“Vote-by-Mail” Bill Heads to

Posted on 07-02-2022

Governor to be Signed into Law

A bill to allow voting by mail is heading to the governor for his expected signature. Once enacted, the new law is expected to be quickly challenged in court on the grounds it violates Delaware’s state constitution.

After more than two hours of debate, Senate Bill 320 (as amended) cleared the House of Representatives on Wednesday night on a vote of 25 to 12, with three not voting and one absent. The tally was mostly along party lines with all 12 votes in opposition coming from House Republicans.

The legislation cleared the Senate earlier this month on a similarly contested vote.

The legislation would allow any registered voter to request a mail-in ballot from the Department of Elections. The ballots could either be requested through a written application or done online through the state’s iVote system. Voters would be required to provide their state-issued driver’s license number, state-issued nondriver identification card number, or the last 4 digits of their Social Security number on the ballot application and on the ballot envelope.

The debate on the bill revolved more around the issue of its constitutionality than the new voting method it would establish.

Citing Article V, Section 1 — “the General Assembly may by law prescribe the means, methods, and instruments of voting” — the sponsors of the bill maintain the state constitution gives them the authority to enact a vote-by-mail system.

However, critics say under Article V, Section 4A, voting by mail is allowed only under the absentee ballot process, the application of which is limited to a short list of valid reasons including public service; sickness or physical disability; vacation; or religious conflicts.

Called to testify by State House Minority Leader Danny Short (R-Seaford) prior to the vote, House Attorney Ron Smith cited legal precedent to support his contention that the bill is invalid. “In the Lyons case (State v. Lyons) in 1939, the court said: ‘Statutory authority for the voters to cast ballots by mail is unconstitutional.’ Flat out, it said it is unconstitutional.”

Mr. Smith pointed out that although the section of the state constitution that vote-by-mail proponents claim supports their position existed at the time of the court’s ruling, it still held that “the legislature did not have that authority.”

Mark Cutrona, Director of the Division of Research, offered testimony in support of Senate Bill 320. He maintained the case cited by Mr. Smith was not on point and that he believes lawmakers can legally make vote-by-mail a reality. “I have reviewed the cases and I believe SB 320 is not unconstitutional on its face. The General Assembly has broad powers to prescribe the means, methods, and instruments of voting.”

While voting by mail was temporarily allowed during the 2020 primary and general elections, Mr. Smith argued it was valid only due to the extraordinary circumstances of the COVID-19 health emergency and the constitutional latitude given to the state legislature to ensure the “continuity of governmental operations” under Article XVII. He noted a court opinion issued just two years ago indicated that without an emergency, the legislature was not empowered to take such action. “I just think that opinion has to speak for itself,” he told lawmakers.

Speaker of the House Pete Schwartzkopf (D-Rehoboth Beach) said he believed neither side had made a definitive case. “The bottom line is this,” he said. “We have probably six or seven attorneys in this room and they are not all on the same page. I don’t know whether it is constitutional or unconstitutional and neither do you guys or anybody else in here. And the best way to get this done is to hear this bill, move forward, let a challenge go to the courts, and let them decide it.”

If the bill withstands legal challenges, the vote-by-mail law would be in effect for this year’s primary and general elections.