Mail Voting Law Is Illegal Under Delaware Constitution, Court Rules

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Gabe Kaminsky Investigative Reporter
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UPDATE: This piece has been updated to include comment from a spokeswoman for Democratic Delaware Gov. John Carney.

A vote-by-mail law approved in July does not bode with Delaware law and the process cannot be used in the upcoming November elections, a state judge ruled Wednesday.

Democratic Delaware Gov. John Carney signed a bill July 22 that allows any voter to ask for a mail-in ballot with no excuse. But Vice Chancellor Nathan Cook of the Delaware Chancery Court determined the law violated a provision of the state’s constitution that lays out situations when a voter can vote by absentee ballot. (Computer Experts Urge Georgia Election Officials To Eliminate Voting Machines For Paper Ballots)

The constitutional provision dictates that absentee voting is permitted in certain situations, like when a voter is “unable to appear to cast his or her ballot at any general election” or is “in the public service.”

“Our Supreme Court and this court have consistently stated that those circumstances are exhaustive,” Cook wrote in his ruling. “Therefore, as a trial judge, I am compelled by precedent to conclude that the vote-by-mail statute’s attempt to expand absentee voting to Delawareans who do not align with any of Section 4A’s categories must be rejected.”

The ruling came after a lawsuit was filed in February against the Delaware Department of Elections alleging that both permanent absentee voting and early voting “conflict” with the Delaware constitution. The lawsuit was filed on behalf of Michael Mennella, an inspector of elections in the state, by the Public Interest Legal Foundation (PILF), a conservative nonprofit.

“This ruling upheld the rule of law in Delaware when not long-ago election officials across the country were ignoring the law,” said PILF President J. Christian Adams. “This law violated the election protections in Delaware’s Constitution. Election officials must follow the law. When laws are followed, even losers of elections can agree with the outcomes. Consent of the governed increases when the election rules are followed.”

PROVO, UT – NOVEMBER 6: Thousands of ballots sit in boxes as Utah County election workers process the mail-in ballots for the midterm elections on November 6, 2018 in Provo, Utah. Utah early voting has been highest ever in Utah’s midterm elections. One of the main proportions on the ballet in Utah is whether Utah will legalize medical marijuana. (Photo by George Frey/Getty Images)

Democrats in Delaware put forth the mail voting bill in June on the heels of Republicans disapproving the idea of amending the constitution, Delaware Call reported. Constitutional amendments must be passed with a two-third majority vote in both chambers, the outlet reported.

There was a mail voting law passed in 2020 in Delaware due to the COVID-19 pandemic, according to the Associated Press. It expired on Jan. 12, 2021.

“We are disappointed in the outcome on the vote-by-mail law, but we appreciate the Vice Chancellor’s discussion of his limited role,” a spokeswoman for the governor told the DCNF. “The Governor’s position has been simple and consistent. We should make it easier — not harder — for all eligible Delawareans to vote and participate in our democratic process.”

Delaware’s Chancery Court declined the DCNF’s request for comment.

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