Supreme Court of Delaware

DE Supreme Court explains decision to overturn vote-by-mail

Charlie Megginson Government, Headlines

Supreme Court of Delaware

(Charlie Megginson/Delaware LIVE)

In a 69-page decision that cited versions of Delaware constitutions dating back to 1776, the state’s Supreme Court this week explained its ruling overturning mail-in voting and same-day voter registration laws passed by the General Assembly earlier this year. 

The state’s highest court in October unanimously ruled the statutes unconstitutional but issued an abbreviated order due to time constraints imposed by the then-upcoming general election. 

This week’s opinion explains the court’s justification in full.

RELATED: Supreme Court strikes down vote-by-mail, same-day registration

The decision focuses predominantly on the mail-in voting law before turning briefly to the same-day registration statute near the end. 

It explores the history of absentee voting in the First State, including legal challenges in 1939 and 1942, a court opinion in 1972, and the General Assembly’s authorization of mail-in voting on an emergency basis during the COVID-19 pandemic.

The decision also addresses the state legislature’s failed initial attempt to amend the Delaware Constitution to allow no-excuse absentee voting, and its subsequent attempt to pass a near-identical bill without amending the Constitution.

“Stymied by the proposed amendment’s failure in the House, the legislative proponents of the expansion of no-excuse voting by mail reverted — albeit with a measure of diffidence — to the ordinary legislative process,” the court wrote.

The court emphasized that its decision should not be taken as a reflection of its views on the relative advantages and drawbacks of universal absentee voting or a later registration deadline.

“The resolution of those issues is within the General Assembly’s province. The Court’s role — indeed, our duty — is to hold the challenged statutory enactments up to the light of our Constitution and determine whether they are consonant or discordant with it.

“The changes to our election regime embodied in the challenged statutes must be effected, if at all, by constitutional amendment.”

Sen. Kyle Evans Gay, D-Ardens, who sponsored the overturned vote-by-mail law, previously told Delaware LIVE News she expects the legislature will attempt once again to amend the Constitution in the next General Assembly, which begins in January.

“I’m disappointed by the Supreme Court’s ruling but I respect it entirely,” Gay said in October. “I’m just really thankful that we now have certainty in what we need to do in order to continue to expand voting rights.”

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