Chancery Court denies injunction in GOP’s effort to suspend Delaware’s vote-by-mail system

Posted on 10-05-2020

A Delaware Chancery Court judge has denied efforts by the Delaware Republican State Committee to declare the state’s vote-by-mail system unconstitutional.

Vice Chancellor Sam Glasscock III denied the attempt to stop the system ahead of November 3’s general election.  “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 it would be impracticable to address this problem other than by otherwise-extra constitutional means. These finding are not clearly erroneous. Therefore, the Plaintiff’s Motion for Summary Judgement must be denied.”  The lawsuit was filed in August, looking to deny giving Delaware voters an option besides voting in person, absentee ballots, or other specific exclusions, but Glasscock cited the Department of Election’s argument of Article XVII of Delaware’s Constitution which “gives the General Assembly the power to act extra-Constitutionally in light of a health emergency, where necessary to preserve the continuity of government.”  “Our position is that it is both unconstitutional and unnecessary…it violates the constitution, which is very clear that you can vote absentee ballot, but you can’t vote-by-mail. You either vote in person or vote absentee,” said Brady.

“Nobody should have to choose between their health and their vote,” said Attorney General Kathleen Jennings. “Now they don’t have to. They can safely vote by mail if they so choose.”

Glasscock noted that amending the Delaware Constitution to allow a medical exemption similar to COVID-19 on short notice “would be not only impractical, I note, but impossible.”

He eventually said the case came down to whether the Delaware GOP’s argument of broad mail-in voting being a “necessary and proper” response to the COVID-19 threat, and that the GOP had to prove convincingly the necessity voted on by the state legislature was invalid.