A Delaware Chancery Court judge has denied efforts by the Delaware Republican State Committee to declare the state's vote-by-mail system unconstitutional.
Vice Chancellor Sam Glasscock III denied the attempt to stop the system ahead of November 3's general election.
"The legislature, in the face of an epidemic of airborne disease and in light of the health emergency declared by the Governor, has made a determination that vote-by-mail is necessary for the continued operation of governmental functions, and it would be impracticable to address this problem other than by otherwise-extraconstitutional means. These finding are not clearly erroneous. Therefore, the Plaintiff's Motion for Summary Judgement must be denied."
The lawsuit was filed in August, looking to deny giving Delaware voters an option besides voting in person, absentee ballots, or other specific exclusions, but Glasscock cited the Department of Election's argument of Article XVII of Delaware's Constitution which "gives the General Assembly the power to act extra-Constitutionally in light of a health emergency, where necessary to preserve the continuity of government."
"Our position is that it is both unconstitutional and unnecessary...it violates the constitution, which is very clear that you can vote absentee ballot, but you can't vote-by-mail. You either vote in person or vote absentee," said Brady.
"Nobody should have to choose between their health and their vote," said Attorney General Kathleen Jennings. "Now they don't have to. They can safely vote by mail if they so choose."
Glasscock noted that amending the Delaware Constitution to allow a medical exemption similar to COVID-19 on short notice "would be not only impractical, I note, but impossible."
He eventually said the case came down to whether the Delaware GOP's argument of broad mail-in voting being a "necessary and proper" response to the COVID-19 threat, and that the GOP had to prove convincingly the necessity voted on by the state legislature was invalid.
Glasscock rejected that argument, citing the over 200,000 Americans who have died from COVID-19, the airborne transmission of the virus, and Delaware's ongoing state of emergency and restrictions.
Ultimately, Glasscock said he could not substitute his judgement for that of the Delaware legislature, and denied the injunction.
The Delaware GOP released a statement on the decision:
The Chancery Court today denied the State Republican Party’s request for an injunction to prohibit the Department of Elections from mailing vote by mail ballots. This decision was largely based on deference to the General Assembly‘s discretion in determining the need for vote by mail. While we argued that the fact that every polling place will be open and therefore there was no disruption of any government operations as it related to the election on November 3, the Court determined that the discretion remained with the General Assembly to determine the need for an alternative means of voting other than absentee or in person.
We will respect the decision of the Court and fashion our get out the vote effort around vote by mail in addition to absentee and in person voting.
Jennings noted that Delaware, as a party with other states in a federal lawsuit against the United State Postal Service, was also successful there in supporting vote-by-mail.
"The court ruled that in Delaware, and in other states, the Postal Service had to up it's game," said Jennings. "Make sure those ballots are treated as first-class mail, make sure there are enough workers on staff paid overtime, to get the job done, and not to dismantle any more equipment."
In an interview with Peter MacArthur on WDEL's Del-AWARE program, Jennings said, "Everyone recognizes that our voting rights are the most important rights we have. People have fought for them, people have died for them."
The deadline to register in the general election is October 10, 2020. You can also register to vote online by clicking here.