UPDATED: Chancery Court Ruling Strikes Down Vote-By-Mail but Not Same Day Registration

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The Delaware Court of Chancery has struck down the Vote-by-Mail Statute that was passed by the last General Assembly. Vice Chancellor Nathan Cook agreed with Plaintiffs Michael Higgin and Michael Mennella, represented by M. Jane Brady of Brady Legal Group, and other Plaintiffs, represented by Julianne Murray, candidate for Attorney General, that the law violated Delaware’s Constitution. Cook decided that the law violated the Delaware Constitution by allowing voters to cast their ballots from a place other than their designated polling location without having an excuse provided under the Constitution’s absentee voting provision.

On the second issue – same day registration, Cook ruled that the plaintiffs have failed to meet their burden of showing by “clear evidence” a constitutional violation, and the Same-Day Registration Statute stands.

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UPDATED – 09/15/22ACLU-DE & DVRC Issue Statements on Vote By Mail Court Decision

Late Wednesday, September 14, 2022, Vice Chancellor Nathan Cook of Delaware’s Chancery Court released his opinion on the legal challenge to Delaware’s new vote-by-mail law, ruling that the law is unconstitutional, but leaving the door open for an appeal on this ruling to head to the Delaware Supreme Court for consideration.

The impact of this ruling has no bearing on the September 13, 2022 Primary Election, and does not effect same day registration or in-person early voting. We will continue to monitor this ongoing litigation and ensure that Delaware voters are aware of the methods of voting available to them for the 2022 General Election on Tuesday, November 8, 2022.

Statements from the ACLU of Delaware and the Delaware Voting Rights Coalition are below.

From ACLU-DE:

“We firmly believe that voting by mail is constitutional, and that the General Assembly has the authority to prescribe the methods that Delawareans can use to vote. Our belief remains the same today, and we hope the Supreme Court of 2022 will uphold Delawareans’ right to vote-by-mail.

We want Delawareans to know that the Court’s decision has no impact on early in-person voting and same day registration, and voters should make a plan to vote in the General Election with full confidence in those new voting laws, as well as absentee and in-person voting. As more court actions continue in this case, we are committed to informing voters about the availability of vote-by-mail in the upcoming general election.

This attack on voting rights by opponents of democracy is part of a larger national effort to prevent Americans from participating in our elections. ACLU of Delaware will continue to fight to make vote-by-mail available to Delaware voters in the 2022 General Election and every election after that.”

This statement is attributable to Dwayne J. Bensing, Legal Director, ACLU of Delaware (ACLU-DE)

FROM DVRC:

“We are profoundly disappointed that the Chancery Court has ruled that Delaware’s vote-by-mail law statute is unconstitutional. We will continue to monitor this matter as it proceeds through appeals and further litigation so we can keep voters informed on all voting opportunities available.

With the General Election looming, we want voters in Delaware to know: This decision has no effect on early in-person voting or same day registration, and you should continue to utilize all the voting options that are available to you. We further anticipate a final decision by the Supreme Court in time to know whether mail ballots may be sent on October 10, 2022.

Whatever comes next, the Delaware Voting Rights Coalition will continue our public education efforts to ensure that voters understand all the options available to them as they head to the polls.”

This statement is attributable to the Delaware Voting Rights Coalition (DVRC).

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UPDATED – 9/15/22 6pmDelaware Democratic Party Chair, Betsy Maron has issued the following statement on Republican-led vote by mail litigation

“The extended controversy over Vote by Mail is a disappointing reminder that Republican attacks on the electoral process are active and ongoing, even in Delaware. We have seen it all over the country as Republicans have thrown up increasingly burdensome barriers to the ballot box, all under the guise of ‘election integrity.’

“Exercising the right to vote should not be a partisan issue. Before 2020, vote by mail had bipartisan support. Delaware Republicans have changed course because they know that the only way they can impose their unpopular and regressive policies is to bar Delawareans from the ballot box.

“The Delaware Democratic Party believes that true election integrity comes from ensuring every eligible voice is heard. Our candidates are running to expand access, not restrict it. While yesterday’s news was discouraging, we can settle this matter once and for all by electing more Democrats to the General Assembly on November 8.”


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