WASHINGTON, D.C. — On Thursday, Oct. 6, the Delaware Supreme Court heard oral arguments in a case brought by Republicans challenging the state’s no-excuse mail-in voting law and same-day registration law. On Sept. 14, a lower court ruled that Senate Bill 320 — which allows any voter to request a mail-in ballot without an excuse — is unconstitutional, but upheld House Substitute 1 to House Bill 25, which enacted same-day voter registration. On Sept. 19, the court paused the no-excuse mail-in voting decision pending appeal, meaning no-excuse mail-in voting will remain in place while the appeal is being litigated. The two groups of conservative plaintiffs in the case appealed the Sept. 14 decision that upheld same-day registration. Simultaneously, the defendants, the Delaware Department of Elections and State Elections Commissioner Anthony Albence, appealed the decision that struck down no-excuse mail-in voting. Thus, for clarity, the original plaintiffs — who are appealing the same-day registration decision and responding to the appeal for the no-excuse mail-in voting decision — will hereafter be referred to as either Miles plaintiffs or Higgin plaintiffs. The defendants — the Delaware Department of Elections and State Elections Commissioner Anthony Albence — will be referred to as the Delaware Department of Elections (DDOE).
The attorney for the DDOE began his argument by stating that “[t]here are three clear and pressing questions of law before the court this morning. The first two on the right to vote and the ability to register are rooted in the fundamentals of our democracy and constitution. The third, standing, is as old and settled as any in our jurisprudence on the merits of the vote by mail law.” Justices Gary Traynor and Karen Valihura asked if same-day voter registration conflicts with the Delaware Constitution’s time limits on registration. The attorney for DDOE said no, those time limits are for people to “correct” voter registrations, not register for the first time. The attorney for DDOE argued that the Delaware Constitution sets a “floor” for mail-in voting, not a “ceiling.” He stated “mandating access to absentee voting for the folks who are listed in Section 4A for that class of people, does not tie the hands of the General Assembly or under Article Five Section One to allow mail in voting for everyone else.” He went on to say that if the court were to accept the plaintiffs’ argument that allowing more people to vote by mail would dilute votes, it would “become the first court in the country to say that mail-in voting somehow dilutes votes.”
The attorney for the Higgin plaintiffs spoke about the same-day registration appeal and the attorney for the Miles plaintiffs spoke about the no-excuse mail-in voting appeal. The attorney for the Higgin plaintiffs began by arguing that the reason why the state sets a deadline for registration is to allow for voter challenges: “We have that 10 days just so people know who’s on the rolls and they can challenge it, and we don’t have that with [same-day voter registration].”
The attorney for the Miles plaintiffs spoke about the Delaware Supreme Court’s precedent regarding mail-in voting. She argued that, in 1837, the Delaware Constitution did not “mention or provide for absentee voting” and that in 1972, the Delaware Supreme Court issued an advisory opinion that the writers of the Delaware Constitution excluded other classes of people from mail-in voting. Traynor asked if the plaintiffs agree that the opinion in question was not a binding opinion of the court because it was an advisory opinion. The attorney for the Miles plaintiffs conceded and agreed that the opinion is not binding. Although the lower court did not rule on the argument, the attorney for the Miles plaintiffs argued “Section 1 [of the Delaware Constitution] also specifies that there should be one day for the election, and that vote by mail actually goes outside of that.” She reiterated her argument that the plain reading of the Delaware Constitution places limits on mail-in voting.
During closing arguments, the attorney for the DDOE argued that the “plaintiffs are not legally injured. They are politically aggrieved. They have a policy disagreement with the legislature that they want this court to legitimize.” The attorney for the Miles plaintiffs began her closing statement but could not finish as she ran out of time. Finally, the court adjourned.