Higgin v. Albence, Miles v. Dept. of Elections ( 2022 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
MICHAEL HIGGIN and MICHAEL )
MENNELLA, )
)
Plaintiffs, )
)
v. )
) C.A. No. 2022-0641-NAC
THE HONORABLE ANTHONY J. )
ALBENCE, in his official capacity as )
State Election Commissioner, and )
STATE OF DELAWARE )
DEPARTMENT OF ELECTIONS, )
)
Defendants. )
AYONNE “NICK” MILES, PAUL J. )
FALKOWSKI, and NANCY M. )
SMITH, )
)
Plaintiffs, )
) C.A. No. 2022-0644-NAC
v. )
)
DELAWARE DEPARTMENT OF )
ELECTIONS, and ANTHONY J. )
ALBENCE, State Election )
Commissioner, )
)
Defendants. )
MEMORANDUM OPINION
Date Submitted: August 31, 2022
Date Decided: September 14, 2022
M. Jane Brady, BRADY LEGAL GROUP LLC, Lewes, Delaware; Charlotte Davis,
Noel H. Johnson, PUBLIC INTEREST LEGAL FOUNDATION, Indianapolis,
Indiana; Counsel for Plaintiffs Michael Higgin and Michael Mennella.
Julianne E. Murray, LAW OFFICES OF MURRAY, PHILLIPS & GAY,
Georgetown, Delaware, Counsel for Plaintiffs Ayonne “Nick” Miles, Paul J.
Falkowski, and Nancy M. Smith.
Allison J. McCowan, Zi-Xiang Shen, Victoria R. Sweeney, STATE OF
DELAWARE DEPARTMENT OF JUSTICE, Wilmington, DE, Counsel for
Defendants Delaware Department of Elections and Anthony J. Albence, State
Election Commissioner.
COOK, Vice Chancellor.
Delaware’s general election is set to occur on November 8, 2022. Earlier this
year, our General Assembly enacted laws allowing Delawareans to register to vote
the same day as the general election (the “Same-Day Registration Statute”) and to
cast their ballot by mail in the general election for any reason (the “Vote-by-Mail
Statute”).1 Within hours of the laws being put into effect, the plaintiffs in this
litigation filed two separate lawsuits challenging the new laws’ constitutionality.
The parties agreed to a highly expedited schedule and brought cross-motions for
summary judgment to resolve the plaintiffs’ litigation well before ballots would be
mailed to voters for the upcoming general election.
The plaintiffs represent various components of the election process—voters,
a political candidate, and an election official. They argue that the Same-Day
Registration Statute and the Vote-by-Mail Statute are irreconcilable with the
Delaware Constitution. Accordingly, they ask the Court to (1) enjoin the
defendants—the State’s Department of Elections and its commissioner, Anthony J.
Albence—from implementing the statutes for the general election; and (2) declare
that the statutes at issue are unconstitutional with respect to the general election.
1
To be clear, the plaintiffs’ challenge only concerns the general election and has no bearing
on the primary election held on September 13, 2022.
1
For their part, the defendants argue that the plaintiffs lack standing to
challenge the laws. They also argue the plaintiffs have not met their burden for
permanent injunctive relief. In particular, the defendants argue that the plaintiffs
cannot demonstrate actual success on the merits because the laws are valid, failed to
demonstrate irreparable harm, and also failed to prove that the balance of the equities
weighs in their favor.
As for standing, although the plaintiffs likely would not have standing under
federal jurisprudence, I conclude that the plaintiffs have standing to challenge the
Vote-by-Mail Statute under state law. Delaware state courts are not bound by the
federal standing doctrine and adopt standing rules to avoid issuing advisory opinions
to “mere intermeddlers.” In this case, the plaintiffs represent various parts of the
election process, and I conclude they have a substantial interest in this court reaching
a decision on the merits, particularly given the fundamental nature of voting. I also
assume, for the purposes of this opinion, that the plaintiffs have standing to challenge
the Same-Day Registration Statute.
Turning to the merits, unlike the federal legislative power, our State’s General
Assembly enjoys broad legislative power curtailed only by the limits of the state and
federal constitutions. There is also a strong presumption of constitutionality, and to
overcome that presumption, there must be “clear evidence” of its incompatibility
with our State’s governing document. The plaintiffs’ challenge to the Same-Day
2
Registration Statute does not overcome that presumption. Article V, Section 4
provides that there must be “at least” two registration days within the time-period
described there. By its own terms, it establishes a constitutional floor, not a ceiling.
In addition, the General Assembly adopted an amendment to Article V, Section 4 in
1925 that specifically deleted language requiring that registration “be completed” by
a certain number of days before a general election. The plaintiffs’ arguments fail to
grapple with this significant change to the constitutional text. Thus, the plaintiffs
have failed to meet their burden of showing by “clear evidence” a constitutional
violation, and the Same-Day Registration Statute stands.
The Vote-by-Mail Statute presents a much thornier issue. This is not the first
time this Court has reviewed mail-in voting laws. In 2020, the General Assembly
enacted a very similar vote-by-mail law under its emergency powers, which was
upheld by this Court. Today, however, emergency powers are not invoked. The
General Assembly, and the defendants, instead rely on Article V, Section 1, which
provides that the General Assembly “may by law prescribe the means, methods and
instruments of voting so as best to secure secrecy and the independence of the voter,
preserve the freedom and purity of elections and prevent fraud, corruption and
intimidation thereat.”
The plaintiffs argue that Article V, Section 4A of the Delaware Constitution,
however, provides for absentee voting in certain enumerated circumstances. Our
3
Supreme Court and this Court have consistently stated that those circumstances are
exhaustive. Therefore, as a trial judge, I am compelled by precedent to conclude
that the Vote-by-Mail Statute’s attempt to expand absentee voting to Delawareans
who do not align with any of Section 4A’s categories must be rejected. As I describe
in this opinion, were I to construe the relevant constitutional sections and statutes on
a blank slate, I would likely conclude that the plain text of the constitution, coupled
with the strong presumptions in favor of constitutionality of legislative acts, lead me
to a different result. But, in light of applicable and controlling precedent, I must find
that the Vote-by-Mail Statute is unconstitutional for purposes of the general election.
Finally, I conclude that, in light of my ruling on the merits, there would be
irreparable harm in the absence of injunctive relief and that the balance of the
equities favors entry of an injunction.
For these reasons, the plaintiffs’ motion for summary judgment is denied in
part and granted in part, and the defendants’ motion for summary judgment is also
denied in part and granted in part.
4
I. BACKGROUND2
A. The Parties
This matter involves two related actions commenced on July 22, 2022.
Plaintiffs in both actions are Delaware residents.
Plaintiffs Michael Higgin and Michael Mennella filed the first of the two
actions. Mr. Higgin is a resident of Bear, Delaware; a registered voter; and a General
Election candidate for State Representative in District 15.3 Mr. Mennella is a
resident of Newark, Delaware; is a registered voter; and plans to vote in the
upcoming General Election.4 Mr. Mennella has also served as an inspector of
elections “in at least 8 elections during the last 5 to 6 years” and plans to serve as an
inspector of elections during the upcoming General Election.5 Mr. Mennella states,
2
I base the facts of this summary judgment ruling on the evidence submitted under affidavit
with the briefing as well as the pleadings involving undisputed facts. No material facts are
in dispute for purposes of resolving the parties’ cross-motions for summary judgment. See
Pls.’ Combined Reply Br. in Support of Pls.’ Mot. for Summ. J. and Answering Br. in
Resp. to Defs.’ Cross-Mot. for Summ. J. at 4 (C.A. No. 2022-0641-NAC, Dkt. 29) (“Pls.’
Combined Reply Br.”) (stating that Plaintiffs do not dispute Defendants’ recitation of facts
other than one immaterial assertion by Defendants regarding 15 Del. C. § 4937).
3
Affidavit of Michael Higgin, ¶¶ 3–4 (C.A. No. 2022-0641-NAC, Dkt. 24) (“Higgin Aff.”).
4
Affidavit of Michael Mennella, ¶¶ 3, 5 (C.A. No., 2022-0641-NAC, Dkt. 23) (“Mennella
Aff.”).
5
Mennella Aff., ¶¶ 4, 6. Mr. Mennella’s counsel acknowledged that, as of oral argument
on Plaintiffs’ cross-motion for summary judgment, Mr. Mennella had not yet been selected
to serve as an inspector of elections.
5
“[i]n his role as inspector of elections, [he] is responsible for overseeing the election
at his assigned polling place and administering the election in accordance with the
Delaware Constitution, statutes, and other laws.”6
Plaintiffs Ayonne Miles, Paul Falkowski, and Nancy Smith filed the second
related action. Mr. Miles is a resident of Kent County, Delaware, and a registered
voter.7 Mr. Falkowski is a resident of New Castle County, Delaware, and a
registered voter.8 Ms. Smith is a resident of Sussex County, Delaware, and a
registered voter.9
I refer to the first action as the “Higgin Action” and to the second action as
the “Miles Action.” I refer to the plaintiffs in the Higgin Action as the “Higgin
Plaintiffs” and to the plaintiffs in the Miles Action as the “Miles Plaintiffs.”
References to “Plaintiffs” includes the Higgin Plaintiffs and the Miles Plaintiffs,
collectively.
6
Verified Complaint for Declaratory Judgment and Injunctive Relief, ¶ 14 (C.A. No. 2022-
0641-NAC, Dkt. 1) (“Higgin Compl.”); see also 15 Del. C. §4946 (providing the powers
of election officers, including inspectors of election, to preserve order during elections).
7
Verified Complaint Seeking Injunctive Relief and Declaratory Judgment, ¶ 1 (C.A. No.
2022-0644-NAC, Dkt. 1) (“Miles Compl.”).
8
Miles Compl., ¶ 2.
9
Id., ¶ 3.
6
The defendants in both the Higgin Action and the Miles Action are the same:
Anthony J. Albence, in his official capacity as Delaware’s State Election
Commissioner, and the State of Delaware Department of Elections (“DOE”)
(collectively, “Defendants”).10 Commissioner Albence has statutory responsibilities
to provide general supervision to the DOE and to develop regulations, policies,
procedures, and guidelines in accordance with Title 15 of the Delaware Code.11 The
DOE is the Delaware agency responsible for “administer[ing] the election laws of
this State,” including registering and educating voters, conducting fair and impartial
elections, managing campaign finance, and collecting and reporting election
results.12
B. The Delaware Constitution
Article V of the Delaware Constitution governs elections. This litigation
implicates multiple provisions of Article V of the Delaware Constitution.13 It is
10
See Higgin Compl.; Miles Compl.
11
See 15 Del. C. § 302; Affidavit of Anthony J. Albence, ¶ 2 (C.A. No. 2022-0641-NAC,
Dkt. 28) (“Albence Aff.”).
12
15 Del. C. § 101(6); see also About Agency, STATE OF DELAWARE DEPARTMENT OF
ELECTIONS, https://elections.delaware.gov/aboutagency.shtml (last visited September 14,
2022).
13
See Appx. A for the full text of the applicable provisions of Article V of the Delaware
Constitution.
7
under the authority of Section 1 of Article V that the General Assembly purported
to implement its “no-excuse” vote-by-mail system.14 The parties’ arguments
concerning the Same-Day Registration Statute implicate Article V, Section 4, which
sets forth the laws governing the “[r]egistration of votes” and “days for registration.”
The parties’ arguments concerning the Vote-by-Mail Statute implicate Article V,
Section 4A, which sets forth “[g]eneral laws for absentee voting.”
C. Legislative Background
This litigation concerns the constitutionality of two recently passed Delaware
laws. The first law allows Delaware voters to vote by mail in the General Election
without providing a reason for doing so (referred to as the Vote-by-Mail Statute).15
Of note, and as discussed in greater detail below, the Vote-by-Mail Statute was
preceded by a similar vote-by-mail law passed during the COVID-19 pandemic. The
second law at issue allows individuals to register to vote up through and including
on the same day that they cast their ballot in the General Election (referred to as the
Same-Day Registration Statute).16 Both statutes were signed into law on July 22,
14
83 Del. Laws ch. 353 (2022).
15
83 Del. Laws ch. 353 (2022); Transmittal Affidavit of Zi-Xiang Shen, Ex. A (C.A. 2022-
0641-NAC, Dkt. 28) (“Shen Aff.”).
16
83 Del. Laws ch. 354 (2022); Shen Aff., Ex. B.
8
2022, and became effective immediately, including for the September 13, 2022
Primary Election and for the upcoming November 8, 2022 General Election.17
1. The Prior Vote-by-Mail Statute
In 2020, the General Assembly enacted a statute that permitted all Delaware
voters to vote by mail (the “Prior Vote-by-Mail Statute”).18 The General Assembly
passed the measure pursuant to its emergency powers due to the ongoing COVID-
19 pandemic.19 The Prior Vote-by-Mail Statute expired by its own terms on January
12, 2021.20
The statute included multiple findings and declarations by the General
Assembly. The eleventh finding and declaration of the General Assembly made
therein states that the list of six reasons for absentee voting provided under Article
V, Section 4A of the Delaware Constitution is “exhaustive.”21 In addition, the
twelfth and thirteenth findings and declarations provide that the authority of the
General Assembly to pass the Prior Vote-by-Mail Statute is found under the General
17
Albence Aff., ¶ 12; Shen Aff., Exs. C–D. Plaintiffs commenced this litigation within
hours after the Governor signed the two bills into law.
18
82 Del. Laws ch. 245, § 3 (2020) (codified at 15 Del. C. § 5620), repealed by 82 Del.
Laws ch. 245, § 4 (2020).
19
82 Del. Laws ch. 245, § 1 (2020).
20
82 Del. Laws ch. 245, § 4 (2020).
21
82 Del. Laws ch. 245, § 1 (2020).
9
Assembly’s emergency powers.22 This point was then reiterated in the synopsis,
which provides, in part, that the General Assembly’s “authority to implement voting
by mail stems from . . . Article XVII of the Delaware Constitution[,]” which provides
the General Assembly with the power “to adopt measures that may be necessary and
proper for insuring the continuity of governmental operations including
nonconformity with the requirements of the Constitution when in the judgment of
the General Assembly to do so would be impracticable.”23
The statute was then the subject of litigation in this Court, against the same
defendants, in an action styled Republican State Committee of Delaware v.
