League of Women Voters of Delaware, Inc. v. State of Delaware Department of Elections

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

LEAGUE OF WOMEN VOTERS OF )
DELAWARE, INC. and RACHEL )
GRIER-REYNOLDS, )
)
Plaintiffs, )
)
v. ) C.A. No. 2020-0761-SG
)
STATE OF DELAWARE )
DEPARTMENT OF ELECTIONS and )
ANTHONY J. ALBENCE, State )
Election Commissioner )
)
Defendants. )

MEMORANDUM OPINION

Date Submitted: October 6, 2020
Date Decided: October 9, 2020

David M. Fry, of SHAW KELLER LLP, Wilmington, Delaware; Karen Lantz, of
ACLU OF DELAWARE, Wilmington, Delaware, Attorneys for Plaintiffs League of
Women Voters of Delaware, Inc. and Rachel Grier-Reynolds.

Aaron R. Goldstein, Ilona M. Kirshon, Allison J. McCowan, and Frank N. Broujos,
of the DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware; Max B.
Walton, Matthew F. Boyer, Trisha W. Hall, of CONNOLY GALLAGHER LLP,
Wilmington, Delaware, Attorneys for Defendants The State of Delaware, Department
of Elections and Anthony J. Albence, State Election Commissioner.

GLASSCOCK, Vice Chancellor
 In Delaware (as in the United States in general), the people are ultimately

sovereign.1 Through the election process, their votes determine their

representatives, who form the General Assembly. 2 That body has near-plenary

authority to enact laws that apply to the people. If the electorate is dissatisfied with

this representation and regulation of their affairs, they are free to choose new

representatives at the next election. That is the social compact under which we self-

govern.

The General Assembly’s authority is not without limits, however. For

instance, some areas have been ceded to, and preempted by, the Federal

Government. And some arenas of operation are free to the people directly and

beyond the reach of the General Assembly, which is constrained by our constitution,

the Delaware Constitution of 1897, and particularly its Bill of Rights. 3 This limit on

governmental action in the way of the exercise of fundamental freedoms is a

prerequisite to the maintenance of liberty; these constitutional restraints are the sea-

wall upon which waves of overweening legislation must break.

1
Del. Const., Decl. of Rights, § 1 (“That all government of right originates from the people, is
founded in compact only, and instituted solely for the good of the whole.”).
2
Del. Const., Decl. of Rights, § 6 (“That the right in the people to participate in the Legislature, is
the foundation of liberty and of all free government, and for this end all elections ought to be free
and frequent, and every freeman, having sufficient evidence of a permanent common interest with,
and attachment to the community, hath a right of suffrage.”).
3
The Bill of Rights embodied in the United States Constitution, as extended to the states under the
14th Amendment, also constrains state law-makers, of course. Timbs v. Indiana, 139 S. Ct. 682,
687 (2019) (“[T]he Fourteenth Amendment’s Due Process Clause incorporates the protections
contained in the Bill of Rights, rendering them applicable to the State.”).

1
 I make this elementary political recitation, surely already known to the reader,

because the subject of this Opinion involves precisely these issues. Delaware is in

the grip of a viral epidemic. In light of that health emergency, the General Assembly

has recently extended the right to vote by mail, so that citizens may vote without

physical attendance at the polls. 4 This emergency legislation applies to the

upcoming election; the law (the “Vote-by-Mail Statute” or the “Act”) terminates in

January, 2021. While this recent legislation has liberalized the opportunity to vote

by mail compared to the pre-existing absentee voting regime, one restriction

pertinent here remains unchanged. Votes cast by mail, to be counted, must be

received by a time certain, 8 p.m. on the evening of Election Day—Tuesday,

November 3, 2020. In other words, a ballot cast by mail and received by the

Delaware Department of Elections after Election Day will be disregarded, even if

postmarked before Election Day. To be clear, this was true for absentee ballots both

before and after the enactment of the Vote-by-Mail Statute. That legislation is

expected to make mailed-in ballots much more numerous, however. Two questions

result. The first is whether, in enacting a deadline for receipt of mailed ballots as of

Election Day itself, the General Assembly has denied a right guaranteed by our

Constitution. The second is whether, even if the deadlines in the Act are facially

4
15 Del. C. ch. 56. See Republican State Comm. v. Dep’t of Elections, 2020 WL 5758695 (Del.
Ch. Sept. 28, 2020).

2
constitutional, recent upheaval in United States Postal Service (the “USPS”)

operations nonetheless renders the deadline unconstitutional as applied. The

urgency of the matter is made clear by the social contract referenced above; the right

to vote in a free and equal election is not simply a right enshrined in Delaware’s

Constitution; it is the fundamental right on which our democracy rests. The election

is in 25 days.

The Plaintiffs are a non-profit public-interest organization and a registered

Delaware voter. They challenge the constitutionality of the requirement that mailed

ballots be received on or before Election Day to be counted, in light of the increased

volume of mailed ballots expected and the possibility that postal delays may cause

electors to become disenfranchised by circumstances those electors themselves

cannot control. This burden, the Plaintiffs argue, is more likely to disenfranchise

some groups of voters than others, and the law, as applied, runs afoul of two

constitutional provisions. Per the Plaintiffs, it violates Article I, Section 3—a

provision of the Delaware Bill of Rights—which provides that elections must be

“free and equal” (the “Elections Clause”), as well as Article V, Section 2, which

provides that all citizens of Delaware “shall be entitled to vote at [each] election”

(the “Right to Vote Clause”). They ask me to employ equity to ensure compliance

with these constitutional mandates, by extending the statutory deadlines by which

3
votes may be received and counted, so as to include ballots postmarked on Election

Day and received up to ten days later.

The Plaintiffs may be correct that, as a matter of good governmental practice,

the statutory deadlines imposed by the General Assembly for receiving valid ballots

are not optimal. But that is a matter for the legislature; my role is much more limited.

