Vote-by-mail in Delaware: How we got here
This week, Delawareans who already requested vote-by-mail ballots for November’s general elections started receiving them and could begin filling them out and sending them in.
The state’s new vote-by-mail system created in response to the pandemic has now withstood two legal challenges. A Chancery Court judge denied a bid by two non-profits to extend the ballot return deadline Friday.
Delaware Public Media’s Sophia Schmidt has more on the path taken to bring mail-in voting to the First State.
Just a few thousand people voted absentee or by mail in Delaware’s 2016 state Primary Election.
This year, nearly sixteen times as many did. Even more could vote that way in the General Election next month.
That’s because for the first time, Delawareans can vote by mail without an excuse.
“Vote by mail is an option,” said State Election Commissioner Anthony Albence. “We have the polling place option available. When the legislators wrote [the vote-by-mail] legislation, that was part of the intention—just adding this as an option, in addition to polling places.”
Delaware’s shift is part of a massive expansion of vote-by-mail nationwide amid the pandemic. An NPR, PBS and Marist Poll last month found 35 percent of registered voters across the country plan to vote by mail in November.
But not everyone is happy with this expansion.
Hundreds of lawsuits have been filed across the country against states’ vote-by-mail systems—over issues like accessibility to disabled voters, ballot return deadlines and drop boxes.
Even in Delaware, this year’s temporary vote-by-mail system has faced two legal challenges.
The League of Women Voters and ACLU of Delaware are trying to get the deadline to return ballots by mail extended.
The state Republican party tried to get the entire system thrown out, arguing the legislation that established it was unconstitutional.
The vote-by-mail law passed this summer was not the first change to Delaware’s voting options this year.
In March, Gov. John Carney used his coronavirus emergency order to expand one of the traditional absentee voting excuses, “sick or physically disabled,” to include anyone impacted by the coronavirus for the presidential and state primaries.
That effectively allowed every registered Democrat or Republican in Delaware to vote by mail, email and for a time, an internet voting platform, in July’s Presidential Primary—and prompted an unprecedented level of absentee voting that election.
The vote-by-mail legislation passed this summer sought to make it even easier for Delawareans to vote remotely this year.
“Voting is a right, and it's not a privilege,” said the lead sponsor of the legislation, House Majority Leader Valerie Longhurst, at a virtual bill signing in July. “We should never have to choose between our health or the right to vote. House Bill 346 is a bill that will help all Delawareans to stay safe.”
HB 346 directed the Department of Elections to send vote-by-mail applications to all Primary and General Election voters who hadn’t already chosen to vote absentee. Voters can also apply for a mail-in ballot online.
Voters can return their mail-in ballots by postal mail or place them in one of five secure drop boxes statewide.
Mail-in votes must be received by election officials by the close of polls on Election Day. Unlike in some states, ballots postmarked by election day but received later cannot be counted.
The Delaware Republican party sued the state to try to block vote-by-mail before the November election.
Julia Klein represented the GOP at a Chancery Court hearing last month. She argued that vote-by-mail is not absolutely necessary to the continuity of government, and is therefore unconstitutional.
“All the polling places were open,” said Klein. “They 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.”
Vice Chancellor Sam Glasscock III rejected that argument, writing that maintenance of polling places with volunteer staff is itself a governmental function. With the Coronavirus at large, he wrote, that function “is threatened by massive in-person voting.”
The deadline to return mail-in ballots is at the heart of a Delaware League of Women Voters and the ACLU of Delaware lawsuit. They argue that even voters abiding by vote-by-mail deadlines may not have their votes counted.
Under HB 346, voters can request a mail-in ballot as little as four days before the election—the last day officials can send ballots out. The Department of Elections recommends on its website that voters send applications in at least a week before the election.
But the U.S. Postal Service recommends voters mail ballots back by that point.
David Fry represented the League of Women Voters before a Chancery Court judge Tuesday.
“There are people who can engage in a good-faith process to understand what the deadlines are, when they need to request their ballot, how early they need to vote—and believe they're following the process in good faith—and still have their votes not count because they show up too late,” he said.
Fry argued this violates the “free and fair elections” and “right to vote” clauses of Delaware's constitution.
But Vice Chancellor Glasscock questioned where the line should be drawn.
“There were always people who needed to rely on absentee balloting in order to have their vote registered,” Glasscock said during Tuesday’s hearing. “I'm struggling to understand that it was constitutional, even though some people were being disenfranchised. Now it's unconstitutional. And you're saying it's more than just more people are liable to be disenfranchised?”
Glasscock rejected the League of Women Voters and ACLU challenge Friday.
He wrote that he did not find the deadlines unconstitutional as applied.
