The Honorable Anthony J. Albence v. Higgin ( 2022 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
THE HONORABLE ANTHONY J. §
ALBENCE, in his official capacity as §
State Election Commissioner, and §
STATE OF DELAWARE §
DEPARTMENT OF ELECTIONS, §
§
Defendants Below, §
Appellants/Cross-Appellees, § No. 342, 2022
§
v. § Court Below: Court of Chancery
§ of the State of Delaware
MICHAEL HIGGIN and MICHAEL §
MENNELLA, § C.A. Nos. 2022-0641
§ 2022-0644
Plaintiffs Below, §
Appellees/Cross-Appellants. §
____________________________
DELAWARE DEPARTMENT §
OF ELECTIONS and ANTHONY J. §
ALBENCE, State Election §
Commissioner, §
§
Defendants Below, §
Appellants, §
§
v. §
§
AYONNE “NICK” MILES, PAUL J. §
FALKOWSKI, and NANCY M. §
SMITH, §
§
Plaintiffs Below, §
Appellees. §
Submitted: October 6, 2022
Decided: December 13, 2022
Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, Justices and
JURDEN, President Judge1 constituting the Court en banc.
Upon appeal from the Court of Chancery. AFFIRMED in part, REVERSED in
part.
Alexander S. Mackler, Esquire, Allison J. McCowan, Esquire, Zi-Xiang Shen,
Esquire, and Victoria R. Sweeney, Esquire, DELAWARE DEPARTMENT OF
JUSTICE, Wilmington, Delaware, for Appellants/Cross-Appellees The Honorable
Anthony J. Albence and the State of Delaware Department of Elections.
M. Jane Brady, Esquire, BRADY LEGAL GROUP LLC, Lewes, Delaware, for
Appellees/Cross-Appellants Michael Higgin and Michael Mennella.
Charlotte Davis, Esquire and Noel H. Johnson, Esquire, PUBLIC INTEREST
LEGAL FOUNDATION, Indianapolis, Indiana, for Appellee/Cross-Appellant
Michael Mennella.
Julianne E. Murray, Esquire, LAW OFFICE OF MURRAY, PHILLIPS & GAY,
Georgetown, Delaware, for Appellees Ayonee “Nick” Miles, Paul J. Falkowski and
Nancy Smith.
1
Sitting by designation under Del. Const. art. IV, § 12 and Supreme Court Rules 2(a) and 4(a) to
complete the quorum.
2
TRAYNOR, Justice:
On July 22, 2022, Governor John C. Carney, Jr., signed into law two pieces
of legislation affecting how the citizens of our State register to vote and cast their
ballots. Under one bill—what this opinion will refer to as the Same-Day
Registration Statute—the deadline for registering to vote in any presidential primary,
primary, special, and general election was changed from the fourth Saturday before
the date of the election to the day of the election. Under the other bill, the General
Assembly enacted and the Governor approved the addition of a chapter entitled
“Voting by mail ballot” to Title 15 of the Delaware Code, which contains the statutes
governing elections in our State. This new chapter, which we will call the Vote-by-
Mail Statute, and which applies to non-presidential primary, special, and general
elections, authorized2 all Delaware voters to cast their ballots by mail whether or not
they are able to appear at a polling place.
On the very day the Governor approved the bills, two lawsuits were filed
challenging the constitutionality of both enactments under various sections of Article
V of the Delaware Constitution. Two sections are relevant to this appeal. Section 4
addresses voter registration and, among other things, directs the General Assembly
2
Our choice of tense throughout this opinion takes into account that we announced our unanimous
decision in an Order entered on October 7, 2022, two months before the issuance of this opinion.
3
to “enact uniform laws for the registration of voters in this State.” It also calls for
establishing “at least two registration days” within a window preceding each general
election—a window that is to close no less than ten days before the election. Section
4A is entitled “General laws for absentee voting” and, as its name suggests, requires
the General Assembly to enact laws providing that citizens who are unable to appear
in person at their regular polling place for a general election for certain specified
reasons may nonetheless cast a ballot, presumably by mail.
The Plaintiffs sought declaratory and injunctive relief in the Court of
Chancery, contending that the Same-Day Registration Statute conflicts with Section
4, while the Vote-by-Mail Statute runs afoul of Section 4A. The Defendants—the
Department of Elections and the State Election Commissioner3—responded that the
Plaintiffs—voters, a candidate for political office, and an election inspector—lacked
standing to challenge the laws but that, even if they had standing, the laws were
within the General Assembly’s plenary power to enact and therefore valid. Because
the general election was set for November 8, 2022, and the Department hoped to
mail ballots to potential voters by October 10, 2022, litigation in the Court of
Chancery was expedited.
3
In this Opinion, the Department of Elections and the State Election Commissioner will be referred
to together as the “Department.”
4
In an opinion issued two weeks after oral argument on the parties’ cross-
motions for summary judgment, the Court of Chancery rejected the Defendants’
standing argument, but upheld the validity of the Same-Day Registration Statute,
citing “the strong presumption of constitutionality [] and the advisability of keeping
the existing statutory scheme harmonious.”4 The court, however, invalidated the
Vote-by-Mail Statute, not because it found clear and convincing evidence of an
express or implied prohibition of voting by mail in the Constitution, but because it
felt constrained by three relevant precedents—one by this Court, another by three
Justices of this Court in an advisory opinion, and the other by the erstwhile Court of
General Sessions. Obviously unpersuaded by those opinions, the Court of Chancery
invited this Court to revisit them, and the Defendants joined in the invitation by
promptly appealing. For their part, the Plaintiffs cross-appealed, claiming that the
Court of Chancery’s rejection of their challenge to the Same-Day Registration
Statute was erroneous. Like the Court of Chancery, we agreed to expedite
proceedings in this Court.
After expedited briefing and oral argument in this Court, we first determined
that one of the Plaintiffs, who was participating as a candidate for State
Representative in the impending election, had standing to challenge both statutes.
4
Higgin v. Albence, 2022 WL 4239590, at *19 (Del. Ch. Sept. 14, 2022).
5
We then entered an order announcing our unanimous conclusion that neither of the
newly enacted laws passes muster under the Delaware Constitution.5 Because of the
press of time, we were unable then to publish a full opinion explaining the reasons
underpinning that conclusion but promised to do so in due course. This opinion
fulfills that promise.
As will be seen, our analysis of the constitutionality of the Vote-by-Mail
Statute is influenced by the historical context of Section 4A’s adoption and the
longstanding interpretation of its scope. Our analysis of the Same-Day Registration
Statute, on the other hand, is more textually driven, turning in large part on its
discordance with certain procedural provisions mandated by Article V, Section 4.
The Vote-by-Mail Statute runs counter to a time-honored understanding
shared by our courts, the General Assembly, and the Department, that the General
Assembly is not free to limit or enlarge upon the categories of citizens specifically
enumerated in Section 4A who need not vote in person in general elections. And the
Same-Day Registration Statute effectively eliminated the rights—explicitly granted
in Section 4—of interested persons to appeal “[f]rom the decision of registration
officers granting or refusing registration, or striking or refusing to strike a name or
5
Albence v. Higgin, 2022 WL 5333790 (Del. Oct. 7, 2022).
6
names from the registration list.”6 The statute would also undermine Section 4’s
provisions allowing for the correction of voter registrations “at any time prior to the
day of holding the election.”7 We therefore affirm in part and reverse in part the
Court of Chancery’s judgment.
I. BACKGROUND
As we begin our inquiry into whether the challenged election laws are in line
or at odds with Article V of the Delaware Constitution, we take our bearings from
the historical context in which the relevant constitutional provisions were adopted,
interpreted, and, from time to time, amended.
A. Colonial Period and the Constitution of 1776
Our state constitutional history dates back to the momentous summer of 1776
following the Continental Congress’s resolution in May of that year urging the
colonies “to adopt such government as shall in the opinion of the representatives of
the people best conduce to the happiness and safety of their constituents in particular
and America in general.”8 Delaware responded by convening thirty delegates—ten
from each county—from among the leaders of Delaware’s colonial government.9
6
DEL. CONST. art. V, § 4
7
Id.
8
RANDY J. HOLLAND, THE DELAWARE STATE CONSTITUTION 7 (2d ed. 2017).
9
See id. at 7–8.
7
Before turning to the task of adopting a constitution, however, the Convention
of 1776 adopted the Declaration of Rights and Fundamental Rules of the Delaware
State (enacted September 11, 1776). The Declaration of Rights, which was similar
to bills of rights adopted by Maryland and Pennsylvania, both of whom based their
declaration on Virginia’s historic Declaration of Rights, stressed the importance of
the citizens’ right to vote:
SECT. 6. That the right of the people to participate in the
Legislature, is the foundation of liberty and of all free government, and
for this end all elections ought to be free and frequent, and every
freeman, having sufficient evidence of a permanent common interest
with, and attachment to the community, hath a right of suffrage.10
Nine days after enacting the Declaration of Rights, the Convention adopted
Delaware’s first state constitution, which declared that “[t]he right of suffrage in the
election of Members for both Houses [of the General Assembly] shall remain as
exercised by law at present . . .” with a “President [] or Chief Magistrate . . . [to] be
chosen by joint ballot of both Houses.”11
The historical record shows that, during the colonial era—that is, the period
preceding the adoption of the Constitution of 1776—in-person voting was required.
Under a 1700 “Act for regulating elections, and ascertaining the number of the
10
Del. Declaration of Rights § 6 (1776).
11
DEL. CONST. of 1776, art. 5.
8
Members of Assembly”12—a statute enacted for “the well governing . . . of counties
of New-Castle, Kent, and Sussex,” . . . both the date and location of elections for the
Assembly were set:
[I]t shall and may be lawful to and for the freemen and
inhabitants of the respective counties of this government . . . to meet on
the first day of October yearly, for ever, at the most usual place of
elections in the said respective counties; that is to say, for the county of
New-Castle, at the court-house in the town of New-Castle: For the
county of Kent, at the court-house in the town of Dover: And for the
county of Sussex, at the court-house in the town of Lewes: . . . And
then and there chuse their Representative or Delegates to serve them in
Assembly . . . . And that every person within this government, qualified
to elect according to the direction of this act, refusing or neglecting (not
being hindered by sickness or other unavoidable accident) to attend at
the election, and to give in his vote ... shall be fined the sum of Twenty
Shillings . . . .13
Thus, the Act not only designated the date and locations of the annual
elections, it mandated the personal attendance of all eligible voters unless excused
by illness or accident.
That the framers of the 1776 Constitution intended to perpetuate the in-person
voting requirements is further evidenced by Articles 27 and 28 of the document.
Article 27, for instance, echoing the 1700 Act, stipulates that “[t]he first election for
the General Assembly of this state shall be held on the twenty-first day of October
12
1 Del. Laws ch. LXI. a., 146.
13
Id. at 147 (emphases added).
9
next, at the Court Houses in the several counties, in the manner heretofore used in
the election of the Assembly . . . .”14 And Article 28 could hardly be more evocative
of an electoral process that envisions voters appearing in person to cast their votes:
ART. 28. To prevent any violence or force being used at the said
elections, no persons shall come armed to any of them; and no muster
of the militia shall be made on that day, nor shall any battalion or
company give in their votes immediately succeeding each other, if any
other voter who offers to vote objects thereto; nor shall any battalion or
company in the pay of the Continent, or of this or any other state, be
suffered to remain at the time and place of holding the said elections,
nor within one mile of the said places respectively for twenty-four hours
before the opening said elections, nor within twenty-four hours after the
same are closed, so as in any manner to impede the freely and
conveniently carrying on the said election: Provided always, That
every elector may in a peaceable and orderly manner give in his vote
on the said day of election.15
Thus, at the founding of “The Delaware State,”16 our constitution required voters to
cast their ballots in person.
