Absentee Voting from Prison in Delaware
October 29, 2024
By: Devyn Sword
Delaware’s constitution includes a list of specific conditions that qualify a citizen to vote absentee, including illness, disability, vacation, or religious reasons. Incarceration is notably absent from that list. Although, like many states, Delaware does not allow anyone convicted of and serving a sentence for a felony to vote, otherwise eligible voters who are incarcerated for misdemeanor offenses or detained in a correctional facility pre-trial, are not prohibited from voting in jail or prison. However, eligibility and accessibility do not always go hand in hand. Delaware jails and prisons do not have in-person polling locations, so without access to absentee ballots there are thousands of eligible voters with no means to exercise their right to vote. In an effort to expand voting access in the state, the Delaware legislature attempted to amend the constitution to eliminate those conditions and allow anyone to vote absentee, but the amendment failed to pass the House in 2021. When the amendment failed, Democratic legislators passed a bill that allowed universal mail voting regardless of the language in the constitution.
Unsurprisingly, in 2022, the Delaware Supreme Court ruled that the state’s no-excuse absentee voting law was unconstitutional since the enumerated list of absentee voting excuses precluded universal absentee voting. This left pre-trial detainees, people serving sentences for misdemeanor offenses, and other eligible incarcerated individuals effectively disenfranchised. In December 2023, the ACLU filed a lawsuit in Delaware District Court on behalf of a group of eligible incarcerated voters who have no way of casting a ballot. The ACLU argues that the language of the constitution clearly does not include incarcerated voters, and without universal absentee voting or in-person voting access, it is functionally impossible for them to vote. The ACLU requested an injunction requiring Delaware to provide in-person voting machines in correctional facilities so that incarcerated voters can cast their ballots in the 2024 election this November. The Delaware Code allows absentee voting “because of the nature of such person’s business or occupation, including the business or occupation of providing care to his or her parent, spouse, or child who is living at home and requires constant care due to illness, disability, or injury” which the Delaware absentee ballot application says applies to “otherwise eligible persons who are incarcerated.” This lawsuit was dismissed without prejudice by District Court Judge Jennifer Hall on August 23rd, 2024 for lack of subject matter jurisdiction.
The Delaware Department of Justice has stated that they will not prosecute eligible incarcerated voters for requesting and casting absentee ballots. This, combined with the language on the absentee ballot applications that purports to allow incarcerated voters to request absentee ballots, makes this look like a non-issue. While that might be true on paper, there is a significant difference between administrative policy and the letter of the law; a difference that leaves a large population of voters vulnerable to disenfranchisement. The Delaware constitution does not explicitly allow incarcerated voters to vote absentee, and the Delaware Supreme Court has already set precedent that laws that “impermissibly expand the categories of absentee voters identified in Delaware’s constitution” are unconstitutional. Although the Department of Elections is currently allowing incarcerated voters to request absentee ballots and the DOJ is not currently prosecuting those voters, neither of those policies are based on the law, they are merely administrative rules. Those rules could change depending on the officials in charge or they could easily be subject to legal challenges trying to contest the legitimacy of incarcerated voters’ ballots.
Since there is not enough time before the November election to amend the Delaware constitution to explicitly include incarceration as an excuse to vote absentee, the only way to guarantee the votes of incarcerated individuals are protected from legal challenges on the basis of their absentee voting eligibility is to ensure that those voters have access to in-person voting. Delaware has an obligation to provide in-person voting access in correctional facilities to shield an already vulnerable population from potential disenfranchisement and an already vulnerable election from potential scrutiny. With the anticipated challenges facing the 2024 election, leaving any aspect of voting rights open to interpretation or reliant on the whims of administrative officials is dangerous, irresponsible and could lead to further erosion of public confidence in the security and legitimacy of our elections.