- The Washington Times - Monday, October 17, 2022

The rule of law is alive and well in President Biden’s Delaware, no thanks to his fellow First State Democrats. Thanks go instead to the state’s constitutionally grounded Supreme Court.

The same, unfortunately, cannot be said of the high court in Delaware’s neighbor Maryland.

The Democratic-dominated Delaware General Assembly sought to institute universal voting by mail and same-day voter registration in the state legislatively, even though neither is permitted by the state constitution.



Such changes in Delaware election law would require a state constitutional amendment. An attempt by Democratic state lawmakers to enact those changes by the elaborate process involved in amending the constitution proved unsuccessful, so they sought a path-of-least-resistance end run via simple majority-vote legislation. After all, they figured, “What’s the constitution among friends?”

Delaware’s high court, however, on Oct. 7 effectively answered: “I don’t think so.”

Just as an aside, the Delaware Democrats’ move called to mind Senate Democrats’ failed bid decades ago to make the District of Columbia the country’s 51st state for the sole purpose of guaranteeing the election in perpetuity of two more liberal Democratic senators.

In 1978, they proposed the necessary federal constitutional amendment to do that. After their efforts hit the brick wall they deserved, with only 16 of the requisite 38 states ratifying the amendment by the end of the seven-year ratification period in 1985, they suddenly decided they didn’t really need a constitutional amendment after all.

So, in fits and starts over the ensuing 37 years, they’ve tried — unconstitutionally and unsuccessfully — to make it happen via simple legislation.

But we digress. It took just one day — and just a three-page decision — for Delaware’s high court to rule that the vote-by-mail scheme impermissibly expanded the category of absentee voters identified in the state constitution, The Associated Press reported.

The Delaware justices also held that same-day registration would run afoul of the voter-registration periods outlined in the state constitution.

Challenged in court by Delaware Republicans, the Democrats’ move was rightly struck down, not least because being able to register to vote at the polls and then immediately cast a ballot would make it exponentially easier to cheat (and impossible to prevent it), since there would be no opportunity for election officials to verify a would-be voter’s identity or residence.

It’s of a piece with California, where Democratic Gov. Gavin Newsom wants to give 16-year-olds the right to vote in state elections, and the District of Columbia, where the Republican-free D.C. Council now wants to enfranchise noncitizens to vote in city elections. For Democrats, the end (winning at all costs) justifies the means (changing the rules in their favor, the Constitution notwithstanding).

But again we digress. Maryland’s highest court was not nearly as circumspect or deferential to state law as its Delaware counterpart. The same day the First State justices were standing up for the rule of law, the Maryland Court of Appeals was granting a state elections board’s emergency petition to allow mail-in ballots to be counted earlier than is currently allowed under Maryland law.

The court’s decision will help local election officials “complete the timely canvassing and tabulation of these ballots,” the Maryland State Board of Elections wrote in a statement hailing the ruling.

That’s all well and good, but Maryland law doesn’t allow mail-in ballots to be counted until after Election Day. The decision, while utilitarian in service of expediting election results (which everyone wants), is not something the court should have rendered.

Inasmuch as Maryland election officials never challenged the law as unconstitutional (merely inconvenient and unduly burdensome), it was up to the Maryland General Assembly to change it — not to the Maryland Court of Appeals to cavalierly brush it aside.

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