Update: On Friday, October 7, 2022, the Delaware Supreme Court delivered a blow to voting rights in our state with a ruling that overturned the vote-by-mail and same-day registration laws that were passed earlier this year.

Read the statements on this decision from ACLU Delaware and the Delaware Voting Rights Coalition. 

During the legislative session in 2022, the Delaware General Assembly exercised its authority under art. V. Sec. 1 of the Delaware Constitution to permanently enact vote-by-mail as an option for all eligible voters to utilize in elections. Vote-by-mail was temporarily allowed during the 2020 elections due to the COVID-19 pandemic, and the legislature passed legislation to permanently allow this option for all Delawareans.

Four individual citizens brought two lawsuits against the Department of Elections (DOE) and the State Elections Commissioner Anthony J. Albence claiming the General Assembly did not have the authority to enact the vote-by-mail statute and that it was unconstitutional. The Court of Chancery ruled in the plaintiffs’ favor, relying primarily on an advisory opinion from 1972 to determine vote-by-mail unconstitutional. 
The DOE sought reversal by the Delaware Supreme Court. On Tuesday, October 4, 2022, ACLU-DE filed an amicus curiae brief with the Court supporting DOE’s appeal. The brief was written by our legal staff with the support of Andrew Bernstein, Allison Johnson, and Sam Klein from the University of Pennsylvania Law School’s Democracy Law Project.

The ACLU-DE amicus brief argues that the Court of Chancery wrongfully determined that an advisory opinion issued a half-century ago was binding precedent precluding the General Assembly from enacting vote-by-mail. Specifically, the ACLU-DE argued that the 1972 non-binding opinion has no relevance on whether the General Assembly has authority to enact vote-by-mail under art. V. Sec. 1., that the 1972 Court’s evaluation of Art. V. Sec. 4A relied upon understandings that had limited applicability at the time and even less applicability to modern society, and, finally, that the court should prevent forms of racist and anti-democratic restrictions from affecting methods of voting today.

ACLU-DE firmly believes in the ability of all eligible voters to successfully vote without obstacles and urged the Court to uphold the vote-by-mail statute to increase accessibility for Delawareans to exercise their vital right to vote, rather than hinder it. 


Supreme Court of the State of Delaware


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