Delaware Supreme Court: No-Excuse Mail-In Voting, Same-Day Registration Are Unconstitutional

In another huge win for election integrity this week, the Delaware Supreme Court ruled Friday that mail-in voting and same-day voter registration violate the state’s constitution.

In July 2022, Delaware’s General Assembly passed a law establishing no-excuse mail-in voting and same-day voter registration. The Public Interest Legal Foundation (PILF) filed a lawsuit against the law on behalf of Michael Mennella, an elections inspector for the Delaware Department of Elections, arguing such a law was unconstitutional (Delaware state law outlines only specific instances a person may vote by mail).

“The Vote-by-Mail Statute impermissibly expands the categories of absentee voters identified in Article V, Section 4A of the Delaware Constitution,” the court wrote in its order, issued Friday. “The Same-Day Registration Statute conflicts with the provisions of Article V, Section 4 of the Delaware Constitution.” The “expedited” order was issued quickly “in recognition of the impending election scheduled for November 8, 2022,” but the court promised to deliver a more detailed opinion at a later date.

The law in question was modeled after another mail-in voting law the General Assembly passed under their emergency powers during the COVID-19 pandemic in 2020, enabling Delaware to have mail-in voting during the 2020 election. The law was challenged, but upheld due to an emergency powers clause. The law expired in January 2021.

Friday’s decision partially reverses a Chancery Court’s order, which in September found Delaware’s new vote-by-mail law unconstitutional, but upheld the same-day voter registration law. The Delaware Supreme Court reversed the lower court’s same-day voter registration ruling, and affirmed the mail-in voting part.

“This is a win for the rule of law in Delaware’s Elections,” PILF President J. Christian Adams said in a press release. “This law violated the plain text of the Delaware Constitution that provides specific reasons people are allowed to cast absentee ballots and when voter registration can take place. If Delaware lawmakers want to have mail-in voting, they need to pass a constitutional amendment.”

The Delaware Constitution prohibits voter registration less than 10 days before an election, so the 2022 law allowing same-day voter registration violated this provision.

While the ruling is a huge win for election integrity in Delaware, the fight to outlaw no-excuse mail-in voting continues across the country. In Pennsylvania, for example, a lower court ruled its no-excuse absentee ballot law was unconstitutional. The state’s Democrat-majority Supreme Court, however, overturned the lower court’s ruling and upheld no-excuse mail-in voting just in time for the 2022 midterms. Other key battleground states such as Michigan, Arizona, Georgia, Wisconsin, North Carolina, and Florida all allow no-excuse absentee ballots.

PILF spokeswoman Lauren Bowman Bis told The Federalist that “we will continue to bring lawsuits against any states that violate their election laws and procedures.”

Victoria Marshall is a staff writer at The Federalist. Her writing has been featured in the New York Post, National Review, and Townhall. She graduated from Hillsdale College in May 2021 with a major in politics and a minor in journalism. Follow her on Twitter @vemrshll.

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