Department of Elections. The plaintiffs in that litigation challenged the Prior Vote-
by-Mail Statute as violating the Delaware Constitution.24 Following expedited
litigation, this Court granted summary judgment in favor of the defendants.25
22
Id.
23
Del. H.B. 346 syn., 150th Gen. Assem. (2020) (emphasis added).
24
Republican State Comm. of Del. v. Dep’t. of Elections, 250 A.3d 911, 914 (Del. Ch.
2020).
25
Id. at 922. In the course of his ruling, Vice Chancellor Glasscock noted that “the DOE
concedes that the Delaware Constitution lists reasons for which ballots may be provided
for absentee voting, that this list of reasons is intended to be comprehensive, and that the
current epidemic health crisis is not among them.” Id. at 913. During oral argument in
this matter, Defendants’ counsel indicated that she did not agree with the point. Transcript
of Oral Argument on Cross-Motions for Summary Judgment Held via Zoom at 100:14–
103:13 (C.A. No. 2022-0641-NAC, Dkt. 36) (“Summ. J. Arg. Tr.”). In any event, Plaintiffs
have not made any serious effort to argue for estoppel in this litigation.
10
2. Attempted Constitutional Amendment
In 2020, the General Assembly also approved the “first leg” of an amendment
to the Delaware Constitution that would replace Article V, § 4A in its entirety 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.”26
In June 2022, the General Assembly attempted to pass the “second leg” of the
amendment to Article V, § 4A.27 This time, however, the vote was unsuccessful, as
it failed to obtain the necessary two-thirds approval of both houses of the 151st
General Assembly.28 According to Plaintiffs, the Chairwoman of the House
Administration Committee, who supported the amendment to Article V § 4A, “after
realizing that there were not enough votes at the time to get the bill passed through
a second session, . . . changed her vote to ‘No’ so the bill could later be brought to
the floor if the sponsors were able to secure sufficient votes to pass the
26
Del. H.B. 73, 150th Gen. Assem. (2020).
27
See Del. H.B. 75 syn., 151st Gen. Assem. (2021) (“This Act is the final leg of a
constitutional amendment that would eliminate from the Delaware Constitution the
limitations as to when an individual may vote by absentee ballot.”).
28
See House Bill 75, DELAWARE GENERAL ASSEMBLY,
https://legis.delaware.gov/BillDetail?LegislationId=48291 (last visited September 12,
2022).
11
amendment.”29 The parties agree that, once the amendment to the Delaware
Constitution failed to obtain the necessary two-thirds approvals, the General
Assembly passed the Vote-by-Mail Statute that is the subject of this litigation less
than three weeks later by simple majority approval.30
This alternative approach created significant controversy. The remarks by
legislators indicate an awareness by at least some members of the General Assembly
that the laws might not be constitutional and that a challenge in the courts would be
forthcoming. For example, a member of the Senate, who was the primary sponsor
of the Vote-by-Mail Statute, stated that, “[s]hould the Supreme Court determine at
some point related to this bill . . . that we have exceeded our powers, the Supreme
Court will tell us so” and that “having clarity on that issue is positive for this body
[and] for the voters of Delaware . . . .”31 Perhaps most notably, the Speaker of the
House stated, “I don’t know whether it’s constitutional or not constitutional, and
29
Plaintiffs’ Amended Motion for Emergency Temporary Restraining Order, ¶ 8 (C.A. No.
2022-0641-NAC, Dkt. 4) (“Pls’ Am. Mot. Emergency TRO”).
30
Compare House Bill 75, Delaware General Assembly,
https://legis.delaware.gov/BillDetail?LegislationId=48291 (last visited September 12,
2022), with Senate Bill 320, Delaware General Assembly,
https://legis.delaware.gov/BillDetail?legislationId=129685 (last visited September 12,
2022) (showing that House Bill 75 was defeated in the House on June 10, 2022, and Senate
Bill 320 was passed by the House on June 29, 2022).
151st Gen. Assem. Senate – 35th Legislative Day – Session 2 at 11:54:57 P.M (Senator
31
Gay).
12
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.”32
3. Current Vote-by-Mail Statute
The Vote-by-Mail Statute allows qualified, registered voters to apply and
request a mail-in ballot from the DOE, which confirms that the elector qualifies to
vote.33 The requested ballot is mailed to the voter, 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 DOE or place it in a secure drop-box at a county election
office.34 Once the DOE receives the mailed-in ballot, the DOE may process and
scan the ballot, but it may not tabulate the ballot until the day of the election.35
32
151st Gen. Assem. House – 33rd Legislative Day – Session 2 at 6:48:30 P.M. (Speaker
Schwartzkopf); see also Plaintiffs’ Opening Brief in Support of Motion for Summary
Judgment at 17–18 (C.A. No. 2022-0644-NAC, Dkt. 14) (stating that Senator Richardson
argued the law was unconstitutional and observing that “[i]n both houses there was
testimony from attorneys that SB 320 was unconstitutional”).
33
83 Del. Laws ch. 353, § 5604(A) (2022).
34
83 Del. Laws ch. 353, § 5608(A) (2022).
35
Id.; see also 83 Del. Laws ch. 353, § 5611A(6) (“The results of the mail ballots shall not
be extracted or reported before the polls have closed on the day of the election.”).
13
Commissioner Albence’s affidavit provides that election officers are not involved in
opening, processing, or tabulating any mail-in ballots.36
Quite notably, at oral argument, counsel for the Defendants acknowledged
that the current Vote-by-Mail Statute is not materially different from the Prior Vote-
by-Mail Statute, except that under the Prior Vote-by-Mail Statute all voters
automatically received an application to vote by mail whereas voters must request
such an application under the current Vote-by-Mail Statute.37
4. The Same-Day Registration Statute
The Same-Day Registration Statute extends the deadlines to register to vote
in a primary, general, or special election to include the day of the election.38 Sections
2036 and 2047 of Title 15 previously provided that voters had to 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.39 Title 15 does not
36
Albence Aff., ¶ 17.
37
Summ. J. Arg. Tr. at 99:3–100:3.
38
15 Del. C. § 2036; see also Del. H.B. 25 syn., 151st Gen. Assem. (2022) (“This bill
provides for election day registration for presidential primary, primary, special, and general
elections whereas currently the deadline is the fourth Saturday prior to the date of the
election.”).
39
15 Del. C. § 2036 (2015); 79 Del. Laws ch. 275, § 2036; Albence Aff. ¶ 18.
14
establish a deadline prior to which a voter cannot register.40 Under the Same-Day
Registration Statute, same-day registrations at polling locations will be handled at a
“help desk,” and registration issues will be handled by DOE staff from the county
offices.41 Commissioner Albence’s affidavit provides that election officers are not
involved in addressing registration or eligibility concerns.42 The DOE will maintain
an electronic poll list with updates made as close to real-time as possible; that list
may be requested by an election candidate.43
D. Delaware’s 2022 Primary Election and General Election
The 2022 Delaware Primary Election took place on September 13, 2022. The
2022 Delaware General Election will take place on November 8, 2022. None of the
Plaintiffs in this litigation are challenging either statute with respect to the Primary
Election. Their claims concern only the General Election. The DOE can begin
40
15 Del. C. § 2036; Albence Aff., ¶ 18.
41
Albence Aff., ¶¶ 20–21. Plaintiffs dispute this fact and assert that 15 Del. C. § 4937
specifies that “[i]n the event of a challenge as to the identity of the voter or residency of
the voter, the voter’s right to vote shall be determined by a majority vote of the inspector
and the 2 judges of the election.” Pls.’ Combined Reply Br. at 4. I note that this dispute is
immaterial to the resolution of this case, and so is not addressed.
42
Albence Aff., ¶ 21.
43
Albence Aff., ¶¶ 22–23.
15
distributing ballots to electors who requested to cast their vote by mail for the
General Election no earlier than October 10, 2022.44
E. Procedural History
On July 22, 2022, within hours after Delaware’s Governor signed the
challenged statutory enactments into law, the Higgin Plaintiffs filed their verified
complaint for declaratory and injunctive relief, along with a motion to expedite and
a motion for a temporary restraining order. On that same day, in a separate action,
the Miles Plaintiffs filed their verified complaint for declaratory and injunctive relief
and a motion to expedite and for entry of a status quo order.
Both sets of plaintiffs have asserted claims that the Vote-by-Mail Statute
violates the Delaware Constitution and will dilute their votes by allowing individuals
to vote in a manner contrary to the Delaware Constitution. Only the Higgin Plaintiffs
challenge the Same-Day Registration Statute as violating the Delaware Constitution.
The parties agreed to treat this litigation as expedited to facilitate resolution
before the DOE would need to disseminate mail-in ballots for the General Election.45
44
Albence Aff., ¶ 16.
45
See Defendants’ Letter to the Court in Response to the Court’s Letter Dated July 27,
2022, at 1-2 (C.A. No. 2022-0641-NAC, Dkt. 5) (“With respect to Plaintiffs’ motions for
expedited proceedings, Defendants do not oppose expedition of the cases. The parties have
reached an agreement to submit cross-motions for summary judgment on an expedited
briefing schedule to attain timely final resolution of the issues.”).
16
Following a teleconference with the parties on Friday, July 29, 2022, the Miles
Plaintiffs filed a letter with the Court on August 1, 2022, withdrawing their motion
for a status quo order based on Defendants’ counsel’s representation that no ballots
could be mailed to potential voters before October 10, 2022.46 That same day,
August 1, counsel in the Higgin Action filed an Amended Motion for Emergency
Temporary Restraining Order.47
I denied the TRO by bench ruling on August 5, 2022. 48 In doing so, I
concluded that, while the Higgin Plaintiffs had demonstrated a colorable claim, they
had not adequately shown imminent, irreparable harm, particularly given that this
Court would rule on their claims well before the October 10 ballot mailing date.49 I
noted that the balance of the equities also favored denying the TRO.50 This was
because of the practical difficulties with implementing injunctive relief while the
DOE was attempting to quickly implement the new Vote-by-Mail Statute for the
46
Letter to Vice Chancellor Cook Withdrawing Request for Status Quo Order and
Including Plaintiffs’ Proposed Scheduling Order (C.A. 2022-0644-NAC, Dkt. 9).
47
Pls’ Am. Mot. Emergency TRO.
48
Order (C.A. 2022-0641-NAC, Dkt. 18).
49
Transcript of Oral Argument and Rulings of the Court on Plaintiffs’ Motion for a
Temporary Restraining Order at 33–51 (C.A. No. 2022-0641-NAC, Dkt. 31).
50
Id. at 50–51.
17
fast-approaching Primary Election—an aspect of the law that none of the Plaintiffs
challenged.51
II. ANALYSIS
A. The Relevant Legal Standards
Summary judgment is appropriate if there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.52 “Where, as here,
the only issues in contention are interpretations of statutory or constitutional
language—both of which are questions of law—summary judgment is
appropriate.”53
As noted, Plaintiffs ask this Court for not just declaratory relief but a
permanent injunction enjoining Defendants from “enforcing Delaware statutes
allowing mail-in voting” and “same-day registration.”54 “The elements for
permanent injunctive relief are: (1) actual success on the merits; (2) irreparable harm
51
Id.
52
See Ct. Ch. R. 56(c); Del. Elevator, Inc. v. Williams, 2011 WL 1005181, at *7 (Del. Ch.
Mar. 16, 2011).
53
Republican State Comm., 250 A.3d at 916; see also First Health Settlement Class v.
Chartis Specialty Ins. Co., 111 A.3d 993, 998 (Del. 2015) (“Interpretation of a statute is a
question of law . . . .”).
54
Higgin Compl. at 19; see also Miles Compl. at 10 (requesting in their prayer that, among
other relief, the court issue “a permanent injunction enjoining Defendants from
implementing [the Vote-by-Mail Statute]” and “enjoining Defendants from publishing
processes and procedures for implementation” of that law for the General Election).
18
will be suffered if injunctive relief is not granted; and (3) the harm that will result
from a failure to enjoin the actions that threaten plaintiff outweighs the harm that
will befall the defendant if an injunction is granted.”55 Our Supreme Court has called
a permanent injunction “an extraordinary form of relief.”56
B. Standing
Before addressing Plaintiffs’ claims, I must determine whether they have
standing to bring them. “The term ‘standing’ refers to the right of a party to invoke
the jurisdiction of a court to enforce a claim or redress a grievance.”57 “It is
concerned only with the question of who is entitled to mount a legal challenge . . .
55
Sierra Club v. Del. Dep’t of Nat. Res. & Env’t Control, 2006 WL 1716913, at *3 (Del.
Ch. June 19, 2006); see also Jestice v. Buchanan, 2000 WL 875417, at *1 (Del. Ch. May
23, 2000) (“In order to demonstrate entitlement to a permanent injunction, the plaintiff
must demonstrate not only that she is correct in her legal claim, but that absent the
injunction she will be irreparably harmed and that this harm outweighs harm reasonably
likely to occur to the defendants should the injunction be entered.”).
56
N. River Ins. Co. v. Mine Safety Appliances Co., 105 A.3d 369, 384 (Del. 2014).
57
Dover Hist. Soc’y v. Dover Plan. Comm’n, 838 A.2d 1103, 1110 (Del. 2003).
19
.”58 Because standing is a “jurisdictional requirement[,]”59 it is “properly a threshold
question that the Court may not avoid.”60
To establish standing, a plaintiff must show, among other things, an injury to
a legally protected interest.61 The injury element divides into three components:
injury in fact, causation, and redressability.62 Defendants only dispute Plaintiffs’
alleged injuries in fact. So I will start and end there.
To qualify as an injury in fact, the asserted harm must be “concrete and
particularized, and . . . actual or imminent, not conjectural or hypothetical.”63 For
an injury to be particularized, “it must affect the plaintiff in a personal and individual
58
Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, 1382 (Del. 1991) (emphasis in
original).
59
Hall v. Coupe, 2016 WL 3094406, at *3 (Del. Ch. May 25, 2016) (citing Dover Hist.
Soc’y, 838 A.2d at 1110).
60
Morris v. Spectra Energy P’rs (DE) GP, LP, 246 A.3d 121, 129 (Del. 2021) (internal
quotation marks omitted); see Dover Hist. Soc’y, 838 A.2d at 1110 (“Standing is a
threshold question that must be answered . . . affirmatively to ensure that the litigation . . .
is a ‘case or controversy’ that is appropriate for the exercise of the court's judicial
powers.”); see also Gerber v. EPE Hldgs., LLC, 2013 WL 209658, at *12 (Del. Ch. Jan.
