On September 14 a state court blocked voting by mail in Delaware, after ruling that the state’s mail-in voting practices violate the Delaware Constitution.
This ruling means mail-in voting will not be available in upcoming general elections in Delaware on November 8, barring further judicial or legislative action.
Republicans were critical of mail-in voting measures enacted at the height of the pandemic and accused election officials across the country of ignoring the U.S. Constitution and state constitutions by allowing it and promoting it heavily to the public. They claim this departure from the usual election procedures allowed Democrats to cheat.
The Democratic-controlled Delaware General Assembly hurriedly passed the voting-by-mail law in June after failing to secure enough Republican support to amend the state constitution to enshrine the policy. Lawmakers previously approved a separate voting-by-mail law during the pandemic in 2020, invoking emergency powers that allowed the statute to escape the usual constitutional scrutiny.
The state judge ruled it was unconstitutional as lawmakers did not reference any emergency authority when passing the new law.
Former U.S. Department of Justice civil rights attorney J. Christian Adams, whose organization launched the legal challenge, hailed the court’s decision.
Adams, president of the Public Interest Legal Foundation (PILF) said, “This ruling upheld the rule of law inDelaware when not long ago elections officials across the country were ignoring the law.”
In a statement obtained by The Epoch Times, Adams said, “This law violated the election protections in Delaware’s Constitution. Election officials must follow the law. When laws are followed, even losers of elections can agree with the outcomes. Consent of the governed increases when the elections rules are followed.”
PILF describes itself as “the nation’s only public interest law firm dedicated wholly to election integrity. The nonprofit organization exists to assist states and others to aid the cause of election integrity, and fight against lawlessness inAmerican elections.”
PILF filed a lawsuit earlier this year against the vote-by-mail law. The complaint alleged that Delaware’s mail-invoting and same-day registration statutes ran afoul of Delaware’s Constitution. One of the plaintiffs was whistleblower Michael Mennella, who has served as an inspector of elections for the Delaware Department of Elections.
In Higgin v. Albence, court file 2022-0641, Vice Chancelor Nathan Cook of the Court of Chancery of the state of Delaware ruled (pdf) that “Article V, Section 4A of the Delaware Constitution, provides for absentee voting in certain enumerated circumstances.” State courts “have consistently stated that those circumstances are exhaustive.”
Cook said, “As a trial judge I am compelled by precedent to conclude that the Vote-by-Mail Statute’s attempt to expand absentee voting to Delawareans who do not align with any of Section 4A’s categories must be rejected.”
Cook turned down the challenge to the state’s same-day registration statute bus said the vote-by-mail statute “presents a much thornier issue.”
In 2020 as pandemic-era measures curtailing individual liberties took effect, the Delaware Legislature enacted “avery similar vote-by-mail law under its emergency powers, which was upheld by this Court.” But the current statute was not justified as an emergency measure, he wrote, suggesting it did not deserve the same judicial deference.
Although the plaintiffs would probably not have standing under federal rules to challenge the mail-in voting law, they do have standing under Delaware law because they “represent various parts of the election process” and “have asubstantial interest in this court reaching a decision on the merits, particularly given the fundamental nature of voting,” he wrote.
Cook also wrote, “In light of his ruling on merits, there would be irreparable harm in the absence of injunctive relief and that the balance of the equities favor entry of an injunction.”
According to the Associated Press, Attorney Jane Brady, who served as co-council on the case, told them, “Voting by mail does not comport with the constitution.”
Brady continued “I believe that the legislature has known from day one that they needed a constitutional amendment to do this. In my view, they abdicated their responsibility.”
Brady, a Republican, was Attorney General of Delaware from 1995 to 2005.
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