Judge rejects Delaware vote-by-mail lawsuit

DOVER — A Delaware judge on Monday upheld a law allowing vote-by-mail this year due to the pandemic, rejecting a lawsuit from the state Republican Party.

Sam Glasscock, a member of the Court of Chancery, concluded the GOP failed to prove the measure is unconstitutional and unnecessary after hearing arguments on the case Thursday.

“In short, the Plaintiffs disagree with the policy decision of the legislature. They have attempted to convince me to disagree as well. But even if they were successful, such an attempt would be inapt,” Vice Chancellor Glasscock wrote in his opinion.

“The legislature, in the face of an epidemic of airborne disease and in light of the health emergency declared by the Governor, has made a determination that vote-by-mail is necessary for the continued operation of governmental functions, and that it would be impracticable to address this problem other than by otherwise-extraconstitutional means. These finding are not clearly erroneous. Therefore, the Plaintiffs’ Motion for Summary Judgment must be denied.”

Legislators created vote-by-mail in June, expanding the absentee ballot process in response to concerns about COVID exposure should people be forced to vote in person. The bill passed the House on party lines, though it saw some GOP support in the Senate.

During oral arguments last week, Julia Klein, an attorney presenting the Republican argument, noted state government has continued to function despite COVID and cited the specific reasons given in the state constitution to cast an absentee ballot.

Republicans around the country have expressed concerns about voting by mail, none more so than President Donald Trump. Many experts have dismissed those as politically motivated and untrue, although Delaware’s Sept. 15 primary election saw some issues with ballots.

Vice Chancellor Glasscock shot down GOP arguments against the law in his ruling, finding no reason to overrule the General Assembly.

“The Plaintiffs’ note that, with or without the Act, the polls will be open, and that those brave or heedless enough can stand in line, indoors and out, and vote in person. In their view, any health risk resulting is offset by the risk that a mail-in ballot will be unintentionally spoiled,” he wrote.

“It is true, I suppose, that the few or many who were unable to vote absentee under previous law, and were willing to undertake a health risk to exercise their franchise in person, could serve as the electorate by which officials could be chosen and government ‘continued.’ But it is also clear that continuity of a democratically elected government requires meaningful participation from the citizenry. The Delaware Constitution at Article I, § 3 requires that elected officials be chosen by ‘free and equal’ elections.

“It is also true that the risk of the virus spreading among the people, following universal in-person voting, is itself inimical to the continuity of government. The maintenance of polling places with their volunteer staff, itself a governmental function, is threatened by massive in-person voting.”

Attorney General Kathy Jennings represented the state in court last week, calling the law “common sense.”

In a statement Monday, the Delaware GOP said it “will respect the decision of the Court and fashion (the) get out the vote effort around vote by mail in addition to absentee and in person voting.”

Delaware’s primary saw a record number of ballots cast remotely, with roughly 45% of the nearly 178,000 votes taking place by mail. More Democrats actually voted by mail than in person, though the shares were close, while Republicans were several times more likely to vote at a polling place than by mail.

About 5% of the 121,000 participants in 2018’s primary contest voted absentee.