18, 2013) (“If there is no standing, there is no justiciable substantive controversy.”).
61
E.g., Gannett Co., Inc. v. State, 565 A.2d 895, 897 (Del. 1989).
62
E.g., Oceanport Indus., Inc. v. Wilm. Stevedores, Inc., 636 A.2d 892, 904 (Del. 1994).
63
Id. (internal quotation marks omitted).
20
way.”64 For an injury to be concrete, it “must be ‘de facto’; that is, it must actually
exist.”65 A “risk of real harm” may qualify as concrete.66
Standing “cannot be inferred argumentatively” but rather must “affirmatively
appear in the record.”67 “When a motion for summary judgment is filed” on the
question of standing, “the plaintiff can no longer rest on ‘mere allegations.’”68
Instead, the plaintiff “must set forth by affidavit or other evidence specific facts”
supporting its standing.69
64
Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (internal quotation marks omitted).
65
Id. at 340.
66
Id. at 341–42; see, e.g., Save the Courthouse Comm. v. Lynn, 408 F. Supp. 1323, 1332
(S.D.N.Y. 1975) (Even if “a benefit hardly can be quantified,” a “loss of it [still may]
support a finding of standing.”); accord Dover Hist. Soc’y, 838 A.2d at 1112; see also
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454
U.S. 464, 472 (1982) (To establish injury in fact, the plaintiff must “show that he personally
suffered some actual or threatened injury as a result of the putatively illegal conduct of the
defendant.” (emphasis added) (internal quotation marks omitted)).
67
Spencer v. Kemna, 523 U.S. 1, 10–11 (1998) (internal quotation marks omitted).
68
Dover Hist. Soc’y, 838 A.2d at 1110; see also Appriva S’holder Litig. Co., LLC v. EV3,
Inc., 937 A.2d 1275, 1284 n.14 (Del. 2007) (“The burden is on the Plaintiffs to prove
jurisdiction exists.” (internal quotation marks omitted)).
69
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (internal quotation marks and
citation omitted); accord Dover Hist. Soc’y, 838 A.2d at 1110.
21
1. Standing to Challenge the Same-Day Registration Statute
Only the Higgin Plaintiffs challenge the Same-Day Registration Statute. Each
of them asserts a separate harm.
Higgin alleges that the Same-Day Registration Statute harms his political
candidacy. He claims that the Same-Day Registration Statute (i) has weakened or
frustrated his campaign; and (ii) ultimately will make the General Election
unreliable.70
For his part, Mennella alleges harm based on his anticipated role as a volunteer
election inspector. According to Mennella, an election inspector “oath” will require
him to admit to the polls any person who is authorized to vote under the Same-Day
Registration Statute.71 But because that Statute is unconstitutional, he insists, he
effectively will be required to approve illegal voting.72 Worse, if he refuses to admit
same-day-registered voters, he claims he would face fines and even incarceration.73
In Defendants’ view, none of these grounds is sufficient to confer standing
because each one rests on a speculative injury. There is some appeal to this argument
70
See Higgin Aff. ¶¶ 7, 9–10.
71
See Mennella Aff. ¶¶ 7–9.
72
See id. ¶¶ 11–12.
73
See id. ¶¶ 10, 13.
22
as applied to Higgin. Faced with a motion for summary judgment, Higgin must
marshal “specific facts” supporting his standing.74 He has not. Higgin offers very
little, if any, evidence that his campaign efforts have been disrupted.75 Nor has he
explained how the Same-Day Registration Statute has personally or concretely
impeded (or will impede) his continuing campaign efforts.76
In addition, as discussed later in this decision, Higgin argues that the Delaware
Constitution requires all registration for the General Election to occur no less than
10 days prior to the General Election. Assuming that is true, the maximum harm
caused by the Same-Day Registration Statute would be contained to the limited
number of voters who register to vote over those final 10 days. Compared with the
number of votes that may ultimately be cast via the Vote-by-Mail Statute,77 the
74
Dover Hist. Soc’y, 838 A.2d at 1110 (internal quotation marks omitted).
75
See Higgin Aff. ¶ 6 (affirming simply that Higgin is “actively campaigning”).
76
See id. ¶ 7 (raising concerns about proper allocation of campaign resources, but omitting
specific facts supporting a finding that the Same-Day Registration Statute has negatively
impacted resources already devoted or strategies or methods designed to devote resources
in the future).
77
A brief review of Delaware election data suggests that, when made available to everyone,
mail-in voting significantly increases the number of absentee votes cast for each candidate.
Compare 2020 General Election Report, Del. Dep’t of Elections,
https://elections.delaware.gov/results/html/index.shtml?electionId=GE2020 (last updated
Nov. 11, 2020, 2:45 PM), with 2016 General Election Report, Del. Dep’t of Elections,
https://elections.delaware.gov/archive/elect16/elect16_general/html/election.shtml (last
updated Nov. 17, 2016, 4:35 PM).
23
alleged harm inflicted by the Same-Day Registration Statute is small and
Defendants’ arguments concerning the speculative nature of the minimal evidence
put forward by Higgin have more force.
With respect to Mennella, Defendants’ arguments are more fluid. Mennella
and Defendants contest whether Mennella would, as an election inspector, be
required to have any involvement whatsoever in connection with voter registration
under the Same-Day Registration Statute.78 Defendants, however, also have
maintained that the challenged statutes were only recently enacted and that their
implementation is on-going.79
Defendants also wade into the thickets of Mennella’s specific responsibilities
as an election inspector vis-à-vis the Same-Day Registration Statute.80 For standing
78
Although Mennella has not yet been selected as an election inspector, see Mennella Aff.
¶ 6, he anticipates, based on his prior years of service, that he will be selected, see Summ.
J. Arg. Tr. at 19:11–18. Defendants have noted that Mennella has not yet been selected,
but have not contested the likelihood that he will be selected. See, e.g., Summ. J. Arg. Tr.
at 72:8–15. Accordingly, I treat this fact as undisputed.
79
See, e.g., Albence Aff. ¶ 26 (listing DOE’s “ongoing efforts” to implement the new laws).
Indeed, the fluidity surrounding the DOE’s implementation of the challenged statutes was
a theme of Defendants’ opposition to the Higgin Plaintiffs’ motion for a temporary
restraining order. See Defs.’ Opp’n to Pls.’ Am. Mot. for Emergency TRO ¶ 19 (C.A. No.
2022-0641-NAC, Dkt. 12) (characterizing as “speculative” the idea that Mennella “would
be required to conduct his duties under conflicting direction” without explaining why that
is so).
80
See generally 15 Del. C. §§ 4904, 4937(c), 4938, 5112, 5126.
24
purposes in this particular expedited context, I do not believe that I am required to
dwell on all the possible hypothetical fact scenarios that could arise, particularly
when the challenged law is new, the implementation of the law is on-going, and
questions surrounding how it will ultimately be implemented will likely remain
outstanding (or continue to arise) until the General Election.81
In any event, because of my decision below concerning success on the merits,
I need not actually decide if the Higgin Plaintiffs have standing to challenge the
Same-Day Registration Statute. In Republican State Committee, Vice Chancellor
Glasscock assumed, without deciding, the existence of standing because the
claimant’s underlying challenge failed on the merits anyway.82 That approach is
appropriate here because, even if they had standing, the Higgin Plaintiffs still would
not prove actual success on the merits of their challenge to the Same-Day
Registration Statute. Accordingly, and given the expedited nature of this litigation,
I will assume they have standing so I may resolve that aspect of this case.
81
See In re Del. Pub. Schs. Litig., 239 A.3d 451, 510 (Del. Ch. 2020) (“State courts . . . are
free to reject procedural frustrations [involving standing] in favor of just and expeditious
determination on the ultimate merits.” (internal quotation marks omitted)).
82
See Republican State Comm., 250 A.3d at 918.
25
2. Standing to Challenge the Vote-by-Mail Statute
All Plaintiffs challenge the Vote-by-Mail Statute. Separately, the Higgin
Plaintiffs reassert the same bases for standing that I discussed previously. Together,
each of the Plaintiffs argues that the Vote-by-Mail Statute will undermine the
election by allowing unauthorized votes to be cast. This injury is particularized and
concrete, they say, because it is likely to “dilute” or cancel out their votes.83
Plaintiffs’ use of the word “dilution” has led Defendants to advance a phalanx
of cases holding that voter dilution is a paradigmatic generalized grievance
insufficient to differentiate an individual voter from any other citizen.84
It is generally true that, “[i]n order to achieve standing, the plaintiff’s interest
in the controversy must be distinguishable from the interest shared by other members
of a class or the public in general.”85 And this is particularly true under federal law,
on which Defendants almost exclusively rely. But Defendants’ narrow focus on
federal standing doctrine overlooks Delaware standing doctrine. Delaware standing
doctrine is less rigid. In Delaware, standing is “predominantly discretionary and
83
Pls.’ Combined Reply Br. at 11–12.
See Defs.’ Opening Br. in Supp. of Mot. for Summ. J. at 18–19 (C.A. No. 2022-0641-
84
NAC, Dkt. 28) (“Defs.’ Opening Br.”).
85
Stuart Kingston, 596 A.2d at 1382.
26
prudential”86 and applied “as a matter of self-restraint to avoid the rendering of
advisory opinions at the behest of parties who are ‘mere intermeddlers.’”87
As discussed below, I do not find Plaintiffs to be “mere intermeddlers.” They
are voters, a political candidate, and an election official. They represent various
groups directly affected by these laws. The constitutionality of laws that change
basic aspects of voting—one of the most fundamental rights Delawareans possess—
are of great public importance. All this is enough to establish standing.
a. Plaintiffs’ Standing under Delaware Law
The standards for evaluating standing to sue in federal court are “generally the
same as the standards for determining standing to bring a case or controversy within
the courts of Delaware.”88 Even so, Delaware courts may apply them differently.
“Unlike the federal courts, where standing may be subject to stated constitutional
limits,”89 Delaware courts derive their adjudicative authority from the “plenary and
unenumerated powers” of state sovereignty.90 As a result, Delaware courts “may
86
In re Del. Pub. Schs. Litig., 239 A.3d at 510.
87
Dover Hist. Soc’y, 838 A.2d at 1111 (quoting Stuart Kingston, 596 A.2d at 1382).
88
Id. at 1111.
89
Id.
90
In re Del. Pub. Schs. Litig., 239 A.3d at 510.
27
impose more lenient standing requirements than federal courts[.]”91 After all, “state
courts are not bound by . . . federal rules of justiciability[.]”92 State courts may keep
ajar the courthouse doors federal law has shut.93
The remedial flexibility afforded to state courts is reflected in the Delaware
Constitution. Under the Delaware Constitution, courts are open to “every person”
who suffers an injury.94 Given this constitutional guarantee, Delaware courts, unlike
federal courts, have “a duty to afford a remedy for every substantial wrong[.]”95
Indeed, “somewhat uniquely,” Delaware provides “a remedy at law for any injury.”96
Delaware’s permissive approach to standing is reinforced by its “historic and
constitutional separation of law and equity.”97 “Historically, equity jurisdiction has
91
Id. (internal quotation marks omitted).
92
ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989).
93
See In re Del. Pub. Schs. Litig., 239 A.3d at 510 (“Based on the structure of our
cooperative federal system, state court standing doctrine is appropriately more flexible than
federal standing doctrine, because the state courts play a different and more expansive role
than the federal courts.”).
94
Del. Const. art. I, § 9.
95
Randy J. Holland, The Delaware State Constitution 75 (2d ed. 2017).
Maurice A. Hartnett, III, Delaware’s Charters and Prior Constitutions, in The Delaware
96
Constitution of 1897: The First One Hundred Years 29 (Randy J. Holland & Harvey
Bernard Rubinstein eds., 1997).
97
Monroe Park v. Metro. Life Ins. Co., 457 A.2d 734, 738 (Del. 1983).
28
taken its shape and substance from the perceived inadequacies of the common law
and the changing demands of a developing nation.”98 “The Court of Chancery thus
‘has an expansive power[] to meet new exigencies’ and ‘to meet changing needs.’”99
And that power may bestow relief “a court of law . . . would be powerless to
give[.]”100 Accordingly, this Court may adapt or reshape existing “doctrine[,]” like
standing, “to new relations[,]” and existing “remedies[,]” like an injunction, to “new
circumstances[.]”101 Where law leaves a gap, equity may fill it.
Founded on equity, this Court’s power “to hear claims has always been . . .
broad and flexible.”102 But it is not alone. All “Delaware courts can and do apply
the principles of standing more broadly than their federal counterparts[.]”103 And
they have done so in cases, like this one, where an individual citizen challenges laws
affecting the entire citizenry.
98
Schoon v. Smith, 953 A.2d 196, 204 (Del. 2004) (internal quotation marks omitted).
99
In re Del. Pub. Schs. Litig., 239 A.3d at 511 (quoting Schoon, 953 A.2d at 205 n.24,
206)).
100
Schoon, 953 A.2d at 205 (internal quotation marks omitted).
101
Id. at 204–05 (internal quotation marks omitted).
102
In re Del. Pub. Schs. Litig., 239 A.3d at 511; see Monroe Park, 457 A.2d at 737(“[E]quity regards substance rather than form.”).
103
In re Del. Pub. Schs. Litig., 239 A.3d at 512.
29
For example, the Delaware Supreme Court has recognized taxpayer
standing,104 “[e]ven absent a showing of particularized injury,” to challenge use of
public funds.105 Federal courts, by contrast, have required taxpayers to satisfy all
standing elements, including injury in fact.106 By relaxing injury in fact—the
“quintessence of standing”107—in cases involving issues of public concern and
government accountability, Delaware law has shown a willingness to look beyond
“federal complexities and technicalities involving standing . . . in favor of [a] just . .
. determination on the ultimate merits.”108
Given Delaware’s willingness to recognize standing in cases involving public
issues that affect all citizens, it is reasonable to conclude that public interest concerns
are relevant factors in deciding whether an individual citizen has established an
injury in fact. Prudential standing and the public interest, in many ways, are related.
Here, they arguably go hand-in-hand.
104
See City of Wilm. v. Lord, 378 A.2d 635, 637–38 (Del. 1977).
105
Reeder v. Wagner, 2009 WL 1526945, at *2 (Del. June 2, 2009) (TABLE).
See John Dimanno, Beyond Taxpayers’ Suits: Public Interest Standing in the States, 41
106
Conn. L. Rev. 639, 646–56 (2008).
