Delaware court: no mail-in balloting for you!

And they thought things would be run like 2020.

Back in the spring, one item that seemingly was a priority for the Delaware General Assembly was instituting a system of mail-in balloting for our elections. Such a system was used in the “emergency” of the 2020 election and turned out to influence results in unusual ways: in several cases, Republicans who won the in-person balloting in various races found themselves buried in an avalanche of mail-in votes in such a manner that races were generally decided by a margin of 20% or more. For example, if the Delaware Presidential race were decided strictly by in-person balloting then Donald Trump would have been entitled to Delaware’s three electoral votes in a nailbiter of an election decided by just 208 votes. As it was, Trump lost the mail-in balloting by a nearly 4:1 margin and it turned the state from a margin of less than 1/2 of 1% in Trump’s favor to a 19-point landslide for Basement Joe Biden. Similarly, Lee Murphy would have been elected Congressman by 3,510 votes and Donyale Hall would have been a GOP lieutenant governor in an 835-vote squeaker. Instead, both Democrats picked up over 75% of the mail-in vote to win comfortably.

Thus, it seemed that one of the Democrat priorities was to enshrine a system that accrued to their benefit. Add in the same-day registration passed in this session of the General Assembly (on a nearly party-line vote) and one could get the sense they were trying to perpetually game the system. And while a system of mail-in balloting passed in the 2019-2020 legislative session, the Democrats’ bid to place mail-in voting in the Delaware Constitution did not pass this time (the second of two required sessions) as the GOP turned against the bill, denying it the required 2/3 majority in the House. Instead, the Democrats passed a simple legislative bill, admitting on the way that it may not be constitutional in Delaware because they had to enact it that way and basically daring someone to take it to court. Democrats argued that, “This bill establishes voting by mail under the General Assembly’s broad powers under § 1, Article V of the Delaware Constitution to ‘prescribe the means, methods and instruments of voting.’”

A segment of plaintiffs objected to both of these measures, so they came under judicial scrutiny for this year’s General Election. On Wednesday Vice Chancellor Nathan Cook ruled that the mail-in voting bill as passed was indeed unconstitutional, but conceded:

(I)f I were writing on a blank slate, I would likely conclude that the Vote by-Mail Statute is not prohibited by the Delaware Constitution. In that scenario, to invalidate the Vote-by-Mail Statute, I would need to find clear and convincing evidence of an express or implied prohibition in the Constitution and that is a very high bar to clear. I am not writing on a blank slate, however.

Cook granted the plaintiff’s motion based simply on previous casework and the language of the Delaware Constitution, but left the door open for appeal.

While the conservative side cheered the decision as “a victory for the rule of law,” the Democrats were apoplectic. As reported by Delaware Public Media, the General Assembly leadership decried the decision.

As a result of a Republican-led effort to make voting as inconvenient as possible, there now exists a very real possibility that Delawareans could be denied the right to vote by mail in November…While our hope is that the Department of Elections will ultimately prevail on appeal, the reality is voters can settle this matter on Election Day by electing more Democrats to the General Assembly and ensuring the GOP doesn't have the votes it needs to block policies that are supported by 7 out of 10 Delawareans.

(ahem) Hey, since you guys brought up the policies supported by 7 out of 10 Delawareans, where’s the backing for photo voter ID from Democrats?

Considering the mail-in voting was the difference in electing not just Democrats as President, a Congressman, and a lieutenant governor, but also two Democrat State Senators, two Democrat State Representatives, and three Democrat officials in Kent County, yeah, Republicans might be a bit leery about that mail-in thing. (And the 2% of registered voters whose mail-in ballots were returned as undeliverable in 2020? Great question, but the progressives who asked it missed one: how many mail-in ballots were checked for signature match when they were returned? They were still on the rolls.)

A 12-9 Senate and 24-17 House might stop a lot of bad legislation that margins of 14-7 and 26-15 can pass. That’s the difference in mail-in balloting.

