On Wednesday, a Delaware judge ruled that a vote-by-mail law put in place earlier this year is unconstitutional and that voting by mail cannot be used in the upcoming November midterm elections.
Vice Chancellor Nathan Cook ruled it violates a provision in Delaware’s constitution that spells out the circumstances under which a person is allowed to cast an absentee ballot. Democrats are all but guaranteed to appeal to the Delaware Supreme Court claiming this ruling will disenfranchise voters, especially low-income voters and people of color.
Urged to get the bill through with no one noticing, this past June, the Democrats rammed the legislation through the General Assembly in less than three weeks. While declaring vote by mail unconstitutional, Cook upheld the state’s new same-day voter registration law.
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.”
In an 87-page opinion piece, Cook continuously quoted a specific 1972 Supreme Court advisory opinion that said it is “beyond the power of the Legislature” to limit or expand the Constitution’s list of reasons an elector can cast an absentee ballot.
“Thus, if I were writing on a blank slate, I would likely conclude that the Vote-by-Mail Statute is not prohibited by the Delaware Constitution,” Cook wrote.
As Fox News noted, the ruling comes two years after a different Chancery Court judge rejected a challenge by the state’s Republican Party to the constitutionality of a law allowing universal voting by mail in the 2020 election.
Vice Chancellor Sam Glasscock III said in that ruling that the General Assembly’s decision to use its emergency powers to declare that voting by mail was necessary to protect public health and ensure continuity of governmental operations during the coronavirus epidemic was not “clearly erroneous.”
In passing that bill, Democrats asserted that voting by mail was “necessary and proper” during the pandemic and that conforming to the requirements of Delaware’s constitution, including its explicit limitations on absentee voting, “would be impracticable.”
Republican Jane Brady, one of the attorneys behind the lawsuit, backed up the reasoning behind Cook’s decision.
“To suggest that this was a political decision is an insult to one of the finest courts in the country, well respected for its independent review in all matters of business and equity,” Brady said.
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