Court denies extending ballot deadline

ACLU, League of Women Voters considering options
October 13, 2020

A lawsuit filed by the League of Women Voters of Delaware to extend the deadline for mail-in voting was denied Oct. 9.

“The legislature has made a determination – in light of the pandemic that is sweeping our nation and in light of the constitutional and practical mandates that the election season must have an end – that mail-in voting should be extended to all eligible Delaware voters, and that the deadline should mirror that of the existing absentee ballot statute: 8 p.m. on Election Day,” wrote Chancery Court Vice Chancellor Samuel Glasscock in his opinion. “It has also determined, by choosing not to amend the absentee ballot statute’s deadline and by modeling the vote-by-mail statute’s deadline after that of the absentee ballot statute, that a deadline of 8 p.m. on election day will not so burden voters electing to mail their ballot as to be unconstitutional under the Delaware Constitution. I do not find those determinations clearly erroneous, and the facial challenge must fail.”

Plaintiffs contended that recent upheaval in the U.S. Postal Service has caused an issue with mail delivery, putting citizens’ free and equal right to vote at jeopardy. They contended, with support from the American Civil Liberties Union of Delaware, that thousands of votes may go uncounted on election night if they do not arrive by the 8 p.m. deadline.

“Voting is our most fundamental right, and the ACLU of Delaware will always fight to protect and expand that right,” said Karen Lantz, legal and policy director of the ACLU of Delaware. “We are disappointed in the court’s ruling and will be discussing next steps with our clients, but no matter what happens next, we won’t stop fighting to protect the vote in Delaware.”

While plaintiffs argued against the imposed deadline, Glasscock wrote that in his role, state laws are presumed to be constitutional, and he cannot invalidate them or rewrite them unless the statute is clearly unconstitutional.

By Delaware law, 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,” Glasscock wrote.

Any changes to the law must be made by the state Legislature, he added.

Glasscock said he realizes there have been delays in the U.S. Postal Service, but the plaintiffs' claim that mail-in voting will be affected because of those delays is hypothetical.

Even though the USPS has had delays in mail delivery, he wrote, injunctions against the USPS have been obtained to eliminate this threat of undue delay. “Nothing in the record now convinces me that voters availing themselves of the expanded right to mail ballots will be burdened beyond the usual requirement that they post their ballots at least a few days prior to the deadline,” Glasscock wrote. “Voters who need to exercise their voting right by mailing a ballot need to post sufficiently early to allow normal mail delivery by the deadline.”

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