COURT OF CHANCERY
OF THE
STATE OF DELAWARE
NATHAN A. COOK LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734
Date Submitted: September 19, 2022
Date Decided: September 19, 2022
M. Jane Brady, Esquire Allison J. McCowan, Esquire
Brady Legal Group LLC Zi-Xiang Shen, Esquire
36365 Tarpon Drive4 Victoria R. Sweeney, Esquire
Lewes, DE 19958 State of Delaware Department of Justice
Carvel State Office Building
Julianne E. Murray, Esquire 820 North French Street, 6th Floor
Law Offices of Murray, Phillips & Gay Wilmington, DE 19801
215 E. Market Street
Georgetown, DE 19947
Re: Michael Higgin, et al. v. Hon. Anthony J. Albence, et al.
C.A. No. 2022-0641-NAC
Ayonne “Nick” Miles, et al. v. Delaware Dep’t of Elections, et al.
C.A. No. 2022-0644-NAC
Dear Counsel:
This Letter Opinion addresses Defendants’ Motion for Injunction or Stay
Pending Appeal. For the reasons stated below, I grant Defendants’ motion and stay
the permanent injunction entered in this matter in all respects except as to the actual
mailing or other dissemination of mail-in ballots to voters. This stay will remain in
effect until the Delaware Supreme Court issues its decision in the pending expedited
appeal of this matter.
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September 19, 2022
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I issued my Memorandum Opinion on September 14, 2022. 1 The September
14 Memorandum Opinion addresses Plaintiffs’ claims that the Same-Day
Registration Statute and the Vote-by-Mail Statute violate the Delaware
Constitution’s restrictions concerning voter registration and absentee voting,
respectively, for purposes of general elections.2 I rejected the Same-Day
Registration Statute claim, but held that Delaware precedent required me to enjoin
the Vote-by-Mail Statute for general elections, including for the upcoming
November 8, 2022 general election.
Defendants filed a notice of appeal in the Delaware Supreme Court on
September 16, 2022.3 The Supreme Court has expedited that appeal and will hear
oral argument on October 5, 2022.4
1
See C.A. No. 2022-0641-NAC (Del. Ch. Sept. 14, 2022), Dkt. 37 (“September 14
Memorandum Opinion”).
2
I adopt the defined terms used in the September 14 Memorandum Opinion. I assume the
parties’ familiarity with the September 14 Memorandum Opinion and refer readers to that
decision for a more complete discussion of the factual background and analysis.
3
Notice of Appeal, Albence, et al. v. Higgin, et al., No. 342,2022 (Del. Sept. 16, 2022),
Dkt. 1.
4
Order Granting Appellants’ Mot. to Expedite, Albence, et al. v. Higgin, et al., No.
342,2022 (Del. Sept. 16, 2022), Dkt. 3.
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On September 16, 2022, Defendants also filed a motion before me to stay the
injunction of the Vote-by-Mail Statute pending the outcome of their appeal.5 Earlier
today, Plaintiffs filed their opposition to Defendants’ motion,6 and then Defendants
filed a reply.7
In considering Defendants’ motion, I am directed to weigh multiple factors:
Defendants’ chances of success on appeal, the relative balance of harms to Plaintiffs
and Defendants if I do or do not grant a stay, and the public interest.8 As to the first
factor, my September 14 Memorandum Opinion explained why I believed that
Delaware precedent required that I issue the injunction.9 The decision further
explained why I believed that the Delaware Supreme Court may desire to reconsider
that precedent.10 The first factor is therefore, at best, in equipoise.
5
Defs.’ Mot. for Inj. or Stay Pending Appeal, C.A. No. 2022-0641-NAC, Dkt. 40.
6
Pls.’ Resp. in Opp’n to Defs.’ Mot. for Inj. or Stay Pending Appeal, C.A. No. 2022-0641-
NAC, Dkt. 42.
7
Defs.’ Reply in Further Supp. of Defs.’ Mot. for Inj. or Stay Pending Appeal, C.A. No.
2022-0641-NAC, Dkt. 45.
8
See Kirpat, Inc. v. Del. Alcoholic Beverage Comm’n, 741 A.2d 356, 357 (Del. 1998).
9
See September 14 Memorandum Opinion at 51–65.
10
See id. at 65–73.
