US election: Judge rejects Republican challenge to mail-in voting

A Delaware judge has rejected a challenge by the state Republican Party to the constitutionality of a new law allowing universal voting by mail in this year's elections.

The judge on Monday denied the GOP's request for an injunction to prevent vote-by-mail ballots from being counted in the November election. The judge said the General Assembly's decision to use its emergency powers to declare that voting by mail was necessary to protect public health and ensure the continuity of governmental operations during the coronavirus epidemic was not "clearly erroneous."

US Capitol Building in Washington DC. Photo / Brandon Bourdages

"Legislation enjoys a presumption of constitutionality," wrote Vice Chancellor Sam Glasscock III, noting that he was not a legislator, "let alone a super-legislator charged with perfecting the laws of the state."

The GOP filed a lawsuit last month arguing that lawmakers in the Democrat-controlled legislature exceeded their constitutional authority in invoking emergency powers to pass the measure. In passing the bill, Democrats asserted that voting by mail is "necessary and proper for insuring the continuity of governmental operations" amid the coronavirus epidemic. They also declared that conforming to the requirements of Delaware's constitution, including its explicit limitations on absentee voting, "would be impracticable."

At the time lawmakers passed the bill, Delaware was in "phase 2" of its coronavirus economic reopening, with indoor gatherings of up to 250 people allowed, businesses authorised to double occupancy limits, and convention centres and meeting facilities allowed to open.

Julia Klein, an attorney representing the GOP, said the law impermissibly expanded the constitutional allowances for casting absentee ballots.

She cited a 1972 opinion in which the Delaware Supreme Court said that it was "beyond the power of the legislature, in our opinion, to either limit or enlarge upon the... absentee voter classifications specified in the constitution for general elections."

State attorneys, meanwhile, argued that courts are required to give deference to decisions of the General Assembly. They also said that, even though all polling places will be open and there is no prohibition against in-person voting, not allowing universal voting by mail could interfere with the "free and equal" elections guaranteed by the constitution.

Glasscock said that the constitutional provision authorising the General Assembly to exercise emergency powers acted as a "safe harbour" allowing it to authorise "general absentee voting," that otherwise would be prohibited under the state constitution.

"Amending the Delaware constitution to provide for remote voting in response to an epidemic, before Election Day 2020, would be not only impractical, I note, but impossible," he wrote.

The judge noted that the plaintiffs' challenge to the law could not stand unless they were able to demonstrate clearly and convincingly that the legislature's finding that the law is necessary was either false or unwarranted.

"On the facts of record, the plaintiffs do not come close to meeting that standard," he wrote.

The legislature, in the face of an epidemic of airborne disease and in light of the health emergency declared by the Governor, has made a determination that vote-by-mail is necessary for the continued operation of governmental functions, and that it would be impracticable to address this problem other than by otherwise-extraconstitutional means," the judge concluded. "These finding are not clearly erroneous. "

- AP