Universal Mail-In Voting Violates Delaware Constitution: Delaware Supreme Court

County officials recount ballots in Pennsylvania in a 2022 file photograph. Mark Makela/Getty Images

Delaware’s new law that allows voting by mail regardless of reason violates the state Constitution, the Delaware Supreme Court ruled on Oct. 7.

“The Vote-by-Mail Statute impermissibly expands the categories of absentee voters identified in Article V, Section 4A of the Delaware Constitution. Therefore, the judgment of the Court of Chancery that the Vote-by-Mail Statute violates the Delaware Constitution should be affirmed,” the state’s top court said in a brief order (pdf).

Vice Chancellor Nathan Cook of the Court of Chancery of the State of Delaware ruled in September that the law was in conflict with the state Constitution and therefore “must be rejected.”

The Delaware Constitution allows absentee voting but only people who meet certain conditions, such as people who cannot make it to a polling location due to sickness or physical disability can vote by mail.

The new law, passed over the summer and signed into law by Democrat Gov. John Carney, says that any voter who wants can fill out an application and receive a ballot by mail to return by mail.

Cook also turned down a challenge from the plaintiff, Delaware elections inspector Michael Mennella, to a different law that allows same-day voter registration.

But the Delaware Supreme Court reversed that decision.

The law regarding same-day registration “conflicts with the provisions of Article V, Section 4 of the Delaware Constitution,” the court said. “Consequently, the judgment of the Court of Chancery that the Same-Day Registration Statute does not violate the Delaware Constitution should be reversed.”

The brief order was entered in recognition of the upcoming midterm elections and Delaware officials’ stated intent to mail ballots to voters soon. A more formal opinion outlining the decision will be issued in due course, the state’s top court said.

“This is a win for the rule of law in Delaware’s Elections,” said Public Interest Legal Foundation President J. Christian Adams, whose group was representing Mennella in the case, said in a statement. “This law violated the plain text of the Delaware Constitution that provides specific reasons people are allowed to cast absentee ballots and when voter registration can take place. If Delaware lawmakers want to have mail-in voting, they need to pass a constitutional amendment.”