107
Ritchie CT Opps, LLC v. Huizenga Managers Fund, LLC, 2019 WL 2319284, at *9
(Del. Ch. May 30, 2019).
108
In re Del. Pub. Schs. Litig., 239 A.3d at 510 (internal quotation marks omitted).
30
Plaintiffs base their standing on an issue of fundamental public importance:
voting. They allege that the Vote-by-Mail Statute will undermine the upcoming
General Election by allowing unconstitutional votes to be counted. And those illegal
votes may be decisive, Plaintiffs’ urge, because it is not uncommon for state
elections to be decided by a hair.109 For Higgin, a political candidate, and Mennella,
an anticipated election official, an election implicating votes cast in contravention
of the Delaware Constitution may have significant real-life consequences.
Plaintiffs’ concerns raise more than voting dilution. They strike at the voting
right itself. Plaintiffs, like all voters, have a right to participate in free and fair
elections under which all votes legally made—and only votes legally made—
count.110 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. Plaintiffs adequately allege that it could. Accordingly,
they have stated an injury in fact.
109
Cf. Summ. J. Arg. Tr. at 65:10–22 (Higgin Plaintiffs’ Counsel discussing triple recount
incident involving the State of Washington that revealed improperly rejected votes and
ultimately led to a gubernatorial victory by a slim margin).
110
See Del. Const., art. I, § 3 (“All elections shall be free and equal.”).
31
b. Shared Grievances
To reach the opposite conclusion, Defendants try to generalize Plaintiffs’
injuries. They reason that if everyone is harmed by an illegal vote, then no one is
harmed by an illegal vote.111 When made by the Department of Elections, this
argument is, at best, ironic. From a standing standpoint, it makes little sense.
Generalized grievances defeat standing. But to be generalized, an injury must
be “not only widely shared, but . . . also of an abstract and indefinite nature[.]”112
The mere fact that an injury is felt by many does not make the injury abstract.113
Stated conceptually, an injury that is shared also may be particular and concrete.114
The Delaware Supreme Court has adopted this reasoning. In Dover
Historical, the Delaware Supreme Court held that an “aesthetic” injury may establish
standing. To reach that conclusion, the Delaware Supreme Court distinguished a
general or abstract injury from a shared injury. General or abstract harm does not
111
See Defs.’ Opening Br. at 21 (“If every voter suffers the same incremental dilution of
the franchise caused by some third-party’s fraudulent vote, then these voters experienced
a generalized injury.” (internal quotation marks omitted)).
112
Fed. Election Comm’n v. Akins, 524 U.S. 11, 23 (1998).
113
See Lynn, 408 F. Supp. at 1332 (Even if “a benefit hardly can be quantified,” a “loss of
it [still may] support a finding of standing.”); accord Dover Hist. Soc’y, 838 A.2d at 1112.
114
See Massachusetts v. EPA, 549 U.S. 497, 522 (2007) (“Where a harm is concrete,
though widely shared, the Court has found ‘injury in fact.’”) (alteration and citation
omitted).
32
supply a person with standing. But a shared injury might: “the fact that a grievance
is widely held does not make it abstract and not judicially cognizable if individual
plaintiffs can demonstrate a concrete and particularized injury.”115
If aesthetic injuries, even when shared, may be sufficiently particular and
concrete to confer standing on an individual aesthete, then it surely follows that
injuries to fundamental rights—e.g., voting—even when shared, may be sufficiently
particular and concrete to confer standing on an individual voter. 116 After all, “the
right to vote in a free and equal election is not simply a right enshrined in Delaware’s
Constitution; it is the fundamental right on which our democracy rests.”117 Given
the fundamental nature of voting to our form of government, I think it should be
plain that Plaintiffs have standing to challenge the Vote-by-Mail Statute.118
115
Dover Hist. Soc’y, 838 A.2d at 1113.
116
See Akins, 524 U.S. at 24 (“Thus the fact that a political forum may be more readily
available where an injury is widely shared . . . does not, by itself, automatically disqualify
an interest for Article III purposes. Such an interest, where sufficiently concrete, may
count as an ‘injury in fact.’ This conclusion seems particularly obvious where (to use a
hypothetical example) . . . large numbers of voters suffer interference with voting rights
conferred by law.”).
117
League of Women Voters of Del., Inc. v. Dep’t of Elections, 250 A.3d 922, 925 (Del.
Ch. 2020) (emphasis added).
118
Although I do not rely on legislative history to find standing, the pre-enactment debates
surrounding the Vote-by-Mail Statute are illuminating. At least some Delaware legislators
expected the Vote-by-Mail Statute to prompt judicial review. See, e.g., 151st Gen.
Assemb. Senate – 35th Legislative Day – Session 2 at 11:54:57 P.M (Senator Gay); 151st
Gen. Assemb. House – 33rd Legislative Day – Session 2 at 6:48:30 P.M (Speaker
33
In any event, Plaintiffs’ injuries are not generalized. The harm to voters who
do comply with the requirements for voting under the Delaware Constitution is
distinct from the harm to voters who do not. The harm may be shared by all the
members of the compliant group, but it is no less personal to each group member.119
If illegal voting laws do not cause particularized harm to voters, then no voter
would ever have standing to challenge illegal elections. Despite the gravity of such
an outcome for the individual right to vote, Defendants say, in effect, “too bad.”
According to Defendants, “the assumption that if [Plaintiffs] have no standing to
sue, then no one would have standing, is not a reason to find standing.”120 On
different facts, that may be correct. But on these facts, Defendants’ position lacks
merit.
Dover Historical remains instructive. There, the Delaware Supreme Court
encountered the same generalized grievance argument Defendants make here. In
rejecting that argument, the Delaware Supreme Court discussed a Third Circuit case,
Schwartzkopf). These statements further support a conclusion that, in approving the Vote-
by-Mail Statute, the legislature (or at least some members thereof) envisioned judicial
review—and concomitant standing.
119
See Public Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 449–50 (1989) (“The fact that
other citizens or groups of citizens might make the same complaint . . . does not lessen
[their] asserted injury . . . .”).
120
Def.’ Reply Br. in Supp. of Mot. for Summ. J. at 7 (C.A. No. 2022-0641-NAC, Dkt. 32)
(internal quotation marks and emphasis omitted).
34
Society Hill Towers,121 approvingly. Society Hill Towers involved a challenge by a
group of residents of a historic neighborhood to a state grant permitting the City of
Philadelphia to modernize the area. The City argued that the individual residents
lacked standing because the asserted harm would affect all residents generally.
The court of appeals disagreed. It reasoned that if the residents could not
challenge the state grant, then no one could. In Dover Historical, the Delaware
Supreme Court accepted that analysis, describing it as “apt:”
The [Third Circuit] determined: “it is clear that the [residents of the historic
district] are alleging injury to a legally protected interest—that of maintaining
the environmental and historic quality of their neighborhood.” The [Third
Circuit] aptly noted that if the residents of the historic district in the City of
Philadelphia did “not have standing to protect the historic and environmental
quality of their neighborhood, it is hard to imagine that anyone would have
standing to oppose this UDAG grant. If that is the case, the requirement for
public hearings, and public input would be little more than a meaningless
procedural calisthenic that would provide little or no protection to those most
directly affected by the governmental action—the people who live in the
vicinity of a federally funded project and who lives are most directly impacted
by the expenditure of UDAG funds.”122
121
Soc’y Hill Towers Owners’ Ass’n v. Rendell, 210 F.3d 168 (3d Cir. 2000).
122
Dover Hist. Soc’y, 838 A.2d at 1113 (second alteration in original) (emphasis added)
(quoting id. at 176).
35
So too here. Voting rights are plainly within the zone of interest implicated
by the Vote-by-Mail Statute and the Delaware Constitution.123 Defendants do not
contend otherwise. Yet, in Defendants’ view, no voters could vindicate harm caused
by the Vote-by-Mail Statute because, in that scenario, every voter would be harmed
by it. Taking that theory to its logical extreme, no one covered by the Vote-by-Mail
Statute would have standing to challenge it.124 Dover Historical forecloses this
result.
Public interest considerations likewise undermine Defendants’ position. In a
representative system of government, voting plays a vital role. Citizens generally
cannot direct the actions of officials once they are elected. Instead, citizens exercise
direct influence via the ballot box. That is why “‘the right to vote is accorded
123
See Gannett Co., 565 A.2d at 897 (requiring merely that asserted interest be “arguably
within the zone of interest to be protected or regulated by the statute or constitutional
guarantee in question”) (emphasis added); see also Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (“[W]e have always
conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any
doubt goes to the plaintiff.”); Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 403 (1987) (finding
asserted interest to fall within relevant zone of interest where interest had “plausible
relationship to the policies underlying” disputed statute).
124
Indeed, when pressed to identify who, if anyone, would have standing under the Vote-
by-Mail Statute, Defendants initially argued that no voter would, see Summ. J. Arg. Tr. at
78:17–23, and then speculated that DOE “probably would have standing” and Board of
Canvass members “might have standing . . . hypothetically[,]” id. at 79:20–21, 79:24–80:1.
36
extraordinary treatment[.]’”125 Without it, “a citizen cannot hope to achieve any
meaningful degree of individual political equality if granted an inferior right of
participation in the political process.”126 Laws that permit citizens to vote in a
manner inconsistent with our Constitution harm a citizen’s basic right to elect
representatives of her choosing.
If I were to adopt Defendants’ argument on standing, I would endorse a
scenario where the legislature could, by simple majority, adopt voting laws in
violation of the Delaware Constitution that no Delaware citizen can challenge
because the harm of such laws would be “generalized” to all Delaware voters. For
a host of reasons, that seems unwise.
To be sure, there are sound practical reasons counseling against granting
standing to a plaintiff who bases a challenge to state action unrelated to voting on
the sole fact that the plaintiff is a voter. This decision does not suggest otherwise.
But when the challenge is directed to laws governing voting itself, the analysis is
different. In that latter setting, meritless challenges can be addressed on the
125
Young v. Red Clay Consol. Sch. Dist., 122 A.3d 784, 831 (Del. Ch. 2015) (alteration
omitted) (quoting Plyler v. Doe, 457 U.S. 202, 233 (1982)).
126
Id. at 832 (internal quotation marks omitted).
37
merits.127 At this standing stage, all that matters is whether Plaintiffs are proper
claimants to challenge the Vote-by-Mail Statute. They are.
In sum, Plaintiffs have standing to challenge the Vote-by-Mail Statute. I
proceed to the merits.
C. Plaintiffs Have Not Demonstrated Actual Success on the Merits on
Their Same-Day Registration Statute Claim But Have Demonstrated
Actual Success on the Merits on Their Vote-by-Mail Statute Claim
Having decided to proceed on the merits, my next inquiry is whether the
elements for a permanent injunction have been met—the first of which is that the
plaintiff must demonstrate actual success on the merits. In this case, that means
Plaintiffs must prove that the Vote-by-Mail Statute and the Same-Day Registration
Statute are unconstitutional. For the reasons explained below, I am persuaded that
Plaintiffs have proven success on the merits only as to their challenge to the Vote-
by-Mail Statute. The Higgin Plaintiffs have not proven success on the merits as to
their challenge to the Same-Day Registration Statute.
1. Broad Legislative Power
Before discussing canons of construction that aid the Court in considering the
constitutionality of legislative enactments, I begin by acknowledging the broad
127
See Stuart Kingston, 596 A.2d at 1382 (At the standing stage, courts are not “concerned
. . . with the merits of the subject matter of the controversy.”).
38
legislative powers the Delaware General Assembly wields. Article II, Section 1 of
the Delaware Constitution provides that “[t]he legislative power of this State shall
be vested in a General Assembly, which shall consist of a Senate and House of
Representatives.”128
Instead of granting only certain enumerated legislative powers as the United
States Constitution does, the Delaware Constitution “limits the powers which the
state inherently possesses as a sovereign entity. Only provisions of Delaware’s
Constitution as well as the United States Constitution restrain the General
Assembly’s legislative power . . . .”129 Nearly 100 years ago, our Supreme Court
acknowledged this “familiar principle which is nowhere questioned”; namely, “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.”130
As our Supreme Court stated in Opinion of the Justices:
The answer to [a question posed by the governor] lies in the
fundamental precept that the General Assembly has all legislative
power not expressly or impliedly limited by the Constitution. The
128
Del. Const. art. II, § 1; see also Appx. A.
129
Randy J. Holland, The Delaware State Constitution 91–92 (2d ed. 2017).
130
Collison v. State, 2 A.2d 97, 100 (Del. 1938).
39
‘legislative hand is free except as the constitution restrains.’ This is
sometimes known as the residual power doctrine.
Accordingly, it 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 [the law at issue] is
unquestionable.131
Thus, I agree with Defendants that “the inquiry is not whether the Delaware
Constitution permits the General Assembly to enact the statute. The inquiry is
whether any constitutional provisions prohibit the General Assembly from passing
such legislation.”132 Concerning election laws, the General Assembly has broad
authority under Article V, Section 1 of the Delaware Constitution to “prescribe the
means, methods and instruments of voting so as best to secure secrecy and the
independence of the voter, preserve the freedom and purity of elections and prevent
fraud, corruption and intimidation thereat.”133 This Court has recognized the
“transcending public importance” of election laws, which “touch upon [and] give
vitality to the most fundamental of our rights.”134
131
Op. of the Justices, 295 A.2d 718, 720 (Del. 1972) (quoting Collison, 2 A.2d at 108).
132
Defs.’ Opening Br. at 27 (emphasis in original).
133
Del. Const. art. V, § 1.
134
Bartley v. Davis, 1986 WL 8810, at *9 (Del. Ch. Aug. 14, 1986).
40
2. Presumption of Constitutionality and Other Canons of
Construction
With this backdrop in mind, I turn next to principles of constitutional
construction. “The legislative hand is free except as the constitution restrains.”135
“‘It is a proposition too plain to be contested, that the constitution controls any
legislative act repugnant to it.’ Therefore, ‘an act of the legislature, repugnant to the
constitution, is void.’”136
Although the Delaware Constitution trumps any conflicting statute,
“[e]nactments of the Delaware General Assembly are presumed to be
constitutional.”137 Indeed, this presumption is “strong”138 and can be overcome only
by “clear and convincing evidence of unconstitutionality.”139 Delaware courts
“ha[ve] a duty to read statutes ‘so as to avoid constitutional questionability and
135
Op. of the Justices, 295 A.2d at 720 (quoting Collison, 392 A.2d at 108).
