The Delaware Supreme Court hears oral arguments about the constitutionality of the state’s vote-by-mail and same-day voter registration laws Thursday.
The statutes’ opponents, represented by state GOP Chair Jane Brady and Attorney General Candidate Julianne Murray, argued that Delaware’s constitution sets clear limits on the timing of registration and on the permissible reasons for absentee voting. They point to a 1972 advisory ruling by the state Supreme Court that interpreted the constitution’s list of reasons for absentee voting as exhaustive, though Murray noted that the ruling isn't essential to their argument.
Last month, Delaware's Court of Chancery cited the same advisory ruling — among other precedent — when determining the vote-by-mail statute to be unconstitutional. However, Vice Chancellor Nathan Cook also suggested that the Supreme Court might be due to reconsider past decisions related to voting access. Widener-Delaware Law Professor Stephen Friedman says the Court of Chancery's ruling set a playbook for the state's appeal.
"The Court of Chancery said that only ruled as such because it felt bound by precedents," he said. "If not for those precedents, it would have ruled differently. And it said that the Delaware Supreme Court would be able to consider this more broadly – it’s in a position to say that the precedent we have isn’t super clear.”
On Thursday, Murray asserted that when the General Assembly listed reasons for absentee voting in 1943 — the year Delaware first allowed absentee voting — lawmakers intended for those reasons to be exhaustive. “They drafted it and could have just said, ‘absentee voting is ok," she argued. "They went further than that.”
Brady offered similar reasoning about the Delaware Constitutions requiring that there be a registration period "ending not more than twenty days, nor less than ten days before, each General Election." While the Constitution allows the General Assembly to set a registration period, she reasoned, its framers intended that ten-to-twenty-day period as a buffer during which courts could consider appeals of registration decisions — including from voters whose registrations were denied.
Brady also argued that state courts wouldn't have time to process appeals of registration decisions made on or shortly before election day, which she said created “a problem for the even application of the law": a voter who tried to register a week before election day could appeal a registration decision more easily than someone who tried to register on election day.
Chief Deputy Attorney General Alexander Mackler responded that while same-day registration would create a logistics problem for courts trying to process appeals, it would not prohibit appeals altogether, and therefore wouldn't run afoul of voters' constitutional right to challenge registration decisions in court.
Mackler also asserted the constitution’s language should be a floor on which lawmakers can build, not a ceiling. He pointed to recent rulings in Pennsylvania and Massachusetts that determined lists of reasons for absentee voting only guarantee state legislatures couldn’t take away rights for people who met those requirements.
“If the General Assembly at the time wanted to amend the constitution and include a limitation, they could have said, ‘only. Only these voters may submit absentee ballots,'" he said. "That’s not what they did. They established a guarantee, as our sister courts found in Pennsylvania and Massachusetts, that these constitutionally protected classes will always have the right to vote absentee.”
Friedman says the case is a chance for the state Supreme Court to err on the side of greater access. “I think it’s possible that the court will say, ‘the flow of things today is to make it easier to vote if we can find a way to do so,'" he said. "We’re not going to do anything that violates the Delaware constitution.”
Mackler also argued that the Supreme Court should rule that the plaintiffs don't have standing to challenge the laws, saying that they "are not legally injured. They are politically aggrieved. They have a policy disagreement with the legislature that they want this court to legitimize.”
He also noted that by allowing the plaintiffs to challenge the vote-by-mail statute on the grounds that it illegally "diluted" their own votes, Delaware's Supreme Court would become the first state supreme court in the country to determine that voting by mail could constitute "voting dilution" — a concept generally used to describe the packing of minority voters into a single district or the spreading of minority voters across multiple districts to diminish their power as a voting bloc.
Friedman, however, concluded that the state's argument against the plaintiffs' standing would likely not make headway.
With the November general election only a month away, Delaware’s Court of Chancery allowed the Department of Elections to continue preparing mail-in ballots in case the Supreme Court upholds the statute. The Supreme Court did not indicate when it intends to release a decision.
