Delaware justices eye vote by mail, same-day registration

October 6, 2022 GMT

DOVER, Del. (AP) — Delaware’s Democratic attorney general is asking the state Supreme Court to overturn a judge’s ruling declaring a new vote-by-mail law unconstitutional and prohibiting voting by mail in the upcoming November election.

The justices heard arguments Thursday in a lawsuit challenging both the vote-by-mail law and another new law allowing same-day registration.

Vice Chancellor Nathan Cook last month upheld the same-day registration law. But he said the vote-by-mail law, the result of legislation Democrats rammed through the General Assembly in less than three weeks, violates restrictions on absentee voting in Delaware’s constitution.

Attorney General Kathleen Jennings appealed the ruling striking down the vote-by-mail law. Republican attorneys representing voters, a state House candidate and a Department of Elections employee appealed Cook’s decision upholding same-day registration.

Attorneys representing state elections officials argue that the General Assembly has broad powers to enact voting laws. Chief Deputy Attorney General Alexander Mackler also argued Thursday that opponents have no standing to challenge either law because they have not demonstrated any specific injury or any particular interest not shared by others.

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“These plaintiffs are not legally injured. They are politically aggrieved,” Mackler said. “They have a policy disagreement with the legislature that they want this court to legitimize.”

Justice Gary Traynor pushed back on Mackler’s assertion, asking why a candidate who wants to ensure that an election complies with Delaware’s constitution would not be allowed to challenge “a statute that arguably is in violation of the constitution.”

Justice Karen Valihura raised similar concerns.

“If people vote who are not entitled to vote, couldn’t that be an injury?,” she asked. “How can that not be an injury?”

Attorneys challenging the laws contend that members of the General Assembly circumvented constitutional restrictions on their powers instead of amending the constitution to allow voting by mail and same-day registration.

“A statute cannot introduce into the general election votes that are prohibited under the Delaware constitution,” said state Republican Party chair and former attorney general Jane Brady.

The constitution says a person is allowed to vote absentee if unable to go to the polls on Election Day because of his or her public service, business or occupation. Spouses and dependents who live with or accompany people in those circumstances also are allowed to vote absentee. Sickness or physical disability, vacation, and the tenets or teachings of a person’s religion are the other allowances.

The attorney general’s office contends that mail-in voting is not absentee voting. At the same time, however, it argues that the constitution’s absentee voting provision does not preclude the General Assembly from allowing universal voting by mail.

Mackler told the justices they don’t even need to look at the absentee voting provision because the constitution gives the legislature general authority to prescribe “the means, methods and instruments of voting.”

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“Mr. Mackler, that’s exactly contrary to the position that the Department of Elections, the attorney general and the state took in 2020,” Valihura responded.

Valihura was referring to a bill in which the General Assembly invoked its emergency powers to allow universal voting by mail in 2020 because of the coronavirus pandemic.

In that legislation, lawmakers specifically acknowledged that the constitution’s list of reasons for absentee voting is “exhaustive,” meaning no other reasons are allowed. They also acknowledged that they must comply with the constitution in invoking their emergency powers unless doing so would be “impracticable” or cause undue delay. They then declared that conforming with the constitution’s absentee voting provision would be “impracticable.”

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Valihura and Traynor noted that if voting by mail is truly distinct from absentee voting, as the state contends, lawmakers would not have had to cite the absentee voting provision in the 2020 law or invoke their emergency powers.

Regarding voter registration, the constitution says the registration period for a general election cannot begin more than 120 days, or less than 60 days, before the election. It also cannot end more than 20 days, or less than 10 days, before the election.

Mackler nevertheless argued that the constitution doesn’t prohibit people from registering to vote more than 120 days before the election, or less than 10 days before the election.

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Valihura said the 10-day period was intended to allow the registration rolls to be corrected and for anyone denied the ability to register to appeal. The constitution states that any correction must be done “prior to the day of holding the election.”

“How is it that the same-day statute doesn’t completely eviscerate the provision?” she asked.

Mackler acknowledged that if a person shows up at a polling place at 7 p.m. on Election Day and is prohibited from registering to vote, the opportunity to appeal would be minimized or truncated, but not impossible.