Higgin v. Albence

• Decision Date: 14 September 2022
• Docket Number: C.A. 2022-0641-NAC,2022-0644-NAC
• Parties: MICHAEL HIGGIN and MICHAEL MENNELLA, Plaintiffs, v. THE HONORABLE ANTHONY J. ALBENCE, in his official capacity as State Election Commissioner, and STATE OF DELAWARE DEPARTMENT OF ELECTIONS, Defendants. AYONNE "NICK" MILES, PAUL J. FALKOWSKI, and NANCY M. SMITH, Plaintiffs, v. DELAWARE DEPARTMENT OF ELECTIONS, and ANTHONY J. ALBENCE, State Election Commissioner, Defendants.
• Court: Court of Chancery of Delaware

MICHAEL HIGGIN and MICHAEL MENNELLA, Plaintiffs,
v.
THE HONORABLE ANTHONY J. ALBENCE, in his official capacity as State Election Commissioner, and STATE OF DELAWARE DEPARTMENT OF ELECTIONS, Defendants.

AYONNE "NICK" MILES, PAUL J. FALKOWSKI, and NANCY M. SMITH, Plaintiffs,
v.
DELAWARE DEPARTMENT OF ELECTIONS, and ANTHONY J. ALBENCE, State Election Commissioner, Defendants.

C.A. Nos. 2022-0641-NAC, 2022-0644-NAC

Court of Chancery of Delaware

September 14, 2022

Date Submitted: August 31, 2022

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M. Jane Brady, BRADY LEGAL GROUP LLC, Lewes, Delaware; Charlotte Davis, Noel H. Johnson, PUBLIC INTEREST LEGAL FOUNDATION, Indianapolis, Indiana; Counsel for Plaintiffs Michael Higgin and Michael Mennella.

Julianne E. Murray, LAW OFFICES OF MURRAY, PHILLIPS &GAY, Georgetown, Delaware, Counsel for Plaintiffs Ayonne "Nick" Miles, Paul J. Falkowski, and Nancy M. Smith.

Allison J. McCowan, Zi-Xiang Shen, Victoria R. Sweeney, STATE OF DELAWARE DEPARTMENT OF JUSTICE, Wilmington, DE, Counsel for Defendants Delaware Department of Elections and Anthony J. Albence, State Election Commissioner.

MEMORANDUM OPINION

COOK, VICE CHANCELLOR

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Delaware's general election is set to occur on November 8, 2022. Earlier this year, our General Assembly enacted laws allowing Delawareans to register to vote the same day as the general election (the "Same-Day Registration Statute") and to cast their ballot by mail in the general election for any reason (the "Vote-by-Mail Statute").^[1] Within hours of the laws being put into effect, the plaintiffs in this litigation filed two separate lawsuits challenging the new laws' constitutionality. The parties agreed to a highly expedited schedule and brought cross-motions for summary judgment to resolve the plaintiffs' litigation well before ballots would be mailed to voters for the upcoming general election.

The plaintiffs represent various components of the election process-voters, a political candidate, and an election official. They argue that the Same-Day Registration Statute and the Vote-by-Mail Statute are irreconcilable with the Delaware Constitution. Accordingly, they ask the Court to (1) enjoin the defendants-the State's Department of Elections and its commissioner, Anthony J. Albence-from implementing the statutes for the general election; and (2) declare that the statutes at issue are unconstitutional with respect to the general election.

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For their part, the defendants argue that the plaintiffs lack standing to challenge the laws. They also argue the plaintiffs have not met their burden for permanent injunctive relief. In particular, the defendants argue that the plaintiffs cannot demonstrate actual success on the merits because the laws are valid, failed to demonstrate irreparable harm, and also failed to prove that the balance of the equities weighs in their favor.

As for standing, although the plaintiffs likely would not have standing under federal jurisprudence, I conclude that the plaintiffs have standing to challenge the Vote-by-Mail Statute under state law. Delaware state courts are not bound by the federal standing doctrine and adopt standing rules to avoid issuing advisory opinions to "mere intermeddlers." In this case, the plaintiffs represent various parts of the election process, and I conclude they have a substantial interest in this court reaching a decision on the merits, particularly given the fundamental nature of voting. I also assume, for the purposes of this opinion, that the plaintiffs have standing to challenge the Same-Day Registration Statute.

Turning to the merits, unlike the federal legislative power, our State's General Assembly enjoys broad legislative power curtailed only by the limits of the state and federal constitutions. There is also a strong presumption of constitutionality, and to overcome that presumption, there must be "clear evidence" of its incompatibility with our State's governing document. The plaintiffs' challenge to the Same-Day 2

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Registration Statute does not overcome that presumption. Article V, Section 4 provides that there must be "at least" two registration days within the time-period described there. By its own terms, it establishes a constitutional floor, not a ceiling. In addition, the General Assembly adopted an amendment to Article V, Section 4 in 1925 that specifically deleted language requiring that registration "be completed" by a certain number of days before a general election. The plaintiffs' arguments fail to grapple with this significant change to the constitutional text. Thus, the plaintiffs have failed to meet their burden of showing by "clear evidence" a constitutional violation, and the Same-Day Registration Statute stands.

