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Ruling overturning vote-by-mail law on hold as Department of Elections appeals

Sophia Schmidt
Delaware Public Media

A Court of Chancery judge paused the enforcement of a ruling he issued last week deeming Delaware's new vote-by-mail statute unconstitutional.

Vice Chancellor Nathan Cook's decision to delay action on his earlier ruling comes as Delaware's Department of Elections and Elections Commissioner Anthony Albence appeal the issue to Delaware's Supreme Court; Cook granted the defendants' request to stay his ruling pending the outcome of the appeal.

Last week, Cook ruled that the vote-by-mail statute effectively allows no-excuse absentee voting, violating a provision of the Delaware Constitution that lists the narrow circumstances in which absentee voting is permissible. In his ruling, Cook also laid out the roadmap for the state's appeal, underscoring that his decision was based on two decades-old advisory opinions — which determined that the constitution's list of circumstances for absentee voting is exhaustive — that may be due for reconsideration by the state Supreme Court.

Explaining his decision to place a stay on his injunction on Monday, Cook wrote that "if our Supreme Court determines to revisit that precedent and concludes that the Vote-by-Mail Statute is consistent with the Delaware Constitution, there is a serious risk that, absent a stay pending appeal, Delaware voters will be denied the opportunity to exercise their right to vote in the upcoming General Election by all constitutional means."

Cook noted that his stay will allow the Department of Elections to continue processing mail-in voting applications and preparing ballots; the Department will not, however, be able to mail ballots to voters. If the Supreme Court upholds his earlier ruling, Cook added, the Department of Elections will need to notify mail-in ballot applicants that they will need to vote in person in November's general election.

The Supreme Court is scheduled to hear arguments in the case on October 5.

If the Supreme Court upholds Cook's earlier ruling, Democratic state lawmakers may have another opportunity to make voting by mail a permanent feature of Delaware Elections.

Lawmakers passed the vote-by-mail statute over only three weeks during the most recent General Assembly after failing to win Republican support for a constitutional amendment allowing no-excuse absentee voting. However, after Cook's ruling last week, state GOP Chair and former Judge Jane Brady noted that some Republican lawmakers may be willing to consider a version of the amendment with additional guardrails, including a requirements that applicants provide proof of their identity.

But as a constitutional amendment, it would need pass in two consecutive 2-year General Assembly sessions. A new session start in January.

Paul Kiefer comes to Delaware from Seattle, where he covered policing, prisons and public safety for the local news site PubliCola.