Voting machines in prison? ACLU lawsuit aims to protect Delaware prisoner voting rights

A new lawsuit seeks to ensure incarcerated Delawareans' ability to vote.

The lawsuit, filed in the U.S. District Court for Delaware on Thursday, states that recent court rulings that limit those eligible to vote by mail in Delaware do not guarantee prisoners who are eligible to vote the ability to actually cast a ballot. It seeks to force the state to remedy the law and provide in-person voting machines in its prisons.

“This disenfranchisement falls particularly hard along lines of race and class, as low-income people and people of color are more likely to be incarcerated while awaiting trial," wrote Andrew Bernstein, Cozen Voting Rights Fellow at the Delaware American Civil Liberties Union, in a news release. "We’re suing to make sure everyone who is eligible to vote has the opportunity to do so.”

The lawsuit was filed on behalf of a New York-based nonprofit coalition of attorneys, prisoners and prisoner rights advocates that provide legal and informational support to those incarcerated and count dozens in Delaware prisons as members and leaders. It names Gov. John Carney, Election Commissioner Anthony Albence and Correction Commissioner Terra Taylor as defendants.

Read the full complaint at the bottom of this story.

Many in Delaware’s unified system of prison and jail are either serving time for misdemeanor convictions or awaiting trial and thus, retain voting rights. The lawsuit states that these individuals account for about 38% of Delaware’s incarcerated population, which numbered about 4,300 people as of June last year.

Delaware prisons do not have in-person voting machines, so the only way for those individuals to cast a ballot is by mail. But recent court rulings have threatened that ability, the lawsuit states.

What prompted this lawsuit

The backdrop of this new lawsuit is recent, separate litigation that successfully overturned lawmakers' 2022 law change meant to allow everyone, regardless of reason, to vote via mail.

CONTROVERSY: Delaware Supreme Court finds vote by mail, same-day registration unconstitutional

That law change was challenged in court by a coalition of right-wing interests. That challenge led the Delaware Court of Chancery to rule that the expansion of vote by mail violated Delaware’s constitution because that document sets out specific categories of voters authorized to vote by mail and thus precludes others from doing so.

The ruling was upheld on appeal by the Delaware Supreme Court, which ruled in December 2022 that the expansion of vote by mail could occur only through a constitutional amendment, not the change in statute approved by lawmakers in Dover. Delaware lawmakers are seeking such a constitutional amendment.

So as the law stands, vote by mail is available only to those specific categories of voters listed in the Delaware Constitution.

Being locked up by the state is not one of those specific categories.

Leading up to the filing of the new lawsuit, Delaware ACLU officials wrote letters to the Department of Elections and Department of Correction telling them they must provide a “constitutionally guaranteed mechanism” for those imprisoned and eligible to vote to cast a ballot given the courts' rulings.

The lawsuit states that those officials replied that the law, as it exists in light of the Supreme Court opinion, does, in fact, allow incarcerated individuals to vote by mail. However, the lawsuit states that those officials provided no “legal authority” to support their "opinions."

Given the divide between those opinions and the 2022 court rulings, prisoners run the risk of having their ballots challenged and thrown out, the lawsuit states. This is more than a “hypothetical” threat and discourages participation, the lawsuit states.

“Wherever they are, all eligible Delawareans should be able to vote with full confidence that their ballots will be counted and without fear of criminal prosecution, by no fault of their own, by current or future state administrations,” said Paul Stanley Holdorf, supervising attorney of the Prisoners Legal Advocacy Network, wrote in a press release.

Who is most affected by this?

The threat falls heavier on the state's poor who are unable to pay bail for pretrial release, as well as minorities, which make up a disproportionate share of the state’s incarcerated population, the lawsuit states.

“The current climate in Delaware surrounding voting in jail or detention—a complex environment of threat, confusion, and fear—has been found to lead to de facto disenfranchisement of otherwise eligible voters in other states,” the filing states.

This amounts to a violation of voting and fairness rights guaranteed under the U.S. Constitution, according to the lawsuit.

The litigation seeks the court’s declaration of such and an order enjoining the state from impeding such rights and requiring the state to provide in-person voting machines.

The lawsuit was filed by attorneys for the Delaware ACLU, as well as private attorneys in New York, Delaware and California. In recent years, the local ACLU has been more active in suing the state to address prisoners' rights.

An ongoing class-action lawsuit seeks redress for what prisoners describe as a culture of excessive force employed by officers with impunity at Sussex Correctional Institution. Additionally, ACLU attorneys filed a class-action claim regarding the state of health care in Delaware's prisons earlier this year.

Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com.

Prison voting lawsuit by Xerxes Wilson on Scribd

This article originally appeared on Delaware News Journal: Delaware voting rights of prisoners at stake, ACLU lawsuit claims