By Andrew Jeacoma

In response to COVID-19, House Bill 346 (“HB 346”) was signed into law by Delaware Governor John Carney on July 1, 2020. HB 346 grants all Delaware citizens the ability to vote by mail in the upcoming 2020 general election. The bill was a departure from the constitutional rule of voting-by-mail established by Article V, Section 4A  of Delaware’s Constitution; a rule that requires an individual to first meet one of the preset requirements before voting by mail.

On August 19th, 2020, The Republican State Committee of Delaware (the “RSC”) filed a complaint 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, and third, the universal voting by mail envisioned by HB 346 has numerous practical problems that result in voter disenfranchisement.

On their first prong of the complaint, the RSC cites Delaware Constitution Article V, Section 4A, which governs the right to vote by mail. Under the state’s constitution, mail-in-voting is limited only to individuals who qualified under one of the enumerated categories. The RSC claims that HB 346 is in conflict with the already established rules set forth by the state’s constitution.

The second prong of the complaint focuses on procedure of adopting the bill. The RSC claims the adoption of HB 346 impermissibly amends the constitution by allowing all eligible voters to cast their vote by mail.

Validating their bill, the General Assembly relied on Article XVII, Section I of Delaware’s Constitution, which grants power to adopt emergency legislation in order to ensure the continuity of governmental operations in times of a crisis. The Assembly points to COVID-19 as the time of crisis, and the governmental operation being the upcoming 2020 general election.

The third and last prong of the RSC’s complaint is voter disenfranchisement resulting from universal voting by mail. To support this claim, the RSC cites Delaware’s own July 2020 Presidential Primary election, where all citizens were allowed to vote by mail. Of the 59,165 ballots that were returned for that election, 3,090, or 5.2%, were rejected and not counted. The RSC also cited New York and the 2020 Primary Election, where 21% of the mail-in ballots were rejected for unspecified reasons. The RSC believes that universal voting by mail, established by HB 346, would continue on this line of uncertainty and result in individual votes not counting as a result.

For these reasons, the RSC asked the court for: a permanent injunction enjoining the defendants from proceeding with the November 3, 2020 general election in accordance with HB 346, and declaratory judgment asserting three principle factors: (a) the general assembly exceeded its constitutional authority, (b) the General Assembly impermissibly used Delaware Constitution Article XVII, Section I as a work around of the limits of absentee voting requirements contained in Delaware Constitution Article V, Section 4A, and (c) the provisions of HB 346 concerning vote by mail are not “necessary for insuring the continuity of governmental operations”, as stated by Del. Const. Art. XVII, Section I.

While the case has yet to be decided, the implications of HB 346 are felt throughout Delaware. As of today, all registered voters in Delaware are able to vote by mail, regardless if they fit into the requirements set forth by Delaware Constitution Article V, Section 4A.

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