Delaware Legislature passes bill to improve voting access, but Republicans vow legal challenge

By Meredith Newman and Tara Lennon, Delaware News Journal | June 30, 2022


The Delaware General Assembly passed a bill on Wednesday that would significantly expand voter access by allowing people to mail in their ballots for state primaries and general elections.


The passage did not come without lengthy debate from House Republicans, debate which at times got heated on the second to last day of the legislative session. Many Republicans believe the legislation is unconstitutional and have signaled that this will likely lead to a lawsuit.


The House’s passage of the vote-by-mail bill was a significant win for Democrats after Republicans blocked the expansion of absentee voting last year. The bill, which passed in the Senate earlier this month, now heads to Gov. John Carney, who is expected to sign it. It would go into effect July 1.


For years, Delaware has had rigid voting laws. The only option available to most residents has been voting in person on Election Day. The Democratic-controlled Legislature has in recent years passed a series of election-related bills, including early voting and more recently same- day voter registration.


Voting experts and lawmakers say that these pieces of legislation will likely boost voter turnout. Many states have had these types of election laws for years.


“Delaware has not been on the forefront of making it easier to vote until COVID hit,” said David Redlawsk, a University of Delaware political science professor. “Delaware has, particularly for a state that has been controlled by the Democrats, has had pretty restrictive rules, particularly in terms of absentee ballots.”


During the pandemic, Delaware temporarily expanded voting access in 2020 by allowing registered voters to mail in ballots. This was a departure from Delaware’s absentee system, in which voters needed to provide an excuse in order to vote by mail.


State officials estimate that 76,000 voters cast absentee ballots during the state primary in September 2020, and more than 160,000 people did the same in the November general election.


The General Assembly, around this time, was attempting to permanently expand absentee voting by no longer requiring people to need an excuse as to why they cannot vote in person. Because this would be a constitutional amendment, Delaware required the Legislature to pass the bill in two consecutive legislative sessions with two-thirds support.


In 2019, a vast majority of House Republicans voted for the bill. Following the 2020 election, Delaware Republicans changed their stance. None of them voted for it in 2021, successfully blocking it from passing.


Republican leadership called it at the time a “scheme that will benefit Democrats." They argued the bill would let the majority party create new absentee rules that would benefit its candidates.


This year, Democrats decided to deploy a different strategy. The vote-by-mail bill will require residents to request a mail-in ballot. This is the primary difference from the 2020 election, in which the state sent all registered voters an absentee ballot application.


After residents request to vote by mail, they would then receive the ballot, instructions on how to fill it out and an envelope with postage. Completed ballots would need to be returned before Election Day, either by mail, depositing them in a secure drop box or delivering them directly to the state’s Department of Elections.


A bipartisan group, appointed by the state election commissioner, would then be responsible for opening the ballots and cross-checking them with the state’s list of voters.


“The Department of Elections is ready, able and willing to get this up and running in time so that it will be efficient and effective, trustworthy, as it has been proven to be,” said Rep. Krista Griffith, D-Fairfax, a sponsor.


For this bill, Democrats are citing the Legislature’s power to set the rules of the election. Yet Republicans adamantly believe this bill goes beyond the powers granted to the General Assembly in the state constitution.


“It’s coincidental that multiple times the word constitutionality was actually mentioned when, in fact, we’re not talking about anything (constitutional) here,” said Danny Short, House minority leader.


“So if we’re gonna do this,” he said, “it’s my opinion that we need to change the constitution.”


House Republicans led a debate that lasted more than two hours. A number of Republicans asked a series of lengthy questions to Mark Cutrona, director of the Division of Research, about the constitutionality of the legislation. The questions often veered into concerns of voter fraud and election integrity.


House Speaker Pete Schwartzkopf, in the midst of the debate, said he initially had some of the same doubts raised by Republicans. But those concerns went away after speaking with other lawmakers and attorneys.


“I don't know whether it's constitutional or not constitutional, and neither do you guys or anybody else in here,” Schwartzkopf said. “The best way to get this thing done is to hear this bill, move forward and let it ... go to the courts and let them decide.”


Ron Smith, attorney for House Minority Caucus, said there would likely be a legal fight.


Rep. Mike Smith, R-Pike Creek Valley, was the only Republican in either chamber to vote for the legislation. He expressed frustration, and at times passion, toward the Democrats for introducing this bill “last minute,” when they had been pushing for the constitutional amendment for the last two years.


The bill passed on Wednesday night required just a simple majority.


“We've been so politically divided on mail-in ballots that we do sometimes forget we're trying to make sure everyone's exercising their right,” Smith said. “I do hate the fact that every single day you hear someone saying an election was stolen.”


The passing of this bill comes at a time when the country is seeing two waves of election legislation: States like Delaware are removing voting obstacles and introducing flexibility into the voting process, while others are creating tougher security measures with the idea of cracking down on supposed voter fraud.


Michelle Kanter Cohen, the policy director and senior counsel of the Fair Elections Center, a nonpartisan organization, said laws making it harder to vote are a direct result of new participation seen in the 2020 election, which included young voters and people of color.


“I think we all can agree,” she said, “that people should be able to participate regardless of what their ZIP code is.”


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