Judge throws out ACLU voting rights case

DELAWARE – A US District Court made a decision Friday that will affect the voting ability of those who are incarcerated in the state of Delaware, after the ACLU of Delaware and other plaintiffs  filed a lawsuit on behalf of the Prisoners Legal Advocacy Network

“The goal is to make sure as many of these voters have their voices heard in this upcoming really important election as possible,” said Andrew Bernstein, Cozen Voting Rights Fellow with the ACLU of Delaware.

In 2022, the Delaware Supreme Court struck down the state’s universal vote-by-mail law, offering what Bernstein called a strict interpretation of who can cast an absentee ballot. It was a definition that did not explicitly list eligible incarcerated voters. “For the 2024 election, we had no indication of what they were going to be doing, so we filed a preliminary injunction seeking to get in-person access to the ballot for these voters.”

Friday, a US District Court judge denied their preliminary injunction and threw out the case altogether.

But for voting rights advocates, it wasn’t a total loss. Bernstein said, “Over the course of the litigation, we did receive from the state a non-prosecution agreement, saying that any voter who attempts to cast an absentee ballot in the upcoming 2024 election will be allowed to do so.”

They received a non-prosecution agreement, as well as a judicial pronouncement, protecting the right to vote for misdemeanor offenders and those being held for pre-trial detention.

Bernstein says the ACLU of Delaware isn’t finished yet– and there is precedent for what they’re trying to accomplish: “Going forward, past participation in this election, in-person polling places in carceral facilities are becoming more and more common across the United States, with great results in terms of participation, in terms of boosting civic engagement.”

Bernstein said it’s difficult to pinpoint the number eligible incarcerated voters in Delaware because that number is constantly fluctuating, but over the course of their litigation the number of people held on pre-trial detention was consistently over a thousand.

In a statement to WMDT, the Delaware Department of Corrections said, in part, “The Delaware Department of Correction remains committed to protecting the right of eligible voters who are in DOC custody to choose to express their constitutional right to participate in the voting process.”

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