Vote-by-mail survives GOP challenge in Chancery Court
A Chancery Court judge has shut down the state Republican party’s attempt to stop mail-in voting before the November election.
The Republican State Committee of Delaware wanted vote-by-mail halted just weeks before the General Election. The party claimed the legislation allowing vote-by-mail this year is unconstitutional, that it risks disenfranchising voters who return ballots incorrectly and opens Delaware’s elections up to fraud.
The FBI said last month it had no evidence of coordinated fraud schemes related to voting by mail this year.
Julia Klein, a lawyer for the state GOP, argued during a hearing last week that despite the pandemic, mail-in voting is not necessary for governmental functions to keep operating—and is therefore unconstitutional.
“All the polling places were open,” Klein said Thursday. “We did have a mechanism, a constitutional mechanism—namely absentee voting—in place, which was as simple as people going online, clicking a button and requesting. So for the state to say that a new law had to be put in place to ensure that voting was going to happen … I think that’s contradicting.”
State Attorney General Kathy Jennings argued during the hearing that the state Legislature found mail-in voting was necessary because of the public health emergency.
“It is important to the functioning of a governmental operation—that is, ensuring an equal and full election— … that expansion of voting mechanisms be enacted,” she said.
Vice Chancellor Sam Glasscock III wrote in his opinion Monday that the Legislature’s belief in the necessity of vote-by-mail was not “clearly erroneous”—so he couldn’t throw the system out.
“The standard for my review of this legislative finding is quite limited,” Glasscock wrote. “In light of the Plaintiffs’ facial challenge to the validity of the Act, it must demonstrate clearly and convincingly that the legislative finding of necessity is false or unwarranted. On the facts of record, the Plaintiffs do not come close to meeting that standard.”
Glasscock added that continuity of a democratically elected government requires “meaningful participation from the citizenry.”
“The Delaware Constitution … requires that elected officials be chosen by “free and equal” elections,” he wrote. “It is also true that the risk of the virus spreading among the people, following universal in-person voting, is itself inimical to the continuity of government. The maintenance of polling places with their volunteer staff, itself a governmental function, is threatened by massive in-person voting.”
Glasscock seemed skeptical of the GOP’s argument during last week’s hearing.
“What you’re concerned about is not that people will not be able to have their votes recorded,” he said to Klein. “You’re quite willing to have votes not be recorded. You’re trying to vindicate the Constitution itself, in the abstract.”
More than 76,300 Delawareans voted absentee or by mail in this month’s Primary Election. According to the Department of Elections, around two hundred of these ballots were thrown out because of a mistake with the ballot envelope.
The Department of Elections will start mailing ballots out to voters that requested them for the General Election in the next few days.
The State of Delaware saw another legal success Monday. A federal court in Pennsylvania ordered the U.S. Postal Service to temporarily stop operational changes implemented by Postmaster General Louis DeJoy until the agency goes through certain procedural steps. Attorney General Jennings had joined the Attorneys General of several other states as plaintiffs in that case.
“I’m grateful to the judges in these cases who ruled for the people and for the rule of law,” said Jennings in a statement Monday evening. “It’s unfortunate that we need to fight to defend basic rights and public services at all, but Delawareans’ constitutional rights are in the balance and we will continue to stand up to anyone who would try to undermine the public’s access to vital services—especially in the midst of a global pandemic.”
This story has been updated.