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By: Andrew Jeacoma

On July 1, 2020, Delaware Governor John Carney signed House Bill 346 (“HB 346”) into law. HB 346—as a response to COVID-19—grants all Delaware citizens the ability to vote by mail in the upcoming 2020 general election. The bill is a departure from the constitutional rule of voting-by-mail established by Article V, Section 4A  of Delaware’s Constitution, which limited mail-in-voting to those who qualified under an exhaustive list.

In response to HB 346, The Republican State Committee of Delaware (the “RSC”) filed a complaint on August 19, 2020, against the state of Delaware Department of Elections and its commissioner, Anthony J. Albence. In their complaint, the RSC framed HB 346 as unconstitutional for three principle reasons: first, it goes against the already established constitutional rule governing absentee ballots. Second, in passing HB 346 the General Assembly impermissibly sought to amend the constitution. Third, the universal voting by mail envisioned by HB 346 has numerous practical problems that result in voter disenfranchisement. See here for a more thorough report on RSC’s complaint.

On September 28, 2020, the Court of Chancery of the State of Delaware denied RSC’s request for summary judgment, holding judgment in favor for the defendants. In their opinion, the court focused on two factors when deciding the case. First, they analyzed the standing of the parties, and second, they analyzed the constitutionality of HB 346.

Under the first prong—the standing of the parties—the court considers whether the plaintiffs have ground to bring their claim. To determine standing, the court calculated what harm, if any, the plaintiffs experienced as a result of HB 346. The court explained that it would take too long to determine exact damages, as Election Day was close approaching. Accordingly, the court assumed—without deciding—that the plaintiffs have standing, and moved to the second prong of the analysis, the constitutionality of the bill.

The second prong—the constitutionality of the act—occupied the majority of the discussion within the court. The second prong consists of two subcategories. First, does the vote by mail statute extend remote voting for a reason listed in Article V, Section 4A of Delaware’s Constitution and second, does Article XVII, Section 1 of Delaware’s constitution provide a safe harbor for the vote by mail statute in HB 346?

In addressing the first question, the court found that the vote by mail statute does not extend remote voting for a reason listed in Article V, Section 4A. The state’s constitution contains an exhaustive list of reasons for which a registered voter may submit an absentee ballot to be counted in a general election. The need for social distancing to minimize public health risks is not on the list. The court therefore determined Article V, Section 4A does not justify HB 346.

Answering the second question, the court found that Article XVII, Section I does indeed provide a safe harbor for the vote by mail statute contained in HB 346. Article XVII, Section 1 provides the General Assembly the authority to adopt “measures as may be necessary and proper” to “[e]nsure the continuity of state and local governmental operations” in times of emergency. The plaintiff’s do not disagree COVID-19 is sufficient to trigger the General Assembly’s power under Article XVII, Section I. Rather, the RSC contends that the Vote by Mail Statute is not a measure necessary and proper for ensuring the continuity of governmental operations during COVID-19.

The General Assembly, in supporting the bill, contended that normal governmental operations require a democratically elected government by a meaningful participation from the citizenry. Furthermore, the defendants contend that due to the highly contagious nature of COVID-19 and the need to protect the electors and polling workers in the state from infection, voting by mail is necessary and proper to ensuring a fair and equal election.

As the moving party, the burden rests with the plaintiffs. It is their responsibility to demonstrate clearly and convincingly that the legislative finding of necessity for HB 346 is false or unwarranted. The court determined that the plaintiffs failed to meet this burden. In support of their claim, the plaintiffs assert that any health risk associated with in-person voting is offset by the risk that mail-in ballots will be unintentionally invalidated. The court rejected this argument. The court determined that the potential risk associated with in-person voting is far too great, and the solution provided by HB 346 is necessary and proper under Article XVII, Section I

The court concluded that a free and equal election is integral to the democracy of the state, and given the circumstances from the COVID-19 pandemic, Article XVII, Section I permits the enactment of HB 346.

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