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Delaware judge rules Democrats' vote-by-mail law unconstitutional and prohibits it in November

Robert Gauthier/Los Angeles Times via Getty Images

After failing to secure Republican support to alter Delaware's Constitution to enshrine mail-in voting rights, Democrat lawmakers in the state passed a bill on June 22 enabling registered voters to request a mail-in ballot before the election without an excuse. It was signed into law by Democrat Gov. John Carney on July 22.

On Wednesday, Vice Chancellor Nathan Cook of the Delaware Court of Chancery ruled SB 320 unconstitutional. Although in the November general election, those who cannot make it to the polls can still request an absentee ballot and same-day registration is still allowed, mail-in voting will be prohibited.

The statute that permitted vote-by-mail in 2020 expired January 2021. With the now stricken law, Democrats sought to extend and enshrine mail-in voting beyond the pandemic-era statute first ushered in with Carney's declaration of a state of emergency.

The constitutionality of the law was thought questionable even by some Democrats ahead of its passing.

The Democrat speaker of the Delaware state House, Pete Schwartzkop, stated he didn't know "whether it's constitutional or not constitutional, and neither do you guys, or anybody else in here."

Schwartzkop suggested that the most prudent course of action would be to hear and pass the bill and then to let subsequent challenges in the courts prompt a conclusive determination as to its constitutionality.

Five plaintiffs, represented by Delaware Republican Party Chairwoman Jane Brady and Republican candidate for attorney general Julianne Murray, obliged Schwartzkop. In July, they filed a lawsuit in Delaware's Chancery Court.

On July 22, Brady, formerly Delaware's attorney general, stated, "The Constitution provides you must vote in person on election day unless you qualify under very limited conditions to vote absentee." Mail-in voting, she said, "violates that requirement, as it allows voting without declaring or meeting any of those limited conditions."

Brady also had also highlighted how Carney signed the bill into law in a private ceremony on a Friday and accused Democrats of hiding. "They know that many Delawareans do not support mail-in voting." An additional reason for the stealthy enactment, suggested Brady, was that Democrats "know that it is unconstitutional."

Hank McCann, the national committeeman for the Delaware Republican Party, stated at the time of the bill's passage, "When the Democrats failed to get enough votes in the legislature to change our election laws the way the Delaware Constitution mandates, they simply bypassed the Constitution and passed a statute."

In his ruling, Cook — nominated by Carney earlier this year — wrote that were mail-in voting permitted in the November 8 general election, the result would be "the dilution of constitutional votes with unconstitutional votes."

Although this might otherwise indicate that Cook regards some of the 10,586 absentee and mail-in votes cast for Democrat state auditor in Tuesday's primary election as "unconstitutional," WDEL reported that neither the lawsuit nor Cook's ruling have bearing on the primary election's results.

A 2021 Rasmussen poll indicated the belief that mail-in voting has a corruptive impact on elections is widely shared. As several states worked to make mail-in voting permanent, 65% of likely U.S. voters noted that doing so would lead to more cheating in elections.

According to the National Conference of State Legislatures, California, Hawaii, Nevada, Washington, Utah, and Vermont are among the states that have made mail-in voting permanent.

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