Law experts predict vote by mail in Delaware will withstand lawsuit

DOVER – As a Delaware Court of Chancery judge weighs whether to rule vote-by-mail unconstitutional in the First State, several academics versed in law say that reversing course on how an election can take shape so close to Election Day itself is unlikely.

Dr. Michael Dimino, professor of law at Widener Commonwealth Law School, said that courts, including the Supreme Court, are reluctant to change rules for an election close to Election Day.

“If you want to make a claim that a certain election procedure is illegal, it’s best to do that as early as possible,” he said. “The closer to the election day you strike down some procedure, the more chaotic of a situation is created.”

In Delaware, voting by mail in this election is no different than casting an absentee ballot. The difference this year, however, is voters are being actively invited to vote by mail (due to the pandemic), rather than being something a small number of people do for specific reasons (health, not being in the state, etc.).

Through a lawsuit, the Republican Party of Delaware is attempting to strike down universal voting enacted through legislation passed in the General Assembly.

Court of Chancery Vice Chancellor Sam Glasscock III said he expects to issued a decision by Monday regarding the GOP’s quest for an injunction, the Associated Press reported.

Across the country, election rules have adapted to account for COVID-19 — and, like in Delaware, those changes are being challenged nationwide.

Oregon, Washington state, Colorado, Utah and Hawaii already have laws to allow mail-in voting, Dr. Sam Hoff, George Washington Distinguished Professor Emeritus at Delaware State University, said. Other states, including California, Nevada, Vermont, and New Jersey, have moved to allow mail-in voting in this election cycle due to the pandemic, Dr. Hoff said.

“What we have is a conflict between the desire on the part of, really, everybody, to allow people to have access to the ballot, to allow people to vote if they’re eligible, and the concern also held by everybody that we follow the rules, and that the politicians and the other officials who run elections don’t try to engineer the system so as to give their parties an advantage,” Dr. Dimino said.

Dr. Dimino has doubts whether this lawsuit will have much of an effect on turnout.

“I think it may have an effect on people’s willingness to vote by mail,” he said. “So, the more controversy there is about voting by then, the more likely that people are going to say, ‘Forget it, if I can vote in person, I’m going to vote in person.’”

David Redlawsk, James R. Soles Professor of Political Science and chairman for Political Science and International Relations at the University of Delaware, noted that it will be the “rare voter” who is keeping abreast of what is happening with this lawsuit in particular.

Dr. Redlawsk received a mailing Friday from the state with an absentee ballot request form.

“The odds are pretty good that at the moment until there’s a decision, it’s unlikely to have any obvious impact,” he said. “The biggest challenge I think comes, depending on what the judge says. If the judge rules that it is in fact unconstitutional, then I think you will see some confusion for voters.

“Folks who already, like me, submitted my request for an absentee ballot, or got this mailing and filled it out and sent it in and then aren’t necessarily sure what they should do next.”

But if the ruling were to find vote-by-mail unconstitutional, that could have an adverse effect on turnout, others said.

“It would certainly be highly unique, if not inappropriate, to make an adverse ruling so close to the election and expect folks to get the word out and ultimately, … as the attorney general mentioned, [it’s] Hobson’s choice,” Dr. Hoff said. “To put people in that circumstance is, in my view, as a political scientist, I’m going to predict a significant decrease in turnout if that law is overturned.”

Dr. Redlawsk agreed that if absentee voting were to revert to the old rules — that a voter must actually be ill, out of the state or unable to go to a polling place due to disability — turnout would be down.

“Some number of people, even if they really want to vote, are not going to feel comfortable going to the polls,” he said. “But if they’re don’t qualify under the old rules, they’re going to be effectively disenfranchised.”

Federally, there is a pending bill called the Universal Right to Vote by Mail Act, but Dr. Hoff called that “less aggressive” than the Universal Right to Vote procedure. The act aims to remove impediments that certain states have for absentee voting, such as getting a doctor’s note, which makes it more difficult than just filling out the absentee application.