Statutes enjoy a presumption of constitutionality, and I may not invalidate (let alone,

as sought here, rewrite) state statutes on ground of unconstitutionality unless that

unconstitutionality is clear. Here, that requires a showing that the deadlines as

applied interfere with the prescription of the Delaware Constitution that citizens are

entitled to participate in an election that is “free and equal.” The General Assembly

may—indeed, by Constitutional mandate, it should 5—provide regulatory legislation

for elections. The broad power of the General Assembly to regulate does not extend

to statutes that interfere with the right to vote in a free and equal election, however.

The Defendants are the state Department of Elections and the Election

Commissioner. The Plaintiffs have filed a Motion for Summary Judgement. No

pertinent facts are at issue, and the matter is therefore ready for decision.

5
Del. Const. art. V, § 1 (“[T]he General Assembly may by law prescribe the means, methods and
instruments of voting so as best to secure secrecy and the independence of the voter, preserve the
freedom and purity of elections and prevent fraud, corruption and intimidation thereat.”); Del.
Const., Decl. of Rights, § 8 (“That for redress of grievances, and for amending and strengthening
of the laws, the Legislature ought to be frequently convened.”).

4
 The Plaintiffs’ position was, for me, clarified at oral argument. According to

the Plaintiffs, the absentee voting requirements as they existed before this year,

including the stricture that absentee ballots be received by the time polls close, were

constitutional. 6 This is true even though an absentee ballot in prior elections, mailed

on Election Day, was virtually certain to arrive after the close of polls, and thus be

spoiled. Absentee voters were in practice required to post their ballots a few days

early to ensure timely delivery by mail. This, the Plaintiffs concede, was a restriction

on absentee voters’ abilities to cast ballots, but was not sufficiently burdensome to

violate the Elections Clause.7 However, when the legislature expanded vote-by-mail

rights this summer but kept the deadline the same, per the Plaintiffs, it violated the

Constitution. That is because the Vote-by-Mail Statute will permit many more votes

to be cast by mail, which means the number of late (spoiled) ballots will increase

accordingly; or conversely, it means that more voters—those who take advantage of

mailing their ballots—will be burdened by the need to vote a few days before the

election. 8 In either view, the Plaintiffs argue, this increases the burden imposed by

the deadline to the point of constitutional incompatibility. I consider this a facial

challenge to the Vote-by-Mail Statute and its ballot-receipt deadline.

6
Tr. of Oral Arg. 7.
7
Id.
8
Id. at 7, 17.

5
 In addition, the Plaintiffs point out that the USPS has, largely since the Vote-

by-Mail legislation was enacted, put in place procedures that threaten timely delivery

of ballots. They point to litigation pursued against the USPS by the Defendants

themselves alleging such a possibility. In light of this circumstance, not fully known

to the General Assembly when the Vote-by-Mail Statute was enacted, the statutory

deadlines will interfere with the constitutional right to vote, by burdening those who

need to vote by mail to an extent that violates the “free and equal” Elections Clause.

I consider this argument to be a challenge to the constitutionality of the legislation,

as applied. The necessary remedy, per Plaintiffs, is to extend the deadline by ten

days, in either case.

I find that the Vote-by-Mail Statute, in light of its Election-Day ballot

deadline, is not unconstitutional on its face. At the time the Vote-by-Mail Statute

was enacted, the absentee ballot deadline, which the Plaintiffs agree was

constitutional with respect to the law as it then existed, already required Election-

Day ballot receipt. I find nothing about the liberalization of the ability to mail ballots

in the Act that created a constitutional violation. Those choosing to mail ballots

have always had to vote sufficiently early to ensure delivery by Election Day.

Expansion of this option does not, to my mind, render the election unfree or unequal;

the Act expands voting rights by allowing voting by mail as an alternative to voting

at the polls, and it imposes a minimal temporal burden on those voting by mail, just

6
as those voting in person have the burden of physically going to the polls by a time

certain. The Election-Day deadline serves a state function; finality and compliance

with the Constitution’s vote-reporting requirements, under which the Defendants

must turn voting totals over to the Prothonotary two days after the election. 9 Other

considerations for setting the deadline as the Plaintiffs advocate may exist, but they

involve policy, not constitutionality, and are matters for the legislature and not the

Court.

The challenge to the legislation as-applied is more difficult of analysis. The

Vote-by-Mail Statute in general, and its requirement that ballots be received on

Election Day or be disregarded, rests on an assumption: that the USPS will continue

to efficiently and reliably collect and deliver the mail. That assumption, once a

given, is currently in question. The Plaintiffs make a compelling case based on the

Defendants’ own pleadings in its litigation against the USPS that there was a

possibility—as of the time of the filing of this Complaint—that mail delivery delays

would disenfranchise voters choosing to vote by mail. 10 That is, such voters casting

ballots in good faith in light of the voting deadline may nonetheless have their ballots

spoiled because the USPS fails timely delivery. Such a disenfranchisement, if

9
15 Del. C. § 4980(a) (“Immediately after the election, and within the 2 days immediately
following the day of election, all voting materials . . . must be stored in a safe and secure place
provided by the Department. While the board of canvass is conducting its canvass of the vote, all
voting materials must be in the custody of the Prothonotary.”).
10
Reply Br. in Supp. of Pls.’ Mot. For Summ J. (“Summ. J. Reply Br.) 10, Dkt. No. 19.

7
widespread, could cause the deadline, as applied, to violate the Elections Clause,

particularly as it burdens those who are compelled by risk factors to vote by mail to

a degree not suffered by those casting in-person ballots. As the Defendants note,

however, litigation against the USPS has been fruitful. The USPS has been enjoined

by several federal courts from employing practices reducing its ability to timely

deliver ballots.11 The threat of USPS non-compliance, however, remains, as the

Plaintiffs point out.

The Delaware Constitution guarantees the right to vote in a free and equal

election process.12 The General Assembly set a deadline for mailed ballots that, as

of the time the legislation was passed, was sufficient to comply with this mandate.

