Ruling nixing vote-by-mail in Delaware on hold during appeal

September 19, 2022 GMT

DOVER, Del. (AP) — A Delaware judge on Monday halted implementation of a ruling he issued last week declaring a vote-by-mail law enacted this year is unconstitutional and that voters cannot mail in their ballots in the upcoming November election.

Vice Chancellor Nathan Cook granted a motion by the Department of Elections and Election Commissioner Anthony Albence to stay his ruling pending an expedited appeal to the state Supreme Court, which is scheduled to hear arguments in the case on Oct. 5.

Cook said his stay would allow elections officials to process mail-in voting applications and prepare ballots, but that they are not allowed to send the ballots to voters.

The judge said elections officials have indicated that if the Supreme Court upholds his ruling, they will notify voters who have applied for mail-in ballots under the new law that they will need to vote in person on Nov. 8.

Cook issued his decision after accepting briefs from attorneys for both sides earlier in the day and holding an unannounced teleconference.

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Last week, the judge ruled that the law — the result of legislation that Democrats rammed through the General Assembly in less than three weeks in June — violates a provision in the Delaware Constitution that spells out the circumstances under which a person is allowed to cast an absentee ballot.

“Our Supreme Court and this court have consistently stated that those circumstances are exhaustive,” Cook wrote. “Therefore, as a trial judge, I am compelled by precedent to conclude that the vote-by-mail statute’s attempt to expand absentee voting ... must be rejected.”

At the same time, Cook said he believed that the Supreme Court might want to “revisit that precedent.”

Cook wrote on Monday that if the Supreme Court concludes that the vote-by-mail law is consistent with the Delaware Constitution, there is a serious risk that, without a stay pending an appeal, voters would be denied the opportunity to vote in the upcoming General Election “by all constitutional means.”

“That would be a grave injustice,” he wrote.

Democratic lawmakers introduced the vote-by-mail bill after failing to win Republican support to amend the constitution. A constitutional amendment requires a two-thirds vote by each chamber in two consecutive General Assemblies. The first leg of a constitutional amendment to eliminate limitations on absentee balloting cleared the legislature in 2020, after initially being defeated in the Democrat-controlled Senate, but the second leg failed to win the necessary majority in the Democrat-led House last year.