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Ruling To Halt Mail-In Voting In Delaware On Hold During Appeal

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OPINION: This article may contain commentary which reflects the author's opinion.


In an on-again, off-again case, a Delaware judge has halted a ruling he issued last week in which he ruled a “vote-by-mail law is unconstitutional.

Last week, the judge held that the state’s vote-by-mail law is unconstitutional and that voters cannot mail in their ballots in the upcoming November election.

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Now, that initial ruling is on hold after an appeal was filed.

“Vice Chancellor Nathan Cook granted a motion by the Department of Elections and Election Commissioner Anthony Albence to stay his ruling pending an expedited appeal to the state Supreme Court, which is scheduled to hear arguments in the case on Oct. 5,” Delaware Online reported.

“Cook said his stay would allow elections officials to process mail-in voting applications and prepare ballots, but that they are not allowed to send the ballots to voters. The judge said elections officials have indicated that if the Supreme Court upholds his ruling, they will notify voters who have applied for mail-in ballots under the new law that they will need to vote in person on Nov. 8,” the outlet added.

Last week, the judge halted Delaware’s new mail-in voting provision, ruling that it violates the state’s constitution.

Vice Chancellor Nathan Cook wrote in the opinion that allowing mail-in voting in the Nov. 8 general election “will result in the dilution of constitutional votes with unconstitutional votes.”

Cook issued an injunction blocking the Department of Elections from accepting applications for no-excuse absentee ballots.

“…if I were to not enjoin the Vote-by-Mail Statute, then the courts would be faced with the impossible task of ‘unscrambling the eggs’ of an election undermined by unconstitutional votes,” Cook wrote. “Given these considerations, Plaintiffs will suffer irreparable injury if the Vote-by-Mail Statute is not enjoined and doing so is necessary in the interests of justice.”

“…Furthermore, the fact that votes will be cast under this unconstitutional law means that the election will not be conducted in strict accordance with our Constitution,” he wrote. ” As Plaintiffs note, it would be ‘virtually impossible’ to unwind the election.”

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“My thoughts on the policy underlying the Vote-by-Mail Statute, however, are fairly irrelevant,” he added. “Delaware precedent — at least as it stands today — requires me to issue an injunction.”

“Delaware has a strong policy in favor of its citizens robustly exercising their right to vote, Cook said, and he acknowledged that voters may be unable to exercise their right to vote for numerous reasons, including because they are working on election day or suffer resource constraints,” Delaware Live reported.

“The ruling has no effect on Tuesday’s primary election. The Department of Elections, which declined to comment Wednesday, is all but certain to appeal the decision to the Supreme Court of Delaware. In the same opinion, Cook upheld the state’s new same-day voter registration law,” the outlet reported.

Delaware Republican Party chairwoman Jane Brady and Republican candidate for attorney general Julianne Murray are behind the suits.

“I am delighted with the decision,” Murray said. “The Vice Chancellor took great care in reviewing Delaware’s history as well as Delaware’s case law in coming to his conclusion. I obviously thought that the statute was unconstitutional but to have the Court agree is very validating.”

“Well it has now been sorted out,” she said.

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Brady called the ruling a “victory for the law.”

“To change the provisions in our State Constitution requires that the same new law be passed by the General Assembly over two consecutive legislative sessions with a supermajority,” Brady said. “When the Democrats could not get the votes to do that, they attempted to change the law by passing a statute in the General Assembly in one session with a simple majority.”

“This is the first step to protect Delaware elections from laws that may undermine our confidence in election results and threaten to introduce greater opportunities for fraud into our elections,” Brady added.

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