Is vote by mail constitutional? As election looms, the Delaware Supreme Court will decide

Nearly a month before midterm elections, the Delaware Supreme Court on Thursday heard arguments on whether allowing all registered voters the choice to cast their ballot through the mail violates the state's constitution.

Vice Chancellor Nathan Cook ruled that the law, which was passed by the General Assembly in June, violates provisions of the state constitution that dictate the circumstances in which a resident is allowed to vote absentee. The decision from the Court of Chancery judge came one day after the primary election last month, in which Delawareans were allowed to vote by mail.

The Supreme Court is expected to make a ruling before the general election on Nov. 8.

Cook upheld the state’s same-day voter registration law, which was also recently passed by the General Assembly. The judge shortly after granted a stay for his own ruling, which has allowed election officials to prepare mail-in voting applications and ballots as the state appeals Cook's ruling striking down the expansion of vote by mail to the Delaware Supreme Court.

If the Supreme Court rules against the state, it would be a significant blow to Gov. John Carney's administration and Democrats, as vote by mail was touted as one of the key achievements in the previous legislative session.

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Why was this law passed in the first place?

Delaware law requires registered voters to provide an excuse in order to cast an absentee ballot. The Democratic-controlled Legislature has been for years trying to amend the constitution in order to expand absentee voting, citing that it will increase voter participation.

In 2020, amid the COVID-19 pandemic, the state temporarily expanded absentee voting.

This June, after failing to pass a constitutional amendment that would permanently expand absentee voting, Democrats decided to change course. Lawmakers passed a bill in the final weeks of the session that would allow all registered voters to vote by mail if they request such a ballot from state officials − the same kind of ballot that all registered voters received in 2020 during the pandemic.

Republicans were adamantly against this legislation, calling it a “scheme that will benefit Democrats." They argued the bill would let the majority party create new absentee rules that would benefit its candidates.

As lawmakers debated this legislation, Republicans threatened that this issue would end up in court. Republicans are also fighting the new legislation that allows people to register to vote on Election Day.

What was argued in court?

The debate on Thursday centered on the interpretation of how absentee voting may or may not differ from vote by mail – and whether the constitution allows for such voting.

Before the Supreme Court, the state argued that the plaintiffs − made up of three registered Delaware voters: a Republican, a Democrat and an unaffiliated person − do not have the standing to challenge the new law and that the vote-by-mail legislation does not conflict with the state constitution.

“These plaintiffs are not legally injured,” Chief Deputy Attorney General Alexander Mackler said in court on Thursday. “They are politically aggrieved. They have a policy disagreement with the Legislature that they want this court to legitimize.”

Mackler said in his oral arguments that the constitution “sets a floor and not a ceiling” for lawmakers. The constitution, he argued, provides a mandate for allowing absentee ballots for a certain class of people who are unable to vote in person.

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But this does not “tie the hands of the General Assembly” to allow vote by mail for other Delawareans, he said.

His argument led the justices to question the General Assembly’s decision in 2020 to temporarily expand absentee voting due to concerns at the time of the high level of COVID-19 infection rates.

“They said, ‘We can’t do this except by resorting to our emergency powers,’” questioned Justice Gary Traynor. “The position the Department (of Election) is taking here is directly contrary to that, isn’t it?”

The state argues it is not. In its opening brief, the state wrote that vote by mail is “fundamentally distinct from absentee voting.”

“The analysis of the statute’s validity starts and ends with the General Assembly’s broad authority to regulate the ‘means, methods and instruments of voting,’” according to the state’s brief. “There is no constitutional prohibition on the General Assembly’s ability to authorize voting by mail, and the General Assembly is free to legislate as it deems fit.”

The plaintiffs are being represented by Jane Brady, chair of the Delaware Republican Party and former Delaware attorney general, and by Julianne Murray, an attorney and Republican candidate for state attorney general.

In response to the state’s opening brief, those challenging expanded voting rules wrote that “defendants’ attempt to make a distinction between a voter’s inability to appear in-person to vote and their unwillingness to appear in-person falls flat and is absurd.”

“Whether by choice or by circumstance,” the plaintiffs argued in the brief, “if a voter does not appear in-person to vote, the voter is an absentee voter.”

This article originally appeared on Delaware News Journal: Delaware Supreme Court to decide if vote by mail is constitutional