A judge has struck down a new law that would have allowed no-excuse mail-in ballots in Delaware this November, but upheld the state legislature’s adoption of same-day voter registration.
Delaware allowed universal access to voting by mail two years ago amid concern about COVID-19. At the time, a different judge ruled that the change was permissible even though the state’s constitution limits who can cast an absentee ballot because state officials have leeway in a public emergency such as a pandemic.
When the state legislature voted to make the change permanent, Republicans once again challenged it in court.
Last month’s ruling blocks the state from using no-excuse mail voting this fall, but has been appealed to the Delaware Supreme Court. In the meantime, Vice Chancellor Nathan Cook has allowed state officials to continue processing applications for mail-in voting as long as they don’t send them out to voters pending the appeal.
After Democratic Gov. John Carney signed the new law on July 22, the conservative legal organization Public Interest Legal Foundation filed a lawsuit on behalf of Republican lawmakers. They argue it violates a provision in the state constitution that requires specific reasons for someone to vote absentee, and that it could open the door for fraud. Despite fraud being used by Republicans, in particular, as a justification for various barriers to voting, evidence of election fraud is extremely rare, and no evidence has been produced in recent years of fraud having any kind of material impact on an election.
Supporters of the law say the Constitution gives the General Assembly the authority to “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…”
Michelle Kanter Cohen, senior counsel and policy director at Fair Elections Center, called the expansion of voting by mail and same-day registration “very important changes that will open up access for Delaware voters.”
“It’s an important access point for voters with families and for working people who find it difficult to get away,” she said. “It’s also important because COVID has not left us.”
About this series
This project looks at the state of voting access, voting rights and inequities in political representation in all 50 states and Washington, D.C.
Ballot curing
Even if expanded voting by mail is restored by the Delaware Supreme Court, some significant barriers remain, including a big one: There’s no provision in state law or practice allowing voters to fix simple errors that can lead to rejection of their mail-in ballot and their vote not counting.
In Delaware, a mail-in ballot will be counted only if the voter seals the ballot envelope, signs the ballot envelope, and includes either the last four digits of their Social Security number, a driver’s license number, or state ID number.
A ballot can be rejected if the signature is missing or “altered.”
However, the state does not require that voters be allowed to correct discrepancies, and there is no established notification process if a mistake is made. This means that a ballot could be declared invalid.
In 2020, Delaware had a mail-in ballot rejection rate of 1.3%, meaning more than 2,000 voters’ ballots were not counted, with no way for the voter to know.
Same-day registration
Another new law allows same-day voter registration for any presidential primary, state primary, special or general election.
Under prior law, the state’s voter registration deadline was the fourth Saturday before Election Day.
The lawsuit challenging mail-in voting also took aim at this law, arguing that it violates a section of the state’s constitution that “prohibits potential electors from registering to vote ‘less than 10 days before’ the general election.”
Same-day registration benefits all voters, but particularly communities of color, low-income voters, and people who are new to voting, Kanter Cohen said.
The ACLU of Delaware predicts the new law will expand voter turnout by more than 22,000 people.
Felony disenfranchisement
Delaware residents serving prison sentences for felonies are prohibited from casting a vote in Delaware, as are those on probation or parole.
For some felonies, voting rights are permanently removed. These include murder or manslaughter, certain crimes related to the abuse of power in public office, and sexual offenses.
In 2016, Delaware repealed a provision in state law that required people with previous felony convictions to pay all fines and fees associated with the crime before voting rights are restored.
More than 68% of the 11,524 people who were disenfranchised by Delaware’s felony conviction policy in 2020 were Black, despite representing less than 24% of the state’s population.