136
Evans v. State, 872 A.2d at 553 (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)).
137
Hoover v. State, 958 A.2d 816, 821 (Del. 2008).
138
Monceaux v. State, 51 A.3d 474, 477 (Del. 2012).
139
Sierra v. Dep’t of Servs. for Child., Youth & their Families, 238 A.3d 142, 155–56 (Del.
2020) (citing Monceaux, 51 A.3d at 477); see also League of Women Voters of Del., Inc.
v. Dep’t of Elections, 250 A.3d at 926 (“Statutes enjoy a presumption of constitutionality,
and I may not invalidate . . . state statutes on ground of unconstitutionality unless that
unconstitutionality is clear.”).
41
patent absurdity.’”140 This presumption assists the court in exercising proper judicial
restraint and “requires deference to legislative judgment in matters ‘fairly
debatable.’”141 And our Supreme Court has counseled us to give “great weight” to
the “General Assembly’s articulation of public policy.”142
At the same time, our Supreme Court is also clear that “the Constitution and
each part thereof must be harmonized and construed as a whole; that it cannot be
presumed that any clause of the Constitution is intended to be without full force and
effect.”143 Indeed, such a rule is “[c]ardinal” in our law.144 In addition, Delaware
courts are charged to interpret the Constitution in a way to avoid “produc[ing] an
irrational result.”145 That interpretation is not policy-driven, however; “[t]he ruling
must come from the interrelationship of concepts set forth in the Constitution, the
140
Monceaux, 51 A.3d at 477 (quoting Op. of the Justices, 295 A.2d at 721–22).
141
Helman v. State, 784 A.2d 1058, 1068 (Del. 2001) (quoting Wilm. Med. Ctr., Inc. v.
Bradford, 382 A.2d 1338, 1342 (Del. 1978)).
142
Id.143
State v. Roberts, 282 A.2d 603, 606 (Del. 1971); see also Op. of the Justices, 225 A.2d
481, 484 (Del. 1966).
144
Roberts, 282 A.2d at 606.
145
Id. (quoting Op. of the Justices, 225 A.2d at 484).
42
language of the Constitution, and the prior case law that has construed the
Constitution.”146
3. The Same-Day Registration Statute
The Higgin Plaintiffs (but not the Miles Plaintiffs) challenge the Same-Day
Registration Statute with respect to the General Election. In particular, the Higgin
Plaintiffs argue that the Same-Day Registration Statute violates Article V, Section 4
of the Delaware Constitution. In particular, the Higgin Plaintiffs focus their analysis
and arguments on the following italicized language in the second paragraph of
Article V, Section 4:147
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 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.148
146
State ex rel. Gebelein v. Killen, 454 A.2d 737, 747 (Del. 1982); see id. (“Our view of
the best policy does not govern.”). I note that the Supreme Court subsequently disavowed
dicta in Killen; that dicta is not relevant here. State ex rel. Oberly v. Troise, 526 A.2d 898,
900–901 (1987).
147
See Appendix A to this Opinion for the full text of Article V, Section 4.
148
Del. Const. art. V, § 4 (emphasis added).
43
The Higgin Plaintiffs say that this language requires that voter registration end at
least ten days before the General Election and corrections conclude prior to the date
of the election. They claim that, because the Same-Day Registration Statute permits
registration on the same day as the General Election, the law is unconstitutional.
I begin my analysis of the Same-Day Registration Statute with an
understanding that it is my “duty to read statutory language so as to avoid
constitutional questionability” as well as “patent absurdity.”149 With this command
in mind, I find Plaintiffs’ argument unpersuasive.
The language at the beginning of the applicable section states that “there shall
be at least two registration days” within the time period specified. A plain-language
reading of Section 4 suggests that it provides for a minimum period of registration,
and the Same-Day Registration Statute providing for additional days would not
disturb that constitutionally-protected minimum.
Similarly, the proviso at the end of the second paragraph of Section 4—that
“such registration may be corrected as hereinafter provided at any time prior to the
day of holding the election”—does not, in my view, foreclose the possibility of
same-day registration. The Higgin Plaintiffs would, in essence, have me modify the
constitutional text so that “such registration” instead reads as “all registration” and,
149
Op. of the Justices, 295 A.2d at 721-22.
44
in doing so, insert an implied limitation on legislative power into Section 4 that does
not appear in the plain text. As I understand my duty in this context, however, I
should avoid inserting judicially-created implied limitations into the plain text of the
Constitution absent clear evidence that the implied limitation is required. With that
understanding, I believe a reasonable interpretation of the proviso is that “such
registration” refers to registrations described in the immediately preceding passage
and is silent as to registrations occurring on the day of the general election.150
I also understand that reasonable minds may disagree on these points. In
analyzing the constitution, however, my duty is not to seek out ways to invalidate
statutes. To the contrary, under the doctrine of constitutional avoidance, I believe
my duty is to consider whether a reasonable interpretation supports the validity of
the statute and only find constitutional invalidity when I have clear and convincing
evidence of such invalidity.
The Higgin Plaintiffs rely on State ex rel. Walker v. Harrington, decided in
1943, for the proposition that Section 4 requires all issues of voter eligibility to be
resolved prior to election day.151 In my view, Harrington cannot support the entire
150
Yet another reasonable interpretation is that the proviso concerns “corrections” to
registration and is therefore, once again, silent as to registrations that occur for the first
time on the day of the general election, as there is nothing to “correct.”
151
30 A.2d 688 (Del. 1943).
45
weight of the Higgin Plaintiffs’ argument. In that case, the Court considered the
constitutionality of the aptly termed “Soldiers’ Vote Act,” which enabled qualified
voters in the military “to exercise the right of suffrage” by voting from “their place
of encampment” instead of the “election district or ward of their residence.” 152 In
passing, the Court stated that Section 4 of Article V “prescribed for uniform laws for
registration of voters for the purpose of determining that prospective voters duly
possess the necessary and prescribed qualifications” and “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.”153
There can be no question that this language, at least indirectly, supports the
Higgin Plaintiffs’ argument. The Harrington Court summarized Section 4 as
signaling that “all questions of the qualifications of voters should be determined
before election day.” But this language is dicta.154 The Court did not hold that
Section 4 is so limited but described it so in passing. In addition, as Defendants
152
Id. at 690.
153
Id. at 691.
154
See, e.g., Nelson v. Frank E. Best Inc., 768 A.2d 473, 483 (Del. Ch. 2000) (“Indeed,
perhaps the most well-settled proposition of common law is that dictum does not constitute
binding precedent.”) (emphasis in original); Op. of the Justices, 198 A.2d at 690 (“It is a
well-settled rule of law that statements amounting to mere obiter dicta do not become
binding precedents and fall outside the rule of stare decisis.”).
46
point out, the language used—“should be determined”—suggests that it is not
mandatorily limited as such. At bottom, while the Harrington court summarized
what it viewed Section 4’s function to be, it did not foreclose the plain language
interpretation I adopt here.
In addition, the construction offered by the Higgin Plaintiffs would render
other (unchallenged) parts of the election laws unconstitutional. The Higgin
Plaintiffs do not challenge the registration statutes on the basis of when individuals
can begin registering and, indeed, since 1993, Title 15 has enabled individuals to
register to vote at the time they apply for a motor vehicle driver’s license with the
Division of Motor Vehicles and other state agencies.155 Construing Article V,
Section 4 to cabin all registration dates to those enumerated therein, instead of
providing a constitutional baseline, would render these (unchallenged) statutes
unconstitutional as well. Such a result is to be avoided if possible.156 Here, it is not
only possible but in alignment with the plain language of the Constitution itself.
155
See 15 Del. C. § 2050.
156
See, e.g., Clark v. Martinez, 543 U.S. 371, 380–81 (2005) (“[W]hen deciding which of
two plausible statutory constructions to adopt, a court must consider the necessary
consequences of its choice. If one of them would raise a multitude of constitutional
problems, the other should prevail—whether or not those constitutional problems pertain
to the particular litigant before the Court.”); Op. of the Justices, 295 A.2d at 722 (“We are
required to give to statutory language a reasonable and suitable meaning; it is to be
presumed that the Legislature did not intend an unreasonable, absurd, or unworkable
result.”).
47
Finally, Article V, Section 4 was subject to a quite significant amendment in
1925. The original version of Article V, Section 4, as included in the Delaware
Constitution of 1897, provided in relevant part:
The General Assembly shall provide by law for a uniform biennial
registration of the names of all the voters in this State who possess the
qualifications prescribed in this Article, which registration shall be
conclusive evidence to the election officers of the right of every person
so registered to vote at the general election next thereafter . . . .
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.157
In 1925, the General Assembly amended Article V, Section 4 (i) to delete the
requirement for biennial registration and (ii) to replace Section 4 with the current
version of the text.158 In doing so, the General Assembly struck the requirement that
registration “be completed” not less than ten days before the General Election.159
157
Del. Const. of 1897, art. V, § 4 (emphasis added).
158
34 Del. Laws ch. 1 (1925). The General Assembly also amended Section 4 in 1907 to
remove the requirement to pay a registration fee. See 24 Del. Laws ch. 7 (1907). This
amendment, however, is not relevant to the Same-Day Registration Statute.
159
Id. The parties unfortunately did not identify this amendment in their briefing. The
Court requested that the parties be prepared to address the amendment during oral
argument. Dkt. 33. Defendants’ counsel argued that removal of the “be completed”
language, particularly when read in connection with the removal of the requirement for
biennial voter registration, indicated that the General Assembly revised Article V, Section
48
The Higgin Plaintiffs’ primary focus is on Section 4’s reference to a
registration period preceding the general election. The Higgin Plaintiffs’ argument,
however, fails to grapple with the unambiguous deletion of “be completed” from the
text. The Higgin Plaintiffs ignore two key points. First, the 1897 version of the
Constitution required biennial registration that “shall be commenced” by a certain
number of days before the general election and “shall . . . be completed” no fewer
than “ten days before such election.” Second, the 1925 amendment to the
Constitution replaced the 1897 text with vastly less restrictive language, disposing
of narrow biennial registration in favor of mandating only a constitutional minimum
of “at least two registration days in a period” before “each General Election . . . .”160
I believe it would be inconsistent with principles of constitutional analysis for me to
ignore this very significant change to the text of Article V, Section 4 in analyzing
the Higgin Plaintiffs’ challenge. To the contrary, it is my view that the amendment
not only supports my prior reasoning, but also independently compels the conclusion
4 to provide for a minimum number of registration days before each General Election, not
to cabin the number of such days. Summ. J. Arg. Tr. 116–17. Plaintiffs’ counsel disagreed
and explained that they did not attach any significance to this amendment insofar as it
concerns the Same-Day Registration Statute. Id. at 50–55.
160
Notably, Harrington does not consider the 1925 amendment at all, which is unsurprising
given that its passing reference to registration was dicta.
49
that the Higgin Plaintiffs have failed to show clear evidence that the Same-Day
Registration Statute violates the Delaware Constitution.
Finally, it bears repeating that the express purpose of election laws in this state
is to provide for “free and equal” elections161 where Delawareans have an
“unfettered” right to vote162—one of “the most fundamental of our rights.”163 The
General Assembly has determined that the Same-Day Registration Statute would
enhance “meaningful participation from [Delaware’s] citizenry.”164 This is entitled
to “great weight” in the Court’s review of its constitutionality. “Clear and
convincing evidence of unconstitutionality” is what would be needed to overturn this
law,165 and the evidence in this case simply falls short of that mark.
In sum, despite Harrington’s dicta, given the plain language of Section 4, the
strong presumption of constitutionality, and the advisability of keeping the existing
statutory scheme harmonious, I cannot conclude the Same-Day Registration Statute
is clearly unconstitutional such that the Higgin Plaintiffs have proven success on the
merits of their claim.
161
See Del. Const. art. I, § 3.
162
See Young, 122 A.3d at 857 (quoting Abbott v. Gordon, 2008 WL 821522, at *19 (Del.
Ch. Mar. 27, 2008)).
163
Bartley, 1986 WL 8810, at *9.
164
See Republican State Comm., 250 A.3d at 921.
165
See Sierra, 238 A.3d at 155–56.
50
4. The Vote-by-Mail Statute
I turn next to the Vote-by-Mail Statute. Plaintiffs assert that the Vote-by-Mail
Statute is unconstitutional on two grounds. Plaintiffs argue that the Delaware
Constitution only allows for absentee voting in limited, enumerated circumstances,
as contained in Article V, Section 4A. Plaintiffs also argue that that the Vote-by-
Mail Statute violates the Delaware Constitution’s requirement that an election be
held on one day as expressed in Article V, Section 1. Because I conclude that the
Vote-by-Mail Statute is inconsistent with Article V, Section 4A—as it has been
interpreted in case law—I do not reach Plaintiffs’ challenge under Article V, Section
1.
a. Prior Vote-by-Mail Statute
The Vote-by-Mail Statute is not the General Assembly’s first effort to pass a
general vote-by-mail law; nor is this litigation the first challenge to such a law. In
2020, the Court of Chancery considered a very similar vote-by-mail statute in
Republican State Committee. In that action, the plaintiffs challenged a 2020 statute
passed by the General Assembly that allowed for mail-in voting by all Delaware
voters for the 2020 election.166 The General Assembly approved the 2020 statute
166
Republican State Comm., 250 A.3d at 912–13. During oral argument, Defendants’
counsel acknowledged that the 2022 Vote-by-Mail Statute employed much of the same text
as the 2020 statute and that the only material difference is that, under the Prior Vote-by-
Mail Statute, all voters automatically received an application to vote by mail whereas
51
under its emergency powers in Article XVII, Section 1 of the Delaware Constitution,
which permits legislative action to “[e]nsure the continuity of State and local
governmental operations in periods of emergency.”167 Vice Chancellor Glasscock
noted that, in light of the COVID-19 pandemic, the legislature “made a
determination that vote-by-mail is necessary for the continued operation of
governmental functions, and that it would be impracticable to address this problem
other than by otherwise-extraconstitutional means.”168 The Vice Chancellor
concluded that the General Assembly’s “findings [were] not clearly erroneous” and
therefore denied the plaintiffs’ motion for summary judgment.169
In the course of his analysis, the Vice Chancellor also noted that the parties to
that litigation did not dispute that the 2020 vote-by-mail statute would be
impermissible but for the General Assembly’s invocation of its emergency powers:
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.”
voters must request such an application under the current Vote-by-Mail Statute. Summ. J.
