Delaware Supreme Court to decide on vote-by-mail law

Delaware Supreme Court justices heard arguments for and against voting by mail and same-day voter registration Oct. 6 in a case that has implications for people who expect to mail ballots for the Nov. 8 election.

Attorneys Jane Brady and Julianne Murray filed separate lawsuits against the vote-by-mail law after the state Legislature passed a law earlier this year allowing residents to vote by mail with no restrictions. Absentee voting is allowed under Delaware’s Constitution, but with clear restrictions defining who is allowed to vote absentee.

Brady – the state GOP leader, former attorney general and a former Superior Court judge – also filed a lawsuit against the same-day registration law passed this year by the General Assembly.

In September, Chancery Court Vice Chancellor Nathan Cook struck down the vote-by-mail law as unconstitutional, but eventually allowed vote-by-mail ballots to be sent to residents in case the Supreme Court ruled the process legal. Cook also allowed same-day registration to remain law because the constitution does not explicitly prohibit it.

Deputy Attorney General Alexander Mackler, representing the Delaware Department of Elections, said same-day registration should be allowed because the constitution lists a timeframe for when a person can register to vote, but it does not say when the process must be completed. “We believe there is no end date,” he said.

Justice Karen Valihura questioned whether same-day registration allows for an appeal process as outlined in the constitution. She provided a hypothetical case of someone coming to the polls at 7 p.m. election night with only a utility bill as proof of their identity. If the voter is denied registration, do they have the time to constitutionally appeal the denial, or “isn’t that completely wiped out?” Valihura asked.

On the other hand, if the person is allowed to vote using only a utility bill, and it turns out that they shouldn’t have, there would be no way to undo the vote.

“If they’re just allowed to vote, [officials] would never know because of confidentiality,” she said.

Justice Gary Traynor said that legislators acknowledged during the 2020 COVID shutdown that they could not pass a vote-by-mail bill and could only allow it under emergency powers.

In her argument against voting by mail, Murray, a GOP candidate for attorney general, pointed to an advisory opinion given by the court limiting voting by mail, which the court has leaned on, she said.

Over the years, Murray said, the General Assembly has placed restrictions through constitutional amendments on who can vote by absentee ballot, when they could have instead allowed residents to freely vote by mail. “I think that's significant,” she said. 

Any changes that allow more people to vote by mail must be done through a constitutional amendment, not simple legislation, Murray said.

A constitutional amendment must be approved by two consecutive general assemblies to become law.

The Supreme Court is expected to issue an opinion soon, particularly since the general election will be held in about a month.