“The USPS had changed its procedures in a way that led to delays that could make the deadline’s burden on vote-by-mail voters unreasonable, but the Defendants and others similarly interested have obtained injunctions against the USPS designed to eliminate this threat of undue delay,” Glasscock wrote. “Nothing in the record now convinces me that voters availing themselves of the expanded right to mail ballots will be burdened beyond the usual requirement that they post their ballots at least a few days prior to the deadline. On that record, I may not invalidate a statute and craft one of my own.”
Karen Lantz, legal and policy director of the ACLU of Delaware, said in a statement Friday that the organization was “disappointed” in the Court’s ruling, and would be discussing next steps with its clients.
“Voting is our most fundamental right and the ACLU of Delaware will always fight to protect and expand that right,” she said.
Election Commissioner Anthony Albence has declined to weigh in on whether the mail-in ballot return deadline should be extended to make sure all votes are counted.
“Our philosophy is looking at the way the law is now and just encouraging people to be as prudent as they can, to get stuff in as early as they can,” Albence said late last month.
More than 800 mail-in ballots, or around 1 percent, went uncounted during September’s Primary Election because they arrived after the close of polls, according to the Delaware Department of Elections.
Mike Brickner, executive director of the ACLU of Delaware, said during a get-out-the-vote webinar late last month his concern is with changes Postmaster General Louis DeJoy instituted this summer.
“If you've been paying attention to what's going on with the U.S. Postal Service right now, and all of the tricks and hijinx that many people in the federal government are using right now to slow down the mail, we're seeing where that is endangering our right to vote by mail,” Brickner said.
Federal judges have recently ruled to stop the changes.
The Postal Service says it has a robust and tested process for proper handling and timely delivery of Election Mail.
Elaine Manlove, the former state election commissioner who retired in 2019, says she thinks the state’s current ballot return deadline works for widespread mail-in voting.
“I do think it's sufficient,” she said in an interview Thursday. “I think people need to take the responsibility to get their ballot in the mail earlier, or drop it off at the Department of Elections.”
Manlove says she thinks the concern over the deadline stems from national rhetoric around the Postal Service.
“I think the President has done a great job making people think the post office is not going to get your ballot in,” Manlove said. “You can’t start taking equipment out of the post office right before Election Day, it just doesn't make sense, especially when more states are using vote-by-mail because of the pandemic. It's just an intimidation factor—just one more intimidation factor.”
“We need to encourage people to vote, not make it harder for them to vote,” she added.
Kimberly Johnson, a resident of Newark who has been unemployed during the pandemic, tried to vote by mail during the state Primary Election.
“But every time I went to mail it in, the mailbox was just overstuffed outside of the post office,” she said. “I wasn't aware of the ballot drop boxes in time. So I went in person and voted. They just voided [the mail-in ballot] out and had me vote in person.”
Johnson says even after this experience, she plans to vote by mail for the General Election.
“I'm immunocompromised,” she said. “So the idea of standing in that long line, which I'm sure will be even longer for the General Election—I’m definitely more for vote-by-mail. I just know, either mail it out super early, do it right away, or use the election offices’ … drop boxes.”
Secure drop boxes are located at the Carvel State Office Building in Wilmington, the New Castle County Office Warehouse & Training Center in New Castle, the Kent County Elections Office in Dover and the Sussex County Elections Office in Georgetown. Most of the drop boxes are only open on weekdays and close at 4:30 p.m., except on Election Day, when they will be open until polls close at 8 p.m. The exact drop box locations and hours of operation are listed on the Department of Elections’ website.
A ballot must be dropped off at the county elections office that issued it. Ballots cannot be dropped off at polling places.
Johnson notes that for people like her who do not own a car, getting to a ballot drop box can be difficult.
“From Newark, our side of the county—I definitely wouldn't call it convenient,” Johnson said.
More than 3,800 mail-in ballots were returned by drop box for the September Primary Election, according to the Department of Elections.
Election Commissioner Anthony Albence has hesitated to offer any opinion or analysis on the legislation that established this year’s vote-by-mail system. But he signaled in an interview last month that he felt the five drop boxes used in the recent Primary Election were sufficient.
“They seem to work very well, the locations that we had,” Albence said. “We had very good usage of it. Actually, in fact, we had a very high level of usage of all our boxes, so we were really happy with that overall.”
Manlove, the former election commissioner, sees having more drop boxes as “a great idea.”
“But on the flip side of that, this is all new to everybody,” she said. “What they're doing is testing it out.”
Rep. Valerie Longhurst, who sponsored the temporary vote-by-mail legislation, says she hopes the General Assembly will at some point make no-excuse vote-by-mail a permanent option in Delaware.
That’s an idea even a Republican like Rep. Mike Smith, who represents the Pike Creek area in the state House, supports.
“It’s something that we should get behind long-term,” he said. “It is everyone's unalienable right to vote. And, you know, we need to get up with the times of how people are able to do that effectively.”
This story has been updated.