Arg. Tr. at 99.
167
Del. Const. art. XVII, § 1; see also Appx. A for full text of Article XVII.
168
Republican State Comm., 250 A.3d at 922.
169
Id.
52
. . . [Section 4A] provides a list of reasons for which a registered voter
may submit an absentee ballot to be counted in a general election. The
need for social distancing to minimize public health risks is not on that
list, nor do the Defendants argue that it is, and the list is meant to be
exhaustive. Therefore, absent some other authority, Article V, § 4A
prohibits the General Assembly from allowing general absentee voting
for the November 4, 2020 general election based on the threat posed by
the COVID-19 virus.170
In stating that Section 4A’s list is meant to be “exhaustive,” the Vice Chancellor
cited to Opinion of the Justices, 295 A.2d 718 (Del. 1972).
b. Prior Constitutional Case Law on Absentee Voting
In Opinion of the Justices, an advisory opinion, the Supreme Court of
Delaware answered three questions posed to the Supreme Court by Delaware’s
Governor in 1972.171 Each of the Governor’s questions concerned primary elections.
In the course of providing the Supreme Court’s views on primary election laws, the
Supreme Court added a “caveat as to general elections”:
[Article 5, Section 4A of the Delaware Constitution] 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 s 4A impliedly excluded
all other classifications. It is beyond the power of the Legislature, in
170
Id. at 917–18 (emphasis added); accord id. at 913 (“The DOE concedes that the
Delaware Constitution lists reasons for which ballots may be provided for absentee voting,
that this list of reasons is intended to be comprehensive, and that the current epidemic
health crisis is not among them.”); id. at 917 (“The General Assembly, via the Act, has
extended eligibility for remote voting beyond those electors entitled to so vote by Article
V, § 4A of the Delaware Constitution. The parties agree that the list in Article V, § 4A of
those citizens entitled to vote by absentee ballot is meant to be exhaustive.”).
171
Op. of the Justices, 295 A.2d at 720.
53
our opinion, to either limit or enlarge upon the s 4A absentee voter
classifications specified in the Constitution for general elections.172
On this basis, the Supreme Court explained that certain classifications in the statute
under consideration would be “unconstitutional limitations” and other classifications
in the statute would be “an unconstitutional enlargement” of absentee voting,
“insofar as general elections are concerned . . . .”173 The Supreme Court, however,
acknowledged that its statements and conclusion as to general elections were not
necessary to its analysis, writing: “While the questions before us are confined to
primary elections, we have taken the occasion to raise this caveat as to general
elections for the timely consideration of all concerned.”174
The Opinion of the Justices advisory opinion does not cite any case law in
support of the passage described above. However, an earlier passage in the advisory
opinion points the way:
We have considered the force and effect of State ex rel. Walker v.
Harrington, and State v. Lyons. In each of those cases, the Court found
in the Constitution an implied limitation upon absentee voting in
general elections. Shortly after the Harrington decision, the
Constitution was amended by adding s 4A to Article 5. It is clear that
172
Id. at 722 (emphasis added).
173
Id.174
Id. at 723.
54
the holdings in Lyons and Harrington are limited to general elections,
as are the provisions of the resultant Art. 5, s 4A.175
Thus, I look to the decisions in Lyons and Harrington for the source of the
Constitution’s “implied limitation upon absentee voting in general elections.”176
In Lyons, the Delaware Court of General Sessions177 considered the
constitutionality of laws broadly allowing for qualified Delaware electors to vote by
mail.178 The court considered the constitutionality of the mail-in voting laws in
connection with a criminal indictment against seven persons alleged to have
committed conspiracy to abet fraud relating to casting votes under the law.179 The
175
Id. at 721.
176
Id.177
Prior to 1951, Delaware did not have a formal supreme court. Instead, Delaware utilized
a “left-over-judge” system whereby state judges who had not heard the case on appeal
would serve as the tribunal of final appeal. Under this system, the Court of General
Sessions, together with the Courts of Oyer and Terminer, sat as the higher criminal
tribunals in the first instance. See Paul Dolan, History of the Supreme Court, 56 Dick. L.
Rev. 166, 166–67 (1952) (available at
https://courts.delaware.gov/supreme/history/history1.aspx). Therefore, for purposes of the
Lyons case, which was a criminal case, the Court of General Sessions acted as the court of
final appeal. In the Lyons case, two then-Superior Court Judges, the Honorable Richard
Rodney and the Honorable Frank Speakman, sat on the appeal.
178
See 33 Del. Laws ch. 103 (1923) (providing that “any qualified elector . . . who may be
in the public service of the United States of America or of this State . . . or who because of
the nature of his work or business, may be absent, or may expect to be absent, from this
State . . . or who because of sickness or physical disability cannot appear at [his or her]
polling place” may vote by mail-in ballot).
179
Lyons, 5 A.2d at 496.
55
Delaware Court of General Sessions found the mail-in voting laws unconstitutional,
holding that Article V, Section 2 “contemplates and requires the personal attendance
of the voter at the polls, and no power now exists in the Legislature to provide for
absentee voting.”180 In its decision, “the Court relied on the debates of the 1897
Convention as well as Article V, Section 3’s provision for challenging a voter on the
grounds of bribery.”181
In Harrington, the Delaware Supreme Court found the Soldiers’ Vote Act,
which allowed Delaware voters stationed at military encampments to vote in those
encampments, to be unconstitutional.182 The question before the court was “whether
the Constitution requires that the polling places for the reception of ballots be located
within the geographical and territorial confines of the State of Delaware.”183 As
former Justice Holland wrote, the Harrington court acknowledged Lyons but
ultimately concluded that polling places must be located within Delaware:
The court did not disagree with the Lyons court’s interpretation of Section 2,
but was of the mind that “the question before the Court can only be determined
by a consideration of all the material and pertinent provisions of the
Constitution.” As in Lyons, the court relied on the right to challenge a voter
180
Id. at 503.
181
Randy J. Holland, The Delaware State Constitution 211 (2d ed. 2017).
182
Harrington, 30 A.2d at 692–93; see also Randy J. Holland, The Delaware State
Constitution 211 (2d ed. 2017).
183
Harrington, 30 A.2d at 691.
56
on the grounds of bribery in Section 3, but also relied on Section 5’s protection
of electors while traveling to and from polling places and the inability of the
Board of Canvass to bring before it election officers from outside the state and
fulfill its duties as announced in Section 6.184
The framers of the 1897 Constitution were deeply concerned with vote buying
and election fraud, which were considered rampant in Delaware at the time. 185
Indeed, these concerns were so paramount to the framers of the 1897 Constitution
that they took the extraordinary step of laying out in great specificity the substance
of the crimes of voter fraud and bribery within the Constitution.186 The Lyons
opinion also made note of this history. There, the court cited at length a quote from
Judge Spruance at the 1897 Constitutional Convention, where he stated that the
Convention had considered adopting the absentee voting provision provided under
the New York Constitution but decided such a provision was not necessary.187
184
Randy J. Holland, The Delaware State Constitution 211 (2d ed. 2017).
185
Randy J. Holland, The Delaware State Constitution 26 (2d ed. 2017).
186
Id; see also Randy Holland & Harvey Rubenstein, The Delaware Constitution of 1897:
The First One Hundred Years 444 (stating that vote buying was ubiquitous in Delaware
and that it was “the intention of the [1897] Constitutional Convention to put a stop to the
pollution of the ballot”) (citing News Account Dated February 14, 1897, Sunday
Philadelphia Times Special Edition)).
187
Lyons, 5 A.2d at 501–02. Judge Spruance specifically noted that the applicable
provision in the New York Constitution was included to address absentee voting during
the Civil War and that it was thought that “such an unfortunate condition of affairs . . .
would not be likely to occur again.” Id.
57
c. Constitutionality of the Vote-by-Mail Statute
I now turn to the Vote-by-Mail Statute and the implication of this
constitutional history. As discussed in Section I.C.2 herein, the Vote-by-Mail
Statute allows qualified, registered voters to apply and request a mail-in ballot from
the DOE.188 As also previously noted, counsel for the Defendants at oral argument
acknowledged that the current Vote-by-Mail Statute is not materially different from
the Prior Vote-by-Mail Statute.189 Furthermore, the General Assembly, in the Prior
Vote-by-Mail Statute, specifically stated that the list of reasons permitting absentee
voting under Article V, Section 4 of the Delaware Constitution is exhaustive and
that the General Assembly passed the Prior Vote-by-Mail Statute pursuant to its
emergency powers.190
Plaintiffs argue that the Vote-by-Mail Statute does not comport with Article
V, Section 4A or the related statutory scheme. It simply provides that “[a] qualified,
duly registered elector wishing to vote by mail” need only “[c]omplete a handwritten
or electronic application to vote by mail,” “[s]ign and date the application,” and
“[m]ail, deliver, or cause to be mailed or delivered, the completed application to the
188
83 Del. Laws ch. 353, § 5604(A) (2022).
189
Summ. J. Arg. Tr. at 99.
190
82 Del. Laws ch. 245 (2020). See Section I.C.1.
58
Department by the deadline provided by the Department.”191 The elector must also
sign an oath on the ballot but need not provide a reason why they cannot or chose
not to vote by mail—it is available to anyone “wishing to vote by mail.”192
Plaintiffs argue that this is in direct conflict with Article V, Section 4A, which
they claim only allows those “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.”193 They also argue that this court’s opinion in Republican
State Committee194 and the Delaware Supreme Court’s Opinion of the Justices195
support their construction.
After careful consideration, I conclude that, based on precedent, I am
compelled to agree. The Vote-by-Mail Statute is functionally the same as the 2020
statute, with much of the same text and the only material difference being irrelevant
to my analysis here.196 Unlike in 2020, however, the General Assembly did not
191
83 Del. Laws ch. 353, § 5604A (2022).
192
Id.
193
Del. Const. art. V § 4A.
194
250 A.3d 991 (Del. Ch. 2020).
195
295 A.2d 718 (Del. 1972).
196
See Summ. J. Arg. Tr. at 99:3–6 (Defendants acknowledging that the only material
difference between the statutes is that, under the 2020 statute, mail-in ballots were
distributed directly to voters, whereas the 2022 statute uses an opt-in system).
59
invoke its emergency powers in approving the Vote-by-Mail Statute in 2022.
Opinion of the Justices provides clear guidance that the General Assembly may
neither expand nor limit the categories of absentee voters identified in Article V,
Section 4A.197 The Vote-by Mail Statute, however, vastly expands the categories of
such voters and, as such, is inconsistent with the Constitution.
Defendants argue that the language from Republican State Committee and
Opinion of the Justices is not binding on this court. Opinion of the Justices is an
advisory opinion given to the Governor, and in it the Justices acknowledged that “all
questions before us are confined to primary elections.” The language from
Republican State Committee is likewise dicta, they say; as explained, the Vice
Chancellor held that the General Assembly acted within its emergency powers under
Article XVII, Section 1 of the Delaware Constitution when it enacted mail-in voting
laws for the year 2020. In neither case did the court hold that no-excuse mail-in
voting runs afoul Article V, Section 4A.
To a trial judge, Defendants’ attempt to minimize the only precedent that has
touched on this issue is, ultimately, unpersuasive. The language from both our
Supreme Court and this court is unequivocal that Section 4A’s list is exhaustive.
197
Op. of the Justices, 295 A.2d at 722.
60
Indeed, the State appears to have conceded this very point just two years ago. More
importantly, it is the only guidance given, and I am obliged to follow it.
Defendants also argue that there is an important distinction between mail-in
voting and “absentee voting.” According to Defendants, a Delawarean votes
“absentee” when she is unable to come to the regular polling place, whereas mail-in
voting refers to people present in the county who simply would prefer not to vote in-
person. The Vote-by-Mail Statute is not unconstitutional, they say, because Section
4A deals with absentee voting, not mail-in voting generally, and vice versa for the
Vote-by-Mail Statute.
Defendants offer no authority supporting this distinction. This court’s 2020
opinion consistently used the terms interchangeably.198 And Defendants agree that
the 2020 statute is functionally the same as the Vote-By-Mail Statute. I cannot adopt
a distinction that is contradicted by Delaware law and, frankly, common usage.
In addition, Plaintiffs argue that Defendants’ attempt to draw a highly-
nuanced distinction between absentee and mail-in voting unreasonably risks
rendering Section 4A superfluous. The decision in Lyons rests on the question of
198
See Republican State Comm., 250 A.3d at 915 (“As signed into law by Governor John
Carney on July 1, 2020, the Vote By Mail Statute amends Title 15 of the Delaware Code
to allow voters who would not meet the usual requirements for absentee voting to vote by
mail.”).
61
whether a voter has appeared in-person at a polling place. To the Court in Lyons,
this was the key constitutional question. The decision in Harrington comports with
this understanding, as well. Thus, at least according to Lyons and Harrington—on
which Opinion of the Justices relies—the constitutional fulcrum on which validity
and invalidity turns is whether or not the voter is required to appear at the polling
place and not simply how a vote is cast.
Under this reading of the case law, 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. In short, permitting widespread voting by mail would—regardless of whether
you call it absentee voting, mail-voting, or something else—improperly render
Section 4A surplusage under Lyons, Harrington, and Opinion of the Justices.
Finding Delaware law to be no help, Defendants turn elsewhere. Citing
McLinko v. Department of State,199 a Pennsylvania decision, and Lyons v. Secretary
of Commonwealth (“Mass. Lyons”),200 a Massachusetts decision, Defendants
contend that Section 4A does not prevent the General Assembly from expanding the
199
279 A.3d ----, 2022 WL 3039295 (Pa. Aug. 2, 2022).
200
192 N.E.3d 1078 (Mass. 2022).
62
list of persons eligible for mail-in voting. McLinko and Mass. Lyons interpreted their
own state constitutions against the background of different decisional law and
legislative amendments. Compared with Delaware decisions that interpret the
Delaware Constitution in the context of Delaware legal history, McLinko and Mass.
Lyons start at a disadvantage.201
In McLinko, the Supreme Court of Pennsylvania upheld the validity of a
universal mail-in voting statute. To do so, the McLinko court overruled 160 years’
worth of Pennsylvania precedent holding that the Pennsylvania Constitution
required in-person voting unless the voter fell into one of the textually enumerated
categories of persons eligible for absentee voting.202 The McLinko court emphasized
that “any restrictions” on the legislature’s power to enact voting legislation “must be
explicit.”203 After McLinko, the Pennsylvania legislature may prescribe any method
of voting so long as the method promotes secrecy.204
201
See Jones v. State, 745 A.2d 856, 864 (Del. 1999) (“A state constitution’s language may
itself provide a basis for reaching a result different from that which could be obtained under
[a different source of] law.” (internal quotation marks omitted)).
