Vote by mail, same-day registration ruled unconstitutional

Delaware residents will not be allowed to vote by mail or register to vote on Election Day following a decision issued Oct. 7 by the Delaware Supreme Court.

Both the vote-by-mail and same-day registration laws were passed by the General Assembly in June and later signed into law by Gov. John Carney. Attorneys Jane Brady and Julianne Murray filed separate lawsuits challenging the constitutionality of the laws, leading to a Chancery Court decision that allowed same-day registration to continue for the upcoming Nov. 8 general election, but ruled that the vote-by-mail law was unconstitutional.

Brady, head of the state GOP, and Murray, a GOP candidate for attorney general, presented their cases in Supreme Court Oct. 6, along with Deputy Attorney Alexander Mackler, who argued in favor of the laws on behalf of the Department of Elections.

The decision was unanimous, and the order stated that a formal opinion will be forthcoming.

Brady said she is pleased with the Supreme Court’s decision based on plain and unambiguous language of the Delaware Constitution.

“While some may claim that this litigation was politically motivated, I would remind them of two things: first, the court is comprised of Democrat and Republican attorneys who forgo participation in partisan activity while they remain on the bench. I had every confidence, regardless of the result, that the court would decide this case on the merits. Further, the court simply by its ruling maintains the status quo. There are no additional laws infringing on anyone’s right to vote as a result of this decision,” she said in a statement.  

Brady clarified that the rules for this election on Nov. 8 will be the same as the rules in past elections, with the exception during 2020 elections held during the Covid shutdown. 

Brady added that voters who requested a vote-by-mail ballot will not be able to use it. “The Department of Elections has said that they will contact those individuals who did request a mail-in ballot and tell them that they may not vote by mail. I want to be sure that people know what the court has ruled so they are not deprived of their vote based on a misimpression,” she said.

Senate Republicans applauded the decision in a statement released Oct. 7.

“As Republicans in the Delaware General Assembly correctly argued during the floor debates for SB 320 and HB 25, both bills violated the Delaware Constitution. The sponsors and Democrats ignored our concerns, dismissed expert legal testimony, and passed both pieces of legislation anyway. Today, however, the rule of law prevailed,” wrote Sen. Gerald Hocker, R-Ocean View, minority caucus leader, and Sen. Brian Pettyjohn, R-Georgetown, minority whip. “We thank the Delaware Supreme Court justices for the expedited process and their unanimous decision.”

Speaker of the House Rep. Pete Schwartzkopf, D-Rehoboth Beach, and House Majority Leader Rep. Valerie Longhurst, D-Bear, said in a statement that they were disappointed with the decision.

“At a time when voting rights across the nation are under attack, Delaware has repeatedly attempted to be a positive example of how to enfranchise residents and make it easier and more convenient for them to exercise their constitutionally protected right to vote,” they wrote. “Unfortunately, the Supreme Court's decision reinforces that our previous efforts to amend Delaware's Constitution for voting is more important now than ever. Democrats have steadfastly supported these attempts, which would ultimately improve access and opportunities for all voters, and we will continue to push for these critical changes to our electoral laws. We will review the Supreme Court's full decision once it is available and chart our path forward."

Senate Democrats laid blame on Republicans who did not vote for the vote-by-mail bill when it came up for approval during the second consecutive session needed in order for it to become a constitutional amendment.

“Our efforts to provide a safe, secure, and legal vote-by-mail option through a constitutional amendment were stymied by Republican legislators who switched their votes once Donald Trump began spreading the Big Lie,” wrote Delaware Senate President Pro Tempore Dave Sokola, D-Newark, Senate Majority Leader Bryan Townsend, D-Newark, and Senate Majority Whip Elizabeth Lockman, D-Wilmington.