B. The Constitution of 1792
The Constitution of 1776, like the federal Articles of Confederation, was short
lived. In the wake of the adoption of the United States Constitution—ratified first
14
DEL. CONST. of 1776, art. 27 (emphasis added).
15
DEL. CONST. of 1776, art. 28 (italics in original).
16
DEL. CONST. of 1776, art. 1 (“The government of the counties of New-Castle, Kent and Sussex,
upon Delaware, shall hereafter in all public and other writings be called The Delaware State.”)
(italics in original).
10
by Delaware on December 7, 1787—a convention, presided over by John Dickinson,
again met in Dover to consider defects in the 1776 Constitution.
In the Convention’s eventual report to the General Assembly, it noted that the
Constitution of 1776 was “so very deficient, and inadequate to the great purposes of
government, that they became obliged, from a duty they owed to their constituents,
to propose an almost entire new plan.”17 On June 12, 1792, the new constitution was
signed by the requisite number of delegates, and “Delaware had its second
constitution.”18
The 1792 Constitution provided “the basic framework for Delaware’s
government for more than a century, until the adoption of the current Constitution
in 1897.”19 Under that framework, in-person voting remained the constitutional
norm. All elections were, according to Article I, Section 3, to be “free and equal,”20
and under Article IV, Section 21, “by ballot.”21 These provisions, standing alone,
did not mandate in-person voting. But Section 3 of Article IV clearly contemplated
in-person voting: “Electors shall in all cases except treason, felony, or breach of the
17
HOLLAND, supra note 8, at 12.
18
Id. at 13.
19
Id.
20
DEL. CONST. of 1792, art. I, § 3.
21
DEL. CONST. of 1792, art. IV, § 1.
11
peace, be privileged from arrest during their attendance at elections, and in going
to, and returning from them.”22
C. The Constitution of 1831 and the Civil War
Delaware’s third constitution, which, according to Justice Holland, “is more
accurately regarded as a modification of the 1792 Constitution[,]”23 was adopted in
1831. The 1831 Constitution retained the basic election framework found in its
predecessor. For example, the 1792 Constitution’s provisions that elections be “free
and equal”24 and that established a privilege from arrest “during [voters’] attendance
at elections, and in going to and returning from them []”25 remained intact. The new
constitution did, however, add two provisions of arguable relevance to the case
before us.26 Section 1 of Article IV, provided that:
[a]ll elections for Governor, Senators, Representatives, Sheriffs and
Coroners shall be held on the Tuesday next after the first Monday in the
month of November of the year in which they are to be held, and be by
ballot.
But the legislature may by law prescribe the means, methods and
instruments of voting so as to best secure secrecy and the independence
of the voter; preserve the freedom and purity of elections and prevent
fraud, corruption and intimidation thereat.
22
DEL. CONST. of 1792, art. IV, § 2 (emphasis added).
23
HOLLAND, supra note 8, at 17.
24
DEL. CONST. of 1831, art. I, § 3.
25
DEL. CONST. of 1831, art. IV, § 2.
26
Article IV of the 1831 Constitution contained other new provisions, but they deal largely with
voter qualifications—an issue not directly relevant to our opinion.
12
Three decades after the 1831 Constitution was adopted, the American Civil
War “inspired the first major effort for absentee balloting in the United States.”27 As
one scholar explained,
[l]arge numbers of young men who were eligible to vote served in the
armies of both the Union and the Confederacy, and, as the 1864
presidential elections approached, spirited legislative battles erupted in
the state legislatures over the question of allowing soldiers stationed
away from home to cast votes in their home states. In the Union states,
some of the impetus behind these battles was partisan, with Republicans
pushing for soldier-voting and Democrats opposing these efforts
because the soldier vote was for Lincoln.28
This partisan divide manifested itself in the Delaware General Assembly in
February 1862 when a bill was introduced in the House giving soldiers serving in
the Union Army the right to vote outside the State.29 Predictably, the bill foundered:
ten Republicans voting in favor and 11 Democrats voting against it.30
D. Delaware’s Current Constitution: The Constitution of 1897
Delaware’s fifth constitutional convention—a convention in 1853 produced a
proposed new constitution, but it was soundly rejected by the electorate31—was held
27
John C. Fortier and Norman Ornstein, The Absentee Ballot and the Secret Ballot, 36 U. MICH.
V.L. REFORM 483, 492 (2003).
28
JOHN C. FORTIER, ABSENTEE AND EARLY VOTING: TRENDS, PROMISES, AND PERILS 7 (2006).
29
JOSIAH HENRY BENTON, VOTING IN THE FIELD: A FORGOTTEN CHAPTER OF THE CIVIL WAR 266–
67 (Forgotten Books 2018) (1915).
30
Id. at 267.
31
According to Justice Holland’s survey of our state constitutional history, “as part of resolving
[a] dispute over the legitimacy of the [1853] Convention, the delegates had unanimously decided
to submit the final product to the people of Delaware for ratification.” HOLLAND, supra note 8, at
21.
13
in 1897. Drafted, debated, and adopted that same year, the 1897 Constitution is our
State’s fourth, and current, constitution.32 It contains seventeen Articles, most of
which contain multiple sections, and, as of 2017, the General Assembly had adopted
more than 90 amendments. Relevant to the issues before us now, Article V,
consisting of thirteen sections, encompasses a comprehensive framework for the
administration of elections.33 For present purposes, we train our attention on
Sections 1, 2, 3, 4, 4A, and 5.
Section 1 of Article V establishes the “time”—“biennially on the Tuesday
next after the first Monday in the month of November”—and the “manner”—by
ballot—of holding general elections. Section 1 also authorizes the General
Assembly to “prescribe the means, methods and instruments of voting so as to best
secure secrecy and the independence of the voter, preserve the freedom and purity
of elections and prevent fraud, corruption and intimidation thereat.”34 This provision
is identical to the first two paragraphs of Article IV, Section 1 of the 1831
Constitution and has remained unaltered since its adoption.
Section 2 addresses voter qualifications for voting, providing in pertinent part
that:
32
Id. at 24.
33
Id. at 207.
34
DEL. CONST. art. V, § 1.
14
Every citizen of this State of the age of twenty-one years who shall have been
a resident thereof one year next preceding an election, and for the last three
months a resident of the county, and for the last thirty days a resident of the
hundred or election district in which he or she may offer to vote, and in which
he or she shall have been duly registered as hereinafter provided for, shall be
entitled to vote at such election in the hundred or election district of which he
or she shall at the time be a resident, and in which he or she shall be
registered[.]35
Section 3 prohibits the recipients of bribes from voting “at any general or
special or municipal election in this State[.]”36 This section allows for challenges of
voters on bribery or improper-influencing grounds “before the officers authorized
for that purpose . . . .”37 The challenged voter must then “swear or affirm before
such officers” a denial of the charge, and upon such oath, is permitted to vote “at
such election.”38 As will be seen, the right to challenge a voter on a charge of bribery
figured prominently in a 1939 determination that an absentee-voting statute was
unconstitutional.
Section 4, which lies at the heart of the Plaintiffs’ challenge to the Same-Day
Registration Statute, contains the Constitution’s voter-registration framework.
Because Section 4 was the subject of an amendment in 1925, which the Court of
35
DEL. CONST. art. V, § 2.
36
DEL. CONST. art. V, § 3.
37
Id.
38
Id.
15
Chancery found particularly relevant to its analysis, we do well here to compare the
relevant provisions as adopted in 1897 with their current format.
The original version of Section 4 directed “[t]he General Assembly . . . [to]
provide by law for a uniform biennial registration of all the voters in this State who
possess the qualifications prescribed in this Article . . . .”39 The current version
retains the uniformity requirement, using slightly different language: “The General
Assembly shall enact uniform laws for the registration of voters in this State entitled
to vote under this Article . . . .”40 The 1897 version of Section 4 also designated a
time when registration would occur:
Such registration shall be commenced not more than one hundred and
twenty days nor less than sixty days before and be completed not more
than twenty days nor less than ten days before such election.
Application for registration may be made on at least five days during
the said period; provided, however, that such registration may be
corrected as hereinafter provided, at any time prior to the day of
holding the election.41
As the Court of Chancery noted, the General Assembly amended Section 4,
replacing the above-quoted provision with similar—though not identical—verbiage:
There shall be at least two registration days in a period commencing not more
than one hundred and twenty days, nor less than sixty days before, and ending
not more than twenty days, nor less than ten days before, each General
Election, on which registration days persons whose names are not on the list
39
DEL. CONST art. V, § 4 (amended 1925).
40
DEL. CONST. art. V, § 4.
41
DEL. CONST art. V, § 4 (amended 1925) (emphases added).
16
of registered voters established by law for such election, may apply for
registration, and on which registration days applications may be made to strike
from the said registration list names of persons on said list who are not eligible
to vote at such election; provided, however that such registration may be
corrected as hereinafter provided at any time prior to the day of holding the
election.42
The penultimate paragraphs of both the 1897 and current versions of Section
4 are identical and contain two procedural mechanisms that are integral to the
registration process: appeal and correction. Section 4 provides that a registration
officer’s decision granting or refusing registration, may be appealed by “any person
interested, or any registration officer . . . to the resident Associate Judge of the
County.”43 According to the pre-eminent expert on our state constitutional law, the
purpose of the right of appeal to a member of the judiciary is “to insure to all
qualified electors in the State the right to qualify and vote, without hindrance.”44
The judge considering an appeal
shall have power to order any name improperly omitted from the . . .
registry to be placed thereon, and any name improperly appearing on
the said registry to be stricken therefrom, and any name appearing on
the said registry, in any manner incorrect, to be corrected, and to make
and enforce all necessary orders in the premises for the correction of
the said registry.45
42
DEL. CONST. art. V, § 4 (emphases added).
43
DEL. CONST. art. XVII, § 4.
44
HOLLAND, supra note 8, at 214 (quoting Appeal of Brown, 49 A.2d 618, 622 (Del. Super. 1946)).
45
DEL. CONST. art. V, § 4.
17
Consequential to us now is Section 4’s stipulation that registrations “may be
corrected . . . at any time prior to the day of holding the election.”46
Finally, before turning to Section 4A, which is titled “General laws for
absentee voting” and thus occupies center stage in our analysis of the challenged
Vote-by-Mail Statute, we touch briefly on Section 5 of Article V. Employing the
very same words used by the drafters of our 1792 and 1831 Constitutions, the current
version of Section 5, adopted in 1897, provides that: “Electors shall in all cases
except treason, felony, or breach of peace, be privileged from arrest, during their
attendance at elections, and in going to and returning from them.”47
In sum, leaving Section 4A’s absentee voting provisions aside for the moment,
all the sections of Article V discussed above seem to take for granted that elections
are held in some identifiable place. To recap, Section 1 seeks to “prevent fraud,
corruption and intimidation thereat.”48 Section 2 speaks of eligible voters who are
“entitled to vote at such election in the hundred or election district of which he or
she shall at the time be a resident . . . .”49 Section 3’s anti-bribery provisions are
concerned with whether a person should be allowed to “vote at such election.”50
46
Id.
47
DEL. CONST. art. V, § 5.
48
DEL. CONST. art. V, § 1.
49
DEL. CONST. art. V, § 2.
50
DEL. CONST. art. V, § 3.
18
Likewise, Section 4’s registration provisions govern “the right of every person so
registered to vote at any General Election.”51 And if the simple preposition “at”
does not adequately denote a physical place, Section 5’s reference to “attendance at
elections and . . . going to and returning from them”52 should suffice.