The issue is whether the threat of disenfranchisement as now posed by USPS

practice is such that I must change the deadline to maintain compliance with Article

I, § 3. According to the Plaintiffs, this requires that all ballots mailed by Election

Day and received within ten days after Election Day must be counted, and that I

must impose this deadline as the minimum required by the Constitution. They are

unable to point to why that deadline, as opposed to some other, is constitutionally

11
See Transmittal Aff. of Max. B. Walton (“Walton Aff.”), Exs. J, K, Dkt. No. 18 (U.S. District
Court for the District of Eastern District of Pennsylvania); Walton Aff., Ex. H at 2 (U.S. District
Court for the Southern District of New York); State of New York v. Trump, No. 1:20-sv-02340-
EGS, slip op. (D.D.C. Sept. 27, 2020) (U.S. District Court for the District of Columbia); State of
Washington v. Trump, 2020 WL 5568557 (E.D. Wash. Sept. 17, 2020) (U.S. District Court for the
Eastern District of Washington).
12
Del. Const. art. I, § 3; Del. Const. art. V, § 1.

8
mandated, however. Such a line-drawing exercise is a quintessential legislative

function. Only if I find that the Election-Day deadline imposed by the General

Assembly—the traditional deadline that has been imposed on absentee ballots, pre-

vote-by-mail—as applied, will result in an election less than free and equal, may I

invalidate the law. But the Plaintiffs have not shown—cannot show—that, on the

record as it stands, it is clear, or even likely, that malfeasance or ineptitude on the

part of those controlling the USPS will burden voters needing to vote by mail in a

way that renders the deadline unconstitutional as applied. The Plaintiffs’ concerns

are not frivolous. Principles of judicial modesty, however, require I not interfere

with a statute on speculative grounds—particularly so when to do so would change

settled law within weeks of the election.

For these reasons, the Plaintiffs’ Motion for Summary Judgment is denied,

and the Defendants are entitled to a judgment as a matter of law. A more detailed

explanation follows.

9
 I. BACKGROUND 13

A. The Parties

The Plaintiffs are the League of Women Voters of Delaware, Inc. (the

“LOWVD”) and Rachel Grier-Reynolds. 14 The LOWVD is Delaware’s state branch

of the League of Women’s Voters, a nonpartisan, activist, grassroots organization.15

It has 419 members throughout the state of Delaware.16 Ms. Grier-Reynolds is a

resident of Delaware and a registered Delaware voter. 17 She “was sent an absentee

ballot for the November 3, 2020 General Election via electronic delivery on

September 28, 2020.” 18

The Defendants are the State of Delaware Department of Elections (the

“Department”) and Anthony J. Albence (collectively, the “DOE”). 19 The

Department is an agency of the State of Delaware. 20 Mr. Albence is the State

Election Commissioner for the State of Delaware. 21

13
I base the facts for this summary judgment ruling on the parties’ pleadings, together with the
attachments thereto. The facts are undisputed.
14
Pls.’ Compl. for Injunctive Relief and Declaratory J. (“Compl.”) ¶ 5, Dkt. No. 1; Defs.’
Answering Br. in Opp’n to Pls.’ Mot. For Summ. J. (“Summ. J. Answering Br.”) 5, Dkt. No. 18.
15
Compl. at ¶ 5; Summ. J. Answering Br. at 5.
16
Id.
17
Compl. at ¶ 6; Summ. J. Answering Br. at 5.
18
Aff. of Anthony J. Albence (“Albence Aff.”) ¶ 21, Dkt. No. 18.
19
Compl. at ¶¶ 7–8; Summ. J. Answering Br. at 5.
20
Compl. at ¶ 7; Summ. J. Answering Br. at 5.
21
Compl. at ¶ 8; Summ. J. Answering Br. at 5.

10
 B. Factual Background

As I wrote two weeks ago, in another case challenging the same statute at

issue here on different grounds, “[t]he world is suffering from a pandemic, and the

United States is not immune.” 22 An airborne virus has killed over 200,000

Americans, normal routines have been disrupted, and the world is vastly different

from how it was a mere ten months ago. Norms and rituals that we took for granted

have been eliminated or gravely modified in order to preserve public health. Despite

this upheaval, our democracy must continue and the elections of our state and

national officials must still be held.

In April, when primaries in other states were taking place, news reports

revealed that the USPS was experiencing difficulties “in timely delivering and

processing vote by mail ballots. For example, in the April Wisconsin primary, the

USPS received numerous complaints regarding Wisconsin’s absentee ballots.”23 In

May 2020, the President appointed a new Postmaster General, Louis DeJoy, who

began implementing changes to USPS operations that resulted in “[n]ationwide

[d]elays and [c]ontinue to [h]ave a [n]ationwide [i]mpact.”24 On June 3, 2020, The

Guardian reported that “the US Postal Service is on the brink of crisis” and that the

outgoing postmaster general “recently warned that without immediate support the

22
Republican State Comm. of Del., 2020 WL 5758695, at *1.
23
Summ. J. Answering Br. 9 (citing Walton Aff., Ex. A).
24
Walton Aff., Exs. D at 3, I at 8.

11
agency could run out of funds within the year, and in that case might need to shut

down.”25

It is against this backdrop that Delaware’s state government passed House Bill

346 (“HB 346”), i.e., the Vote-by-Mail Statute, which provides for mail-in voting

for elections occurring before January 12, 2021. 26 Voting by mail does not require

voters to mail their marked ballots back to the State—rather, it means that voters

will receive a ballot by mail, just like absentee voters.27 Voters may then either

return the ballot by mail or drop it off in one of four separate drop-box locations,

one or more in each county. 28 In either case, for the ballot to be counted, it must be

received by the Department by the time polls close on Election Day—that is, 8:00

p.m. on November 3, 2020. 29

As I explained two weeks ago, 30 HB 346 was introduced into the Delaware

House of Representatives on June 12, 2020 and passed by that body a mere six days

later, on June 18. It passed the Senate almost as speedily, on June 25, and was signed

25
Walton Aff., Ex. D at 1–2.
26
15 Del. C. § 5601.
27
In essence, the Vote-by-Mail Statute allows voters who would not normally qualify for absentee
voting (which also occurs by mail) to vote by mail.
28
Two of these locations are in New Castle County. One is in Sussex County, and one is in Kent
County—in Dover. Voting By Mail In Delaware, State of Delaware Department of Elections, at
https://elections.delaware.gov/services/voter/votebymail/index.shtml (last visited October 9,
2020).
29
Id.
30
Republican State Comm. of Del., 2020 WL 5758695, at *2.

