Delaware's Court of Chancery ruled on Wednesday that the state's recently passed vote-by-mail law is unconstitutional.
Vice Chancellor Nathan Cook wrote in his decision that offering no-excuse vote-by-mail constitutes a new form of absentee voting — a change that would require a constitutional amendment and a two-thirds majority in both houses of the legislature in two consecutive legislative sessions.
Instead, after an earlier effort to pass a constitutional amendment to expand absentee voting failed, Democratic state law makers opted to pass the vote-by-mail bill with a simple majority, arguing that it does not qualify as absentee voting.
Delaware's constitution spells out narrow circumstances in which absentee voting is allowed, including for military personnel deployed overseas.
"Our Supreme Court and this court have consistently stated that those circumstances are exhaustive," Cook wrote. "Therefore, as a trial judge, I am compelled by precedent to conclude that the vote-by-mail statute's attempt to expand absentee voting ... must be rejected."
The decision comes in response to a lawsuit filed by former judge and current Delaware GOP Chair Jane Brady, along with a suit filed by Attorney General candidate Julianne Murray last summer on behalf of three plaintiffs representing a Democrat, a Republican and an unaffiliated voter.
“This lawsuit is not an attack on vote by mail," said Nick Miles, a registered Democrat and a plaintiff in Murray's suit in a statement. "If the General Assembly wants permanent, no-excuse vote by mail, they should amend the constitution."
Brady's suit also challenged Delaware's new same-day voter registration law; Cook upheld that statute in his ruling on Wednesday.
Vice Chancellor Nathan Cook concurred, but State Senator Kyle Evans Gay, the sponsor of the vote-by-mail bill, notes that Cook also offered a path for the state to appeal his decision.
“The trial court felt bound by older case law about absentee balloting," she said, "but invited a review of this older caselaw by the Supreme Court as an appellate authority.”
The Delaware Supreme Court case law at issue concluded the state constitution’s list of reasons for absentee voting is exhaustive. In his ruling, Cook noted that as a trial judge, he is unable to revisit that case law, but he suggested that Supreme Court could reconsider the decisions underpinning his ruling.
"I were writing on a blank slate, I would likely conclude that the Vote- by-Mail Statute is not prohibited by the Delaware Constitution," Cook wrote. "In that scenario, to invalidate the Vote-by-Mail Statute, I would need to find clear and convincing evidence of an express or implied prohibition in the Constitution and that is a very high bar to clear."
Brady, however, argues that the decisions underpinning Cook's ruling should not be reconsidered; instead, she believes that the General Assembly could still achieve its goal of allowing no-excuse absentee voting by reworking the original proposed constitutional amendment.
"There are no legal barriers to the general assembly passing the constitutional amendment, but there are political barriers," she said. "The amendment that went before the general assembly gave broad powers to send ballots to every registered voter, regardless of whether they had requested it. But allowing no-excuse absentee voting by request — and with proof of identification — could still be politically viable."
Brady expects the state to appeal the decision. Senate Democratic leadership expressed frustration with the decision on Thursday, also noting that they expect the state to appeal.
"As a result of a Republican-led effort to make voting as inconvenient as possible, there now exists a very real possibility that Delawareans could be denied the right to vote by mail in November," wrote Senate President Pro Tempore David Sokola, Senate Majority Leader Bryan Townsend and Senate Majority Whip Elizabeth Lockman in a joint statement. "While our hope is that the Department of Elections will ultimately prevail on appeal, the reality is voters can settle this matter on Election Day by electing more Democrats to the General Assembly and ensuring the GOP doesn't have the votes it needs to block policies that are supported by 7 out of 10 Delawareans."
But Murray says that it could be difficult for the Supreme Court to rule on an appeal before November's general election. "For the Supreme Court to take it — the notice of appeal to be noted, to hear it and decide it... can it be done? Sure," she said. "But whether that actually happens, I do not know.”
Delaware's Department of Elections and Attorney General's Office would not comment on whether the state plans to appeal, nor would Governor John Carney.
"We are disappointed in the outcome on the vote-by-mail law, but we appreciate the Vice Chancellor’s discussion of his limited role," wrote Carney spokesperson Emily David Hershman. "The Governor’s position has been simple and consistent. We should make it easier – not harder – for all eligible Delawareans to vote and participate in our democratic process."
The court also granted an injunction barring the use of vote-by-mail in November. Murray added that if vote-by-mail can't be used in this year's general election, lawmakers could still take the constitutional amendment route to make voting by mail possible in 2024.
