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| Photo Credit: AP. |
DOVER, Del. (AP) — New state laws allowing universal voting by mail and Election Day registration are unconstitutional, Delaware’s Supreme Court ruled Friday.
In a
three-page order, the justices said the vote-by-mail statute impermissibly
expands the categories of absentee voters identified in Delaware’s
constitution. The same-day registration law conflicts with the registration
periods spelled out in the constitution, they said.
The order,
which will be followed later by a formal opinion, came after justices heard arguments
in the case Thursday.
Vice
Chancellor Nathan Cook last month upheld the same-day registration law but said
the vote-by-mail law, the result of legislation Democrats rammed through the
General Assembly in less than three weeks, violates constitutional restrictions
on absentee voting. Both bills were passed in June, each receiving exactly one
Republican vote, and were signed by Democratic Gov. John Carney in July.
Democratic
Attorney General Kathleen Jennings appealed Cook’s ruling striking down the
vote-by-mail law. Republican attorneys representing voters, a state House
candidate and a Department of Elections employee appealed Cook’s decision
upholding same-day registration.
The Supreme
Court upheld Cook’s ruling on the vote-by-mail law but said his decision
allowing same-day registration should be reversed.
“I am very
pleased the court recognized that the language of the constitution really
matters. This is a win for the rule of law,” said state Republican Party chair
and former attorney general Jane Brady. Brady and Georgetown lawyer Julianne
Murray, the GOP nominee for attorney general, represented plaintiffs
challenging the new laws.
Jennings,
who faces Murray in the November election, took a defiant tone, suggesting that
Republicans will go to any length to “stop” people from voting. She also
implied that she believes opponents of the laws that were struck down by the
justices on constitutional grounds are political extremists.
“Extremists
are celebrating today at voters’ expense,” Jennings said in a prepared
statement.
Democratic
leaders in the state House and Senate expressed disappointment with the ruling.
“Unfortunately,
the Supreme Court’s decision reinforces that our previous efforts to amend
Delaware’s constitution for voting is more important now than ever,” House
Speaker Pete Schwartzopf and Majority Leader Valerie Longhurst said in prepared
statement.
Republican
minority leaders in the state Senate noted that GOP lawmakers had argued in
floor debates that both bills were unconstitutional.
“The sponsors and Democrats ignored our
concerns, dismissed expert legal testimony, and passed both pieces of
legislation anyway,” they said in prepared statement. “Today, however, the rule
of law prevailed.”
Democratic
lawmakers introduced the vote-by-mail bill after failing to win Republican
support to amend the constitution. A constitutional amendment requires a
two-thirds vote by each chamber in two consecutive General Assemblies. The
first leg of a constitutional amendment to eliminate limitations on absentee
balloting cleared the legislature in 2020, after initially being defeated in
the Democrat-controlled Senate, but the second leg failed to win the necessary
majority in the Democrat-led House last year.
The
constitution says a person is allowed to vote absentee if unable to go to the
polls on Election Day because of his or her public service, business or
occupation. Spouses and dependents who live with or accompany people in those
circumstances also are allowed to vote absentee. Sickness or physical
disability, vacation, and the tenets or teachings of a person’s religion are
the other allowances.
The attorney
general’s office argued that mail-in voting is not absentee voting. At the same
time, however, it claimed that the constitution’s absentee voting provision
does not preclude the General Assembly from allowing universal voting by mail.
In 2020,
however, when they invoked their emergency powers to allow universal voting by
mail that year because of the coronavirus pandemic, lawmakers explicitly
acknowledged that the constitution’s list of reasons for absentee voting is
“exhaustive,” meaning no other reasons are allowed. They also acknowledged that
they must comply with the constitution in invoking their emergency powers
unless doing so would be “impracticable” or cause undue delay. They then
declared that conforming with the constitution’s absentee voting provision
would be “impracticable.”
Regarding
voter registration, the constitution says the registration period for a general
election cannot begin more than 120 days, or less than 60 days, before the
election. It also cannot end more than 20 days, or less than 10 days, before
the election.
Justice
Karen Valihura pointed out during Thursday’s arguments that the 10-day period
was intended to allow the registration rolls to be corrected and for anyone
denied the ability to register to appeal. The constitution states that any
correction must be done “prior to the day of holding the election.”
“How is it
that the same-day statute doesn’t completely eviscerate the provision?” she
asked.