E. The 1923 Absentee Voting Statute and State v. Lyons
We now digress to discuss the events leading to the General Assembly’s
amendment of Article V and the addition of Section 4A in the early 1940s, entitled
“General laws for absentee voting.”
In 1923, the 99th Session of the General Assembly passed “AN ACT to permit
voting by persons not present at the polling places, under certain circumstances and
conditions.”53 Section 1 of the Act provided:
That any qualified elector of this State, duly registered, who may be in
the public service of the United States of America or of this State, and
who because of such public service, or who because of the nature of his
work or business, may be absent, or may expect to be absent, from this
State, or from the election district in which he or she is a qualified
elector, or who because of sickness or physical disability cannot appear
at the polling place in such district, on the day of holding any general
election, may vote at such election as hereinafter provided.54
51
DEL. CONST. art. V, § 4.
52
DEL. CONST. art. V, § 5.
53
33 Del. Laws ch. 103, 258.
54
Id. The Court of Chancery’s characterization of the 1923 absentee-voting statute as “broad”
cannot be squared with the statute’s text. See Higgin, 2022 WL 4239590, at *26–27. The statute,
whose title itself implies limitation, was strictly limited, similarly to Section 4A as initially
adopted, to qualified electors “who may be in the public service of the United States of America
or of this State, and who because of such public service, or who because of the nature of his work
19
The constitutionality of this statute was challenged in 1939 in State v. Lyons.55
The defendants challenged an indictment alleging that they had conspired to abet
fraud in connection with votes cast under the 1923 absentee-voting act on the
grounds that the act conflicted with Section 2 of Article 5. They pointed to certain
“critical words [in Section 2] and those most requiring consideration[:]” namely,
those identifying eligible voters as “male citizen[s] . . . [who are] resident(s) of the
hundred or election district in which [they] may offer to vote . . . .”56 This language,
the defendants claimed, indicated “the place where the election is to be held . . . [and]
contemplated the personal attendance of voters at the polls.”57
or business, may be absent, or may expect to be absent, from this State, or from the election district
in which he or she is a qualified elector, or who because of sickness or physical disability cannot
appear at the polling place in such district, on the day of holding any general election. . . .” 33
Del. Laws ch. 103, § 1, 258. Electors who sought the benefit of the statute because of sickness or
physical disability were required to attach their application for an absentee ballot “a certificate[]
of a duly licensed practicing physician certifying as to such sickness or disability. . . .” Id. at § 3,
259. That the right to an absentee ballot was to be carefully circumscribed is further evidenced by
Section 14 of the 1923 act: “Section 14. In so far as the provisions of this Act shall apply to voters
by reason of the nature of their work or business, it is intended that those qualified electors, duly
registered, who may vote under the provisions of this Act shall be those only who may be absent,
or may expect to be absent, from the polling place in the election district in which he or she may
be a qualified elector because of the inherent nature of his or her work or business, such as
commercial travelers, rail-road employees, pilots and sailors, and not merely because such electors
may find it more convenient to follow his or her work or employment in localities other than those
in which they may reside such as mechanics, farm workers and other ordinary laborers.” Id. at §
14, 264 (emphasis added).
55
5 A.2d 495 (Del. Gen. Sess. 1939).
56
DEL. CONST. art. V, § 2 (emphasis added), quoted in Lyons, 5 A.2d. at 500.
57
Lyons, 5 A.2d at 500.
20
The Court of General Sessions58 agreed with the defendants, but nevertheless
recognized that this conclusion, standing alone, did not mean that the General
Assembly could not “enact a law by which, under prescribed conditions, certain
absentee electors could vote.”59 That was so because in the court’s words:
It is not necessary that express power be given by the Constitution to
the Legislature to enact legislation regarding elections, or legalizing the
casting of votes by absentee voters. The Constitution does not consist
of a series of powers expressly delegated to the people, acting through
the Legislature. Rather the power of the Legislature exists, except in
so far as expressly or impliedly limited by the Constitution. Whether
the language “offer to vote” contemplates a personal attendance by the
voter and a personal casting of the vote can only be correctly
determined by a consideration of all the material and pertinent
provisions of the Constitution.60
Two principal considerations ultimately led the Court of General Sessions to
conclude that the Constitution as it then existed required the personal attendance of
the voter at the polls and that “no power . . . existed[ed] in the Legislature to provide
for absentee voting.”61 First, a review of the debates during the Constitutional
58
The 1792 and 1831 Constitutions established a Court of General Sessions of the Peace and Jail
Delivery, while the 1897 Constitution called for a Court of General Sessions. Under the 1897
Constitution the court was responsible for, among other things, trying non-capital criminal cases.
The court was abolished in 1951, and its responsibilities were assumed by the newly organized
Superior Court. See 48 Del. Laws ch. 109, 221. See also Court of General Sessions, DELAWARE
PUBLIC ARCHIVES (last visited December 7, 2022), https://archives.delaware.gov/delaware-
agency-histories/court-of-general-sessions/ (discussing the history of Delaware’s Court of General
Sessions).
59
Lyons, 5 A.2d at 500.
60
Id.
61
Id. at 503.
21
Convention of 1897 persuaded the court in no uncertain terms that the Convention
intentionally omitted provisions that would have authorized the type of absentee
voting found in the 1923 Act:
It is . . . an inescapable fact that the direct question of absentee voting
came before the Convention and was intentionally eliminated in so far
as citizens in actual military service were concerned. The inference is
unmistakable that the Convention expressly refrained from providing
for absentee voting, but left the Constitution as it theretofore had been.62
The second influential consideration supporting the court’s conclusion was
the process set forth in Section 3 of Article 5 for challenging voters at the polls on
the ground of bribery. The court observed that “[n]o voter can meet that challenge
without his personal presence at the polls” and that “[a] challenged vote at the polls
can only be received and counted when the voter is personally present to meet the
challenge.”63 Unable to reconcile the 1923 Act with these considerations, the court
understood that it was its “plain duty . . . to hold the statute unconstitutional, leaving
the perfection of the statute to be brought about by proper constitutional
amendment.”64
62
Id. at 502.
63
Id.
64
Id. at 503.
22
F. The Adoption of Section 4A
Two years after Lyons struck down the 1923 Act, the 108th Session of the
General Assembly heeded the Court of General Session’s reproof and approved a
constitutional amendment, adding Section 4A to Article V of the Delaware
Constitution. Though not a verbatim version of the ill-fated 1923 Act, the operative
provisions of Section 4A were functionally equivalent to the statute’s:
Section 4A. The General Assembly shall enact general laws
providing that any qualified elector of this State, duly registered, who
shall be unable to appear to cast his or her ballot at any general election
at the regular polling place of the election district in which he or she is
registered, either because of being in the public service of the United
States or of this State, or because of the nature of his or her business or
occupation, or because of his or her sickness or physical disability, may
cast a ballot at such general election to be counted in such election
district.65
Because amending the Delaware Constitution by the General Assembly is a
“two-legged” process requiring the approval of two-thirds of the members of both
Houses by two successive General Assemblies,66 Section 4A did not become part of
the Constitution upon both Houses’ approval in May 1941. But it was officially
adopted when the 109th Session of the General Assembly completed the “second leg”
65
43 Del. Laws ch. 1, 3 (approved May 9, 1941).
66
DEL. CONST. art. XVI, § 1. Article XVI contains two different procedures for amending the
constitution—a supermajority vote of both Houses of two successive General Assemblies
described above and a constitutional convention procedure set forth in Section 2 of Article XVI.
In our history, the only proposal submitted to a popular referendum was, as briefly described
above, the failed 1853 Constitution.
23
of the amendment process in 1943 and, since that year, the Delaware Constitution’s
“General laws for absentee voting” have resided in Section 4A of Article V.
G. The Soldiers’ Vote Act and Harrington
The same year that Section 4A cleared the “second leg” and became part of
our Constitution, a second blow befell the cause of voting other than at a traditional
polling place when this Court decided State ex rel. Walker v. Harrington,67
addressing the constitutionality of the “Soldiers’ Vote Act.” Under this Act, adopted
in 1898 on the eve of the Spanish American War, qualified voters of this State who
were in the military service of this State or the United States were authorized to cast
their votes at their place of encampment. Unlike the absentee-voting statute struck
down in Lyons, the Soldier’s Vote Act required, among other things, the opening of
a poll “in each company at the quarters of the captain,”68 which was to remain open
between specific hours. It also required the presence of election judges at the
“polling place[s]”69 who, upon the challenge of any voter, were authorized to
examine voters under oath and to determine the voter’s right to vote. The Act also
directed the Governor to designate two persons from different political parties,
whose duties were to visit the encampments, deliver registration lists and ballots,
67
30 A.2d. 688 (Del. 1943).
68
21 Del. Laws ch. 39, § 2, 134. See also Revised Code of Del., ch. 60, art. 4, § 118 (1935).
69
21 Del. Laws ch. 39, § 4, 134.
24
close the polls, and return the ballots to this State. In brief, the Soldiers’ Vote Act
purported to set up an extra-territorial polling place and, as such, differed essentially
from the 1923 absentee voting statute.
When the constitutionality of the Soldiers’ Act was challenged in the wake of
the 1940 election, the Court juxtaposed the Act with Article V’s provisions and
found it wanting, principally on three grounds. First, the Harrington Court noted
that the Act was incompatible with Section 3’s bribery-challenge provision.70 The
Court next pointed to Section 5:
If [Section 3] is not sufficient to imply that the drafters of the
Constitution intended that electors, when offering to vote must
personally appear at polling places within the limits of the State, for
their respective hundreds or districts, then all doubt can be removed by
reference to Section 5, of Article V of the Constitution, wherein it is
provided that “Electors shall in all cases, except treason, felony, or
breach of the peace, be privileged from arrest, during their attendance
at elections, and in going to and returning from them.”71
And finally, the Court concluded that the Act’s provisions for determining the
state of the election were “irreconcilably antagonistic” to the procedures governing
the Board of Canvass’s and the Superior Court’s post-election responsibilities. In
the Harrington Court’s view, “both from the letter and the spirit of the Constitution,
there is no reasonable ground to doubt but that it requires the polling places for the
70
Harrington, 30 A.2d at 692.
71
Id. at 692.
25
reception of ballots at general elections held in this State to be located within the
territorial limits of the State.”72
This conclusion would not seem to bear directly on the questions we must
answer in this case. But in response to the amici curiae’s suggestion that under the
Soldiers’ Vote Act—unlike under the 1923 absentee-voting statute—the voter is
personally present at a polling place and subject to challenge, the Court remarked:
The Constitution, by Section 4, Article V, has prescribed for uniform
laws for registration of voters for the purpose of determining that
prospective voters duly possess the necessary and prescribed
qualifications. This section provides that all questions of the
qualifications of voters should be determined before election day, and
on that day, beyond the fact of the identity of the persons, the sole
ground of challenge should be the violation of said Section 3 of Article
V.73
H. The 1972 Opinion of the Justices
The next significant development relevant to our historical discussion—and
later, to our analysis—occurred in 1972. In that year, Governor Russell W. Peterson,
acting under 29 Del C. §2102,74 propounded three questions to the members of this
72
Id. at 693.
73
Id. at 691.
74
Under 29 Del. C. § 2102, “[t]he Governor may, whenever the Governor requires it for public
information or to enable the Governor to discharge the duties of office with fidelity, request the
members of the Supreme Court to give their opinions in writing touching the proper construction
of any provision in the Constitution of this State or of the United States or the constitutionality of
any law enacted by the General Assembly of this State.”