12
into law by Governor John Carney six days later, on July 1. All told, HB 346 became

law only 19 days after its introduction into the House.

On August 21, 2020, Delaware, five other states, and the District of Columbia

sued the Postmaster General in the U.S. District Court for the Eastern District of

Pennsylvania for an injunction against USPS delays in delivering election mail.31

On September 28, that court issued a nationwide injunction prohibiting the

Postmaster General from continuing to implement or enforce the operational

changes that the Postmaster General had previously announced. 32 The court also

incorporated by reference parts of another nationwide injunction, issued on

September 21, by the U.S. District Court for the Southern District of New York (the

“SDNY”). 33 The SDNY’s decision requires the USPS to “treat all Election Mail as

First-Class Mail or Priority Mail Express” to the extent that excess capacity

permits.34

The SDNY and Eastern District of Pennsylvania are not the only federal courts

to weigh in on the issue of mail delivery delays. The U.S. District Court for the

Eastern District of Washington has also entered an injunction prohibiting the USPS

from continuing to implement recent decisions that caused delays in mail processing

31
Compl., Ex. F.
32
Walton Aff., Exs. J, K.
33
Walton Aff., Ex. K at 1, citing Jones v. United States Postal Service, No. 20 Civ. 6516 (S.D.N.Y.
Sept. 25, 2020) (Marerro, J.).
34
Walton Aff., Ex. H at 2.

13
and delivery. 35 The U.S. District Court for the District of Columbia has entered an

injunction to the same effect as well.36

C. The Challenged Statutes

In light of the delays in mail delivery, the Plaintiffs challenge the

constitutionality of both the Vote-by-Mail Statute37 and the Absentee Voting

Statute38 under the Delaware Constitution as they apply to the 2020 general

election. 39 Specifically, the Plaintiffs take issue with the deadline for the return of

mailed ballots, whether they be authorized by the Absentee Voting Statute or the

Vote-by-Mail Statute. That deadline, found in 15 Del. C. §§ 5508 for absentee

ballots and 5608 for votes by mail, is when “the polls close on the day of the

election”40—i.e., 8:00 p.m. on November 3, 2020. The Plaintiffs argue that delays

in mail delivery will cause some ballots to be received by the Department after the

deadline—despite being postmarked before Election Day—resulting in those ballots

not being counted.41

According to the Plaintiffs, such disenfranchisement will violate two

provisions of the Delaware Constitution: the Elections Clause found at Article I, § 3

35
State of Washington, 2020 WL 5568557.
36
State of New York, No. 1:20-sv-02340-EGS, slip op. (D.D.C. Sept. 27, 2020).
37
15 Del. C. ch. 56.
38
15 Del. C. ch. 55.
39
Opening Br. in Supp. of Pls.’ Mot. For Summ. J. (“Summ. J. Opening Br.”) 10, Dkt. No. 16; see
generally Compl.
40
15 Del. C. §§ 5508(b), 5608 (b).
41
Compl., Prayer for Relief ¶ a; Compl. ¶ 59.

14
and the Right to Vote Clause found at Article V, § 2. 42 The Elections Clause

provides that “[a]ll elections shall be free and equal.”43 “[T]he Elections Clause

should not be interpreted in lockstep with the federal jurisprudence that has

developed under the Fourteenth Amendment” because it “has independent content

that is more protective of electoral rights than the federal regime.” 44 The Voting

Rights Clause provides that “[e]very citizen of this State” who is eligible to vote in

an election “shall be entitled to vote at such election.”45 Through this clause, the

Delaware Constitution, unlike the federal Constitution, “explicitly provide[s] an

individual with a right to vote.” 46

D. Procedural History

The Plaintiffs filed their Complaint, accompanied by a Motion to Expedite,

on September 4, 2020. They seek declaratory judgment that the deadlines are

unconstitutional under the Delaware Constitution and two permanent injunctions

enforcing that declaration: one enjoining the Defendants “from failing to count the

votes recorded on any ballot received by mail between 8:00 PM on November 3,

2020, and 8:00 PM on November 6, 2020”47 and one enjoining the Defendants “from

failing to count the votes recorded on any ballot received by mail between 8:00 PM

42
Summ. J. Opening Br. 12, 18.
43
Del. Const. art. I, § 3.
44
Young v. Red Clay Consol. Sch. Dist., 122 A.3d 784, 813 (Del. Ch. 2015).
45
Del. Const. art. V, § 2.
46
Red Clay, 122 A.3d at 813.
47
Compl., Prayer for Relief ¶ b.

15
on November 6, 2020, and 8:00 PM on November 13, 2020, bearing a postmark,

scan code, or other official USPS indicator that the ballot was mailed on or before

November 3, 2020.”48 In other words, the Plaintiffs would have the Defendants

count any mailed-in ballots received up to three days after Election Day, regardless

of whether they bear a postmark of being mailed by Election Day, unless the

Defendants can prove the ballots were not mailed by that time. Further, the Plaintiffs

would have the Defendants count any mailed-in ballots that bear an Election-Day-

or-sooner postmark that is received up to 10 days after Election Day.

The Plaintiffs filed a Motion for Summary Judgment on September 18,

2020. 49 For its part, the DOE has not made a cross-motion for summary judgment,

but has indicated that the matter is ripe for summary judgment on the legal issues

and argues that “all [the] Plaintiffs’ claims should be dismissed.” 50 Recognizing the

exigency of this matter, I granted the Plaintiffs’ Motion to Expedite and heard oral

argument on the Plaintiffs’ Motion for Summary Judgment on October 6, together

with their request for final injunctive relief, and consider the matter submitted for

decision as of that date.

