The ACLU of Delaware, the American Civil Liberties Union national branch, Shaw Keller LLP, and Proskauer Rose LLP are suing the Delaware Department of Correction, Department of Elections, and Gov. John Carney.
They’re representing Prisoners Legal Advocacy Network (PLAN), a non-profit focused on securing and maintaining voting rights for system-impacted voters.
The lawsuit claims Delaware is not providing eligible incarcerated voters a constitutionally guaranteed method of voting, violating their First and 14th Amendment rights.
The suit was prompted by a 2022 Delaware Supreme Court decision striking down universal mail-in voting, with some listed exceptions.
“Importantly, that list of voters who can vote absentee does not include eligible incarcerated voters. So these voters, who traditionally had only been offered absentee ballots to exercise their fundamental right, are now placed in limbo regarding whether or not they would be able to vote,” said ACLU of Delaware’s Andrew Bernstein.
Those awaiting trial or convicted of misdemeanor offenses are still eligible to vote in state and national elections.
While ACLU-DE is uncertain exactly how many voters are affected by this change, it says as of October nearly 1,300 people were incarcerated in Delaware on pretrial detention alone.
In order to attain a mail-in ballot, incarcerated voters must submit an absentee ballot request form.
As their reason for requesting a ballot, they are told to check the box that says “Due to the nature of my business or occupation.”
But Bernstein says it’s unclear there’s any legal basis for interpreting that category in that way.
“And it's because of that lack of a strong legal basis for that determination [the interpretation] that they have made that led us to filing this lawsuit. Because without a strong legal underpinning for that kind of interpretation for that business or occupation category, eligible incarcerated voters will not be able to confidently cast their ballots without fear of criminal prosecution or a ballet challenge,” explained Bernstein.
The lawsuit seeks to create clear and constitutional voting access for eligible incarcerated individuals.
One option, which Bernstain says is the most straightforward method for the state, is establishing in-person voting machine opportunities within correctional facilities.
It’s something that we’ve seen work in other jurisdictions. For example, in cities like Chicago and Denver there have been in-person polling facilities put inside correctional facilities and the rate at which eligible incarcerated voters vote can even in some instances outpace that of the surrounding community, which happened in Chicago. So we think that asking for in-person polling options within Delaware correctional facilities is both not radical, as it's happening elsewhere, and could be a really great tool for boosting participation.
The Chicago Tribune reported that in February 2023, 1,553 incarcerated individuals voted in the city and county’s elections- a jump from 434 voters in Chicago’s April 2019 runoff election, when inmates could only vote via absentee ballot.
Over 50% of the Cook County Jail’s registered voters cast ballots, surpassing the approximately 36% turnout rate of non-incarcerated voters in the city.
Bernstein adds disenfranchisement of incarcerated voters in Delaware is an issue that touches both race and class.
In 2022, Black Delawareans only made up 23.8% of the state population, but represented 62% of those incarcerated.
“And there are some folks in pretrial detention solely because they cannot afford their bail. So it becomes an issue of class, as well, because people accused of crimes who have more means, and are able to post bail, are able to access the ballot and vote. Whereas folks who do not have those resources are unable to,” Bernstein explained.
Prior to filing the lawsuit, ACLU-DE sent letters to the Department of Correction, the Department of Elections, the Attorney General, and the Governor and Commissioners of agencies outlining their demands for increased voting access.
Responses from those parties indicated that there would be no move to meet ACLU-DE’s demands.
