A State of Uncertainty: How Delaware courts grapple with pro-voter statute challenges over time
November 14, 2024
By: Marley Fishburn
On June 28th, 2024, the Delaware Supreme Court reversed a Superior Court decision to uphold both early voting and permanent absentee voting for some residents, a huge win for expanding voting rights. This is a drastic change from the court’s previous jurisprudence that struck down same-day registration and mail-in ballot statutes in 2022.
In February, the Delaware Superior Court granted a request from then-chair of the Delaware Republican Party, Jane Brady, and the conservative Public Interest Legal Foundation (PILF) to strike down two pro-voting laws. The complaint first challenges a 2019 law that allows up to 10 days of early voting and a 2010 law that allows voters to apply for ‘permanent absentee status’. The complaint argues that these laws violate clauses in the Delaware constitution that only allows voting to be held on a single day and the constitution’s strict absentee voting requirements. The Delaware Superior Court struck down both statutes in favor of the plaintiffs. Soon after, the Delaware Department of Justice appealed the decision.
In June, the Delaware Supreme Court reversed the lower court’s decision in an unanimous ruling. The court concluded that PILF and Brady didn’t have standing to sue over the laws because they did not prove an imminent or particularized harm. The court also rejected the claims that the republican votes were diluted by illegally cast ballots. In particular, the court condemned the plaintiffs for improperly claiming vote dilution in a case that did not concern the Voting Rights Act or gerrymandering. Judge Traynor criticized the plaintiffs for utilizing “vote dilution through fraud facilitation” which alleges electoral policies that make voting easier are unconstitutionally dilutive. This tactic, made popular in conservative lawsuits made during the 2020 election, has led to perilous cases like these that seek to repeal pro-voter statutes in the name of vote dilution.
This pro-voting decision marks a significant shift in the court’s election law jurisprudence. In 2022, the court invalidated Delaware’s same-day registration law and no-excuse mail-in voting law.
On September 14th 2022, the Delaware Court of Chancery struck down a statute, which allowed any voter to request a mail-in ballot without an excuse and upheld a statute that enacted same-day registration. The decision is a result of two challenges: one filed by PILF on behalf of republican state House candidate Michael Higgan and one filed by Republican voters only challenging the mail-in ballot statute. The complaints argue that the statutes are unconstitutional and will harm the Republican candidate on grounds of vote dilution. The court held that PILF failed to prove how the same-day registration statute violated the constitution and that the vote-by-mail statute violates Article V, Section 4A of the Delaware Constitution.
The Delaware Department of Elections and State Elections Commissioner Anthony Albence appealed the decision and the Delaware Supreme Court heard oral arguments in October of 2022. Just before the 2022 election, on October 7th, the court held in an abbreviated order that both the mail-in ballot statute and same-day registration statute were unconstitutional. The court concluded that the vote-by-mail statute impermissibly expands the definition of absentee voting and thus violates the Delaware constitution and that the same-day registration statute conflicts with Article V, Section 4. As a result, neither measure was available to Delaware voters in the 2022 election.
As the volatility of U.S. elections increases, courts are in a unique position to pave the way for clarity and consistency for voters. As times change and the state of elections evolves, courts are the keystone that could either maintain order or unravel the peace.