At oral argument, it became clear that the Plaintiffs have two objections to the

Vote-by-Mail Statute and the Absentee Voting Statute. The first is a facial one

48
Compl., Prayer for Relief ¶ c.
49
Pls.’ Mot. For Summ. J., Dkt. No. 15.
50
Summ. J. Answering Br. 57.

16
against the Vote-by-Mail Statute; the Plaintiffs argue that at the time the General

Assembly enacted HB 346, they were required to also change the statutory deadline

in order for the Vote-by-Mail Statute to be constitutional, regardless of USPS

delays. 51 The second is the as-applied challenge detailed in the Plaintiffs’ Opening

Brief in Support of their Motion for Summary Judgment; that challenge contends

that both the Absentee Voting Statute and the Vote-by-Mail Statute are

unconstitutional as applied to the unique circumstances of the 2020 general election,

including potential delays in mail delivery.

“When a plaintiff seeks a permanent rather than preliminary injunction, he

must demonstrate ‘actual, rather than probable success on the merits.’” 52 Because I

deny the Plaintiffs’ Motion for Summary Judgment, that decision necessarily

resolves the question of success on the merits against the Plaintiffs and moots the

permanent injunction request. Accordingly, I find that the DOE is entitled to a

judgment in its favor. 53

51
Tr. of Oral Arg. 10, 12.
52
N. River Ins. Co. v. Mine Safety Appliances Co., 105 A.3d 369, 384 (Del. 2014), as revised (Nov.
10, 2014) (quoting Draper Comm’ns, Inc. v. Del. Valley Broadcasters Ltd. P’ship, 505 A.2d 1283,
1288 (Del. Ch. 1985)).
53
I informed the parties to this case in a pre-trial conference on September 2, 2020 that I intended
to resolve this matter based on the record as it existed at the time the matter was submitted. No
party objected. See Tr. of 9.2.20 Telephonic Scheduling Conference, Republican State Comm. of
Del., 2020 WL 5758695, C.A. No. 2020-0685, Dkt. No. 21; Ch. Ct. R. 56(h) (addressing cross-
motions for summary judgment in the absence of material issues of fact as “the equivalent of a
stipulation for decision on the merits based on the record submitted with the motions”).

17
 II. ANALYSIS

Summary judgment may be granted where there is “no genuine issue as to any

material fact” and the moving party is “entitled to a judgment as a matter of law.”54

The parties do not dispute the operative facts—that the Vote-by-Mail Statute

expanded the right to mail-in ballots for this election only, that the USPS has suffered

delays in delivering mail, that multiple federal courts have attempted to address

those delays via injunctions aimed at prioritizing the delivery of election mail, and

that the deadline for the return of marked ballots is 8:00 p.m. on November 3, 2020.

Nor do the parties dispute that some voters may, in fact, mail their ballots such that

they are postmarked before the deadline but are received after the deadline and are

thus not counted. The only question is whether such disenfranchisement causes the

deadline to violate the Delaware Constitution’s guarantee of the right to vote and

that all elections will be “free and equal.” 55 That question, which is entirely

dependent on the interpretation of the Delaware Constitution, is a question of law.

Accordingly, summary judgment is appropriate. 56

54
Ch. Ct. R. 56(c).
55
Del. Const. art. I, § 3.
56
Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 627 (10th Cir. 1998) (interpretation of both
state and federal constitutional law are “purely legal questions”); see Seidensticker v. Gasparilla
Inn, Inc., 2007 WL 4054473, at *2 (Del. Ch. Nov. 8, 2007) (“Where the dispute centers on the
proper interpretation of an unambiguous contract, summary judgment is appropriate because such
interpretation is a question of law.”) (emphasis added).

18
 A. The Plaintiffs’ claims are ripe.

The Defendants first contend that the Plaintiffs’ claims are not ripe “as they

are based on uncertain and contingent USPS mail delays that may not occur.” 57 The

Plaintiffs counter that their claims are ripe, noting that the Defendants have

themselves conceded this point by acknowledging that the State of Delaware has

sued over mail delivery delays in federal court.58

In general, “Delaware courts decline to exercise jurisdiction over a case unless

the underlying controversy is ripe—i.e., has ‘matured to a point where judicial action

is appropriate.’” 59 In other words, ripeness means that courts “do not render

advisory or hypothetical opinions.”60 “A ripeness determination requires a common

sense assessment of whether the interests of the party seeking immediate relief

outweigh the concerns of the court ‘in postponing review until the question arises in

some more concrete and final form.’” 61 To defeat a defense of unripeness, the

“Plaintiffs must allege that ‘present harms will flow from the threat of future

action.’” 62 Further, “the probability of that future event occurring [must be] real and

57
Summ. J. Answering Br. 30.
58
Summ. J. Reply Br. 9–11.
59
XI Specialty Ins. Co. v. WMI Liquidating Tr., 93 A.3d 1208, 1217 (Del. 2014) (quoting Stroud
v. Milliken Enterprises, Inc., 552 A.2d 476, 480 (Del. 1989)).
60
Id.
61
Id. (quoting Stroud, 552 A.2d at 480).
62
Energy Partners, Ltd. v. Stone Energy Corp., 2006 WL 2947483, at *7 (Del. Ch. Oct. 11, 2006)
(quoting Presbytery of New Jersey of the Orthodox Presbyterian Church v. Florio, 40 F.3d 1454,
1463, 1466 (3d Cir.1994)).

19
substantial, [and] of sufficient immediacy and reality to warrant the issuance of a

declaratory judgment.” 63

I find that, with the Plaintiffs’ clarification at oral argument that they are also

alleging a facial challenge to HB 346, the ripeness defense is no longer at issue. The

Plaintiffs maintain that there is a current and ongoing constitutional violation,

affecting the institutional Plaintiff and its constituent voters. They have adequately

alleged harm that will flow from the threat of the enforcement of the statutory

deadlines for counting ballots. The probability of ballots going uncounted is

sufficiently immediate, real, and cognizable that courts in at least three of our sister

states have addressed the issue, and in fact extended the ballot-receipt deadline. 64 I

also note that, as a practical matter, it is much preferable, to the extent possible, to

resolve such disputes before, rather than after, the election. The Plaintiffs’ claims

are ripe for adjudication.