26
Court.75 Two of the questions inquired into the constitutionality of the then-existing
absentee-voting statute, 15 Del. C. §5503, as it related to primary elections, and the
third asked the more general question: “May the General Assembly constitutionally
provide by statute for absentee voting by any person in an election other than a
general election?”76
The Justices took up the third question first. Noting that, under the residual-
power doctrine, “the General Assembly has all legislative power not expressly or
impliedly limited by the Constitution[,]” Chief Justice Wolcott, Justice Carey, and
then-Justice Hermann77 answered the question in the affirmative with one voice:
[I]t is not necessary to find in the Constitution an express grant to the
General Assembly of authority to provide for absentee voting in
primary elections; the inquiry is whether there is any limitation in the
Constitution upon the power of the General Assembly to do so. In the
absence of such constitutional limitation, the power of the General
Assembly to provide for absentee voting in primary elections, as it has
done in [§] 5503, is unquestionable.
We find in the Constitution no limitation of the General Assembly to
legislate in this field.78
75
Opinion of the Justices, 295 A.2d 718 (Del. 1972).
76
Id. at 720.
77
We refer to the members of the Court individually as the statute authorizing the Governor to
seek advisory opinions contemplates that the members of the Court will, in their discretion, “give
their opinions.” 21 Del. C. § 2102. See also HOLLAND, supra note 8, at 181 (“The justices of the
Supreme Court as individuals . . . are authorized by statute to issue advisory opinions in certain
situations.”) (emphasis added).
78
Opinion of the Justices, 295 A.2d at 720.
27
They concluded, moreover, that based on Article V, Section 7’s “express
recognition of the existence and nature of primary elections”—that is, as being
“within the special province of the political parties, to be conducted by them under
party rules and regulations”79—the framers had “intentionally and successfully
avoided any limitation upon the legislative powers of the General Assembly as to
primary elections.”80 Notably, however, the Justices contrasted this intentional
limitation with the implied limitation upon absentee voting in general elections
identified in Lyons and Harrington.
The Justices then circled back and tackled the first question: Did 15 Del C. §
5503(3), as recently amended, violate the Delaware Constitution’s requirement of
free and equal elections found in Article I, Section 3, and the United States
Constitution’s equal protection clause, by denying the right to vote in primary
elections to persons unavoidably absent on primary election day, while granting that
right to persons unavoidably absent on the day of the general election? The genesis
of this question was the amended statute’s identification of qualified electors who
are “unavoidably absent from the county in which he resides on the day of the
general election” as persons eligible to vote by absentee ballot.
79
Id. at 721.
80
Id.
28
Although the amended statute appeared to broaden the scope of absentee
voting to include “unavoidably absent” voters heedless of the reason for their
absence, the Governor’s questions did not explicitly encompass that issue. Put
differently, the Governor did not ask the Justices to opine on the authority of the
General Assembly to enact a statute that expanded the categories of voters entitled
to absentee-voting privileges beyond those enumerated in Section 4A.
Sticking to the question as asked by the Governor, the Justices surmised that,
when the scope of § 5503 was enlarged to cover “any general election, primary
election, choosing candidates for statewide or local officers, or special election held
under the provisions of Chapter 73 of this title,” the General Assembly had
negligently failed to enlarge the “unavoidably absent” provision to reflect the basic
enlargement.81 The Justices therefore concluded that subparagraph 5503(3) should
be read as “(3) Unavoidably absent from the county in which he resides on the day
of the election, or ***.”82 Because this reading would eliminate the constitutional
problem raised by the Governor’s first question, the Justices answered the question
in the negative.
81
Id. at 722.
82
Id.
29
But the answer to the specific question asked left the impression—or so it
seems to us—that the Justices were placing their stamps of approval on the
expansion of the class of voters who would be eligible for absentee voting. Hence,
the Justices offered a caveat of direct relevance to this issue before us now:
But there is a caveat as to general elections in this connection: Del.
Const. Art. 5, [§] 4A specifically enumerates the classifications of
persons eligible to vote by absentee ballot at general elections. We are
of the opinion that by expressly including certain classifications, the
drafters of [§] 4A impliedly excluded all other classifications. It is
beyond the power of the Legislature, in our opinion, to either limit or
enlarge upon the [§] 4A absentee voter classifications specified in the
Constitution for general elections. It is our opinion, therefore, that,
insofar as general elections are concerned, the classifications in [§]
5503(2) are unconstitutional limitations, and the classification in [§]
5503(3) is an unconstitutional enlargement, upon the ‘business or
occupation’ classification of absentee voter in Del. Const. Art. 5, [§]
4A. The mandate of [§] 4A, that the ‘General Assembly shall enact
general laws’ for absentee voting at general elections is not met by [§]
5503 insofar as the ‘business or occupation’ classification in [§] 4A is
concerned.83
I. Expansion of Absentee Voting via Constitutional Amendments
Over the next 50 years, the General Assembly adhered to the understanding—
developed by the Delaware judiciary in Lyons, Harrington, and the 1972 Opinion of
the Justices—that the General Assembly could only add absentee-voter
83
Id. at 722–23. Section 5503(2) purported to grant absentee-voting privileges to persons “[in]
the Armed Forces of the United States or the Merchant Marine of the United States, or attached to
and serving with the Armed Forces of the United States in the American Red Cross, Society of
Friends, or United Service Organizations . . . .”
30
classifications through the constitutional-amendment process. In 1977, the General
Assembly expanded Section 4A by amendment to allow voters on vacation to cast
absentee ballots.84 Section 4A was enlarged again in 1983 with an amendment
allowing persons with qualifying religious reasons to vote absentee.85 Then, in 1993,
the legislature passed another amendment expanding Section 4A, this time
permitting spouses and dependents of those in service of the state or of the United
States to participate in absentee voting.86 In its current form, Section 4A provides
that:
The General Assembly shall enact general laws providing that any
qualified elector of this State, duly registered, who shall be unable to
appear to cast his or her ballot at any general election at the regular
polling place of the election district in which he or she is registered,
either because of being in the public service of the United States or of
this State, or his or her spouse or dependents when residing with or
accompanying him or her because of the nature of his or her business
or occupation, because of his or her sickness or physical disability,
because of his or her absence from the district while on vacation, or
because of the tenets or teachings of his or her religion, may cast a ballot
at such general election to be counted in such election district.87
84
61 Del. Laws ch. 39, 52.
85
64 Del. Laws ch. 177, 444.
86
69 Del. Laws ch. 81, 174.
87
DEL. CONST. art. V, § 4A. We have quoted the text of Section 4A as it is recorded in Volume
1 (2007 Replacement Volume) of the Delaware Code Annotated published by MichieTM. One
might reasonably suspect that the absence of a comma between the phrases “his or her spouse or
dependents when residing with or accompanying him or her” and “because of the nature of his or
her business” is a scrivener’s error. Indeed, our review of the most recent amendment to Section
4A in 1991 and 1993 indicates that a comma was intended. See H.B. 298, 136th Gen. Assem.
(Del. 1991) and H.B. 192, 137th Gen. Assem. (Del. 1993). In any event, the inclusion or omission
of the comma has no bearing on our analysis here.
31
J. The Pandemic and the First Vote-by-Mail Statute
In 2020, the General Assembly confronted the challenge of providing for an
election that would, to the extent possible, protect voters and polling workers from
the highly contagious COVID-19 virus. Authorizing voters who did not fall within
the categories of citizens who, under Section 4A, were permitted to vote by absentee
ballot to vote by mail appeared to be the answer. But Section 4A and the
longstanding interpretation of it stood in the way.
The General Assembly found its way around this apparent obstacle through
the exercise of its emergency powers, which are found in Article XVII, section 1 of
the Constitution. Under Article XVII,
[t]he General Assembly in order to insure continuity of State and local
governmental operations in periods of emergency resulting from . . .
disease . . . shall have the power and the immediate duty . . . to adopt
such . . . measures as may be necessary and proper for insuring the
continuity of governmental operations.
Of course, resort to the Article XVII emergency powers would be unnecessary
if it were within the General Assembly’s plenary authority to authorize by statute
no-excuse voting by mail. Two critical findings and declarations in the 2020 Vote-
by-Mail Statute, however, show that the General Assembly understood that it was
constrained by Section 4A. In particular, the General Assembly found and declared
that:
32
(11) Article V, §4A of the Delaware Constitution permits absentee
voting in limited circumstances including when an elector is in the
public service of the United States, the nature of an elector’s business
or occupation, or an elector’s sickness, disability, or absence from the
district while on vacation. The list of reasons for absentee voting is
exhaustive . . .
(13) It is the judgment of the General Assembly that due to the highly
contagious nature of COVID-19 and the need to protect the electors and
polling workers in this State from infection of COVID-19, voting by
mail is necessary and proper for insuring the continuity of
governmental operations, and to conform to the requirements of Article
V, §4A, would be impracticable.88
Grounded in these findings and declarations, the 2020 Vote-by-Mail bill
passed both houses of the General Assembly with solid bipartisan support,89 and the
Governor promptly signed it into law. By its terms, though, the statute applied only
to the elections occurring in 2020.
Despite this temporal limitation and the exigencies presented by the COVID-
19 pandemic, the constitutionality of the 2020 Vote-by-Mail Statute was challenged.
Like the case before us now, because the plaintiffs sought to enjoin the Department
from implementing the statute, the challenge was filed in the Court of Chancery.
According to the Vice Chancellor, the plaintiffs’ objection to the 2020 statute under
Article V, Section 4A of the Constitution was “uncomplicated”90 and the issue to be
88
H.B. 346, 150th Gen. Assem. (Del. 2020) (emphases added).
89
H.B. 346 syn., 150th Gen. Assem. (Del. 2020), available at
https://legis.delaware.gov/BillDetail?legislationId=48136.
90
Republican State Comm. of Del. v. Dep’t. of Elections, 250 A.3d 911, 918 (Del. Ch. 2020).
33
decided “straightforward,”91 facilitated, in great part, by the parties’ shared
understanding of Section 4A. The court framed the issue in this way:
The parties agree that the list in Article V, § 4A of those citizens entitled
to vote by absentee ballot is meant to be exhaustive. Thus the General
Assembly may only expand remote voting beyond that list by properly
invoking the emergency powers of Article XVII, § 1 to “[e]nsure the
continuity of State and local governments.” In doing so, however, it
must conform to the Delaware Constitution’s requirements “except to
the extent that[,] in the judgment of the General Assembly[,] to do so
would be impracticable or would cause undue delay.”92
Thus, the court’s focus was on the propriety of the General Assembly’s
invocation of its emergency powers in service of an objective—no-excuse voting by
mail—that the parties understood could not otherwise be achieved. In the end, the
Court of Chancery determined that the General Assembly’s determination that the
2020 Vote-by-Mail Statute was necessary to the continuity of governmental
operations was not “clearly unreasonable or manifestly incorrect . . . .”93 Hence,
because the invocation of emergency powers under Article XVII is “a matter the
Constitution explicitly commends to [] legislative discretion,”94 the court did not
block implementation of voting by mail in 2020, even though its enactment by
statute was through an “otherwise extra-constitutional means.”95
91
Id. at 917.
92
Id. (emphasis added).
93
Id. at 921.
94
Id. at 922.
95
Id.
34
K. The Failed Vote-by-Mail Amendment
After the 2020 Vote-by-Mail Statute expired and in apparent recognition of
the limiting nature of Section 4A, the 150th General Assembly (2019-2020)
attempted to pass a constitutional amendment allowing for no-excuse voting by
mail.96 To accomplish this goal, the proposed amendment sought to replace the
entirety of Section 4A with the following language: “The General Assembly shall
enact general laws providing the circumstances, rules, and procedures by which
registered voters may vote by absentee ballot.”97
As mentioned above, the amendment of the Delaware Constitution is a two-
step process, requiring a two-thirds majority vote in both houses of the General
Assembly across two consecutive General Assemblies.98 The “first leg” of the
amendment was introduced as House Bill 73 on March 12, 2019.99 Its original
synopsis stated that the purpose of the amendment was to “eliminate from the
Delaware Constitution the limitations as to when an individual may vote by absentee
ballot.”100
96
H.B. 73, 150th Gen. Assem. (Del. 2020).
