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


Menu:
  •                              COURT OF CHANCERY
    OF THE
    STATE OF DELAWARE
    NATHAN A. COOK                                             LEONARD L. WILLIAMS JUSTICE CENTER
    VICE CHANCELLOR                                               500 N. KING STREET, SUITE 11400
    WILMINGTON, DELAWARE 19801-3734
    Date Submitted: September 19, 2022
    Date Decided: September 19, 2022
    M. Jane Brady, Esquire                          Allison J. McCowan, Esquire
    Brady Legal Group LLC                           Zi-Xiang Shen, Esquire
    36365 Tarpon Drive4                             Victoria R. Sweeney, Esquire
    Lewes, DE 19958                                 State of Delaware Department of Justice
    Carvel State Office Building
    Julianne E. Murray, Esquire                     820 North French Street, 6th Floor
    Law Offices of Murray, Phillips & Gay           Wilmington, DE 19801
    215 E. Market Street
    Georgetown, DE 19947
    Re:    Michael Higgin, et al. v. Hon. Anthony J. Albence, et al.
    C.A. No. 2022-0641-NAC
    Ayonne “Nick” Miles, et al. v. Delaware Dep’t of Elections, et al.
    C.A. No. 2022-0644-NAC
    Dear Counsel:
    This Letter Opinion addresses Defendants’ Motion for Injunction or Stay
    Pending Appeal. For the reasons stated below, I grant Defendants’ motion and stay
    the permanent injunction entered in this matter in all respects except as to the actual
    mailing or other dissemination of mail-in ballots to voters. This stay will remain in
    effect until the Delaware Supreme Court issues its decision in the pending expedited
    appeal of this matter.
    C.A. No. 2022-0641-NAC
    C.A. No. 2022-0644-NAC
    September 19, 2022
    Page 2
    I issued my Memorandum Opinion on September 14, 2022. 1 The September
    14 Memorandum Opinion addresses Plaintiffs’ claims that the Same-Day
    Registration Statute and the Vote-by-Mail Statute violate the Delaware
    Constitution’s restrictions concerning voter registration and absentee voting,
    respectively, for purposes of general elections.2          I rejected the Same-Day
    Registration Statute claim, but held that Delaware precedent required me to enjoin
    the Vote-by-Mail Statute for general elections, including for the upcoming
    November 8, 2022 general election.
    Defendants filed a notice of appeal in the Delaware Supreme Court on
    September 16, 2022.3 The Supreme Court has expedited that appeal and will hear
    oral argument on October 5, 2022.4
    1
    See C.A. No. 2022-0641-NAC (Del. Ch. Sept. 14, 2022), Dkt. 37 (“September 14
    Memorandum Opinion”).
    2
    I adopt the defined terms used in the September 14 Memorandum Opinion. I assume the
    parties’ familiarity with the September 14 Memorandum Opinion and refer readers to that
    decision for a more complete discussion of the factual background and analysis.
    3
    Notice of Appeal, Albence, et al. v. Higgin, et al., No. 342,2022 (Del. Sept. 16, 2022),
    Dkt. 1.
    4
    Order Granting Appellants’ Mot. to Expedite, Albence, et al. v. Higgin, et al., No.
    342,2022 (Del. Sept. 16, 2022), Dkt. 3.
    C.A. No. 2022-0641-NAC
    C.A. No. 2022-0644-NAC
    September 19, 2022
    Page 3
    On September 16, 2022, Defendants also filed a motion before me to stay the
    injunction of the Vote-by-Mail Statute pending the outcome of their appeal.5 Earlier
    today, Plaintiffs filed their opposition to Defendants’ motion,6 and then Defendants
    filed a reply.7
    In considering Defendants’ motion, I am directed to weigh multiple factors:
    Defendants’ chances of success on appeal, the relative balance of harms to Plaintiffs
    and Defendants if I do or do not grant a stay, and the public interest.8 As to the first
    factor, my September 14 Memorandum Opinion explained why I believed that
    Delaware precedent required that I issue the injunction.9 The decision further
    explained why I believed that the Delaware Supreme Court may desire to reconsider
    that precedent.10 The first factor is therefore, at best, in equipoise.
    5
    Defs.’ Mot. for Inj. or Stay Pending Appeal, C.A. No. 2022-0641-NAC, Dkt. 40.
    6
    Pls.’ Resp. in Opp’n to Defs.’ Mot. for Inj. or Stay Pending Appeal, C.A. No. 2022-0641-
    NAC, Dkt. 42.
    7
    Defs.’ Reply in Further Supp. of Defs.’ Mot. for Inj. or Stay Pending Appeal, C.A. No.
    2022-0641-NAC, Dkt. 45.
    8
    See Kirpat, Inc. v. Del. Alcoholic Beverage Comm’n, 
    741 A.2d 356
    , 357 (Del. 1998).
    9
    See September 14 Memorandum Opinion at 51–65.
    10
    See 
    id.
     at 65–73.
    C.A. No. 2022-0641-NAC
    C.A. No. 2022-0644-NAC
    September 19, 2022
    Page 4
    In considering the balance of harms to Plaintiffs and Defendants if the stay is
    or is not granted, I find that the harm to Defendants of not granting a stay pending
    appeal far outweighs any identified harm to Plaintiffs of granting a stay.
    Importantly, Plaintiffs have not identified any material harm that they will personally
    suffer if the stay pending appeal that I described at the outset of this decision is
    granted. In contrast, Defendants have explained that, as a result of last week’s
    injunction, they have ceased implementation of the Vote-by-Mail Statute, including
    processing mail-in voting applications and preparing ballots.11 Defendants state that,
    if their expedited appeal succeeds, the continued pendency of an injunction between
    now and a decision on their appeal would put at serious risk Defendants’ ability to
    fulfill their statutory mandate to make mail-in voting available to Delaware voters
    for the November 8 general election.12 The balance of these harms therefore tips
    strongly in Defendants’ favor.
    The last factor I am directed to consider is the public interest. Of all the factors
    I must consider, I believe this one is, by far, the most important in this context.
    11
    See Defs.’ Mot. for Inj. or Stay Pending Appeal ¶ 7.
    12
    