63
Anonymous v. State, 2000 WL 739252, at *4 (Del. Ch. June 1, 2000).
64
See Democratic Nat’l Comm. v. Bostelmann, 2020 WL 5627186 (W.D. Wis. Sept. 21, 2020);
Mich. Alliance for Retired Americans v. Benson, C.A. No. 20-000108-MM, (Mich. Ct. Cl. Sept.
18, 2020); Pa. Democratic Party v. Boockvar, 2020 WL 5554644 (Pa. Sept. 17, 2020). The U.S.
District Court for the Northern District of Georgia, Atlanta Division, had also ruled that the
statutory deadline was severely burdensome on the right to vote and enjoined the application of
the deadline. New Ga. Project v. Raffensperger, 2020 WL 5200930, at *24. (N.D.Ga. Aug. 31,
2020). But that injunction was stayed on appeal by the U.S. Court of Appeals for the Eleventh
Circuit, which found that the burden of an Election-Day deadline on returns of ballots was not
“severe” under the Burdick test. New Ga. Project v. Raffensperger, 2020 WL 5877588, at *3 (11th
Cir. Oct. 2, 2020); see Section II.C.1. infra.

20
 B. The Defendants’ Contention that the Plaintiffs Lack Standing and that
their Claims are Moot

In addition to their ripeness defense, the Defendants argue that neither the

LOWVD nor Ms. Grier-Reynolds have suffered or will suffer “any concrete or

particularized harm” and thus they lack standing to challenge the statutory deadline

for return of mailed ballots.65 As I noted in Republican State Committee of

Delaware, in which the Defendants also raised a standing defense, standing is “not

[a] frivolous issue[].” 66 “A party without standing may not invoke the review of a

statute by this Court.” 67

But the resolution of those issues in this case would require the creation of a

record. That record would need to address whether the LOWVD would suffer a

harm distinct from the public or otherwise can demonstrate institutional standing.

Time is of the essence here. The general election is less than a month away. If the

Defendants are incorrect, and if the statutory deadlines are unconstitutional, the

Plaintiffs face irreparable harm. Accordingly, in this unusual circumstance and for

purposes of this decision only, I assume without deciding that the Plaintiffs have

standing to proceed.68

65
Summ. J. Answering Br. 20.
66
Republican State Comm. v. Dep’t of Elections, 2020 WL 5758695, at *4 (Del. Ch. Sept. 28,
2020).
67
Id.
68
Id.

21
 The Defendants also contend that the Plaintiffs’ concerns about mail delivery

delays have been rendered moot by the injunctions issued by the four federal courts

mentioned above. While I would, in any case, find that unpersuasive (given the

factual record), the Plaintiffs’ clarification that they consider the ballot receipt

deadline in the Vote-by-Mail Statute unconstitutional on its face 69 eliminates the

mootness argument.

C. Constitutionality of the Statutory Deadlines

“Enactments of the Delaware General Assembly are presumed to be

constitutional.”70 This presumption can be defeated by “clear and convincing

evidence of unconstitutionality.” 71 Thus, for the Plaintiffs to succeed on their facial

challenge, they must provide clear and convincing evidence that there is no set of

facts under which the Vote-by-Mail Statute could be constitutional.72 To show that

the statutory deadlines in 15 Del. C. §§ 5508 and 5608 are unconstitutional as applied

to this year’s general election, the Plaintiffs must show exigencies that convince the

Court that application of the deadline would impermissibly violate the right to vote

and the right to free and equal elections as guaranteed by our Constitution.

69
To be accurate, the Plaintiffs’ argument clarified, in my mind, that their challenge was facial.
The Plaintiffs did not explicitly state that their challenge was facial.
70
Hoover v. State, 958 A.2d 816, 821 (Del. 2008).
71
Sierra v. Dep’t of Servs. for Children, Youth & their Families, 2020 WL 4745278, at *8 (Del.
Aug. 17, 2020) (citing Monceaux v. State, 51 A.3d 474, 477 (Del. 2012)).
72
U.S. v. Salerno, 481 U.S. 739, 745 (1987) (describing a facial challenge as one that requires the
challenger to “establish that no set of circumstances exists under which the [statute] would be
valid”).

22
 Thus, for the Plaintiffs to succeed on the merits, they must show clearly that

the statutory deadlines in 15 Del. C. §§ 5508 and 5608 are unconstitutional as

applied, or that 15 Del. C. ch. 56 is unconstitutional on its face. I find that they have

not done so.

1. The Vote-by-Mail Statute is facially constitutional.

The Plaintiffs’ contend that the Act is unconstitutional because it provides for

voting by mail in much larger numbers than was allowed under only the Absentee

Voting Statute; that expansion, the Plaintiffs argue, will increase the amount of

ballots arriving after Election Day—ballots which will therefore be uncounted—to

an amount that the Delaware Constitution will not countenance.73 Although clearly

this disenfranchisement could be avoided by mail-in-voters requesting and mailing

their marked ballots earlier rather than later, the very burden of requiring that voters

do so, according to the Plaintiffs, unconstitutionally infringes their right to vote.74

Accordingly, per the Plaintiffs, the General Assembly violated the Constitution

when it expanded the right to vote by mail but failed to extend the deadline for

receipt of ballots.

73
Tr. of Oral Arg. 10.
74
Id. at 17.

23
 I find this contention unpersuasive. All voting procedures, including the ones

in effect before the pandemic, place some burdens on voting. Indeed, voting in

person is itself burdensome to many; it requires voters to be at the polling place by

8:00 p.m. on Election Day—which is a work day and not a national holiday. The

burdens of voting in person include finding a method to transport oneself to a polling

place during the voter’s off hours on Election Day and waiting in line to vote, by a

deadline set by statute. These are not insignificant burdens—and yet they are

countenanced by Delaware’s Constitution as incidental to exercising the right to

vote; the Plaintiffs do not contend otherwise.