97
Id.
98
DEL. CONST. art. XVI, § 1.
99
H.B. 73 syn., 150th Gen. Assem. (Del. 2020), available at
https://legis.delaware.gov/BillDetail?legislationId=47181.
100
Id.
35
The bill passed the House on April 11, 2019, with 38 votes in favor and 3
opposed.101 The amendment was then transferred to the Senate where, on July 1,
2019, it initially failed to garner the necessary two-thirds majority vote, counting 11
senators in favor and 8 opposed.102 The act was revived in the Senate on January
16, 2020, this time passing the chamber with 14 “yeses” and 5 “noes.”103
After the amendment’s “first leg” was approved by the 150 th General
Assembly, its “second leg” was introduced as House Bill 75 to the 151 st General
Assembly on January 14, 2021.104 The House voted on the bill on June 10, 2021,
and this time it was defeated with 14 representatives opposed and only 25 in favor.105
The act was tabled in the House on June 17, 2021, effectively concluding the General
Assembly’s consideration of the amendment.106 It never reached the Senate for a
vote.107
Stymied by the proposed amendment’s failure in the House, the legislative
proponents of the expansion of no-excuse voting by mail reverted—albeit with a
101
Id.
102
Id.
103
Id.
104
H.B. 75 syn., 151st Gen. Assem. (Del. 2021), available at
https://legis.delaware.gov/BillDetail?legislationId=48291.
105
Id.
106
Id.
107
Id.
36
measure of diffidence108—to the ordinary legislative process. We turn next—and at
long last—to the resulting statutes, which are the subject of the current constitutional
challenges.109
L. The Challenged Statutes
i. Same-Day Registration Statute
As mentioned earlier, Sections 2036 and 2047 of Title 15 previously required
that voters be registered “by the fourth Saturday prior to the date of a primary or
general election, or by 10 days prior to a special election, in order to vote in that
election.”110 The Same-Day Registration Statute would allow Delaware voters to
register to vote on election day.
Under the new statute, same-day registrations would be handled at polling
location “help desk[s].”111 Any issues regarding the registration or eligibility of
voters would be referred to the Department staff from the county offices.112 The
108
Contemporaneous comments by members of the General Assembly suggested that the
legislature anticipated legal challenges to the new law. For example, the primary sponsor of the
Vote-by-Mail Statute in the Senate proclaimed that if “we have exceeded our powers, the Supreme
Court will tell us so.”108 The Speaker of the House asserted, “I don’t know whether it’s
constitutional or not constitutional, and neither do you guys or anybody else in here. The best way
to get this thing done is to hear this bill, move forward, and let a challenge go to the courts and let
them decide it.” Higgin, 2022 WL 4239590, at *5.
109
Id.110
Defs.’ Opening Br. in Supp. of Defs.’ Mot. for Summ. J. and Answering Br. in Opp’n to Pls.’
Mot. for Summ. J. at 10, Higgin v. Albence, C.A. No. 2022-0641, Dkt. 28.
111
Id.112
Id.37
Department would maintain an electronic poll list available by request to each
election candidate and update it in as close to real-time as possible.113 According to
Commissioner Albence, no election officers would be involved in handling
problems with registration or eligibility.114
ii. Vote-by-Mail Statute
The Vote-by-Mail Statute contained only one meaningful difference from the
2020 Vote-by-Mail Statute: where the 2020 version contemplated the automatic
delivery of an application to vote by mail to all voters, the 2022 version would
require the voter to request an application for a mail-in ballot.115 The voter would
not be required to offer a reason why she could not vote in person. A requested
ballot would then be mailed to qualified voters “who must confirm and provide
required identification information, seal the ballot envelope, sign the voter oath on
the envelope, place a provided security label over the identification information, and
either mail the ballot to the Department or place it in a secure drop-box at a county
election office.”116 The Department would process and scan ballots when they were
received, but they were not permitted to count ballots until election day.117
113
Higgin, 2022 WL 4239590, at *5.
114
Id.115
Id. at *5 (citing Summ. J. Arg. Tr. at 99:3–100:3), Higgin v. Albence, C.A. No. 2022-0641, Dkt.
36).
116
Id. at *6.
117
Id.
38
Completed ballots were to remain in a secure location until they were ready to be
tabulated.118 According to Commissioner Albence, no election officers would be
involved in the opening, processing, or tabulating of any of the mail-in ballots.119
II. PROCEEDINGS IN THE COURT OF CHANCERY
On the day—July 22, 2022—the Governor signed the two statutes into law,
Michael Higgin and Michael Mennella filed their complaint in the Court of
Chancery, seeking a declaration that the Vote-by-Mail Statute and the Same-Day
Registration Statute violated the Delaware Constitution and an injunction
prohibiting their implementation. At the time, Higgin was a resident of Bear,
Delaware, a registered voter and “a filed-candidate for State Representative in
District 15 for the November 8, 2022 General Election.”120 Mennella was a resident
of Newark, Delaware, a registered voter, and a past inspector of elections who hoped
to serve in that role “at the 2022 Primary and General Elections and at other future
elections.”121
That same day, Ayonne “Nick” Miles, Paul J. Falkowski, and Nancy M. Smith
filed their complaint, seeking similar relief but only as to the Vote-by-Mail Statute.
118
Defs.’ Opening Br. in Supp. of Defs.’ Mot. for Summ. J. and Answering Br. in Opp’n to Pls.’
Mot. for Summ. J. at 10, Higgin v. Albence, C.A. No. 2022-0641, Dkt. 28.
119
Id.
120
App. to Opening Br. at A21.
121
Id.
39
These Plaintiffs were, when their complaint was filed, Delaware residents—each
from different counties—and registered voters.
Because the Department was planning to mail ballots to potential voters in
early October the parties and the Court of Chancery agreed to an expedited litigation
schedule. After expedited briefing on the parties’ cross-motions for summary
judgment, the court entertained oral argument on August 31, 2022, and issued its
Memorandum Opinion two weeks later.
In a thoughtful and lucidly written opinion, after rejecting in part and
sidestepping in part the Department’s claim that all the Plaintiffs lacked standing to
challenge the statute, the Vice Chancellor found that he was “compelled by
precedent to conclude that the Vote-by-Mail Statute’s attempt to expand absentee
voting to the Delawareans who do not align with any of Section 4A’s categories
must be rejected.”122 The court did not feel so constrained, however, in its review
of the Same-Day Registration Statute. It viewed Article V, Section 4’s provision
that there must be “at least” two registration days within a specified time-period as
“establish[ing] a constitutional floor, not a ceiling.”123 In other words, the court
concluded that Section 4’s registration window within which there must be at least
122
Higgin, 2022 WL 4239590, at *2.
123
Id. at *1.
40
two registration days established a “constitutional minimum.” In consequence, the
legislative authorization of registration outside the window—even up to the closing
of the polls124 on election day—did not, the court decided, run afoul of Section 4.
The parties cross-appealed, the Department arguing that the Court of
Chancery erred in its determination that the Plaintiffs had standing to challenge the
statutes and that the Vote-by-Mail Statute was unconstitutional, and the Plaintiffs
contesting the court’s ruling that the Same-Day Registration Statute passed muster.
III. ISSUES RAISED ON APPEAL
The issues before us on appeal mirror those raised by the parties in the Court
of Chancery. The Department leads off with its contention that none of the Plaintiffs
has standing to challenge either of the statutes. But, the Department argues, even if
they did, the Court of Chancery erred when it struck down the Vote-by-Mail Statute.
Relying heavily on the presumption that duly enacted legislation is constitutional
and the absence in the Constitution of an express prohibition against voting by mail,
the Department urges us to disregard Delaware precedent that casts doubt on the
validity of the Vote-by-Mail Statute. Instead, we should, according to the
124
Under 15 Del. C. § 4947, “[t]he election shall be continued open until 8:00 p.m. when it shall
be closed.” Voters who are present and prepared to vote but waiting in a line at 8:00 p.m. are
nevertheless permitted to vote.
41
Department, follow the approach adopted by courts in Pennsylvania and
Massachusetts and revive the Vote-by-Mail Statute.
Not surprisingly, the Plaintiffs defend the Court of Chancery’s rejection of the
Vote-by-Mail Statue, which they claim “is in direct contravention of”125 Article V,
Sections 1 and 4 of the Delaware Constitution. The Plaintiffs contest, however, the
Court of Chancery’s upholding of the Same-Day Registration Statute, which was
based, they claim, on an “interpretation [that] is contrary to the constitution’s text
and intention, as well as precedent.”126
IV. ANALYSIS
We review the Court of Chancery’s granting of summary judgment de novo.127
Likewise, questions of law, including standing128 and constitutional claims129 are
reviewed de novo.
A. Standing
“Standing” refers to the right of a party to invoke the jurisdiction of a court to
enforce a claim or redress a grievance.130 “Standing is a threshold question that must
125
Answering Br. at 6.
126
Id. at 40.
127
Cerberus Int’l, Ltd. v. Apollo Mgmt., L.P., 794 A.2d 1141, 1153 (Del. 2002).
128
Rosenbloom v. Esso Virgin Islands, Inc., 766 A.2d 451, 458 (Del. 2000).
129
Doe v. Wilm. Hous. Auth., 88 A.3d 654, 661 (2014).
130
Dover Hist. Soc’y. v. City of Dover Plan. Comm’n, 838 A.2d 1103, 1110 (Del. 2003) (citing
Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, 1382 (Del. 1991)).
42
be answered by a court affirmatively to ensure that the litigation before the tribunal
is a ‘case or controversy’ that is appropriate for the exercise of the court’s judicial
powers.”131 The issue of standing is concerned “only with the question of who is
entitled to mount a legal challenge and not with the merits of the subject matter of
the controversy.”132 “The party invoking the jurisdiction of a court bears the burden
of establishing the elements of standing.”133
In the absence of a specific statutory grant of review, to establish standing in
Delaware, “a plaintiff or petitioner must demonstrate first, that he or she sustained
an ‘injury-in-fact’; and second, that the interests he or she seeks to be protected are
within the zone of interests to be protected.”134 Delaware’s standards for
determining standing are generally the same as the requirements for establishing
Article III standing in federal court.135 Unlike the federal courts, however, where
standing may be subject to stated constitutional limits, we “apply the concept of
standing as a matter of self-restraint to avoid the rendering of advisory opinions at
the behest of parties who are ‘mere intermeddlers.’”136
131
Riverfront Hotel LLC v. Bd. of Adjustment of City of Wilm., 213 A.3d 89, 2019 WL 3884031,
at *1 (citing Dover Hist. Soc’y, 838 A.2d at 1111).
132
Stuart Kingston, 596 A.2d at 1382 (emphasis in original).
133
Dover Hist. Soc’y, 838 A.2d at 1110.
134
Id.135
Dover Hist. Soc’y, 838 A.2d at 1111 (citing Oceanport Indus., Inc. v. Wilm. Stevedores, Inc.,
636 A.2d 892, 904 (Del. 1994)).
136
Id. at 1111 (citing Stuart Kingston, 596 A.2d at 1382) (cleaned up).
