President Joe Biden surprised everyone when he declined to vote by mail in Delaware’s Sept. 13 Primary Election and instead traveled from Washington to Wilmington to vote in person.
The move raised eyebrows in light of the president’s support for and dependence on mail-in voting. The choice was all the more puzzling considering Delaware recently passed a law giving all voters the option to vote by mail. Biden had an obvious opportunity to put his face on his home state’s new voting mechanism from behind the Resolute Desk. He chose not to.
The President’s choice was perfect foreshadowing.
In a ruling issued Thursday, the Court of Chancery invalidated the state’s mail-in voting law because it violates the Delaware Constitution.
The default method of voting in Delaware is in-person — showing up at the polls and voting on Election Day. Historically, that’s how nearly all Americans have voted. The Delaware Constitution fixes strict limits for who may vote by absentee ballot. If you are in the military or you are disabled, for example, the Constitution gives you the opportunity to vote by mail.
The General Assembly’s attempt to press absentee voting beyond what the constitution permits is unlawful, the court ruled Thursday.
In 2020, the General Assembly attempted to install mail-in voting through constitutional amendment. When supporters failed to secure the supermajority necessary for passage, the General Assembly took an unconstitutional shortcut, and rammed the practice into law through a simple majority vote less than four months before the 2022 General Election.
Lawmakers knew vote-by-mail legislation was on constitutionally shaky ground but passed it anyway. “[R]emarks by legislators indicate an awareness by at least some members of the General Assembly that the laws might not be constitutional and that a challenge in the courts would be forthcoming,” Vice Chancellor Nathan Cook wrote in his opinion.
Perhaps most troubling are the remarks by Delaware House Speaker Peter Schwartzkopf, who candidly admitted, “I don’t know whether it’s constitutional or not constitutional, and neither do you guys or anybody else in here.” Channeling his inner-Nancy Pelosi, Schwartzkopf’s answer to this problem was to pass the law anyway: “The best way to get this thing done is to hear this bill, move forward, and let a challenge go to the courts and let them decide it.”
Schwartzkopf should be careful what he wishes for going forward. The Public Interest Legal Foundation challenged the law on behalf of Michael Mennella, a Delaware voter and election inspector sworn to uphold his state constitution. Mr. Mennella rightly believed universal mail-in voting was unconstitutional. But he risked fines and even jail time if he failed to implement the mail-in voting statute.
Before the Court of Chancery, the Delaware Department of Elections argued that nobody may challenge the mail-in voting law. The reason? Unconstitutional votes harm everyone equally and therefore the harm is too generalized to support a legal challenge. Fortunately, the court found this argument “ironic” and that it made “little sense.”
The court’s decision is encouraging, especially at a time when legislators, like Speaker Schwartzkopf, feel increasingly more comfortable shirking their oath to act constitutionally.
Conducting elections by mail is fraught with problems. Ballots are often sent to the wrong address or to individuals who are long deceased. Some people get two ballots due to duplicate registrations. A Public Interest Legal Foundation study found that election officials had no idea what happened to more than 15 million mail ballots. Hastily installing vote-by-mail schemes, like Delaware did, pushes our election systems toward error, disenfranchisement, and ultimately widespread doubt about election outcomes.
Thursday’s decision in Delaware is a victory for the rule of law. The message is clear: lawmakers cannot ignore the constitution.
Noel H. Johnson is an attorney for Public Interest Legal Foundation, which served as counsel in the legal challenge to Delaware’s vote-by-mail statute. He can be reached at njohnson@publicinterestlegal.org.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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