202
2022 WL 3039295, at *19–29.
203
Id. at *31.
204
Id. at *30–34.
63
In Mass. Lyons, the Supreme Judicial Court of Massachusetts also upheld a
universal absentee voting statute. In doing so, the Mass. Lyons court described the
Massachusetts Constitution as a “statement of general principles and not a
specification of details.”205 Consistent with its unrestricted structure, the Mass.
Lyons court observed that the Massachusetts Constitution grants the legislature
“plenary . . . authority . . . to regulate the process of elections.” 206 Based on that
plenary authority, the Mass. Lyons court held that the Massachusetts legislature may
prescribe any method of voting so long as the method chosen “protect[s] and
enhance[s] . . . the right to vote” and is not “repugnant” to another provision in
Massachusetts Constitution.207
Notably, the Mass. Lyons plaintiffs also invoked the maxim of expressio unius
est exclusio alterius to argue that, by specifying only three categories of persons
eligible for absentee voting, the Massachusetts Constitution prohibited universal
mail-in voting by negative implication. The Mass. Lyons court rejected this
argument.208 The Mass. Lyons court explained that expressio unis is ill-suited to
205
192 N.E.3d at 1086 (internal quotation marks omitted).
206
Id. at 1087 (internal quotation marks omitted).
207
Id. at 1091–92.
208
192 N.E.3d at 1092.
64
constitutional interpretation and so cautioned that it should not be used to restrain a
legislature from enacting laws that advance fundamental rights:
[Expressio unis] is a maxim that has oft been considered in connection with
interpreting statutes . . . . It is a guide to construction, not a positive command,
and at most only a fallible aid to decision . . . . Cases from other jurisdictions
have consistently counselled that the maxim should be applied with even
greater caution when interpreting a State constitution . . . . Silence is subject
to multiple interpretations; it is not sufficient to rebut the presumption of
constitutionality or to prove repugnancy.209
McLinko and Mass. Lyons share similarities to this case. Both cases examined
universal mail-in voting laws. Both cases analyzed constitutional provisions
purporting to limit absentee voting to finite categories of eligibility. And both cases
stand for a general proposition that state constitutions should not be interpreted to
impliedly restrict the legislature’s power to universalize mail-in voting.
McLinko and Mass. Lyons, however, are incompatible with currently binding
Delaware precedent. They may well serve as useful authority in the inevitable
appeal of this decision, but my analysis is constrained by Delaware precedent.
As already explained, based on the weight of precedential authority, I must
conclude that the Vote-by-Mail Statute violates the Delaware Constitution.
However, although I am compelled by Delaware precedent to find that Plaintiffs
have demonstrated actual success on the merits as to the Vote-by-Mail Statute, I
209
Id. at 1093 (cleaned up).
65
believe the Delaware Supreme Court may conclude that it has grounds to revisit that
precedent.
First, Opinion of the Justices was an “advisory opinion” not subject to the
adversarial process.210 Second, Opinion of the Justices expressly acknowledges that
the “caveat as to general elections” at issue here is unnecessary to the analysis.211
As such, one might conclude that the passage is dictum in an advisory opinion.
Third, I believe that reasonable minds might now—eight decades later—have reason
to question the source of this dictum, namely State v. Lyons and State ex rel.
Harrington v. Walker.
Both Lyons and Harrington locate no express prohibition on absentee voting
in the Delaware Constitution. Instead, both decisions identify an implied
prohibition.212 Yet, the identification of an implied constitutional restriction on
legislative authority, where no express limitation exists, is a conclusion that I would
draw with significant hesitancy. As has already been discussed, powerful doctrines
of constitutional analysis are implicated here. These include the doctrine of
constitutional avoidance and the understanding that, unlike the federal government,
210
Randy J. Holland, The Delaware State Constitution 181 (2d ed. 2017).
211
295 A.2d at 722-23.
Op. of the Justices, 295 A.2d at 721 (“In each of those cases, the Court found in the
212
Constitution an implied limitation upon absentee voting in general elections.”).
66
the General Assembly is imbued with all legislative power absent a limitation on
that power that can be demonstrated clearly and convincingly.
The 1939 decision in Lyons invalidates a vote-by-mail statute adopted by the
General Assembly in 1923. It appears that, just twenty-six years after the 1897
constitutional convention, the General Assembly adopted a relatively “broad[] in
scope” statute that “provided for the casting of ballots by mail by persons unable to
be personally present at the polling places in their districts on election day.”213 This
state of affairs continued for the next decade-and-a-half, without apparent
constitutional concern, until an indictment was brought against seven individuals for
“conspiracy to abet fraud in connection with the casting of [absentee] votes . . . .”214
It is unclear from the decision who six of the individuals were, but it appears that
one of the individuals (named in the case caption) has been described as “one of the
last of the old time political bosses” and was, at the time, the Wilmington chairman
of a political party.215 Lyons quashed the criminal indictment because the decision
located, seemingly for the first time, an implied requirement in the Delaware
213
Harrington, 30 A.2d at 690 (describing the statute challenged in Lyons).
214
Lyons, 5 A.2d at 496.
215
Obituary of G.E. Lyons, N.Y. Times (Feb. 7, 1960),
https://timesmachine.nytimes.com/timesmachine/1960/02/07/119095555.pdf?pdf_redirec
t=true&ip=0; see also Carol E. Hoffecker, Corporate Capital: Wilmington in the Twentieth
Century 148 (1983).
67
Constitution that voters appear in person at the polls and thus an implied prohibition
on absentee voting. This made the underlying absentee vote-by-mail statute void
and required that the indictment be quashed, because the defendants could not be
prosecuted for conspiracy to violate a constitutionally void statute.
Over 80 years later, I obviously cannot draw any conclusions, particularly in
this expedited context. But I believe we should at least be aware of the historical
context of the Lyons decision, which invalidated a significantly older vote-by-mail
statute that had been in place for years and which was the first decision to locate the
implied restriction that now ties the hands of the General Assembly.
Just four years after Lyons, the decision in Harrington invalidated a statute
that had long permitted soldiers to vote at their encampments.216 Both Lyons and
Harrington looked to various provisions of Article V to imply a prohibition on
absentee voting. Quite significantly, however, the General Assembly adopted the
statute at issue in Harrington—the Soldiers’ Vote Act—in 1898, just a year after the
1897 constitutional convention. One would think that the General Assembly of 1898
knew well the intent of the 1897 framers and that the adoption of the 1898 law would
216
Harrington, 30 A.2d at 692–93.
68
constitute significant evidence that the Delaware Constitution contained no implied
prohibition on voting away from one’s polling place.217
The Lyons decision also relied on a brief passage during a speech at the
constitutional convention by Judge Spruance (as briefly discussed above) to support
the notion that the absentee voting was prohibited. The passage follows:
I say this [Article 5, Sec. 2] is based mainly upon the corresponding provision
in the New York Constitution[, but, concerning a portion of the provision in
the New York Constitution providing for absentee voting for soldiers,] [t]hat
applied more particularly, perhaps, to such times as in the late War of the
Rebellion when large numbers of citizens were in the service of the country
and their votes, under special act of Assembly, were taken in the field. It was
thought that such an unfortunate condition of affairs as that would not be
likely to occur again. At all events, it was so removed that we thought it was
not necessary to put it in.218
I believe reasonable minds could easily disagree about how the passage should
be read—i.e., as suggesting an affirmative prohibition on absentee voting (as Lyons
concludes) or as indicating no firm position, one way or another, on the matter. The
217
See Lynch v. Donnelly, 465 U.S. 668, 674 (1984) (recognizing “the Court’s emphasis
that the First Congress ‘was a Congress whose constitutional decisions have always been
regarded, as they should be regarded, as of the greatest weight in the interpretation of that
fundamental instruction’”) (quoting Myers v. United States, 272 U.S. 52, 174-75 (1926)).
One might also conclude that the decision in 1943—during World War II—to invalidate
the Soldiers’ Vote Act was eased significantly by the anticipated second leg of the
amendment enacting Article V, Section 4A, which would be passed just two months after
the Harrington decision and arguably make the outcome somewhat academic at the time.
44 Del. Laws ch. 118 (1943).
218
Lyons, 5 A.2d at 501–02.
69
brief passage from the convention debates that Lyons quotes is, then, arguably made
to bear more weight than it deserves.
Finally, the plain text of Article V, Section 4A does not clearly and
convincingly reflect a prohibition on expanding the categories of permitted absentee
voting. The text of Section 4A instead reads as an affirmative grant of power to the
General Assembly, not a limitation. It says “[t]he General Assembly shall enact
general laws” providing for absentee voting in certain circumstances. Under that
reading, nothing would prohibit the General Assembly from enacting laws providing
for absentee voting in additional circumstances. Coupled with the strong
presumptions in favor of constitutionality and strong policy reasons for allowing the
General Assembly to promote unfettered voting, that construction would likely
control.
As I have already noted, I see my duty in this instance as determining whether
there is a reasonable interpretation of the Constitution that would uphold the validity
of the Vote-by-Mail Statute, rather than seeking out an interpretation that would
result in the statute’s invalidation. If I am able to interpret the constitution without
straining or stretching and, in doing so, find a statute constitutionally valid, I believe
I would be compelled to adopt that interpretation.
Here, the most straightforward interpretation of the constitutional text is that
it speaks in terms of in-person voting at the polling place and is simply silent as to
70
absentee voting. Certainly, the framers of the Constitution of 1897 were aware of
the potential for absentee voting. Indeed, the brief passage from the convention cited
in Lyons makes this clear. But a reasonable interpretation of the short statement by
Mr. Spruance at the convention is that the framers chose not to impose prohibitions
or directives as to absentee voting and thereby left the issue up to future members of
the General Assembly. The fact that Judge Spruance reported the omission of a
provision specifically addressing absentee voting from the constitution does not
automatically mean that the framers prohibited absentee voting. To the extent the
framers wanted to, they could have easily included express language saying so. Yet
they did not. In addition, the adoption of the Soldiers’ Vote Act in 1898 and the
broad mail-in voting act of 1923—all close in time to the constitutional
convention—further suggest that the framers did not understand there to be an
implied prohibition on absentee voting in the Constitution.
Certainly, the framers were deeply concerned with the issue of fraud in
elections given their experience with elections in the nineteen-century, and they
debated and put in place a detailed process governing in-person voting. Obviously,
the framers believed they needed to develop a detailed system governing the basic
and traditional form of voting, i.e., in-person voting. To say that it then follows that
the framers decided to prohibit, by implication, any other form of voting—and, in
particular, absentee voting—is a leap seemingly inconsistent with principles of
71
constitutional interpretation. One might, therefore, be concerned that the Lyons and
Harrington decisions cobble together various passages and, in doing so, stretch and
strain to imply a constitutional restriction where none appears in the plain text of the
document or based on ordinary principles of constitutional interpretation.
I state the foregoing with a clear recognition that the doctrine of stare decisis
is a cornerstone of our law. Among its many features, the doctrine promotes
stability, predictability, and overall coherence in our law. Any departure from stare
decisis is not to be considered lightly.
When I am confronted, however, with an implied limitation in our
fundamental law (the Constitution) to citizens’ fundamental right (voting), I believe
I have a duty to consider—however, briefly—the source of the implied limitation.
In this instance, no party has pointed me to any detailed appellate review of the
implied absentee-voting restriction by our modern-era Supreme Court. The only
modern-era authority that has been identified is the non-adversarial, advisory
Opinion of the Justices, which, as explained above, notes the implied restriction
briefly in self-described dicta. The precedent relied on in Opinion of the Justices
seems to be the decisions of Lyons and Harrington, two decisions from the “leftover
72
judge” era of appellate review.219 Given the fundamental nature of the voting rights
at issue, the Lyons and Harrington decisions may be worth revisiting. But that is a
decision for the Supreme Court.
Thus, if I were writing on a blank slate, I would likely conclude that the Vote-
by-Mail Statute is not prohibited by the Delaware Constitution. In that scenario, to
invalidate the Vote-by-Mail Statute, I would need to find clear and convincing
evidence of an express or implied prohibition in the Constitution and that is a very
high bar to clear.220 I am not writing on a blank slate, however. And as a trial judge,
I am not in a position to revisit Opinion of the Justices or the decisions on which it
relies—Lyons and Harrington.221
219
Henry R. Horsey & William Duffy, The Supreme Court Until 1951: The “Leftover
Judge” System, Delaware Supreme Court,
https://courts.delaware.gov/supreme/history/history2.aspx (last visited Sept. 14, 2022).
220
The fact that the General Assembly adopted Article V, Section 4A in 1943; adopted
amendments to expand absentee voter categories since then; employed emergency powers
to adopt the 2020 statute; and attempted a constitutional amendment in 2022 would not
change this result. These are all natural responses to the existence of case law finding an
implied prohibition against absentee voting. If a sign says “Electric Fence,” one generally
assumes the veracity of the statement without need for independent confirmation.
221
Should the Delaware Supreme Court determine to revisit Lyons, Harrington, and
Opinion of the Justices, then Defendants have identified a straightforward and compelling
harmonization of the Vote-by-Mail Statute and Article V, Section 4A. Namely,
Defendants, citing McLinko, argue that Article V, Section 4A provides a constitutional
floor for categories of absentee voting that cannot, by a simple majority of the legislature,
be revoked. 2022 WL 3039295, at *33 (“While it is accurate that Act 77’s provision of
universal mail-in voting provides a way for designated absentee voters to cast their vote
without resorting to the absentee voting provisions of the Election Code, this current ability
to do so does not render Section 14 of Article VII surplusage. As discussed, nothing in
73
D. Plaintiffs Have Satisfied the Remaining Elements for a Permanent
Injunction
As noted, to obtain a permanent injunction, a plaintiff must establish: (1)
actual success on the merits; (2) irreparable harm will be suffered if injunctive relief
is not granted; and (3) the harm that will result from a failure to enjoin the actions
that threaten plaintiff outweighs the harm that will befall the defendant if an
injunction is granted. Because I have concluded that precedent constrains me to
interpret the Vote-by-Mail Statute as unconstitutional, Plaintiffs have satisfied the
first prong. Plaintiffs have also satisfied the second and third prongs for their
requested injunctive relief.
