A day after President Biden flew home to vote in the Delaware primary, the Delaware Chancery Court issued a ruling that the State’s newly passed mail-in voting scheme violated the Delaware Constitution.
Wednesday’s ruling came after the Public Interest Legal Foundation, with local counsel and on behalf of a client, sued the State, arguing that Delaware’s Constitution outlines only limited times a person may vote by mail, and the new law disregards those constitutional restrictions. The vote-by-mail law allows any registered voter to vote by mail, for any reason.
The notion that such a voting process would be unconstitutional in Delaware is not a surprise to Delawareans. In 2020, the General Assembly passed a mail-in voting law under their emergency power laws in order to have mail-in voting for the 2020 election. The process was challenged then, and was only upheld because it was passed under the emergency procedures.
In fact, the General Assembly attempted to amend the Delaware Constitution in order to eliminate the restrictions in the constitution so that mail-in voting would be available. However, the vote failed to obtain the necessary two-thirds approval of both houses in June.
So, the General Assembly passed the vote-by-mail statute a few weeks later under regular order, hoping that it could survive judicial scrutiny, despite there being discussion in both houses that the bill, SB 320, was unconstitutional. The Speaker of the House even said at the time, “I don’t know whether it’s constitutional or not constitutional, and neither do you guys or anybody else in here. The best way to get this thing done is to hear this bill, move forward, and let a challenge go to the courts and let them decide it.”
And decide it, they did. The court ruled that the new vote-by-mail statute violates the Delaware Constitution.
Such a ruling is significant because it restores the rule of law in Delaware. Section 4A of the Delaware Constitution clearly limits the voters eligible to vote without going to the polls. And the new vote-by-mail law clearly ignores that section of the law.
To find mail-in voting constitutional would be to negate the very document that prescribes Delaware’s governance and establishes the parameters of the state’s key government structures and processes.
But yesterday’s ruling didn’t do that. It followed the rule of law.
The rule of law is critical because it protects against the arbitrary abuse of power. It ensures that judicial opinions are impartial and rooted in the law of the people, and not the whims of activist judges. Following the rules is how a government gets the consent of the governed.
Whether you are for or against mail-in voting, everyone agrees rules have to be followed. Especially America’s sacred process of voting is involved.
Delaware’s mail-in voting law violated the Delaware Constitution, and the court recognized that violation. Such a ruling is a victory for the rule of law. We can all feel better about our elections when we know they are being conducted in accordance with the law.
Charlotte Davis is an attorney with the Public Interest Legal Foundation.