    Id.
     ¶¶ 12–13.
    C.A. No. 2022-0641-NAC
    C.A. No. 2022-0644-NAC
    September 19, 2022
    Page 5
    The right to vote is the most fundamental right held by a citizen of our State,
    or of any other. It is the well-spring from which all other rights in our democracy
    ultimately flow.    Through voting, our citizenry determines the nature of our
    government and its policies. To my mind, the robust exercise of the right to vote is
    unquestionably in the public interest.
    My injunction in this matter was compelled by an advisory decision from five
    decades ago that, in turn, cited precedent from eight decades ago. If our Supreme
    Court determines to revisit that precedent and concludes that the Vote-by-Mail
    Statute is consistent with the Delaware Constitution, there is a serious risk that,
    absent a stay pending appeal, Delaware voters will be denied the opportunity to
    exercise their right to vote in the upcoming General Election by all constitutional
    means. That would be a grave injustice.
    This matter is now the subject of an expedited appeal before the Delaware
    Supreme Court, and I anticipate that a decision on that appeal will be made in short
    order. To the extent that any truly material harm might arise from a stay in the
    interim, it would only arise upon the distribution of mail-in ballots to voters pursuant
    to the Vote-by-Mail Statute. If the Delaware Supreme Court determines that the
    Vote-by-Mail Statute is inconsistent with the Delaware Constitution, the prior
    C.A. No. 2022-0641-NAC
    C.A. No. 2022-0644-NAC
    September 19, 2022
    Page 6
    receipt of Vote-by-Mail Statute ballots by Delaware voters would present a serious
    risk of voter confusion that could not be easily fixed. I therefore am not granting a
    stay of the injunction as to the actual mailing or other dissemination of mail-in
    ballots to voters pursuant to the Vote-by-Mail Statute.
    Plaintiffs say that I should deny Defendants’ motion for a stay pending appeal
    entirely. Plaintiffs argue that even permitting Defendants to “take applications and
    prepare ballots” for mail-in voting would “undermine[] the election and undercut[]
    the faith of the public in the legal process.”13 Plaintiffs claim that “[s]uch a move
    sends a dangerous and confusing message to voters, and even risks disenfranchising
    them.”14 I disagree. Delaware voters are, despite Plaintiffs’ arguments, adults fully
    capable of holding more than one thought in their minds simultaneously. Here, I am
    confident that citizens will have little difficulty understanding that, although they
    may continue to apply for a vote-by-mail ballot, the availability of mail-in voting is
    the subject of litigation.
    13
    Pls.’ Resp. in Opp’n to Defs.’ Mot for Inj. or Stay Pending Appeal ¶ 7 (emphasis
    omitted).
    14
    
    Id.
    C.A. No. 2022-0641-NAC
    C.A. No. 2022-0644-NAC
    September 19, 2022
    Page 7
    In addition, the Department of Elections has represented to me—both in its
    papers and during today’s teleconference—that, if the Supreme Court affirms the
    injunction, the Department will promptly notify all applicants for mail-in ballots
    pursuant to the Vote-by-Mail Statute of that fact.15 The Department has further
    represented that it will notify such applicants that they will need to plan to vote in-
    person on November 8 if they do not otherwise fall within the categories of persons
    specified in Article V, Section 4A of the Delaware Constitution as eligible for
    absentee voting.16 I am convinced that the Department’s representation, coupled
    with the form of the stay, appropriately mitigate any material risk of harm that might
    be associated with entering the stay.17
    For these reasons, I hereby stay the effect of the permanent injunction entered
    in this matter in all respects except as to the actual mailing or other dissemination of
    mail-in ballots to voters pursuant to the Vote-by-Mail Statute for the upcoming
    15
    See Defs.’ Mot. for Inj. or Stay Pending Appeal ¶ 14.
    16
    See 
    id.
    17
    Plaintiffs have not requested that the stay pending appeal be conditioned on the provision
    of security. Cf. Del. Const. art. IV, § 24. Accordingly, the stay is not conditioned on any.
    E.g., In re UnitedHealth Gp., Inc., 
    2018 WL 2110958
    , at *3 (Del. Ch. Apr. 27, 2018).
    C.A. No. 2022-0641-NAC
    C.A. No. 2022-0644-NAC
    September 19, 2022
    Page 8
    November 8 general election. This stay will remain in effect until the Delaware
    Supreme Court issues its decision in the pending expedited appeal of this matter.
    IT IS SO ORDERED.
    Sincerely,
    /s/ Nathan A. Cook
    Nathan A. Cook
    Vice Chancellor
    

Document Info

Docket Number: 2022-0641-NAC, 2022-0644-NAC

Judges: Cook V.C.

Filed Date: 9/19/2022

Precedential Status: Precedential

Modified Date: 9/19/2022