Case: League of Women Voters of Delaware v. Delaware Department of Elections

This case challenged the deadline found in Delaware's Vote-By-Mail Statute for the receipt of mailed ballots in the September 15, 2020, primary election. In response to the Covid-19 pandemic, the Delaware General Assembly passed House Bill Number 346, which Delaware Governor Carney signed into law on July 1, 2020. This law allowed Delawareans to vote by mail for Delaware's September 15, 2020, primary election and expired in January 2021. Voters could request mail-in ballots up until October 31, 2020, and once received, they could return their completed ballots by mail or drop them off at a designated drop box. Delaware's drop boxes were not accessible on weekends, and most were only accessible between 8:00 AM and 4:30 PM. Additionally, the Delaware Department of Elections was required to receive mail-in ballots by 8:00 PM on November 3, 2020, for them to be counted. Consequently, mail-in ballots received after 8:00 PM on November 3, 2020, would not be counted, even if such ballots were postmarked before the deadline.

On September 4, 2020, the League of Women Voters and one individual resident of Delaware filed suit in the Court of Chancery of the State of Delaware. Plaintiffs sued the State of Delaware Department of Elections and the State Election Commissioner for Delaware, claiming the deadline violated Article I, Section 3 (the "Elections Clause") and Article V, Section 2 (the "Right to Vote Clause") of the Delaware Constitution. Specifically, Plaintiffs argued that, due to USPS delays and the anticipated high volume of mail-in voting, the deadline violated the Elections Clause and the Right to Vote Clause because (1) ballots mailed before the deadline might not have been received by the Delaware Department of Elections in time to be counted; and (2) voters who requested ballots near the deadline might have received them too late to return timely. As a result, Plaintiffs contended, the primary election would not be "free and equal," and eligible voters would be disenfranchised. Plaintiffs sought declaratory and injunctive relief. They sought injunctive relief to require Defendants to count ballots received by mail between (a) 8:00 PM on November 3, 2020, and 8:00 PM on November 6, 2020; and (b) 8:00 PM on November 6, 2020, and 8:00 PM on November 13, 2020, and bore some official USPS indicator showing the ballot was mailed on or before November 3, 2020. Plaintiffs were represented by private counsel and the ACLU of Delaware. The case was assigned to the Honorable Vice Chancellor Glasscock.

On September 18, 2020, Plaintiffs filed a motion for summary judgment. In their brief, Plaintiffs reiterated their constitutional arguments and asserted that an injunction was the appropriate relief. They claimed that (1) the return deadline created an irreparable harm and (2) the harm to voters from not issuing an injunction outweighed the harm to the Defendants if the court issued the injunction. First, Plaintiffs argued that the disenfranchisement of Delaware voters due to USPS delays constituted an irreparable harm, as there was no post-election remedy; once the election was over, these voters' uncounted votes were lost forever. Second, Plaintiffs claimed the administrative burden on the Defendants to count ballots mailed on or before November 3, 2020 was minimal compared to disenfranchising eligible Delaware voters.  

On October 9, 2020, the court issued an opinion, which denied Plaintiffs request for injunctive relief and granted judgment in favor of the Defendants. The court found that the Vote-by-Mail Statute was not unconstitutional on its face, noting that the statute's deadline mirrored the existing Absentee Voting Statute, which Plaintiffs acknowledged as constitutional. The court emphasized that the Vote-by-Mail Statute expanded voting rights by offering voting by mail as an alternative to voting at the polls, and that the burden of meeting the statutory deadline was comparable to the burden of voting in person. Second, while the court recognized Plaintiffs' concerns regarding the threat of disenfranchisement due to USPS delays were not frivolous, it found Plaintiffs failed to demonstrate why requiring ballots mailed by November 3, 2020 and received by November 13, 2020 was constitutionally necessary, as opposed to a different deadline, or that USPS delays would clearly, or even likely, lead to voter disenfranchisement.

On October 15, 2020, the court issued an order denying Plaintiffs' motion for summary judgment and dismissing Plaintiffs' case with prejudice.