Pending before the Delaware Supreme Court is Higgin v. Albence, a case that challenges the Delaware General Assembly’s power under the state constitution to enact universal mail voting without going through the constitutional amendment process. Lawyers Democracy fund filed an amicus curiae brief in Higgin to lay out for the Court the many reasons in which Delaware’s no-excuse mail voting law violates the state Constitution.
After the 2020 election, the Delaware General Assembly enacted no-excuse mail voting. But as LDF made clear in its brief, the General Assembly doesn’t have the power to enact no-excuse mail without amending the Constitution, just as the General Assembly has been required to do numerous times in the past to expand the classes of voters who are eligible to vote by mail.
The universal mail voting legislation at issue in this case directly conflicts with Article V, § 1 of the Delaware Constitution. It cannot exist in Delaware absent a constitutional amendment. The phrase election “by ballot” in Section 1 plainly means, as universally understood at common law during and prior to ratification of the 1897 Delaware Constitution: the complete election system for choosing public officers by physical attendance at a polling place and recording individual votes in secret, by means of paper ballot or machine. No Delaware Court has ever held differently, and this Court has reached the same conclusion at least three times on other grounds to strike down unconstitutional absentee voting legislation. Delaware canons of textual interpretation, both as to the structure of the text of Article V and the history of the phrase, lead the Court to the same conclusion.
LDF took time to explain to the court all the ways the Delaware Constitution has long been interpreted to require in-person voting unless a voter qualifies to vote by mail under Section 4A of the Delaware Constitution. LDF explained to the court that the defendants would read the Constitution to mean something entirely different than what it has long been understood to mean.
Other grounds also exist for finding the universal mail voting law at issue here unconstitutional. The full text of Article V, § 1, for example, limits the legislature to providing only different ways of recording and tallying votes, which must be for the purpose of enhancing ballot secrecy and security at the time and place of elections. Appellants ask this Court to hold as acceptable under Section 1 a universal mail voting law which eliminates nearly all government supervision over elections – i.e., everything from the time, place, and manner of voting, to who is actually exercising the vote and casting the ballot. Such reading cannot meet constitutional muster.
LDF’s brief also made clear to the court that upholding Delaware’s mail voting law would not only erase decades of judicial precedent but would also render sections of the Delaware Constitution wholly meaningless. The only way the court can save the clear language of the Constitution is to strike down the mail voting law and recognize that only voters enumerated in Section 4A of the Constitution are eligible to vote by mail, absent a constitutional amendment to expand these classes.
Appellant’s interpretation would erase half of the words in Article V, § 1, as well as lead to patently absurd results when reading all sections of Article V together. The enumeration of permitted classes of absentee voters under Section 4a would also be rendered meaningless by act of legislation.
Oral arguments will be held on October 6, 2022. LDF is hopeful that the Delaware Supreme Court will uphold decades of judicial precedent and find that Delaware’s no-excuse mail voting is unconstitutional.
To read all of LDF’s amicus brief, click here.
UPDATE: On October 7, 2022, the Delaware Supreme Court agreed with LDF’s brief and struck down the new mail voting law as an unconstitutional expansion of the limited classes of voters permitted to vote by absentee ballot under the Delaware Constitution. LDF is proud of this timely victory and applauds the Delaware Supreme Court’s decision to uphold decades of precedent and the rule of law in elections!
To read the Delaware Supreme Court’s order, click here.