Naturally, there’s the real possibility that Vice Chancellor Cook may be spit upon on appeal and mail-in voting goes forward. This is obviously an important election to the Democrats because all 62 seats of the General Assembly are up for grabs as well as our Congressional representative, our Attorney General, our Treasurer, and our Auditor. While there is one House district where we can directly compare Democrat mail-in percentages to the GOP, we don’t have any information on how same-day registration in the primary translated into votes because the Department of Elections hasn’t shared that information.

The District 36 Republican Primary ended up with 2,026 votes: Republicans cast 93.9% of their votes in person, with just 4.3% opting to do mail-in balloting and a measly 37 Republicans (1.8%) taking advantage of early voting. In that same area, Democrats cast 932 votes, with 75.1% in person, 21.7% doing mail-in ballots, and 30 early votes for 3.2%. What a freaking waste of time passing early voting turned out to be.

It’s really difficult to fairly compare primary elections because some years have hotly-contested races that others don’t, but statewide primary turnout in 2022 was 16.2% compared to 32.26% in 2020 (the mail-in primary), about 23.5% in 2018, about 18.7% in 2016, and a paltry 11% or so from 2014. (The latter three were reported by party, so I assumed 2/3 of voters were Democrats.) With a lack of a major statewide race this year, I would sort of expect a down year in turnout but I don’t think having this policy supposedly supported by 7 out of 10 Delawareans made a dent. So why change? Oh wait, I know the answer.

What’s really wrong with having all voting on Election Day, in person unless you have a valid excuse? (I would allow being 65 or over as a valid excuse to go with the usual reasons.) I didn’t mind waiting 40 minutes to vote last time around in 2020, but in the other elections I participated in here I waltzed right into the polling place. Give me one Election Day, photo voter ID, and counting open to all interested observers (none of this kicking out the Republicans crap like they tried to pull in several places - by the way, were there any reports of Republicans ejecting Democrats from a count? I’ll wait…) and I’ll accept the results.

I’m being realistic here: Delaware is probably not going to be a ruby-red state anytime soon, but I don’t think it’s as blue as its elected officials reflect, either. There are surely a lot of Democrats who are as fed up with the Delaware Way as I am.

Update: I found this on Delaware Live, from last Tuesday, just to give you an idea of the scale of what we are talking here:

As of 11 a.m. Monday, 4,284 voters had voted in person at an early voting location, including 800 in Kent County, 1,384 in New Castle County and 2,100 in Sussex County, according to Cathleen Hartsky-Carter, community relations officer with the Delaware Department of Elections.

10,151 voters have cast a traditional absentee ballot, including 1,750 in Kent County, 4,442 in New Castle County and 3,959 in Sussex County. Hartsky-Carter said Sussex County still has early voting ballots to scan Tuesday.

1,373 mail-in ballots have been collected so far, including 163 in Kent County, 799 in New Castle County and 411 in Sussex County.

Because Sussex County had the most interesting countywide races I would expect that. But we opened the early voting process for 5.7% of those who turned out, and bumped the turnout up less than one percent, from 15.3% to 16.2%. Not much bang for the buck.

And mail-in ballot numbers are a bit deceptive because we didn’t get a form this year mailed to us as it was in 2020.

But if you take the numbers as reported and compare them to the total number of votes cast (75,040 per the state Department of Elections) we had the aforementioned 5.7% of voters use early voting and 15.4% of voters who used mail-in or absentee balloting, which is essentially the same thing. It was less than 2020, so I think the Republican objection is more in the principle of doing things the “wrong” way and the Democrats’ cavalier attitude toward it than objections to the system.

Mail-in ballots swung one race, though: incumbent House District 1 member Nnamdi Chukwuocka lost in-person by two votes to Shane’ Nicole Darby but carried the Democrat primary election with absentees and early voting. Since there’s no GOP filer there, barring a write-in campaign he’ll be back next session.