Judge eyes ruling over law allowing universal voting by mail

DOVER (AP) — A Delaware judge is weighing a request by the state Republican Party to declare a new law allowing universal voting by mail in this year’s elections unconstitutional.

The judge told attorneys after hearing arguments Thursday that he will issue a decision by Monday on the GOP’s request for an injunction to prevent vote-by-mail ballots from being counted in the November election.

The GOP filed a lawsuit last month arguing that lawmakers in the Democrat-controlled legislature exceeded their constitutional authority in invoking emergency powers to pass the measure.

In passing the bill, Democrats asserted that voting by mail is “necessary and proper for insuring the continuity of governmental operations” amid the coronavirus epidemic. They also declared that conforming to the requirements of Delaware’s constitution, including its explicit limitations on absentee voting, “would be impracticable.”

At the time lawmakers passed the bill, Delaware was in “Phase 2” of its coronavirus economic reopening, with indoor gatherings of up to 250 people allowed, businesses authorized to double occupancy limits, and convention centers and meeting facilities allowed to open.

Julia Klein, an attorney representing the GOP, told Vice Chancellor Sam Glasscock III that state government also has continued to function despite the coronavirus, and that the bill unconstitutionally authorized voting by mail “for any reason, or no reason at all.”

“The reason for voting by mail are enumerative and exhaustive,” Klein added, citing the specific reasons allowed by Delaware’s constitution for being eligible to cast an absentee ballot.

She also cited a 1972 opinion in which the Delaware Supreme Court said that, by expressly including certain classifications of voters allowed to cast absentee ballots, the drafters of the constitution “impliedly excluded all other classifications.”

“It is beyond the power of the legislature, in our opinion, to either limit or enlarge upon the … absentee voter classifications specified in the constitution for general elections,” the court wrote.

But Glasscock seemed skeptical of Klein’s arguments. He questioned the basis on which he could second-guess or overturn a decision made by lawmakers exercising the discretion they granted themselves under constitution’s provision for continuity of governmental operations.

“What is the standard I have to apply? …. I’ve got the legislature telling me that they’ve made a determination in pursuit of their duties that it is impractical to carry out voting without voting by mail,” he said.

State attorneys argued in their response to the complaint that courts are required to give deference to decisions of the General Assembly. They also argued that, even though all polling places will be open and there is no prohibition against in-person voting, not allowing universal voting by mail could interfere with the “free and equal” elections guaranteed by the constitution.

Attorney General Kathy Jennings, a Democrat, told Glasscock on Thursday that overturning the law would result in the disenfranchisement of thousands of voters who would not want to put their lives at risk in order to vote.

“Exercising the right to vote should not be a Hobson’s choice,” Jennings said, adding that legislators had a rational basis for allowing universal voting by mail this year.

“It’s common sense,” she said.