Delaware judge rules mail-in voting unconstitutional
DOVER, Del. – A Delaware judge has ruled a vote-by-mail law that was enacted earlier this year is unconstitutional and has filed an injunction to halt the option ahead of the general election this November.
Vice Chancellor Nathan Cook of Delaware’s Chancery Court issued an injunction late Wednesday that has put mail-in voting to a grinding halt following a lawsuit that argued the statute is unconstitutional.
Jane Brady, former Attorney General for the State of Delaware and current state GOP chairwoman, filed the lawsuit after Democrats pushed the legislation through in a matter of weeks ahead of the end of the session. She says the option to Vote by Mail had to be struck down due to its constitutionality.
“Today is a victory for the law,” Brady told our Rob Petree. “We have very strict, and very specific, provisions in our constitution, one of the distinctions of Delaware is that we have actually the reasons why you can vote absentee are not in a statute only, they’re in the constitution.”
The Vote by Mail statute permitted all registered voters the option to mail-in their ballots, regardless of their reasoning, differing vastly from the absentee option that only applies under certain circumstances, such as voters who are sick or permanently and physically disabled.
“The court entered an injunction preventing them from implementing the statute,” Brady explained. “Now, the only way that there would be Vote by Mail in November is if the state appealed that ruling, and the Supreme Court decided it before November 8, or before October 10 when they are going to mail ballots if they have Vote by Mail.”
An appeal that the state is likely to proceed with, and that voting rights organizations, like the Delaware ACLU and Delaware Voting Rights Coalition, want to see happen.
“We certainly hope that the state will expeditiously this to the Delaware Supreme Court,” explained Dwayne Bensing, a civil rights attorney with the Delaware ACLU. “This attack on voting rights by opponents of civic engagement is really fitting into a national framework of right wing extremists who wish to prevent Americans from participating in our Democracy.”
While voting rights advocates want to see an appeal, those who filed the lawsuit remain confident that such a move would not make a difference.
“I believe if it is appealed, it will be upheld. I believe it was right on the law,” Brady stated. “This law created unconstitutional votes and we just couldn’t let that happen.”
47 ABC’s Rob Petree reached out to the Delaware Department of Elections, and its State Election Commissioner Anthony Albence, who declined to comment; however, he was able to eventually speak to an elections official who answered the department’s phone and stated that they learned of the court’s ruling in the ‘middle of the night’ but refused to comment further and hung up the phone.
This ruling comes following a similar lawsuit that was filed over the emergency order that granted Delawareans to mail-in their ballots during the COVID-19 pandemic in 2020. That lawsuit was ultimately rejected and the mail-in process was upheld at the time.
In addition to the mail-in voting decision, Judge Cook also ruled on a challenge to the state’s same-day voter registration law which he upheld.
It remains unclear at this time whether or not the state has started the appeal process. If the state does decide to appeal, the matter will be considered by the Delaware Supreme Court.