43
Generally, this means that “a plaintiff must demonstrate that: (i) the plaintiff
has suffered an ‘injury-in-fact,’ i.e., a concrete and actual invasion of a legally
protected interest; (ii) there is a causal connection between the injury and the conduct
complained of; and (iii) it is likely the injury will be redressed by a favorable court
decision.”137 In addition, the plaintiff must demonstrate that the interest they seek
to vindicate is “arguably within the zone of interests to be protected or regulated by
the statute or constitutional guarantee in question.”138 Although we refer to the
federal courts’ interpretation of Article III standing, Delaware courts are not bound
by the federal rules of justiciability.139 That is because the authority of our courts is
derived from the plenary and unenumerated powers of state sovereignty.140 Federal
courts, on the other hand, “can only exercise the sovereign power that the states
delegated to the United States as a limited government with enumerated powers.”141
137
Reeder v. Wagner, 974 A.2d 858, 2009 WL 1525945 (Del. June 2, 2009) (TABLE) (citing
Dover Hist. Soc’y, 838 A.2d at 1110).
138
Gannett Co., Inc. v. State, 565 A.2d 895, 897 (Del. 1989); Oceanport Indus., 636 A.2d at 904(“A party who is required to show an injury in fact, and that such injury is within the zone of
interests sought to be protected by the statute, clearly comes within the purview of these statutes.”);
Riverfront Hotel LLC, 2019 WL 3884031, at *1.
139
ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (“We have recognized often that the
constraints of Article III do not apply to state courts, and accordingly the state courts are not bound
by the limitations of a case or controversy or other federal rules of justiciability[.]”).
140
Murphy v. Nat’l Collegiate Athletic Ass’n, --- U.S. ----, 138 S. Ct. 1461, 1475–77, 200 L.Ed.2d
854 (2018).
141
In re Del. Pub. Schs. Litig., 239 A.3d 451, 510 (Del. Ch. 2020) (citing Murphy, 138 S. Ct. at1475–77).
44
Consequently, Delaware’s courts may hear cases and controversies that the federal
courts cannot.142
Because Higgin has challenged the constitutionality of the Vote-by-Mail
Statute and the Same-Day Registration Statute, if he has standing as to both
challenges, we need not pass upon the standing of the other Plaintiffs. Therefore,
we first attend to Higgin’s status as a candidate on the 2022 ballot at the time of his
challenge. The uncontested facts show that Higgin was a candidate for State
Representative in District 15 of Delaware in the 2022 election.143 As a candidate for
state office in Delaware, Higgin was actively campaigning, fundraising, meeting
with voters, and distributing campaign literature daily.144
Higgin claims that the Vote-by-Mail Statute is unconstitutional and that “the
mail-in-voting process requires a candidate to waste valuable time and resources on
campaigning to people who may have already voted through mail-in voting.”145 He
argues, moreover, that he “is entitled to a fair election, guaranteed by the Delaware
Constitution, and votes made and tabulated in violation of the Delaware Constitution
142
See Reeder, 2009 WL 1525945, at *2 (“Even absent the showing of a particularized injury . . .
this Court has recognized in certain cases that a plaintiff may have standing, as a taxpayer, to
enjoin the unlawful expenditure of public money or the misuse of public property.”).
143
Higgin Aff. ¶3-4, Higgin v. Albence, C.A. No. 2022-0641, Dkt. 24.
144
Id. at ¶ 6.
145
Answering Br. at 18.
45
are unlawful on their face.”146 Higgin argues further that “a fair election” is an
election conducted in accordance with the Delaware Constitution147 and that the
Same-Day Registration Statute would “deprive him of the opportunity to utilize the
full amount of time before the election to reach out to as many voters as possible
until election day.”148 We agree with the Court of Chancery that Higgin’s concerns
go beyond a claim of voting dilution.149 They “strike at the voting right itself” and
the tenet that “only votes legally made—count.”150
It seems nearly self-evident that a candidate who runs the risk of defeat
because of the casting of ballots that are the product of an extra-constitutional statute
has standing to challenge that statute. And, for standing purposes, it matters little
whether the ballots are unlawful because they are constitutionally unauthorized
absentee ballots or because they are cast by unlawfully registered voters. Simply
put, the casting and counting of legally invalid ballots would necessarily lead to an
inaccurate vote tally, which, as the United States Court of Appeals for the Eighth
Circuit has recognized, is a concrete and particularized injury to candidates
146
Verified Compl. ¶7, App. to Opening Br. at A20.
147
Oral Arg. on Cross-Motions for Summ. J., App. to Opening Br. at A470.
148
Verified Compl. ¶7, App. to Opening Br. at A20.
149
Higgin, 2022 WL 4239590, at *12 (“Regardless of how laudable the purpose behind the Vote-
by-Mail Statute may be, the statute cannot introduce into the General Election votes prohibited
under the Delaware Constitution.”).
150
Id.46
participating in the affected election.151 It is equally plain to us that Higgin’s interest
in an election that comports with Article V of the Delaware Constitution is squarely
within the zone of interests Article V is designed to protect and regulate.
This conclusion, in our view, is consistent with the United States Supreme
Court’s standing analysis in Lujan v. Defenders of Wildlife.152 In Lujan, Justice
Scalia observed that “[w]hen . . . the plaintiff is himself an object of the action (or
forgone action) at issue . . . there is ordinarily little question” that he has standing.153
To be sure, a fair point could be made that the direct objects of the Vote-by-Mail
Statute and Same-Day Registration Statute are the electors and registrants, and not
the candidates for whom they might vote.154 But to ignore that the ultimate objects
of our elections are the elected, as well as the defeated, would be to turn a blind eye
to the reality that those most immediately affected—and harmed by an inaccurate
vote count—are those running for office.155
151
Carson v. Simon, 978 F.3d 1051, 1058 (8th Cir. 2020) (holding that “[a]n inaccurate vote tally
is a concrete particularized injury to candidates” who were nominees to be electors for the State
of Minnesota in the 2020 presidential election and, as such, treated as “candidates” under
Minnesota law). See also Trump v. Wis. Elections Comm’n, 983 F.3d 919, 924 (7th Cir. 2020)
(concluding that then-President Trump alleged “‘concrete and particularized’ harm stemming from
the allegedly unlawful manner by which Wisconsin appointed its electors.”).
152
504 U.S. 555 (1992).
153
Id. at 561.
154
Cf. Michel v. Anderson, 14 F.3d 623, 626 (D.C. Cir. 1994) (“It could not be argued seriously
that voters would not have an injury if their congressman was not permitted to vote at all on the
House floor.”).
155
See Gallagher v. N.Y. State Bd. of Elections, 477 F. Supp. 3d. 19, 35 (S.D.N.Y. 2020)
(“Candidates have an interest not only in winning or losing their elections, but also in ensuring
47
Here, the facts surrounding the relationship of Higgin’s candidacy and the
imminent injury156 it would have suffered on election day had the challenged statutes
been left unchecked are sufficient to satisfy our standing requirements.157
B. Relevant Interpretative Principles
Our analysis of the constitutional claims advanced by Higgin is informed by
certain well-settled interpretative principles. We begin with the fundamental
precept that, as the Court of Chancery correctly observed, “[e]nactments of the
Delaware General Assembly are presumed to be constitutional.”158 “This is because
of the familiar principle which is nowhere questioned, that in the American States,
as distinguished from the Federal Government, the legislative power is as broad and
ample in its omnipotence as sovereignty itself, except in so far as it may be curtailed
by constitutional restrictions express or necessarily implied.”159
One who seeks to invalidate a statute on constitutional grounds “has the
burden of rebutting this presumption of validity and constitutionality which
that the final vote tally accurately reflects the votes cast.”). See also ASARCO Inc., 490 U.S. at
616 (the basic inquiry for Article III standing is whether the party “alleges personal injury that is
fairly traceable to the challenged conduct and likely to be redressed by the requested relief.”).
156
But see Lujan, 504 U.S. at 564 n.2 (“Although ‘imminence’ is concededly a somewhat elastic
concept, it cannot be stretched beyond the breaking point . . .”).
157
This conclusion is dependent upon Higgin’s status as an active candidate in the affected election
and renders consideration of his and the remaining Plaintiffs’ other standing arguments based on
their status as registered voters unnecessary.
158
Hoover v. State, 958 A.2d 816, 821 (Del. 2008), quoted in Higgin, 2022 WL 4239590, at *15.
159
Collison v. State ex rel. Green, 2 A.2d 97, 100 (Del. 1938).
48
accompanies every statute.”160 Constitutional prohibitions to legislative action must
be shown by “clear and convincing evidence.”161 As the Court of Chancery noted,
when evaluating the constitutionality of a challenged statute, the court shows
“deference to legislative judgment in matters ‘fairly debatable.’” 162 Consequently,
“[a]ll reasonable doubts as to the validity of a law must be resolved in favor of the
constitutionality of the legislation.”163
But when such a construction discerns a conflict between the Constitution and
a statute, the Constitution will prevail.164 Indeed, the foundation upon which our
constitutional jurisprudence is built is the principle that “the constitution controls
any legislative act repugnant to it.”165 It follows that “an act of the legislature
repugnant to the constitution is void.”166
160
McDade v. State, 693 A.2d 1062, 1065 (Del. 1997).
161
Sierra v. Dep't of Servs. for Children, Youth & their Families, 238 A.3d 142, 156 (Del. 2020).
162
Helman v. State, 784 A.2d 1058, 1068 (Del. 2001), quoted in Higgin, 2022 WL 4239590, at
*15.
163
Hoover, 958 A.2d at 821 (quoting McDade, 693 A.2d at 1065). The Court of Chancery
classified these principles as falling within “the doctrine of constitutional avoidance.” Higgin,
2022 WL 4239590, at *17. That “doctrine,” which is more aptly described as the “avoidance
canon,” cautions courts to avoid, when possible, the interpretation of a statute that would render
the statute unconstitutional or that would raise serious constitutional difficulties. See WILLIAM N.
ESKRIDGE, JR., INTERPRETING LAW: A PRIMER ON HOW TO READ STATUTES AND THE
CONSTITUTION 425 (2016). As we see it, that canon has no work to do in this case. Neither the
Court of Chancery nor this Court has been asked to interpret either of the challenged statutes as
there is no dispute as to their meaning.
164
Evans v. State, 872 A.2d 539, 553 (Del. 2005).
165
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), quoted in Evans, 872 A.2d at 553.
166
Id.49
C. Vote-by-Mail Statute
The Department’s defense of the Vote-by-Mail Statute leads with the
contention that voting by mail is fundamentally different than absentee voting, which
is the express subject matter of Article V, Section 4A of the Delaware Constitution.
It follows, argues the Department, that “the Court’s analysis need not reach Section
4A at all.”167 But, according to the Department, even if we were to consult Section
4A, because it does not expressly prohibit voting by mail without an excuse— that
is, it does not explicitly state that the categories of eligible absentee voters are
exhaustive—only an implied restriction will suffice to defeat the Vote-by-Mail
Statute. And the Court of Chancery’s “reluctant[]” finding of an implied prohibition
“in the limited decades-old (and readily distinguishable) Delaware case law
addressing absentee voting and mail-in voting”168 is, the Department says, contrary
to “modern judicial pronouncements counseling against engrafting an unstated
implied limitation.”169 The Department’s preferred approach is embodied, not in the
Delaware precedents and not in the apparently long held understanding of the
General Assembly, but in the reasoning of the high courts of Pennsylvania and
Massachusetts.
167
Opening Br. at 21.
168
Id. at 22.
169
Id. at 23.
50
We reject the Department’s claim that Section 4A’s absentee-voting
provisions are not implicated in the proper analysis of the Vote-by-Mail Statute. We
cannot, moreover, ignore the historical context in which our constitutional absentee-
voting provisions were adopted and the settled understanding of them as expressed
by all three branches of our state government in favor of the approach by other states
whose historical experience differs from ours. Consequently, we reaffirm that our
Constitution impliedly excludes voting by mail by electors who do not fall within
one of the categories set forth in Section 4A.
