League of Women Voters of Del., Inc. v. Del. Dep't of Elections

• Decision Date: 09 October 2020
• Docket Number: C.A. No. 2020-0761-SG
• Citation: 250 A.3d 922
• Parties: LEAGUE OF WOMEN VOTERS OF DELAWARE, INC. and Rachel Grier-Reynolds, Plaintiffs, v. State of Delaware DEPARTMENT OF ELECTIONS and Anthony J. Albence, State Election Commissioner Defendants.
• Court: Court of Chancery of Delaware

250 A.3d 922

LEAGUE OF WOMEN VOTERS OF DELAWARE, INC. and Rachel Grier-Reynolds, Plaintiffs,

v.State of Delaware DEPARTMENT OF ELECTIONS and Anthony J. Albence, State Election Commissioner Defendants.

C.A. No. 2020-0761-SG

Court of Chancery of Delaware.

Date Submitted: October 6, 2020

Date Decided: October 9, 2020

David M. Fry, of SHAW KELLER LLP, Wilmington, Delaware; Karen Lantz, of ACLU OF DELAWARE, Wilmington, Delaware, Attorneys for Plaintiffs League of Women Voters of Delaware, Inc. and Rachel Grier-Reynolds.

Aaron R. Goldstein, Ilona M. Kirshon, Allison J. McCowan, and Frank N. Broujos, of the DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware; Max B. Walton, Matthew F. Boyer, Trisha W. Hall, of CONNOLY GALLAGHER LLP, Newark, Delaware, Attorneys for Defendants The State of Delaware, Department of Elections and Anthony J. Albence, State Election Commissioner.

OPINION

GLASSCOCK, Vice Chancellor

In Delaware (as in the United States in general), the people are ultimately sovereign.¹ Through the election process, their votes determine their representatives, who form the General Assembly.² That body has near-plenary authority to enact laws that apply to the people. If the electorate is dissatisfied with this representation and regulation of their affairs, they are free to choose new representatives at the next election. That is the social compact under which we self-govern.

The General Assembly's authority is not without limits, however. For instance, some areas have been ceded to, and preempted by, the Federal Government. And some arenas of operation are free to the people directly and beyond the reach of the General Assembly, which is constrained by our constitution, the Delaware Constitution of 1897, and particularly its Bill of Rights.³ This limit on governmental action in the way of the exercise of fundamental freedoms is a prerequisite to the maintenance of liberty; these constitutional restraints are the sea-wall upon which waves of overweening legislation must break.

I make this elementary political recitation, surely already known to the reader, because the subject of this Opinion involves precisely these issues. Delaware is in the grip of a viral epidemic. In light of that health emergency, the General Assembly has recently extended the right to vote by mail, so that citizens may vote without physical attendance at the polls.⁴ This emergency legislation applies to the upcoming election; the law (the "Vote by Mail Statute" or the "Act") terminates in January, 2021. While this recent legislation has liberalized the opportunity to vote by mail compared to the pre-existing absentee voting regime, one restriction pertinent here remains unchanged. Votes cast by mail, to be counted, must be received by a time certain, 8 p.m. on the evening of Election Day—Tuesday, November 3, 2020. In other words, a ballot cast by mail and received by the Delaware Department of Elections after Election Day will be disregarded, even if postmarked before Election Day. To be clear, this was true for absentee ballots both before and after the enactment of the Vote by Mail Statute. That legislation is expected to make mailed-in ballots much more numerous, however. Two questions result. The first is whether, in enacting a deadline for receipt of mailed ballots as of Election Day itself, the General Assembly has denied a right guaranteed by our Constitution. The second is whether, even if the deadlines in the Act are facially constitutional, recent upheaval in United States Postal Service (the "USPS") operations nonetheless renders the deadline unconstitutional as applied. The urgency of the matter is made clear by the social contract referenced above; the right to vote in a free and equal election is not simply a right enshrined in Delaware's Constitution; it is the fundamental right on which our democracy rests. The election is in 25 days.

