Delaware GOP Loses Challenges To Vote-By-Mail

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The Delaware Republican Party has been denied injunctive relief in its attempt to stop the Department of Elections from sending out mail-in ballots and to keep votes cast by mail from being counted.

Delaware Court of Chancery Vice Chancellor Sam Glasscock III issued a 24-page opinion Monday evening, several days after he heard arguments.

The GOP had raised constitutional questions about the procedure that was approved by the General Assembly earlier this year. The party also contended that mail-in voting has the potential of leading to fraud, a miscount or an undercount.

As approved by the General Assembly, mail-in voting would only have been allowed for the 2020 primary and general elections. The goal was to provide voters with an alternative to going out to a polling place to vote during a pandemic.

Vice Chancellor Glasscock determined that the constitutional challenge did not pass muster:

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. 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. The foregoing was the rationale of the legislature, and, in light of that determination, it is not clearly
unreasonable or manifestly incorrect that the Act is necessary to the continuity of governmental operations. The legislature also determined that any procedures to address this risk in conformity with Article V, § 1 would be impracticable, a matter the Constitution explicitly commends to the legislative discretion. Having found that, I may not by ukase substitute my judgment, or the Plaintiffs’, for that of the legislature. Where, as here, a facial challenge has been made, legislation should only be disturbed in the face of clear and convincing evidence of its invalidity. The General Assembly determined that allowing votes to be cast by mail is necessary and proper to ensure the continuity of governmental operations during the current state of emergency and that conformity with Article V, § 4A would be impracticable. Plaintiffs have failed to demonstrate that the General Assembly’s determinations are
clearly insufficient.

In his conclusion, Vice Chancellor Glasscock wrote:

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. 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.

Vice Chancellor Sam Glasscock’s decision is being praised by the chair of the Delaware Democratic Party, Erik Raser-Schramm.
In a statement, he calls the Delaware GOP’s effort “politically motivated” and that it was an attempt to “sow distrust and trump up unfounded claims of fraud.”
Delaware Republican Party chair Jane Brady tells WGMD that was not the intent whatsoever. She also says there appears to be little ground for appeal, and she encourages all Delawareans to vote by whatever means they choose.

Late Monday morning, the U.S. District Court for the Eastern District of Pennsylvania issued an 87-page opinion and an order siding with Delaware and other plaintiffs who sought to stop disruptive policies implemented by Postmaster General Louis DeJoy. Delaware’s complaint cited several specific and serious consequences of the marked decline in postal services that resulted from DeJoy’s changes.

The Court’s opinion notes:

It is … curious, at a minimum, that a major initiative would be implemented, in the middle of a public health crisis, four months before a national election where mail-in voting is expected to increase dramatically. Depending on how one views the range of conclusions that can be drawn from the evidence, it might even be considered reckless. Regardless, for the reasons set forth below, it is unlawful.

The Court’s preliminary injunction prohibits the USPS from continuing operational changes implemented by Postmaster DeJoy—including work hours reduction targets, penalty overtime, and manager approval requirements for work hours and overtime—until the USPS presents such changes to the Postal Regulatory Commission and obtains an advisory opinion following a public hearing as prescribed by federal law.