The expanded right to mail ballots is more than simply a convenience. The

General Assembly has determined that liberalizing the ability to vote by mail, in

light of the COVID epidemic, is necessary to the continuity of government itself.75

However, the burdens alleged here—requesting, completing, and mailing a ballot a

few days before Election Day to ensure timely receipt—are not clearly more onerous

than those pertaining to in-person voting, pre-COVID. To be clear, in passing HB

346, the General Assembly expanded the number of methods Delawareans had to

vote. The legislature did not eliminate in-person or absentee voting and replace it

75
H.B. 346, 150th Gen. Assemb., Reg. Sess., 2020 Del. Laws 245 (“It is the judgment of the
General Assembly that due to the highly contagious nature of COVID–19 and the need to protect
the electors and polling workers in this State from infection of COVID–19, voting by mail is
necessary and proper for [e]nsuring the continuity of governmental operations, and to conform to
the requirements of Article V, § 4A, would be impracticable.”).

24
with mail-in voting; those options remain open to Delawareans, who now also have

the option of choosing mail-in voting. Those choosing the latter may themselves

deposit their ballots at a drop box at any time through Election Day, or find another

to drop the ballot for them. Or, if they choose, they may mail the ballot in, provided

they do so early enough for it to be counted.

The General Assembly has made voting easier, not harder. That some people

will be disenfranchised because they spoil mail-in ballots in a variety of ways is an

artifact of the method—it is, I suspect, by its nature more subject to error and less

subject to assistance than voting at a polling place. Setting the ballot-receipt date

later, rather than earlier, would doubtless decrease the number of ballots spoiled by

untimeliness. But the Plaintiffs concede there must be a deadline; they simply

disagree with the General Assembly as to when that deadline should be. Avoiding

untimeliness requires a voter to be aware of the fact that delivery-by-mail is not

instantaneous, and post the ballot accordingly. That additional burden, incidental to

the expansion of voting rights in the Vote-by-Mail Statute, is not clearly

incompatible with the Elections Clause, and therefore the arguments for drawing the

deadline ten days after the election are a matter of policy, not the Delaware

Constitution.

25
 In their briefs, 76 the Plaintiffs suggest that whether the statutory deadline

violates the Right to Vote and Elections Clauses of the Delaware Constitution is

subject to the federal test set forth in Burdick v. Takushi.77 That case provides that

the “rigorousness of [the] inquiry into the propriety of a state election law depends

upon the extent to which a challenged regulation burdens” the rights at issue.78 If

the “rights are subjected to ‘severe’ restrictions, the regulation must be ‘narrowly

drawn to advance a state interest of compelling importance.’” 79 But if the “state

election law provision imposes only ‘reasonable nondiscriminatory

restrictions’ . . . , ‘the State’s important regulatory interests are generally sufficient

to justify’ the restrictions.”80

The election law at issue here is a statutory deadline for absentee and mail-in

ballots. The Plaintiffs contend that it impinges the voting rights provided for and

guaranteed in the Delaware Constitution. Those rights are more explicit, and, I

believe, more robust than those in the U. S. Constitution. Nonetheless, the Burdick

analysis is an appropriate framework to analyze whether a particular restriction

76
The Plaintiffs disavowed the Burdick test during oral argument. Tr. of Oral Arg. 21. However,
it is clear to me—and conceded by the parties—that some level of burden on a particular method
of voting is allowable without violating the Delaware Constitution. The question is therefore not
whether any burden has been imposed, but whether that burden is unreasonable. That
determination necessarily involves some sort of balancing test, similar to the framework of
Burdick.
77
504 U.S. 428 (1992); Summ. J. Opening Br. at 18–20.
78
Burdick, 504 U.S. at 434.
79
Id. (citing Norman v. Reed, 502 U.S. 279, 289 (1992)).
80
Id. (citing Anderson v. Celebrezze, 460 U.S. 780, 788 (2020)).

26
works an impermissible burden on voting, keeping the guarantee of free and equal

voting in mind. The question here is where to draw the deadline for ballot receipt in

the current circumstances. The interest in finality and certainty as to the end of the

voting period, and the resulting need for a deadline, is apparent; the Plaintiffs

concede this, given that their requested remedy is not the absence of a deadline but

a delay in the deadline. For the deadline to fail the Burdick test, then, it must be an

unreasonable deadline. For the reasons addressed above, I find that it is not.

The General Assembly chose to apply the deadline already pertaining to

absentee ballots to the Vote-by-Mail Statute. The Defendants suggest the reasons

for doing so relate to the constitutional requirement that a ballot count be remitted

to the Prothonotary two days post-election, as well as the general need for finality.

The Plaintiffs have failed to demonstrate that this deadline is so burdensome, on its

face, as to deprive voters of a constitutional exercise of the right to vote in a free and

equal election.

2. The statutory deadlines in §§ 5508 and 5608 are constitutional as-
applied to the 2020 general election.

The Plaintiffs’ as-applied challenge requires a different analysis. A facial

challenge to the constitutionality of legislation invokes broad judicial deference; if

a law can be applied in a way consistent with Constitutional strictures, it will be

27
upheld.81 An at-issue challenge, conversely, is based on exigencies; it asks the Court

to withhold enforcement of a statute on the ground that existing circumstances will

render its enforcement against the plaintiff unconstitutional. This can be true

regardless of whether the law in question is facially constitutional. 82 In analogous

cases involving extensions of deadlines for voting in-person, courts have sometimes

employed equity to permit late ballots from voters who were otherwise

disenfranchised by a combination of the deadline and other circumstances through

no fault of their own. 83

The election law at issue here is the statutory deadline provided for at 15 Del.