(i) Applicability of Section 4A
The Department’s contention that “mail-in voting is not absentee voting” is
grounded in the notion that “Section 4A contemplates absentee voting as predicated
on a voter’s inability to appear in-person to vote” while “the Vote-by-Mail Statute
allows all registered voters to apply and submit a mail-in ballot, and they need not
identify a reason.” Thus, the Department argues, “[t]here is no constitutional
prohibition on the General Assembly’s ability to authorize voting by mail, and the
General Assembly is free to legislate as it deems fit.”170
As the Court of Chancery observed, the Department offers no authority for
distinguishing voting by mail from absentee voting. It bears noting here that, when
170
Id. at 21.
51
the General Assembly passed the 2020 Vote-by-Mail bill under its emergency
powers, it explicitly linked that temporary measure to its inability to legislate around
Section 4A’s absentee-voting provisions. Along these same lines, when the
Department defended the 2020 statute’s constitutionality in the Court of Chancery,
it candidly acknowledged the relevance of Section 4A’s absentee-voting provisions
and the similarity of the 2020 statute and the absentee-voting statute codified at 15
Del. C. ch. 55.171 Given that, it is not surprising that the Court of Chancery then
described the 2020 Vote-by-Mail Statute as authorizing “general absentee
voting.”172
Nor is it surprising to us that two years later the Court of Chancery would
conclude that the Department’s distinction between voting by mail and absentee
voting is “contradicted by Delaware law and, frankly, common usage.”173 We
concur in that assessment.
Both the Vote-by-Mail Statute and Section 4A address the authorization of
voting without appearing at a regular polling place while the Vote-by-Mail Statute
expands that authorization to include electors who merely choose not to appear. This
171
Defs.’ Corrected Answering Br. in Opp’n to Pls.’ Mot. for Summ. J. at 9, Republican State
Comm. of Del. v. Dep’t of Elections, C.A. No. 2020-0685, Dkt. 25.
172
Republican State Comm., 250 A.2d at 918. In this case, the Court of Chancery noted that the
court’s 2020 opinion “consistently used the terms interchangeably.” Higgin, 2022 WL 4239590,
at *23.
173
Higgin, 2022 WL 4239590, at *23.
52
does not create an essential difference in the underlying subject matter of the
constitutional provision and the statute, which is the scope of eligibility for remote
voting. The statute purports to expand that scope by adding a new—and admittedly
all-encompassing category: voters who choose to vote absentee. It is no small
coincidence that, when the General Assembly recently attempted to adopt an
amendment that would allow what the Department now attempts to distinguish as
“Mail-in Voting” it did so by proposing that Section 4A’s absentee-voting provisions
be amended. The proposed amendment speaks for itself: “The General Assembly
shall enact general laws providing the circumstances, rules, and procedures by which
registered voters may vote by absentee ballot.”174 Now calling what appears to be
general or universal absentee voting by another name will not insulate the statute
from review under Section 4A.
As previously discussed in this opinion, each rendition of this state’s
constitution, culminating in the still operative 1897 Constitution, has envisioned that
electors will vote in-person at their regular polling place. In fact, it is precisely
because our Constitution “contemplates and requires the personal attendance of the
voter at the polls,” that the Court of General Sessions struck down the 1923 absentee
voting law in State v. Lyons, concluding that “the statutory authority for voters to
174
See H.B. 73, 150th Gen. Assem. (Del. 2020) (emphasis added).
53
cast their ballots by mail is unconstitutional under the present provisions of the
Constitution.”175 Importantly, the invalid law allowed voters who “may be
absent”—for specific reasons—on election day to “mail[] . . . or . . . [to] deliver in
person” prepaid ballots to their local polling place.176
Four years later, in State ex rel. Walker v. Harrington, this Court affirmed the
Lyons court’s conclusion that absentee voting was repugnant to the Constitution. As
previously discussed, Harrington involved a challenge to the Soldiers’ Vote Act,
which allowed soldiers to vote away from their regular polling place by permitting
them to vote in-person at their place of encampment.177 The Harrington court struck
down the law because, according to the opinion, not only did the Constitution require
that votes be cast in-person—which the Soldiers’ Vote Act technically provided for
by erecting a polling place at the soldiers’ camp—it also “require[d] the polling
places for the reception of ballots at general elections . . . to be located within the
territorial limits of the State.”178 Taken together, Lyons and Harrington made clear
that our Constitution prohibited voting away from one’s local polling place—
regardless of what form such voting took.
175
Lyons, 5 A.2d at 503 (emphasis added).
176
33 Del. Laws ch. 33, 258–60.
177
Harrington, 30 A.2d at 690.
178
Id. at 693.
54
The addition of Section 4A to the Delaware Constitution in 1943—an
apparent response to Lyons and Harrington179—created, for the first time, a
constitutional exception to the general rule requiring that all votes be cast in-person
at a voter’s local polling place, expressly identifying specific categories of voters
who would be permitted to vote absentee. Because it is the only provision in our
Constitution concerning absentee voting, and because we consider mail-in voting to
be a form of absentee voting—it is voting away from one’s regular polling place—
the validity of the Vote-by-Mail Statute, which expands the categories of voters
allowed to vote absentee, is properly assessed with reference to Section 4A.
(ii) The Opinion of the Justices (1972)
The Department next argues that, even if voting by mail is equivalent to
absentee voting, the Vote-by-Mail Statute is nevertheless constitutional because,
“although the plain text of Section 4A requires the General Assembly to provide for
absentee voting for voters in [] specific categories, nothing in Section 4A prevents
the General Assembly from enacting absentee voting for additional categories of
voters.”180 In other words, the General Assembly is free to extend the right to vote
179
The Court of Chancery accurately noted that Harrington was decided between the first and
second legs of the amendment adopting Section 4A. Higgin, 2022 WL 4239590, at *26 n.217.
From this, the court speculated that the Harrington decision might have been “eased significantly
by the anticipated second leg . . . .” Id. We, however, do not see the timing of Harrington vis-à-
vis the ultimate passage of the amendment as relevant to the opinion’s constitutional analysis.
180
Opening Br. at 22.
55
absentee to all voters because Section 4A, by its own terms, does not purport to be
an exhaustive list; for the Department, it “establishes a constitutional floor,” rather
than “a ceiling.”181 We disagree. The overwhelming weight of our history, as
evidenced by the opinions and actions of generations of legislators, election officials,
and judges, compels the conclusion that the categories of voters identified in Section
4A constitute a comprehensive list of eligible absentee voters. In consequence, the
legislature is impliedly prohibited from either abridging or enlarging those
categories except by constitutional amendment.
We will not rehearse that history in full here: a summary, at the risk of
repetition, of our prior historical discussion should suffice. In the more than two
centuries preceding the adoption of Section 4A, all voting occurred in person and at
regular polling places. In the year of Section 4A’s adoption—in fact less than two
months before182—this Court remarked that “the drafters of the Constitution
intended that electors, when offering to vote must personally appear at polling places
within the limits of the State . . . .”183 This, of course, followed close on the heels of
the Court of General Sessions’ pronouncement four years earlier that the General
181
Id.182
The Harrington opinion was issued on February 22, 1943. See Harrington, 30 A.2d at 688. It
appears that the approval of Section 4A was communicated to the executive on April 9, 1943. See
H.B. 5, 109th Gen. Assem. (Del. 1943).
183
Harrington, 30 A.2d at 692.
56
Assembly was powerless to provide for absentee voting by statute.184 In the midst
of this constitutional skirmish, the General Assembly initiated the amendment
process that led to the adoption of Section 4A.185 Rather than allowing for expansive
absentee voting, the amendment carefully limited eligibility to electors who were
“unable to appear to cast his or her ballot at any general election at the regular polling
place of the election district in which he or she is registered, either because of being
in the public service of the United States or this State, or because of the nature of his
or her business or occupation, or because of his or her sickness or physical disability
. . . .”186
For the next 29 years, as best we can tell, absentee voting was strictly limited
to public servants, disabled voters, and certain persons in the work force, on the
condition that they were unable to appear in person at their polling places. In 1972,
in response to questions propounded by the Governor regarding the then-current
absentee voting statute, which, as noted earlier, expanded absentee-voting eligibility
to qualified electors who were “unavoidably absent” on the day of the election, each
of the three Justices then composing the entirety of this Court opined that:
184
Lyons, 5 A.2d at 503.
185
The amendment cleared the first leg of the amendment process in the 108th Session of the
General Assembly in 1941 and the second leg in the 109th Session of the General Assembly in
1943. See 43 Del. Laws ch. 1, 3 (documenting “first leg”) and 44 Del. Laws ch. 1, 3 (documenting
“second leg”).
186
44 Del. Laws ch. 1, 3.
57
Del. Const. Art. 5, [§] 4A specifically enumerates the classifications of
persons eligible to vote by absentee ballot at general elections. We are
of the opinion that by expressly including certain classifications, the
drafters of [§] 4A impliedly excluded all other classifications. It is
beyond the power of the Legislature, in our opinion, to either limit or
enlarge upon the [§] 4A absentee voter classifications specified in the
Constitution for general elections. It is our opinion, therefore, that
insofar as general elections are concerned, the classifications in [§]
5503(2) are unconstitutional limitations, and the classification in [§]
5503(3) is an unconstitutional enlargement, upon the ‘business or
occupation’ classification of absentee voter in Del. Const. Art. 5, [§]
4A.187
This opinion, we admit, does not have binding precedential effect.188 Yet the
1972 Opinion of the Justices has been treated, over the last fifty years and until this
litigation, as the well-settled interpretation of Section 4A. Each time the General
Assembly sought to expand the categories of voters entitled to vote absentee, they
attempted to do so by means of constitutional amendment—successfully in 1977,
1983, and 1993. In 2020, the General Assembly explicitly found—in an effort to
187
Opinion of the Justices, 295 A.2d at 722 (emphasis added).
188
See HOLLAND, supra note 8, at 181 (“Since the nature of this advisory function is nonjudicial,
it does not constitute an adjudication by the Supreme Court. Accordingly, advisory opinions by
the individual justices do not have a binding precedential effect.”). See also State v. Highfield,
152 A. 45, 52 (Del. 1930) (“The relator very largely bases his contention on an advisory opinion
involving a similar question given by the then Chancellor and Law Judges, to the Governor, in
1910. While that opinion was contrary both to our conclusion and to that of the majority of the
court below in this case, the facts would seem to indicate that the Judges who gave it did not have
the benefit of the argument of counsel or the citation of authorities on the question before them,
and that the rights of the parties were, therefore, not fully presented to them. Further than that, as
was pointed out by the court below, opinions of that character, in this State, are usually not reported
and are not considered to have the binding effect of a judgment regularly entered in a court
proceeding.”)
58
authorize universal absentee voting ahead of the 2020 election through the
legislature’s emergency powers—that “[t]he list of reasons for absentee voting
[contained in Article V, § 4A] is exhaustive.”189 And in defending against challenges
to the 2020 Vote-by-Mail act in the Court of Chancery, lawyers for the Department
“concede[d] that the Delaware Constitution lists reasons for which ballots may be
provided for absentee voting [and] that this list of reasons is intended to be
comprehensive.”190
The General Assembly continued to adhere to this traditional understanding
of Section 4A even after the expiration of the 2020 act, attempting to pass, in 2021,
the “second leg” of an amendment to create a constitutional right to universal
absentee voting. Only when this amendment failed did the General Assembly decide
to avoid fifty years of precedent and expand Section 4A via statute—a strategy that
the Department now defends despite its previous statements to the Court of Chancery
in 2020. Rather than accept the Department’s change of position, we review our
history through a widened lens and affirm that Section 4A’s categories are
exhaustive.
189
H.B. 346, 150th Gen. Assem. (Del. 2020) (emphasis added).
