Previously ruled unconstitutional by Delaware judge, Mail-in-Voting can continue during appeal

An implementation of a ruling that a Delaware judge issued recently was halted by the judge declaring a vote-by-mail law enacted this year is unconstitutional and that voters cannot mail in their ballots in the upcoming November election.

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A motion by the Department of Elections and Election Commissioner Anthony Albence was granted by Vice Chancellor Nathan Cook, to stay his ruling pending an expedited appeal to the state Supreme Court, which is scheduled to hear arguments in the case on October 5.

His stay would allow elections officials to process mail-in voting applications and prepare ballots, Cook said, but also saying that they are not allowed to send the ballots to voters.

If the Supreme Court upholds his ruling, elections officials have indicated that they will notify voters who have applied for mail-in ballots under the new law that they will need to vote in person on November 8, the judge said, according to Delaware Online. After accepting briefs from attorneys for both sides, Cook issued his decision, while also holding an unannounced teleconference.

The law is the result of legislation that Democrats rammed through the General Assembly in less than three weeks in June. And recently, the judge ruled that the law violates a provision in the Delaware Constitution that spells out the circumstances under which a person is allowed to cast an absentee ballot.

Cook wrote: “Our Supreme Court and this court have consistently stated that those circumstances are exhaustive. Therefore, as a trial judge, I am compelled by precedent to conclude that the vote-by-mail statute’s attempt to expand absentee voting … must be rejected.”

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Cook also said, at the same time, that he believed that the Supreme Court might want to “revisit that precedent.” Cook then wrote that there is a serious risk that, if the Supreme Court concludes that the vote-by-mail law is consistent with the Delaware Constitution, without a stay pending an appeal, voters would be denied the opportunity to vote in the upcoming general election “by all constitutional means…. That would be a grave injustice,” Cook wrote.

After failing to win Republican support to amend the constitution, Democratic lawmakers have introduced the vote-by-mail bill. It is required by a constitutional amendment a two-thirds vote by each chamber in two consecutive General Assemblies.

In 2020, after initially being defeated in the Democratic-controlled Senate, the first leg of a constitutional amendment to eliminate limitations on absentee balloting cleared the legislature, but the second leg failed to win the necessary majority in the Democratic-led House last year.

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