The U.S. District Court for Delaware rejects in-person ballot access for eligible incarcerated voters, but their voting rights appear protected.
In 2023, the ACLU of Delaware sued the Delaware Departments of Correction and Elections, claiming Delaware was not providing eligible incarcerated voters a constitutionally guaranteed method of voting.
Those awaiting trial or convicted of misdemeanor offenses are still eligible to vote in state and federal elections.
The lawsuit was prompted by the Delaware Supreme Court’s decision to strike down no-excuse mail-in voting in 2022, but valid-reason absentee voting remains.
Absentee voting remained intact solely under the purposes outlined in the state constitution, but being incarcerated is not listed as a reason to request an absentee ballot, and prisons do not provide in-person voting opportunities.
The case was dismissed due to a lack of standing, in part because the Department of Elections argued incarceration falls under the permissible excuse of “nature of business or occupation.”
ACLU of Delaware’s Cozen Voting Rights Fellow Andrew Bernstein says the dismissal of the case is not necessarily a bad thing, now feeling as though the discrepancy has been cleared up.
“Even though the remedy we were specifically asking for was in-person polling places, the real goal of this litigation was just to get assurance that there would be some legal mechanism that we could reliably communicate to these voters that they would be able to cast a ballot," Bernstein said.
He explains the overall result of protecting eligible voters from disenfranchisement remains intact, but the ACLU still plans to advocate for in-person voting options for incarcerated individuals.
The Delaware Department of Justice also vowed not to prosecute eligible incarcerated voters for voting absentee in the November 2024 election as a result of the litigation.
"We were really happy that our litigation resulted in that non-prosecution agreement, and that's why we now feel comfortable to advise eligible incarcerated voters they can cast an absentee ballot," Bernstein said.
