Delaware Allowing Widespread Mail-In Voting Violates Constitution
Margot Cleveland.Part 1 of 2
Delaware’s Legislature used its emergency powers and the excuse of the pandemic to authorize no-excuse mail-in voting for 2020, but now, without bothering to lean on Covid as a crutch, theDemocrat-controlled state legislature has passed a law providing for an unlimited right to vote by mail as well as authorizing same-day voter registration. A new lawsuit filed last week, however, seeks to have both laws declared unconstitutional under the Delaware constitution before this year’s midterm elections.
Before the 2020 election, the Delaware General Assembly approved no-excuse mail-in voting, even though Article V, Section 4A of the state constitution expressly provides for absentee voting only where a qualified elector is “unable to appear to cast his or her ballot” “at the regular polling place of the election district,” under limited, enumerated circumstances. Specifically, absentee voting is authorized under the state constitution if an elector cannot vote at his polling place “either because of being in the public service of the United States or of this State, or his or her spouse or dependents when residing with or accompanying him or her, because of the nature of his or her business or occupation, because of his or her sickness or physical disability, because of his or her absence from the district while on vacation, or because of the tenets or teachings of his or her religion.”
The Republican State Committee of Delaware and two registered Delaware voters challenged the no-excuse absentee voting provision before the 2020 general election. While the Delaware Department of Elections agreed that the list of citizens entitled to vote by absentee ballot, set forth in Article V, Section 4A, was meant to be exhaustive, the state argued that the legislature properly invoked its emergency powers under Article XVII, Section 1. That section provides that “in order to ensure the continuity of State and local governmental operations in periods of emergency resulting from … disease,” the state legislature shall have the power “to adopt such other measures as may be necessary and proper for ensuring the continuity of governmental operations.”
A Delaware state court found that the legislature had the authority under Article XVII, Section 1 to authorize no-excuse mail-in-voting, in light of the “epidemic of airborne disease” and the “health emergency declared by the Governor.” But asthe court stressed, the statute at issue applied “only to the 2020 primary, general, and any special elections,” and by its terms expired on January 12, 2021.
Now with the 2022 midterms mere months away, however, the legislature late last month passed a new statute, signed by Delaware’s Democrat Gov. John Carney, that authorizes no-excuse absentee voting. Specifically, Section 5603A provides that to vote by mail, a Delaware elector must submit a completed, signed, and dated application that includes either the voter’s last four digits of his social security number or the number of the voter’s state-issued driver’s license or non-driver identification card number. Upon determining that the applicant is qualified to vote under the state’s election code, the newly passed statute requires the Department of Elections to provide the voter with a mail ballot for the election district in which he resides, along with instructions for completing and returning the ballot, and a ballot envelope.
Unlike the 2020 statute that relied on the legislature’s emergency power under the Delaware constitution, the General Assembly did not rely on Covid or its emergency constitutional authority to ensure “the continuity of State and local governmental operations” to pass Section 5603A. And there isno end dateto the mail-in voting law. Rather, the statute converts Delaware to a no-excuse mail-in-voting state, notwithstanding the constitutional limits to absentee voting.
The Delaware Legislature, in addition to authorizing no-excuse mail-in voting, passed a statute eliminating the requirement that voters register to vote by “the fourth Saturday prior to the date of the election” and authorized same-day voter registration. The General Assembly also removed the statutory provision requiring registered voters to update address or name changes the “day prior to a primary or general” election, permitting such changes on election day.
https://thefederalist.com/2022/08/03/delawares-plan-to-allow-widespread-unsupervised-voting-violates-its-constitution-lawsuit-says/