Over the summer, Delaware Gov. John Carney signed a law allowing universal mail-in voting for any reason and same-day voter registration. Last week, the Delaware Supreme Court ruled that these laws violated the Delaware Constitution’s own election guidelines.
In other words, for the first time in a very long time, a court was inclined to follow a state’s explicit election rules.
Delaware got it right when so many other states got it wrong, like a nearly identical case in Pennsylvania. The Pennsylvania Supreme Court found that unlimited mail voting was consistent with the state constitution, even though the state constitution plainly said otherwise.
Perhaps our lawsuit in Delaware had some other things going for it.
For example, before passing the mail voting laws, Delaware legislators supporting the law openly joked that the law probably wasn’t constitutional.
Delaware Speaker of the House Peter Schwartzkopf quipped: “I don’t know whether it’s constitutional or not constitutional, and 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.”
When it comes to our elections, we need to follow the rules, not fool around by finding ways to violate them.
Following the passage of the law, the Public Interest Legal Foundation, of which I am the president, filed a lawsuit challenging the constitutionality of universal mail-in voting and same-day voter registration. We expedited this case to ensure that it was heard before the 2022 elections.
The Delaware Constitution has a specific list of reasons a person qualifies for an absentee ballot. Willy-nilly isn’t one of the reasons. The newly enacted mail voting law had no standards.
The Delaware Supreme Court also struck down as unconstitutional the same-day voter registration procedures passed this year. The state constitution provides reasonable registration procedures like most states have, not walk-up, no-verification voting on the dates that Delaware residents may register to vote.
Last week, the Delaware Supreme Court issued a ruling declaring the mail balloting and same-day registration law violate the state constitution. It’s plain and simple. Delaware’s Constitution does not allow mass vote by mail or same-day voter registration.
This matters. One way to ensure dissent and discord after an election is by not following the rules we all agreed to before the election. A state constitution represents the will of the people in that state. When a legislature enacts election procedures against the state constitution, as the Delaware General Assembly did, those procedures conflict with the will of the people. It is anti-democratic.
If everyone follows the rules, the losers are more likely to accept the results. Our country is broken because so many election officials in 2020 didn’t follow the rules. Sure, COVID-19 was the excuse. But like it or not, a sizable portion of the nation cannot accept the results in part because the rules were not followed.
Imagine a Super Bowl where at halftime the referees decide 15 yards is needed for a first down. Imagine the tumult and discord across the land.
Nor should this be a partisan fight. Once upon a time both Republicans and Democrats agreed on the importance of following the rules, particularly election rules. Our shared national consensus on this point isn’t so distant from the strife of these times that we cannot recapture the shared purpose and benefits of the rule of law.
Our win in Delaware is one small step toward restoring order and predictability to election administration. PILF will bring more cases like it when election officials — or legislatures — do not follow the commands of law in our elections.
Perhaps those inclined to twist the law in the name of justice, democracy, efficiency or whatever popular cause colors the day will consider the consequences of their actions.
We agree to election rules, laws, and constitutional mandates because we want the consent of the governed after the election. Following the rules is necessary to obtain the consent of the loser. Our nation becomes unglued when elections are conducted outside of the rule of law.
Thankfully, for a change, we have something positive to report thanks to the Delaware Supreme Court.
• J. Christian Adams is president of the Public Interest Legal Foundation, a former Justice Department attorney, and current commissioner on the U.S. Commission for Civil Rights.