190
Republican State Comm., 250 A.3d at 913.
59
But it is not history alone that persuades us that the Vote-by-Mail Statute
violates Section 4A. Our construction of Section 4A also comports with two time-
honored principles of interpretation. Under the linguistic canon known as “expressio
(or inclusio) unius,” the expression of one thing—here the categories of absentee
voters provided in Section 4A—suggests the exclusion of others.191 Of course, this
canon “must be applied with great caution, since its application depends so much on
context[] . . . .”192 Here, however, the context of Section 4A’s enactment and
amendment as described above weighs heavily in favor of its application. Thus,
Section 4A’s enumeration of absentee-voter classifications suggests the exclusion of
additional classifications.
The Vote-by-Mail Statute also creates a surplusage problem. As the Court of
Chancery aptly observed, “if both Section 4A and the Vote-By-Mail Statute enable
citizens to vote without appearing in-person, and the Vote-By-Mail Statute is
unlimited as to such eligibility, then the Vote-By-Mail statute necessarily would
paint over the specific categories of eligible citizens enumerated in Section 4A.”193
Put another way, if electors are permitted to vote without appearing at their regular
polling places, Section 4A’s categories become superfluous, and the possibility that
191
See ESKRIDGE, supra note 163, at 408.
192
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS
107 (2012).
193
Higgin, 2022 WL 4239590, at *24.
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a future General Assembly might someday repeal the Vote-by-Mail Statute thereby
reviving Section 4A is an insufficient reason for ignoring this problem.194
For all these reasons, we stand by our predecessors’ conclusion that the
General Assembly is constitutionally prohibited from enlarging upon Section 4A’s
absentee-voter classifications.
(iii) Decisions from Sister States
In reaching our decision, we have considered, and have declined to follow
opinions—one by the Supreme Court of Pennsylvania195 and the other from the
Supreme Judicial Court of Massachusetts196—both of which reached a different
conclusion than ours under similar circumstances. In diverging from the approach
taken in Pennsylvania and Massachusetts, we do not insinuate a failure of wisdom
or analysis on the part of our learned counterparts in those states; indeed, had our
historical record and constitutional tradition not pointed us firmly in the direction
we have taken, we might very well have followed their lead. In the end, however,
194
According to the Court of Chancery, the Department had identified a “straightforward and
compelling harmonization of the Vote-by-Mail Statute and Article V, Section 4A. . . ” predicated
on the notion that statutes are not necessarily permanent. Higgin, 2022 WL 4239590, at *28 n.221.
A future General Assembly, the Department notes, might choose to repeal the Vote-by-Mail
Statute in which case Section 4A would no longer be superfluous. We are not inclined to base our
analysis on this contingency.
195
McLinko v. Dep’t of State, 279 A.3d 539 (Pa. 2022).
196
Lyons v. Sec’y of Commonwealth, 192 N.E.3d 1078 (Mass. 2022).
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we are satisfied with the guidance provided by our own history as reflected in our
case law and its longstanding acceptance by our political branches.
D. Same-Day Registration Statute
We turn next to Higgin’s claim that the Same-Day Registration Statute
conflicts with Article V, Section 4’s requirement that voter registration occur within
a specified window of time—“not more than one-hundred and twenty days nor less
than sixty days before and be completed not more than twenty nor less than ten days
before such election.”197 If this requirement sets strict temporal boundaries around
voter registration, then allowing voters to register as contemplated by the Same-Day
Registration Statute through the day of the election is outside constitutional bounds.
The Court of Chancery rejected Higgin’s reading of Section 4. In the court’s
eyes, Section 4’s stipulation that there should be “at least two registration days”
within the specified time period results in “[a] plain-language reading of Section 4
[that] suggests that it provides for a minimum period of registration, and the Same-
Day Registration Statute[’s] providing for additional days would not disturb that
constitutionally[]protected minimum.”198
197
DEL. CONST. art. V, § 4.
198
Higgin, 2022 WL 4239590, at *16 (emphasis in original).
62
The Court of Chancery also pointed to the 1925 amendment of Section 4,
discussed earlier, as a “very significant change to the text of Article V, Section 4”
that not only supported the court’s plain-meaning analysis, “but also independently
compel[led] the conclusion that the Higgin Plaintiffs have failed to show clear
evidence that the Same-Day Registration Statute violates the Delaware
Constitution.”199 Of particular interest to the court was the deletion of the words “to
be completed” from Section 4’s delineation of the registration window.
We disagree with the Court of Chancery’s conclusion. The court’s
interpretation of Section 4, in our view, does not take sufficient account of the appeal
and correction procedures that are part of the constitutionally mandated registration
process. Moreover, it places undue emphasis on a non-substantive, and partially
semantic revision of Section 4 in the 1925 amendment. In our view, the Same-Day
Registration Statute cannot be reconciled with Section 4 and is therefore void.
As mentioned earlier, Section 4 envisions both an appeal process and a
correction process. The appeal process is described in the fourth paragraph of
Section 4:
From the decision of the registration officers granting or refusing
registration, or striking or refusing to strike a name or names from the
registration list, any person interested, or any registration officer, may
appeal to the resident Associate Judge of the County, or in case of his
199
Id. at *18.
63
or her disability or absence from the County, to any Judge entitled to
sit in the Supreme Court, whose determination shall be final; and he or
she shall have power to order any name improperly omitted from the
said registry to be placed thereon, and any name improperly appearing
on the said registry to be stricken therefrom, and any name appearing
on the said registry, in any manner incorrect, to be corrected, and to
make and enforce all necessary orders in the premises for the correction
of the said registry.200
In recognition of the importance of this appeal right, the General Assembly
enacted Chapter 21 of Title 15 to govern registration appeals. Among other things,
the registration-appeal statute requires that a notice of appeal be in writing and
“served personally or by registered mail, return receipt requested . . . .”201 All
required notices must be served “at least 5 days prior to the day on which the appeal
or application is made to the court.”202 The statute also requires the appellant “to
make and file . . . an affidavit that notice of that appellant’s intention to present the
appeal on the day was given to the Department or registration officers or both, and
to the person affected by the appeal. . . .”203 And the statute directs the court to give
priority to appeals that remain “undetermined within 30 days before that date of the
general election” and to “enter an order . . . on or before the tenth calendar day
preceding the last registration day.”204
200
DEL. CONST. art. V, § 4
201
15 Del. C. § 2104(a).
202
15 Del. C. § 2104(b).
203
15 Del. C. § 2105.
204
15 Del. C. § 2106.
64
It is evident that the Same-Day Registration Statute is patently incompatible
with this appeal regime. But, one might counter, a conflict between the Same-Day
Registration Statute and the registration-appeal statute does not render the Same-
Day Registration Statute unconstitutional. This would miss the point, however,
which is that permitting voter registration up to and including the date of the election
effectively eliminates the ability to conduct an orderly appeal process. Because
Section 4 creates appeal rights and the Same-Day Registration Statute interferes with
those rights, the statute violates Section 4.
The same can be said of the correction process. Section 4 provides that
registrations “may be corrected as hereinafter provided at any time prior to the day
of holding the election.”205 To state the obvious, an incorrect registration based on
an application received on the day of the election will not be subject to correction
under this provision. Again, the Same-Day Registration Statute clashes with the
time-honored provisions of Section 4.
The Court of Chancery’s answer to the charge that the Same-Day Registration
Statute conflicts with Section 4’s provision that “such registration[s] may be
corrected . . . at any time prior to the day of holding the election” was that “‘such
registration’ refers to registrations described in the immediately preceding passage
205
DEL. CONST. art. V, § 4 (emphasis added).
65
and is silent as to registrations occurring on the day of the general election.”206
Under the Court of Chancery’s reading, it seems to us, some registrations would be
subject to correction and others would not. But this resolution of an otherwise clear
conflict between the statute and Section 4 runs head-on into Section 4’s uniformity
requirement, imposed by the very first words of Section 4: “The General Assembly
shall enact uniform laws for the registration of the voters in this State entitled to vote
under this Article. . . .”207
In short, the Court of Chancery’s indulgence of the presumption of the Same-
Day Registration Statute’s constitutionality goes too far. We read Section 4 as
establishing a deadline for voter registration that will allow time for the appeal and
correction processes to work. By enacting the Same-Day Registration Statute, which
permits registration beyond that deadline, the General Assembly exceeded its
legislative authority.
We also disagree with the notion that the 1925 amendment of Section 4
signaled the General Assembly’s intention to eliminate the registration deadline.
The original language of Section 4 provided for “biennial registration” that “shall be
commenced not more than one hundred and twenty days nor less than sixty days
206
Higgin, 2022 WL 4239590, at *16.
207
DEL. CONST. art. V, § 4 (emphasis added).
66
before and be completed not more than twenty days nor less than ten days before
such election.”208 The 1925 amendment eliminated the “biennial registration”
requirement in favor of a requirement of “at least two registration days in a period
commencing not more than one hundred and twenty days, nor less than sixty days
before, and ending not more than twenty days, nor less than ten days before, each
General Election . . . .”209
The Court of Chancery chided Higgin for “fail[ing] to grapple with [the
amendment’s] unambiguous deletion of ‘be completed’ from the text.”210 The court,
it would seem, saw this deletion as removing the earlier version’s registration
deadline. But the court appears to have disregarded the amendment’s inclusion of
substitute language that set the registration period as “ending” within the same
temporal limitations as were applicable under the pre-amendment language—not
more than twenty days nor less than ten days before the election. At least as to the
issue before us, the amendment’s replacement of a registration period that is to be
“completed” within a range of dates with one “ending” within that same date range
lends no support to Court of Chancery’s interpretation of Section 4.
208
DEL. CONST. of 1897, art. V, § 4 (emphasis added), quoted in Higgin, 2022 WL 423950, at *18.
209
DEL. CONST. art. V, § 4 (emphasis added).
210
Higgin, 2022 WL 4239590, at *18.
67
Finally, we note that, although our conclusion that the Same-Day Registration
Statute is incompatible with Section 4’s registration deadline and its relationship to
the appeal and correction process is textually driven, it is also consistent with the
framers’ intention “that the possession of the qualification of the right to vote should
be settled and determined, not at the moment of election, but by the registration[,]”211
and that “if the registration is to serve any purpose, it is to afford an opportunity of
ascertaining the facts after deliberation and within a suitable period before the
election.”212
Although these passages were not cited in Harrington, they support the
Court’s conclusion in that case that “the qualification of voters should be determined
before election day . . . .”213 The Same-Day Registration Statute is at odds with that
objective.
V. CONCLUSION
Our decision—announced two months ago and explained in this opinion—is
not intended to reflect the Court’s views on the relative advantages and drawbacks
of universal absentee voting or a later registration deadline. The resolution of those
211
2 CHARLES G. GUYER & EDMOND C. HARDESTY, DEBATES AND PROCEEDINGS OF THE
CONSTITUTIONAL CONVENTION OF THE STATE OF DELAWARE 1101 (Milford Chronicle Publ’g Co.
1958) (1897).
212
Id.213
Harrington, 30 A.2d at 691.
68
issues is within the General Assembly’s province. The Court’s role—indeed, our
duty—is to hold the challenged statutory enactments up to the light of our
Constitution and determine whether they are consonant or discordant with it. For
the reasons discussed in this opinion, we conclude that the Vote-by-Mail Statute and
the Same-Day Registration Statute violate the Constitution’s relevant provisions and
thus cannot stand. The changes to our election regime embodied in the challenged
statutes must be effected, if at all, by constitutional amendment. Accordingly, the
Court of Chancery’s judgment as to the Vote-by-Mail Statute is affirmed; as to the
Same-Day Registration Statute, it is reversed.
69