The Vote-by-Mail Statute presents a much thornier issue. This is not the first time this Court has reviewed mail-in voting laws. In 2020, the General Assembly enacted a very similar vote-by-mail law under its emergency powers, which was upheld by this Court. Today, however, emergency powers are not invoked. The General Assembly, and the defendants, instead rely on Article V, Section 1, which provides that the General Assembly "may by law prescribe the means, methods and instruments of voting so as best to secure secrecy and the independence of the voter, preserve the freedom and purity of elections and prevent fraud, corruption and intimidation thereat."

The plaintiffs argue that Article V, Section 4A of the Delaware Constitution, however, provides for absentee voting in certain enumerated circumstances. Our 3

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Supreme Court and this Court have consistently stated that those circumstances are exhaustive. Therefore, as a trial judge, I am compelled by precedent to conclude that the Vote-by-Mail Statute's attempt to expand absentee voting to Delawareans who do not align with any of Section 4A's categories must be rejected. As I describe in this opinion, were I to construe the relevant constitutional sections and statutes on a blank slate, I would likely conclude that the plain text of the constitution, coupled with the strong presumptions in favor of constitutionality of legislative acts, lead me to a different result. But, in light of applicable and controlling precedent, I must find that the Vote-by-Mail Statute is unconstitutional for purposes of the general election.

Finally, I conclude that, in light of my ruling on the merits, there would be irreparable harm in the absence of injunctive relief and that the balance of the equities favors entry of an injunction.

For these reasons, the plaintiffs' motion for summary judgment is denied in part and granted in part, and the defendants' motion for summary judgment is also denied in part and granted in part.

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I. BACKGROUND^[2]

A. The Parties

This matter involves two related actions commenced on July 22, 2022. Plaintiffs in both actions are Delaware residents.

Plaintiffs Michael Higgin and Michael Mennella filed the first of the two actions. Mr. Higgin is a resident of Bear, Delaware; a registered voter; and a General Election candidate for State Representative in District 15.^[3] Mr. Mennella is a resident of Newark, Delaware; is a registered voter; and plans to vote in the upcoming General Election.^[4] Mr. Mennella has also served as an inspector of elections "in at least 8 elections during the last 5 to 6 years" and plans to serve as an inspector of elections during the upcoming General Election.^[5] Mr. Mennella states,

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"[i]n his role as inspector of elections, [he] is responsible for overseeing the election at his assigned polling place and administering the election in accordance with the Delaware Constitution, statutes, and other laws."^[6]

Plaintiffs Ayonne Miles, Paul Falkowski, and Nancy Smith filed the second related action. Mr. Miles is a resident of Kent County, Delaware, and a registered voter.^[7] Mr. Falkowski is a resident of New Castle County, Delaware, and a registered voter.^[8] Ms. Smith is a resident of Sussex County, Delaware, and a registered voter.^[9]

I refer to the first action as the "Higgin Action" and to the second action as the "Miles Action." I refer to the plaintiffs in the Higgin Action as the "Higgin Plaintiffs" and to the plaintiffs in the Miles Action as the "Miles Plaintiffs." References to "Plaintiffs" includes the Higgin Plaintiffs and the Miles Plaintiffs, collectively.

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The defendants in both the Higgin Action and the Miles Action are the same: Anthony J. Albence, in his official capacity as Delaware's State Election Commissioner, and the State of Delaware Department of Elections ("DOE") (collectively, "Defendants").^[10] Commissioner Albence has statutory responsibilities to provide general supervision to the DOE and to develop regulations, policies, procedures, and guidelines in accordance with Title 15 of the Delaware Code.^[11] The DOE is the Delaware agency responsible for "administer[ing] the election laws of this State," including registering and educating voters, conducting fair and impartial elections, managing campaign finance, and collecting and reporting election results.^[12]

B. The Delaware Constitution

Article V of the Delaware Constitution governs elections. This litigation implicates multiple provisions of Article V of the Delaware Constitution.^[13] It is

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under the authority of Section 1 of Article V that the General Assembly purported to implement its "no-excuse" vote-by-mail system.^[14] The parties' arguments concerning the Same-Day Registration Statute implicate Article V, Section 4, which sets forth the laws governing the "[r]egistration of votes" and "days for registration." The parties' arguments concerning the Vote-by-Mail Statute implicate Article V, Section 4A, which sets forth "[g]eneral laws for absentee voting."

C. Legislative Background

This litigation concerns the constitutionality of two recently passed Delaware laws. The first law allows Delaware voters to vote by mail in the...