1. Irreparable Injury
I am satisfied that Plaintiffs have shown that they will suffer irreparable injury
if the Vote-by-Mail Statute is not permanently enjoined. The unconstitutional
infringement upon the voting franchise of Delawareans presented here is a harm that
cannot be remediated by any remedy at law. Furthermore, if I were to not enjoin the
Vote-by-Mail Statute, then the courts would be faced with the impossible task of
Article VII prohibits the legislature from eliminating the ability of qualified voters to cast
their votes by mail, just as nothing in the Constitution required it to do so. By recently
enacting Act 77, the legislature made a policy decision, based on the authority afforded it
by our Charter, to afford all qualified voters the convenience of casting their votes by mail.
However, acts of the legislature are not guaranteed to be permanent.”). Under this reading,
and without the implied constraints of Lyons, Harrington, and Opinion of the Justices, the
Vote-by-Mail Statute does not render Section 4A surplusage.
74
“unscrambling the eggs” of an election undermined by unconstitutional votes.222
Given these considerations, Plaintiffs will suffer irreparable injury if the Vote-by-
Mail Statute is not enjoined and doing so is necessary in the interests of justice.
While a somewhat elusive topic,223 “[i]rreparable harm is generally defined as
harm for which there can be no remedy at law, which is ‘typically taken to mean that
an award of compensatory damages will not suffice.’”224 However, under Delaware
law, the concept of irreparable harm is broader: “[i]t is not necessary that the injury
be beyond the possibility of repair by money compensation but it must be of such a
nature that no fair and reasonable redress may be had in a court of law and that to
refuse the injunction would be a denial of justice.”225 This Court frequently finds
222
Notably, the Pennsylvania Supreme Court highlighted in McLinko the impossibility of
attempting to unwind an election. 2022 WL 3039295 at *3. There, the Pennsylvania
Supreme Court remarked that a previous challenge to the Pennsylvania universal mail-in
voting law was barred by laches because the petitioners had waited until after the applicable
election and such a challenge could not be adjudicated while the ballots were in the process
of being tallied. See id. at *3. Given that Plaintiffs have established the unconstitutionality
of the Vote-by-Mail Statute, a failure to enjoin the statute could raise a similar situation,
and it is imperative that this be avoided.
223
As quipped in a learned treatise on the subject, irreparable injury, in contrast to the
Supreme Court’s notable definition of obscenity, “is often more easily defined than
identified.” Donald J. Wolfe & Michael A. Pittenger, Corporate and Commercial Practice
in the Delaware Court of Chancery (“Wolfe & Pittenger”) § 14.03(b)(4), at 22 (2019).
224
AM Gen. Hldgs. LLC v. Renco Grp., Inc., 2012 WL 6681994, at *4 (Del. Ch. Dec. 21,
2012) (quoting Wolfe & Pittenger §14.03(b)(4), at 22).
225
State v. Del. State Educ. Ass’n, 326 A.2d 868, 875 (Del. Ch. 1974).
75
actions by boards of directors that threaten the voting franchise for stockholders as
constituting irreparable harm.226 Similarly, this Court will find irreparable harm
where failing to enjoin conduct that interferes with the stockholder voting franchise
would result in an outcome that cannot be easily unwound.227 It is obvious that this
Court should afford at least the same protection to the voting rights of Delaware
citizens as it does to stockholders of Delaware corporations.
Plaintiffs will suffer irreparable harm if the Vote-by-Mail Statute is allowed
to proceed because the law violates the constitutional protections afforded to their
226
See, e.g., Blasius Indus., Inc. v. Atlas Corp., 564 A.2d 651, 659 (Del. Ch. 1988) (“The
shareholder franchise is the ideological underpinning upon which the legitimacy of
directorial power rests.”); Third Point LLC v. Ruprecht, 2014 WL 1922029, at *23 (Del.
Ch. May 2, 2014) (holding that improper use of a shareholder rights plan by the company’s
board of directors caused a threat of irreparable harm because it would be potentially
dilutive of stockholders’ voting power); Telcom-SNI Invs., L.L.C. v. Sorrento Networks,
Inc., 2001 WL 1117505, at *9 (Del. Ch. Sept. 7, 2001) (holding that actions by a board of
directors that had dilutive voting effects “denied Plaintiffs their voting rights guaranteed to
them by the Certificate”); Phillips v. Insituform of N. Am., Inc., 1987 WL 16285, at *11
(Del. Ch. Aug. 27, 1987) (holding that the “loss of voting power constitutes irreparable
injury” where a stockholders’ statutory right to vote for directors is impeded); Wolfe &
Pittenger § 14.03(b)(4), at 33 (stating that Delaware courts have a “tacit assumption that
the unlawful interference with the corporate electoral process and the fundamental right of
the stockholder to vote is inherently irremediable.”).
227
See, e.g., Police & Fire Ret. Sys. of City of Detroit v. Bernal, 2009 WL 1873144, at *2
(Del. Ch. June 26, 2009) (holding that the plaintiff had established likelihood of irreparable
injury in part because it would be impossible to attempt to unwind a merger once it had
been completed); Fisk Ventures, LLC v. Segal, 2009 WL 1478490, at *1 (Del. Ch. May
15, 2009) (holding that transactions that will result in a significant and perhaps
unrecoverable loss represented “a clear example of irreparable harm”); ODS Tech., L.P. v.
Marshall, 832 A.2d 1254, 1263 (Del. Ch. 2003) (noting that allowing an uninformed
stockholder vote to proceed would force the court to “unscramble the eggs”).
76
voting rights. As already discussed, the Vote-by-Mail Statute will result in the
dilution of constitutional votes with unconstitutional votes. Furthermore, the fact
that votes will be cast under this unconstitutional law means that the election will
not be conducted in strict accordance with our Constitution. As Plaintiffs note, it
would be “virtually impossible” to unwind the election, and “[f]rom a practical
standpoint, the only remedy Plaintiffs have” is to prevent votes from being cast in
violation of Article V, Section 4A as interpreted by our State’s courts.228 Consistent
with this Court’s established precedent in the stockholder voting context, irreparable
harm is clear given the threats presented by vote dilution, an unfair election and that
the outcome of such an election could not be unwound.
While I denied Plaintiffs’ request for a temporary restraining order because
Plaintiffs failed to show a threat of imminent irreparable harm, that had to do with
the alleged harm in the interim between the TRO ruling and the issuance of this
decision. The expedited schedule agreed to by the parties allowed for a decision
well before the first mail-in ballots would be distributed, and therefore, the harm was
not imminent. Any potential harm at that point was speculative because DOE had
not mailed out any ballots. Moreover, the alleged harm of voter confusion about the
228
Pls.’ Combined Reply Br. at 35.
77
availability of mail-in voting was not irreparable, given the time before the general
election to inform the public regarding the laws’ challenge in the courts.
At this point, the nature of the harm is entirely different. When Plaintiffs
requested a temporary restraining order, the issue was interim injunctive relief on a
minimal record while the DOE was trying to implement a new law for primary
elections, a law which is not challenged in this case. Today, the primary is over, and
the next step is the imminent mailing of ballots and voting for the general election.
Here, the irremediable nature of the harm is clear and entirely different. A failure to
enjoin the Vote-by-Mail Statute would permit unconstitutional interference with the
voting franchise and the results of such interference could not be easily unwound.
This harm is imminent, non-speculative and would be irreparable.
2. Balance of the Equities
The balance of the equities favors Plaintiffs. Where, as here, a plaintiff
demonstrates success on the merits and irreparable harm, the scope of my inquiry on
the question of the balance of the equities is much narrower in focus than it is in the
interlocutory context.229 As the Supreme Court held in Richard Paul, Inc.,
229
See Wolfe & Pittenger § 16.02(f), at 38.
78
permanent injunctive relief should only rarely be denied based on a balance of the
equities where a plaintiff has established clear violations of his or her rights.230
Here, I have found that Plaintiffs have demonstrated success on the merits and
that a failure to enjoin the Vote-by-Mail Statute will result in irreparable harm.
Given this, Defendants must meet a high bar to show that public interest tips the
scale in their favor. Defendants have not met this bar.
Although Delawareans have an indisputably strong interest in voting for their
chosen slate, they also have an equally strong interest in the election being held in
compliance with constitutional constraints. Defendants argue that a ruling striking
down the Vote-by-Mail Statute is likely to result in voter confusion. But, as I
observed in my ruling denying Plaintiffs’ request for a temporary restraining order,
the highly expedited schedule was to allow sufficient time to cure any confusion
well before the general election. Defendants’ argument is also belied by the fact that
the DOE will not begin mailing ballots to electors who have requested to vote by
mail until October 10, 2022. Since no ballots have been distributed, DOE will have
more than sufficient time to make clear the categories of persons eligible to vote by
absentee ballot. In contrast, if the Vote-by-Mail Statute is not permanently enjoined,
230
Richard Paul, Inc. v. Union Imp. Co., 91 A.2d 49, 54–55 (Del. 1952).
79
then the risk of voter confusion is significantly higher because mail-in ballots would
be sent out to persons not eligible to vote by mail.
Through their balance of the equities arguments, Defendants invite me to
consider whether the Vote-by-Mail Statute constitutes good public policy in
weighing whether to issue injunctive relief. As a trial judge in this context, however,
my role is very limited. I acknowledge that Delaware has a strong policy in favor of
its citizens robustly exercising their right to vote. I further acknowledge that voters
may be unable to exercise their right to vote for numerous reasons, including because
they are working on election day or suffer resource constraints (e.g., childcare or
transportation constraints). My thoughts on the policy underlying the Vote-by-Mail
Statute, however, are fairly irrelevant. Delaware precedent—at least as its stands
today—requires me to issue an injunction.
Thus, the balance of equities weighs in favor of Plaintiffs, and their requested
injunctive and declaratory relief as to the Vote-by-Mail Statute must be granted.
III. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for summary judgment is
GRANTED IN PART and DENIED IN PART. Defendants’ motion for summary
judgment is likewise GRANTED IN PART and DENIED IN PART.
The parties shall confer and submit a proposed implementing order within two
business days.
80
APPENDIX A
RELEVANT CONSTITUTIONAL TEXT
The Delaware Constitution
Article I. Bill of Rights
§ 3. Free and equal elections.
Section 3. All elections shall be free and equal.
****
Article II. Legislature
§ 1. General Assembly to hold legislative power; composition.
Section 1. The legislative power of this State shall be vested in a General Assembly,
which shall consist of a Senate and House of Representatives.
****
Article V. Elections
§ 1. Time and manner of holding general election.
Section 1. The general election shall be held biennially on the Tuesday next after the
first Monday in the month of November, and shall be by ballot; but the General
Assembly may by law prescribe the means, methods and instruments of voting so as
best to secure secrecy and the independence of the voter, preserve the freedom and
purity of elections and prevent fraud, corruption and intimidation thereat.
§ 4. Registration of voters; days for registration; application to strike name
from list; appeals; registration as prerequisite for voting.
Section 4. The General Assembly shall enact uniform laws for the registration of
voters in this State entitled to vote under this Article, which registration shall be
conclusive evidence to the election officers of the right of every person so registered
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to vote at any General Election while his or her name shall remain on the list of
registered voters, and who is not at the time disqualified under the provisions of
Section 3 of this Article; and no person shall vote at such General Election whose
name does not at that time appear in said list of registered voters.
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 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.
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 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. Registration shall be a prerequisite
for voting only at general elections, at which Representatives to the General
Assembly shall be chosen, unless the General Assembly shall otherwise provide by
law.
The existing laws in reference to the registration of voters, so far as consistent with
the provisions of this Article, shall continue in force until the General Assembly
shall otherwise provide.
§ 4A. General laws for absentee voting.
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
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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.
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Article XIV. Oath of Office
§ 1. Form of oath for members of General Assembly and public officers.
Members of the General Assembly and all public officers executive and judicial,
except such inferior officers as shall be by law exempted, shall, before they enter
upon the duties of their respective offices, take and subscribe the following oath or
affirmation:
“I, (name) , do proudly swear (or affirm) to carry out the responsibilities of the office
of
(name of office) to the best of my ability, freely acknowledging that the powers of
this office flow from the people I am privileged to represent. I further swear (or
affirm) always to place the public interests above any special or personal interests,
and to respect the right of future generations to share the rich historic and natural
heritage of Delaware. In doing so I will always uphold and defend the Constitutions
of my Country and my State, so help me God.”
No other oath, declaration or test shall be required as a qualification for any office
of public trust.
Article XVII. Continuity of Governmental Operations
§ 1. Continuity of state and local governmental operations in periods of
emergency.
Section 1. The General Assembly, in order to insure continuity of State and local
governmental operations in periods of emergency resulting from enemy attack,
terrorism, disease, accident, or other natural or man-made disaster, shall have the
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power and the immediate duty (1) to provide for prompt and temporary succession
to the powers and duties of public offices whose immediate succession is not
otherwise provided for by this Constitution, of whatever nature and whether filled
by election or appointment, the incumbents of which may become unavailable for
carrying on the powers and duties of such offices, and (2) to adopt such other
measures as may be necessary and proper for insuring the continuity of
governmental operations. In the exercise of the powers conferred by this section, the
General Assembly shall in all respects conform to the requirements of this
Constitution except to the extent that in the judgment of the General Assembly to do
so would be impracticable or would cause undue delay.
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The Delaware Constitution of 1897
Article V. Elections
Section 4. The General Assembly shall provide by law for a uniform biennial
registration of the names of all the voters in this State who possess the
qualifications prescribed in this Article, which registration shall be conclusive
evidence to the election officers of the right of every person so registered to vote at
the general election next thereafter, who is not disqualified under the provisions of
Section 3 of this Article; but no person shall vote at such election unless his name
appears in the list of registered voters.
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 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.
Voters shall be registered upon personal application only, and each voter shall, at
the time of his registration, pay a registration fee of one dollar, for the use of the
county where such registration fee is paid.
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 disability or absence from the county, to any judge
entitled to sit in the Supreme Court, whose determination shall be final; and he 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. Registration shall be required only for general
biennial elections at which Representatives to the General Assembly shall be chosen,
unless the General Assembly shall otherwise provide by law.
The existing laws in reference to the registration of voters, so far as consistent with
the provisions of this Article, shall continue in force until the General Assembly
shall otherwise provide.
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