on absentee voting, “would be impracticable.”

Attorneys for the League of Women Voters are not challenging the General Assembly’s exercise of emergency powers, nor do they argue that the deadline for receiving absentee ballots in previous elections was unconstitutional.

Instead, they say the deadline is unconstitutional as applied to next month’s election because of the significant number of vote-by-mail ballots expected and potential delays in Postal Service delivery.


David Fry, an attorney for the league, argued that legislators could not have foreseen the large number of people opting to vote by mail — as evidenced in the July presidential primary and September statewide primary — or the number of ballots rejected because they arrived late.

“So the legislature didn’t anticipate that vote by mail was going to cause a great increase in voting by mail?” Glasscock asked skeptically.

Fry responded that lawmakers could not have known the impact of the return deadline on the increased number of mailed ballots.

“It is difficult to uncouple this from the Postal Service delays because, of course, that really is the driving force behind why, in our view, the return deadline is unconstitutional as applied,” he added.

“But you just told me it was unconstitutional as applied regardless of the Postal Service problem,” Glasscock countered.

“That’s correct, your honor,” Fry replied.

State officials say the rejection rate for mail ballots received late fell from about 3% in the presidential primary to about 1% in last month’s primary. Walton said the 1% figure is similar to what other states have seen.

Officials began sending mail-in ballots to those who requested them this week and will continue to do as late as four days before the election.

“You’re not suggesting that if they vote 30 days before the election that their vote is likely to be uncounted, are you?” Glasscock asked.

Fry responded that voting by mail in itself is a “burden” for some people, even though they never have to leave their homes or pay for a postage stamp or envelope.

The new law requires that vote-by-mail ballot applications be sent to all Delaware voters, who can also request applications online. Anyone choosing to vote by mail fills out and returns the application in a postage-paid envelope provided by the state. They then receive an actual ballot to fill out, with the return envelope and postage again provided by the state.