By: Andrew Jeacoma
On July 1, 2020, Delaware Governor John Carney signed Bill of the House of Representatives 346 (“HB 346“) Into law. HB 346 – as a response to COVID-19 – grants all Delaware citizens the ability to vote by mail during the upcoming 2020 general election. A bill is a waiver of the constitutional rule of mail voting established by Article V, Section 4A of the Delaware Constitution, which limits mail voting for those who qualify under a complete list.
In response to HB 346, the Republican State Commission of Delaware (“RSC”) filed a complaint on August 19, 2020, against the Delaware State Elections Department and its commissioner, Anthony J. Albence. In their complaint, the RSC considers HB 346 unconstitutional for three main reasons: first, it goes against the established constitutional rule of absentee voting. Second, when it adopted HB 346, the General Assembly sought to amend the constitution without ease. Third, the popular postal ballot envisioned by HB 346 had many practical problems leading to voters being deprived of the right to vote. See here for a more thorough reporting of the RSC complaint.
On September 28, 2020, the State Premiership Court of Delaware rejected the RSC’s request for a summary ruling, keeping the sentence in favor of the defendants. In their view, the court focuses on two factors when deciding the case. First, they analyze the positions of the parties, and second, they analyze the constitutionality of the parties HB 346.
From the first point – the stances of the parties – the court looks at whether the plaintiffs have grounds to make their claims. To determine the position, the court calculated what damage, if any, the plaintiffs must experience due to HB 346. The court explained that it would take too long to determine the exact damage, since Date election is coming. Accordingly, the court assumes – without deciding – that the plaintiffs have the right and move on to the second aspect of the analysis, the constitutionality of the bill.
The second content – the constitutionality of the law – accounts for the majority of the discussion in the court. The second prong includes two subcategories. First, the mail-based voting scheme does extend remote voting for a reason listed in Article V, Section 4A of the Delaware Constitution and second, Article XVII, Section 1 Does Delaware’s Constitution provide a secure docking station for voting by mail in HB 346?
In addressing the first question, the court found that the mail-based voting scheme did not extend remote voting for a reason listed in Article V, Part 4A. The state constitution has a complete list of reasons that a registered voter may send an absentee ballot to be counted in a general election. The need for social distancing to mitigate public health risks was not on the list. Therefore, the court determined Article V, Section 4A did not justify HB 346.
Responding to the second question, the court found that Article XVII, Section I actually provided a safe stop for the postal voting regulations contained in HB 346. Article XVII, Section 1 provided for the Congress. Collaborate through “measures where necessary and appropriate” to “[e]ensure continuity of state and local government activities ”in the event of an emergency. The plaintiff’s disagreement with the COVID-19 is sufficient to activate the powers of the General Assembly under Article XVII, Section I. Instead, the RSC considers that the Voting by Mail Regulations are not necessary and appropriate. to ensure continuity of government activities during COVID -19.
The General Assembly, in support of the bill, argued that normal government operations required a democratically elected government with meaningful participation of citizens. Furthermore, the defendants argued that due to the contagious nature of COVID-19 and the need to protect voters and voting workers in the state from infection, postal voting is necessary and appropriate to ensure a fair and equal election.
As the moving party, the burden belongs to the plaintiffs. It is their responsibility to clearly and convincingly prove that the conclusion of the need of the legislature for HB 346 is false or unfounded. The court determined that the plaintiffs did not meet this burden. In support of their claim, the plaintiffs affirmed that any health risks associated with direct voting are offset by the risk that mail ballots will be unintentionally voided. want. The court rejected this argument. The court determined that the potential risks associated with direct voting are too great, and that the solution provided by HB 346 is necessary and consistent under Article XVII, Section I.
The court concluded that a free and fair election is indispensable for the state’s democracy, and given the circumstances since the COVID-19 pandemic, Article XVII, Part I authorizes the enactment of HB 346.