Delaware’s Plan To Allow Widespread Unsupervised Voting Violates Its Constitution, Lawsuit Says

Margot ClevelandAugust 3, 2022

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, the Democrat-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 as the 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 is no end date to 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.

Again, the state constitution addresses the time period for voter registration, with Article V, Section 4 providing that “the General Assembly shall enact uniform laws for the registration of voters in this State entitled to vote under this article.” Significantly, the Delaware constitution mandates that there “be at least two registration days in a period commencing not more than one hundred and twenty days, nor less than sixty days before, and ending not more twenty days, nor less than ten days before, each General Election.” That section also provides that registrations “may be corrected at any time prior to the day of holding the election.” Further, the Delaware Supreme Court previously made clear that Section 4 of Article V “provides that all questions of the qualifications of voters should be determined before election day.”

In response to these state statutes, the Public Interest Legal Foundation (PILF) filed suit on behalf of two Delaware residents, including a candidate for state representative, against the Delaware Department of Elections, arguing the no-excuse absentee voting and same-day registration violates the Delaware constitution.

“These mail balloting and same day registration laws conflict with the Delaware Constitution,” PILF President J. Christian Adams said. “States cannot pass laws that conflict with their constitutions. It’s egregious that Inspectors of Elections are forced to choose between obeying the same day registration law or following the state constitution. Delaware lawmakers should read their own constitution before passing election laws.”

While the legislature’s adoption of no-excuse mail-in voting and same-day registration seems to represent a clear violation of the plain language of the Delaware constitution, the state Supreme Court will be the ultimate arbiter of the question. And currently, all five Delaware Supreme Court justices were appointed by Democrat governors.

Of course, politics does not necessarily dictate the outcome of cases, and given the clarity of the Delaware constitution, the state Supreme Court justices may nonetheless hold that their fellow Democrats in the legislative branch overstepped their authority. But at least in Pennsylvania where a similar constitutional challenge to that state’s no-excuse absentee voting statute is pending before the state Supreme Court, Democrats are predicting the majority of the seven justices — five of whom are Democrats — will uphold the legislature’s approval of no-excuse voting, notwithstanding that the Pennsylvania constitution requires in-person voting, absent an express provision authorizing absentee voting.

The outcome of the Pennsylvania and Delaware cases will reveal how far activist justices will go to reach a desired result, even when it conflicts with the plain language of their state constitutions. The state Supreme Court decisions will be equally telling of the value justices place on election integrity because at the time the constitutional provisions were adopted by the people in Pennsylvania and Delaware, citizens recognized that absentee voting would “break down all the safeguards of honest suffrage.”

But if public sentiments prove prescient, the Democrat justices will care no more about election integrity than their fellow Democrats.

Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today.

Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time.

As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.