First State Times

A universal mail ballot law signed by Gov. John Carney in July is dead following an expedited Delaware Supreme Court ruling that the law violated a state constitutional provision that all voting must be in-person, unless the voter has one of six specified excuses. 

The High Court's order issued Friday in Higgin v. Albence upheld a September Chancery Court ruling.

Former Attorney General M. Jane Brady, who on Thursday argued against the law before the High Court, said that she was pleased "to see that court recognized that the language of the Constitution really matters."

"This is a win for the rule of law," Brady, who chairs the Delaware Republican Party, told First State Times.

The court's unanimous decision, with an opinion to follow, said that the "Vote-by-Mail Statute impermissibly expands the categories of absentee voters identified in Article V, Section 4A of the Delaware Constitution. Therefore, the judgment of the Court of Chancery that the Vote-by-Mail Statute violates the Delaware Constitution should be affirmed."

In an additional action, the Court reversed the chancery Court's ruling that permitted same-day registrations, a separate provision in the voting law -- Brady had appealed that ruling to the Supreme Court.

"The Same-Day Registration Statute conflicts with the provisions of Article V, Section 4 of the Delaware Constitution," the order said. "Consequently, the judgment of the Court of Chancery that the Same-Day Registration Statute does not violate the Delaware Constitution should be reversed."

The ruling comes just a month before the Nov. 8 general election. Mail ballots will now be limited to those with valid excuses, including those in the military serving overseas.

“I wish the Department of Elections had been more transparent with voters that they may not be able to vote by mail if the ruling were upheld,” Brady said. 

Brady said that she was "encouraged" after Thursday's oral arguments.

“The justices' questions focused on the language in the Constitution where it's clear that voting is in-person unless the voter has a valid excuse,” she said. “That’s been the basis for our arguments all along. The arguments from the other side are nonsensical.”

In the case, Brady represented voters Michael Higgin, a candidate for state representative, and Michael Mennella, who has worked as an inspector on Election Day over the past eight election cycles.

Arguing for the state, Deputy Attorney General Alexander Mackler contended in the part that the plaintiffs had no standing; they have demonstrated no harm.

“These plaintiffs are not legally injured. They are politically aggrieved,’’ Mackler said.

The state’s lack of standing argument was shot down in Chancery Court.

Brady partnered in the case  with the Public Interest Legal Foundation, which filed a lawsuit against the law just days after Carney signed the legislation.

Another public interest legal group, the Lawyers Democracy Fund, filed an amicus in the case.

“..LDF made clear in its brief, the General Assembly doesn’t have the power to enact no-excuse mail without amending the Constitution, just as the General Assembly has been required to do numerous times in the past to expand the classes of voters who are eligible to vote by mail,” a statement from the group said.