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Ruling: No more time to count mailed ballots

A Chancery Court judge today denied an appeal to extend the deadline for counting mail-in ballots.

Concerns regarding postal delays and votes going uncounted were not frivolous,  Vice Chancellor Sam Glasscock ruled, but the threat of disenfranchisement was too speculative at this juncture to warrant relief, according to the American Civil Liberties Union.

The case was filed by the League of Women Voters of Delaware, with help from the ACLU, seeking to extend the ballot deadline for mail-in ballots in the Nov. 3 election. The lawsuit raised the concern that the dramatic expansion of mail voting combined with widely reported postal service delays would result in thousands of votes going uncounted because they did not arrive by the current deadline of 8 p.m. on Election Day. 

“The Plaintiffs may be correct that, as a matter of good governmental practice, the statutory deadlines imposed by the General Assembly for receiving valid ballots are not optimal,” Glasscock wrote in his 32-page opinion.

“But that is a matter for the legislature; my role is much more limited. Statutes enjoy a presumption of constitutionality, and I may not invalidate (let alone, as sought here, rewrite) state statutes on ground of unconstitutionality unless that unconstitutionality is clear.”

“The Delaware Constitution guarantees the right to vote in a free and equal election process,” he continued. “The General Assembly set a deadline for mailed ballots that, as of the time the legislation was passed, was sufficient to comply with this mandate.”

“Principles of judicial modesty, however, require I not interfere with a statute on speculative grounds—particularly so when to do so would change settled law within weeks of the election,” he wrote.

“Voting is our most fundamental right and the ACLU of Delaware will always fight to protect and expand that right,” said Karen Lantz, legal and policy director of the ACLU of Delaware, “We are disappointed in the court’s ruling and will be discussing next steps with our clients, but no matter what happens next, we won’t stop fighting to protect the vote in Delaware.”

“Even the governor has said that Delaware is an in-hand ballot state — that ballots must be in hand by 8 p.m. of election day,” said Jane Brady, chair of the Delaware Republican Party. “I think that’s a very good ruling.”

Leaders of the state Democratic Party were also asked for comment.


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