“We have to go back to the fact that the federal government is not supposed to control what happens in elections; that’s a state matter,” Dr. Hoff said.

Also, Dr. Hoff said, “Ultimately the accusation that the process is somehow fraudulent or corrupt, that I think it corrodes the whole American political system, and not just the locale where it’s occurring. That’s most unfortunate because the process of voting in the United States, as we know, has never been an easy one for which we’ve had universal suffrage.”

For instance, when the U.S. came into its own democracy, about 3% of adult Americans, who were White men, were eligible to vote. Over time, that broadened to include those who had less property. Eventually, people of color, women and then later — with the 26th Amendment — those who were 18 years old were eligible.

“The most important thing is the idea of being able to perform the right and privilege that we have as citizens to vote in a way that we feel safe and I would say that there’ll be less of a handful of instances throughout the United States where there would be a person either attempting, intentionally or unintentionally, voting twice, which is the other thing that the president’s bringing up in terms of this issue, as well as absentee voting,” Dr. Hoff said.

Attempts for comment from Delaware Republican Party chair Jane Brady Friday were unsuccessful.

Said Delaware Democratic Party Executive Director Jesse Chadderdon on Friday, “I think it’s a shame that the GOP has spent so much time and energy trying to tear down a well-established,, well-tested secure method of voting instead of educating Delawareans on how to avail themselves of it.”

The ACLU is “fully in support” of voters casting ballots through the mail, said Executive Director Michael Brickner on Friday when asked about the Republican party’s lawsuit.

Following the state’s primary election earlier this month, State Elections Commissioner Anthony Albence said approximately 76,000 absentee and vote-by-mail ballots, were received.

The vote-by-mail option accounted for nearly 43% of the 177,519 ballots cast. Voter turnout was 32.26%, of the 550,288 registered voters eligible in the primary.

Mail-in deadline suit

On Sept. 3 the ACLU of Delaware filed a lawsuit against the state seeking to assure that absentee and vote by mail ballots are counted if postmarked by Nov. 3.

The suit filed against the Delaware Board of Elections cited potential slow service by the United States Postal Service and seeks confirmation of ballots within 10 days of the election. A news release cited concerns associated with the COViD-19 pandemic.

Postmarked, scan coded or otherwise official USPS mailed ballots arriving by Nov. 13 at 8 p.m. should be valid, according to the lawsuit.

The next hearing in the Court of Chancery case is scheduled for Oct. 6. It will be held virtually from Georgetown.

“We believe very strongly that voters should not be disenfranchised because the mail moves too slowly, something that is out of their control,” the ACLU’s Mr. Brickner said, citing health concerns that might arise if voters felt obligated to arrive at polling places without the mail-in option.

Added Mr. Brickner, “Democracy only works when everyone is able to participate. Issues important to every Delawarean are on the ballot, whether it’s healthcare, education, public safety, or the economy, the ballot is our voice and our power.

“We must ensure every eligible voter is able to cast a ballot that counts.”

According to Karen Lantz, ACLU of Delaware Legal and Policy Director, at the time of the filing, “Voting by mail is a secure and safe way for voters to cast their ballot, especially during the COVID-19 pandemic.

“But Delaware’s current deadline for receiving ballots could mean thousands of voters would be disenfranchised because of mail delays.

“By extending the deadline, it would also minimize the number of people that will need to access voting locations, thereby providing more space and less risk for those who choose to vote in person.”

The lawsuit was filed on the behalf of plaintiffs League of Women Voters Delaware and individual voter Rachel Grier-Reynolds.

According to League of Women Voters Delaware President Carol Jones, 1,699 ballots arrived after 8 p.m. the night of July’s presidential primary. More than 50,000 votes were cast by mail, she said.

“We expect these numbers to grow exponentially for the state primary and general elections,” she said at the time.

“COVID-19 is still a health risk and Delaware is under a state of emergency. We need to make sure we’re doing everything we can to allow people to cast their vote by mail safely and without undue barriers.”