Judicial Watch: Delaware Supreme Court Strikes Down State’s Vote-by-Mail and Same-Day Voter Registration

Agrees with Judicial Watch Amicus Curiae Brief That Delaware’s Mail Voting Statute Impermissibly Expands State Constitutional Limits 

(Washington, DC) – Judicial Watch reacted today to the recent move by the Delaware Supreme Court to strike down the state’s vote-by-mail and same-day voter registration statutes for violating the Delaware Constitution. In making its ruling, the court effectively concurs with the amicus curiae brief Judicial Watch submitted in the case, which argues the Delaware statute impermissibly expands those practices far beyond the limits set in the Delaware Constitution. 

The October 7 decision comes in the case Albence v Higgin et al. (DE Vote by Mail 342,2022), in which the court considered the constitutionality of two state laws passed by the Delaware General Assembly that attempted to grant every voter the opportunity to vote by mail and register to vote up to the day of the general election. The court ruled:

The Vote-by-Mail Statute impermissibly expands the categories of absentee voters identified in Article V, Section 4A of the Delaware Constitution…The Same-Day Registration Statute conflicts with the provisions of Article V, Section 4 of the Delaware Constitution … The Court enters this abbreviated order in recognition of the impending election scheduled for November 8, 2022, and the Department of Election’s desire to mail ballots to voters by or around October 10, 2022. A more formal opinion, fully explaining the Court’s views and the reasons supporting our unanimous decision, will issue in due course. The mandate shall issue immediately.

 In its amicus curiae brief, Judicial Watch emphasized that mail-in voting is “highly susceptible to fraud and abuse” and told the Court the statute in question is unconstitutional and should be struck down: 

State and federal officials have universally acknowledged the existence of the threat of fraud due to mail-in voting…Voting by mail is … problematic enough that election experts say there have been multiple elections in which no one can say with confidence which candidate was the deserved winner.”

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The Delaware Constitution and precedent allow absentee and mail-in voting in only the following instances: when in public service to the United States or the State of Delaware, due to illness or disability, by reason of absence while on vacation, due to religious tenets or teachings, and due to emergency declaration by the General Assembly in response to an ongoing pandemic…Without amending the Delaware Constitution, any legislative act by the General Assembly to expand absentee voting beyond these requirements is per se invalid.

“The Delaware Supreme Court’s ruling makes it harder to unlawfully tamper with an election,” said Judicial Watch President Tom Fitton. “Judicial Watch is gratified the court agreed with our amicus brief and acted swiftly to strike down these unconstitutional election laws that created increased opportunities for fraud in the November 8 elections.”

Judicial Watch is assisted in this case by William E. Green, Jr., Counsel, Halloran Farkas and Kittila LLP, Wilmington, Delaware. 

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