A recently passed Delaware statute allowing mail-in voting was ruled unconstitutional by a state Chancery Court judge Wednesday.
Delaware Court of Chancery Vice Chancellor Nathan Cook ruled SB 320 unconstitutional hours after Tuesday’s primary election. About 21 percent of votes cast in the Democratic state auditor primary were either absentee or mail-in ballots, according to a WDEL report.
The prohibition against at-will, mail-in ballots will be effective for November’s midterm election.
The quick fix Republican’s called an end run around the proscribed legislative route was questionable from the beginning. Delaware’s speaker of the house made a pronouncement that channeled Nancy Pelosi’s infamous statement: “We have to pass the bill,” she said, “so that you can find out what is in it.”
“I don’t know whether it’s constitutional or not constitutional, and neither do you guys, or anybody else in here,” remarked Speaker of the House Pete Schwartzkopf (D-Rehoboth) in June. “The best way to get this thing done is hear this bill, move forward, and let a challenge go to the courts, and let them decide it.”
Delaware Republican Party Chairwoman Jane Brady and Republican attorney general candidate Julianne Murray quickly joined others to challenge the suspicious statute. They filed a lawsuit in Delaware’s Chancery Court the same month.
“The Constitution provides you must vote in person on election day unless you qualify under very limited conditions to vote absentee,” Brady explained. “Mail-in voting violates that requirement, as it allows voting without declaring or meeting any of those limited conditions.”
Cook argued Article V, Section 4A of the Delaware Constitution (below) established precedent he must follow. The Supreme Court and Chancery Court have both “constantly stated that those circumstances are exhaustive.”
The Article states:
The General Assembly shall enact general laws providing that any qualified elector of this State, duly registered, who shall be unable to appear to cast his or her ballot at any general election at the regular polling place of the election district in which he or she is registered, either because of being in the public service of the United States or of this State, or his or her spouse or dependents when residing with or accompanying him or her because of the nature of his or her business or occupation, because of his or her sickness or physical disability, because of his or her absence from the district while on vacation, or because of the tenets or teachings of his or her religion, may cast a ballot at such general election to be counted in such election district.
Cook noted possible grounds for appeal on the vote-by-mail portion. The Delaware Department of Elections noted vote-by-mail is permitted in Pennsylvania and Massachusetts, arguing mail-in voting should be legal in Delaware. The judge explained that, while he believes the Delaware Supreme Court could use those cases in an appeal, he was bound by the Delaware Constitution.
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