Delaware Judge Strikes Down No-Excuse Mail-in Voting, Upholds Same-Day Registration

WASHINGTON, D.C. — On Wednesday, Sept. 14, a Delaware state court struck down Senate Bill 320, a law that allowed any voter to request a mail-in ballot without an excuse, and upheld the state’s same-day voter registration law, House Substitute 1 to House Bill 25. This decision comes out of two separate challenges: One was filed by the Public Interest Legal Foundation (PILF) — a conservative legal organization — on behalf of Delaware House of Representatives candidate Michael Higgin (R) and an inspector of elections for the Delaware Department of Elections challenging both pro-voting laws and a separate lawsuit was filed by Republican voters solely challenging S.B. 320. The plaintiffs in the lawsuit filed by PILF claimed that the new pro-voting laws “dilute their votes and those of their supporters.” In other words, the lawsuit argued that expanding opportunities for how and when voters may register and cast their ballots is harmful to Republican candidates. Today’s ruling means that voters in Delaware will only be permitted to vote absentee if they have an excuse enumerated in the state constitution. However, voters will still be permitted to register to vote on the same day that they cast their ballots during future elections. 

In upholding the same-day registration law and striking down the no-excuse mail-in voting law, the judge wrote that the “Higgin Plaintiffs have failed to show clear evidence that the Same-Day Registration Statute violates the Delaware Constitution,” but that the “Vote-by-Mail Statute is inconsistent with Article V, Section 4A” of the Delaware Constitution. In the opinion, the judge noted that, if he was not bound to prior court decisions that found that the state constitution’s list of reasons a voter may request an absentee ballot is exhaustive, he would have likely reached a different conclusion, but because there is “applicable and controlling precedent [he] must find that the Vote-by-Mail Statute is unconstitutional for purposes of the general election.” The judge concluded by stating that “I acknowledge that Delaware has a strong policy in favor of its citizens robustly exercising their right to vote. I further acknowledge that voters may be unable to exercise their right to vote for numerous reasons, including because they are working on election day or suffer resource constraints (e.g., childcare or transportation constraints).” The judge emphasized that the right to vote is fundamental, stating that “it bears repeating that the express purpose of election laws in this state is to provide for ‘free and equal’ elections where Delawareans have an ‘unfettered’ right to vote—one of ‘the most fundamental of our rights.’” The judge also acknowledged that if this decision is appealed, the Delaware Supreme Court may be inclined to revisit past decisions regarding mail-in voting.

Read the opinion here.

Learn more about the case brought by PILF here.

Learn more about the case brought by Republican voters here.