The Plaintiffs are a non-profit public-interest organization and a registered Delaware voter. They challenge the constitutionality of the requirement that mailed ballots be received on or before Election Day to be counted, in light of the increased volume of mailed ballots expected and the possibility that postal delays may cause electors to become disenfranchised by circumstances those electors themselves cannot control. This burden, the Plaintiffs argue, is more likely to disenfranchise some groups of voters than others, and the law, as applied, runs afoul of two constitutional provisions. Per the Plaintiffs, it violates Article I, Section 3—a provision of the Delaware Bill of Rights—which provides that elections must be "free and equal" (the "Elections Clause"), as well as Article V, Section 2, which provides that all citizens of Delaware "shall be entitled to vote at [each] election" (the "Right to Vote Clause"). They ask me to employ equity to ensure compliance with these constitutional mandates, by extending the statutory deadlines by which votes may be received and counted, so as to include ballots postmarked on Election Day and received up to ten days later.

The Plaintiffs may be correct that, as a matter of good governmental practice, the statutory deadlines imposed by the General Assembly for receiving valid ballots are not optimal. But that is a matter for the legislature; my role is much more limited. Statutes enjoy a presumption of constitutionality, and I may not invalidate (let alone, as sought here, rewrite) state statutes on ground of unconstitutionality unless that unconstitutionality is clear. Here, that requires a showing that the deadlines as applied interfere with the prescription of the Delaware Constitution that citizens are entitled to participate in an election that is "free and equal." The General Assembly may—indeed, by Constitutional mandate, it should⁵ —provide regulatory legislation for elections. The broad power of the General Assembly to regulate does not extend to statutes that interfere with the right to vote in a free and equal election, however.

The Defendants are the state Department of Elections and the Election Commissioner. The Plaintiffs have filed a Motion for Summary Judgment. No pertinent facts are at issue, and the matter is therefore ready for decision.

The Plaintiffs' position was, for me, clarified at oral argument. According to the Plaintiffs, the absentee voting requirements as they existed before this year, including the stricture that absentee ballots be received by the time polls close, were constitutional.⁶ This is true even though an absentee ballot in prior elections, mailed on Election Day, was virtually certain to arrive after the close of polls, and thus be spoiled. Absentee voters were in practice required to post their ballots a few days early to ensure timely delivery by mail. This, the Plaintiffs concede, was a restriction on absentee voters' abilities to cast ballots, but was not sufficiently burdensome to violate the Elections Clause.⁷ However, when the legislature expanded Vote by Mail rights this summer but kept the deadline the same, per the Plaintiffs, it violated the Constitution. That is because the Vote by Mail Statute will permit many more votes to be cast by mail, which means the number of late (spoiled) ballots will increase accordingly; or conversely, it means that more voters—those who take advantage of mailing their ballots—will be burdened by the need to vote a few days before the election.⁸ In either view, the Plaintiffs argue, this increases the burden imposed by the deadline to the point of constitutional incompatibility. I consider this a facial challenge to the Vote by Mail Statute and its ballot-receipt deadline.

In addition, the Plaintiffs point out that the USPS has, largely since the Vote by Mail legislation was enacted, put in place procedures that threaten timely delivery of ballots. They point to litigation pursued against the USPS by the Defendants themselves alleging such a possibility. In light of this circumstance, not fully known to the General Assembly when the Vote by Mail Statute was enacted, the statutory deadlines will interfere with the constitutional right to vote, by burdening those who need to vote by mail to an extent that violates the "free and equal" Elections Clause. I consider this argument to be a challenge to the constitutionality of the legislation, as applied. The necessary remedy, per the Plaintiffs, is to extend the deadline by ten days, in either case.

I find that the Vote by Mail Statute, in light of its Election-Day ballot deadline, is not unconstitutional on its face. At the time the Vote by Mail Statute was enacted, the absentee ballot deadline, which the Plaintiffs agree was constitutional with respect to the law as it then existed, already required Election-Day ballot receipt. I find nothing about the liberalization of the ability to mail ballots in the Act that created a constitutional violation. Those choosing to mail ballots have always had to vote sufficiently early to ensure delivery by Election Day. Expansion of this option does not, to my mind, render the election unfree or unequal; the Act expands voting rights by allowing voting by mail as an alternative to voting at the polls, and it imposes a minimal temporal burden on those voting by mail, just as those voting in person have the burden of physically going to the polls by a time certain. The Election-Day deadline serves a state function; finality and compliance with the Constitution's vote-reporting requirements, under which the Defendants must turn voting totals over to the Prothonotary two days after the election.⁹ Other considerations for setting the deadline as the Plaintiffs advocate may exist, but they involve policy, not constitutionality, and are matters for the legislature and not the Court.

The challenge to the legislation as applied is more difficult of analysis. The Vote by Mail Statute in general, and its requirement that ballots be received on Election Day or be disregarded, rests on an assumption:...