Court rules against election law changes

The Delaware Supreme Court ruled that Vote by Mail and Same Day Voter Registration are unconstitutional.

The ruling on Vote by Mail (Senate Bill 320) upheld the Court of Chancery declaration that SB 320 was unconstitutional.

The ruling on Same Day Voter Registration (House Bill 25) reversed the Court of Chancery declaration that HB 25 was constitutional.

What to me is most interesting is that the makeup of the Delaware Supreme Court is a three to two Democrat majority, not that this should make any difference when deciding the constitutionality of an issue. 

Despite 27 years of Democratic governors appointing the state’s judges, Delaware courts have remained balanced thanks to a law requiring judicial seats to be split between the two major political parties.

For the last 120 years, Delaware law has mandated that no more than half of the judges on the state’s Supreme Court, Superior Court and Court of Chancery can be affiliated with one political party.

What I think is significant is that the ruling was unanimous by the five justices, especially on the issue of Same Day Voter Registration, which reversed the lower court decision.

Following is the language from the decision:

This 7th day of October, 2022, the Court has considered on an expedited basis the parties’ briefs, the record on appeal, and the argument of counsel, and it appears that: 

The Vote-by-Mail Statute impermissibly expands the categories of absentee voters identified in Article V, Section 4A of the Delaware Constitution. Therefore, the judgment of the Court of Chancery that the Vote-by-Mail Statute violates the Delaware Constitution should be affirmed. 

TheSame-Day Registration Statute conflicts with the provisions of ArticleV, Section 4 of the Delaware Constitution. Consequently, the judgment of the Court of Chancery that the Same-Day Registration Statute does not violate the Delaware Constitution should be reversed. 

The Court enters this abbreviated order in recognition of the impending election scheduled for November 8, 2022, and the Department of Election’s desire to mail ballots to voters by or around October 10, 2022. 

A more formal opinion, fully explaining the Court’s views and the reasons supporting our unanimous decision, will issue in due course. The mandate shall issue immediately. 


SB 320 addressed voting by mail, which the sponsors said were allowed under the “General Assembly’s broad powers under § 1, Article V of the Delaware Constitution to prescribe the means, methods and instruments of voting.”

Curiously, this bill tried to accomplish through a simple majority vote of the House and Senate what House Bill 75 tried to accomplish through an amendment to the Constitution, which required a two-thirds majority to pass in two consecutive general assemblies.

House Bill 75 failed.

My question is, if the sponsors of HB 75 thought it necessary to go the route of an amendment, how could a bill that does practically the same thing escape this requirement?

 HB25 addressed election day registration, saying that someone may register to vote by submitting with their application, a copy of a current and valid government issued photo identification OR a current document displaying the name and address of the person registering to vote, such as a utility bill, bank statement, government check, or paycheck. 

The term “current” as used in this section to forms of identification other than those that are government issued shall mean the documents must be dated within 60 days prior to the registration date. 

Notice there is no provision to show a photo ID in the part that is in bold, the part that follows the word OR.

I introduced the following amendment to HB25:

This amendment requires a person who registers to vote the day of the election to have their vote kept in a provisional ballot envelope, which shall be counted by the Department after the Department verifies the person in question is a qualified voter and has not previously voted in the election.

My amendment was deemed to be ‘unfriendly’ and failed along party lines.

The Delaware Supreme Court agreed with me.