C. §§ 5508 and 5608 for absentee and mail-in ballots. The Plaintiffs argue that even

if—as I have found above—the deadline is facially constitutional, as applied it will

81
State v. Hobson, 83 A.2d 846, 851 (Del. 1951) (“Even if the Delaware statute, read literally,
were susceptible of the construction which defendant urges, it would be our duty to reject that
construction, since we are required, as between two possible constructions, to adopt the one which
will uphold its validity.”).
82
R.M. v. V.H., 2006 WL 1389864, at *8 (Del. Fam. Ct. Jan. 19, 2006) (“A party may challenge a
statute as unconstitutional on its face or as applied to a particular set of facts. A facial challenge is
the most difficult to bring successfully because the challenger must establish that there is no set of
circumstances under which the statute would be valid.”).
83
See St. Louis Cty. Bd. of Election Comm’rs v. McShane, 492 S.W.3d 177, 183–85 (Mo. Ct. App.
2016) (issuing writ of mandamus, with the support of both political parties, compelling election
board to hold polling places open for an additional two hours because several hundred voters had
been turned away over several hours due to a lack of ballots); People ex rel. Woodside v. Bd. of
Inspectors of Election of 56th Election Dist., 389 N.Y.S.2d 242, 245–47 (N.Y. Sup. Ct. 1976)
(holding that, where hundreds of valid voter registrations had been lost, requiring those people to
obtain court orders confirming their eligibility to vote, election officials were required to accept
their votes after closing time); see also Lake v. State Bd. of Elections, 798 F. Supp. 1199, 1202–
03, 1207–08 (M.D.N.C. 1992) (three-judge court) (holding that the state court’s decision to extend
voting hours at all polling places in two counties in a statewide election due to voting machine
malfunctions and long lines did not violate due process).

28
violate the Constitution. That is because, according to the Plaintiffs—citing the

Defendants own briefing in their suit against the USPS—the latter organization is

imposing new procedures that will slow the delivery of mail to the point that even

voters mailing ballots the usual few days before the deadline may be disenfranchised

by the deadline. The Defendants, I note, argued in their suit against the USPS that

the Postmaster General, Louis DeJoy, had undertaken “unlawful actions designed to

undermine the effective operation of” the USPS and that “several of [the] USPS’s

recent operational and policy changes . . . have led to significant delays in mail

delivery across the country.” 84 This could impose a burden incompatible with the

right to vote in a free and equal election. The General Assembly has found that in

the current epidemic, the ability to vote by mail is necessary to the continuity of

government. 85 Voters who need to exercise their voting right by mailing a ballot

need to post sufficiently early to allow normal mail delivery by the deadline. Even

voters doing this, however, would be disenfranchised in this scenario where the

USPS is no longer able to timely deliver mail.

The burden just expressed is not de minimus. Neither, however, is the

probability of its occurrence clear. As the Defendants point out, they (with others)

were successful in obtaining a nationwide injunction prohibiting Mr. DeJoy from

84
Compl., Ex. F at ¶¶ 1, 2.
85
H.B. 346, 150th Gen. Assemb., Reg. Sess., 2020 Del. Laws 245.

29
continuing to implement or enforce the operational changes that were responsible

for the delays. 86 That injunction incorporated by reference parts of another

nationwide injunction issued by the SDNY, which requires the USPS to “treat all

Election Mail as First-Class Mail or Priority Mail Express” to the extent that excess

capacity permits. 87 Two other federal courts have entered similar injunctions,

prohibiting Mr. DeJoy from implementing his policy and operational changes aimed

at reducing operation costs but having the effect of delaying mail delivery. 88

I do not find that the deadlines are unconstitutional as applied. I am compelled

to this result by the current state of the record. The USPS had changed its procedures

in a way that led to delays that could make the deadline’s burden on vote-by-mail

voters unreasonable, but the Defendants and others similarly interested have

obtained injunctions against the USPS designed to eliminate this threat of undue

delay. Nothing in the record now convinces me that voters availing themselves of

the expanded right to mail ballots will be burdened beyond the usual requirement

that they post their ballots at least a few days prior to the deadline. On that record,

I may not invalidate a statute and craft one of my own. The policy determination of

the General Assembly—that mailed ballots must be received by Election Day to

count—is not unconstitutional under the facts as they exist.

86
Walton Aff., Exs. J, K.
87
Walton Aff., Ex. H at 2.
88
See n.33, n.34 supra.

30
 What if those facts should change? What if the USPS does not deliver mail

in the normal course, or some other disaster intervenes to disenfranchise electors

attempting to avail themselves of the new ability to vote by mail? I have pointed out

above that these matters are far better decided pre-election than post-election.

Nevertheless, in a case as just described, I have been assured by the Defendants that

all mailed ballots received post-deadline will be preserved. 89 In the event that such

circumstsances interfere with the constitutional right to a free and equal election, the

matter is not beyond remedy. 90

III. CONCLUSION

The Plaintiffs’ facial challenge to the mailed-ballot deadline must fail. The

legislature has made a determination—in light of the pandemic that is sweeping our

nation and in light of the constitutional and practical mandates that the election

season must have an end—that mail-in voting should be extended to all eligible

Delaware voters, and that the deadline should mirror that of the existing Absentee

Ballot Statute: 8:00 p.m. on Election Day. It has also determined, by choosing not

89
Tr. of Oral Arg.31–32. The requirement that untimely-received ballots be preserved until
February is found in the same statutory provisions as the deadlines at issue here. Specifically, 15
Del. C. §§ 5508 and 5608 both provide that “[t]he Department shall retain unopened any ballot
envelope it receives after the polls close on the day of the election until the last day of February
next after the election, or longer if directed by proper authority or required to do so by federal
law.”
90
This is not to say that I am reserving decision on the constitutionality of the statutory deadlines.
I am not. The deadlines are constitutional. I am merely leaving open the possibility—in case a
constitutional violation does occur under the facts as they appear after the election—that a remedy
for a proven constitutional violation may be had post-election.

31
to amend the Absentee Ballot Statute’s deadline and by modeling the Vote-by-Mail

Statute’s deadline after that of the Absentee Ballot Statute, that a deadline of 8:00

p.m. on Election Day will not so burden voters electing to mail their ballot as to be

unconstitutional under the Delaware Constitution. I do not find those determinations

clearly erroneous, and the facial challenge must fail. The Plaintiffs’ as-applied

challenge, based on speculation of USPS misfeasance, must similarly fail, because

the state of the record does not indicate that the burden of the deadline is thereby

increased.

Because I have determined that the Plaintiffs cannot succeed on the merits,

their request for injunctive relief is also denied. The Defendants are entitled to a

judgment in their favor. The parties should submit an appropriate form of order.

32