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In considering the balance of harms to Plaintiffs and Defendants if the stay is
or is not granted, I find that the harm to Defendants of not granting a stay pending
appeal far outweighs any identified harm to Plaintiffs of granting a stay.
Importantly, Plaintiffs have not identified any material harm that they will personally
suffer if the stay pending appeal that I described at the outset of this decision is
granted. In contrast, Defendants have explained that, as a result of last week’s
injunction, they have ceased implementation of the Vote-by-Mail Statute, including
processing mail-in voting applications and preparing ballots.11 Defendants state that,
if their expedited appeal succeeds, the continued pendency of an injunction between
now and a decision on their appeal would put at serious risk Defendants’ ability to
fulfill their statutory mandate to make mail-in voting available to Delaware voters
for the November 8 general election.12 The balance of these harms therefore tips
strongly in Defendants’ favor.
The last factor I am directed to consider is the public interest. Of all the factors
I must consider, I believe this one is, by far, the most important in this context.
11
See Defs.’ Mot. for Inj. or Stay Pending Appeal ¶ 7.
12
Id. ¶¶ 12–13.
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The right to vote is the most fundamental right held by a citizen of our State,
or of any other. It is the well-spring from which all other rights in our democracy
ultimately flow. Through voting, our citizenry determines the nature of our
government and its policies. To my mind, the robust exercise of the right to vote is
unquestionably in the public interest.
My injunction in this matter was compelled by an advisory decision from five
decades ago that, in turn, cited precedent from eight decades ago. If our Supreme
Court determines to revisit that precedent and concludes that the Vote-by-Mail
Statute is consistent with the Delaware Constitution, there is a serious risk that,
absent a stay pending appeal, Delaware voters will be denied the opportunity to
exercise their right to vote in the upcoming General Election by all constitutional
means. That would be a grave injustice.
This matter is now the subject of an expedited appeal before the Delaware
Supreme Court, and I anticipate that a decision on that appeal will be made in short
order. To the extent that any truly material harm might arise from a stay in the
interim, it would only arise upon the distribution of mail-in ballots to voters pursuant
to the Vote-by-Mail Statute. If the Delaware Supreme Court determines that the
Vote-by-Mail Statute is inconsistent with the Delaware Constitution, the prior
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receipt of Vote-by-Mail Statute ballots by Delaware voters would present a serious
risk of voter confusion that could not be easily fixed. I therefore am not granting a
stay of the injunction as to the actual mailing or other dissemination of mail-in
ballots to voters pursuant to the Vote-by-Mail Statute.
Plaintiffs say that I should deny Defendants’ motion for a stay pending appeal
entirely. Plaintiffs argue that even permitting Defendants to “take applications and
prepare ballots” for mail-in voting would “undermine[] the election and undercut[]
the faith of the public in the legal process.”13 Plaintiffs claim that “[s]uch a move
sends a dangerous and confusing message to voters, and even risks disenfranchising
them.”14 I disagree. Delaware voters are, despite Plaintiffs’ arguments, adults fully
capable of holding more than one thought in their minds simultaneously. Here, I am
confident that citizens will have little difficulty understanding that, although they
may continue to apply for a vote-by-mail ballot, the availability of mail-in voting is
the subject of litigation.
13
Pls.’ Resp. in Opp’n to Defs.’ Mot for Inj. or Stay Pending Appeal ¶ 7 (emphasis
omitted).
14
Id.
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In addition, the Department of Elections has represented to me—both in its
papers and during today’s teleconference—that, if the Supreme Court affirms the
injunction, the Department will promptly notify all applicants for mail-in ballots
pursuant to the Vote-by-Mail Statute of that fact.15 The Department has further
represented that it will notify such applicants that they will need to plan to vote in-
person on November 8 if they do not otherwise fall within the categories of persons
specified in Article V, Section 4A of the Delaware Constitution as eligible for
absentee voting.16 I am convinced that the Department’s representation, coupled
with the form of the stay, appropriately mitigate any material risk of harm that might
be associated with entering the stay.17
For these reasons, I hereby stay the effect of the permanent injunction entered
in this matter in all respects except as to the actual mailing or other dissemination of
mail-in ballots to voters pursuant to the Vote-by-Mail Statute for the upcoming
15
See Defs.’ Mot. for Inj. or Stay Pending Appeal ¶ 14.
16
See id.
17
Plaintiffs have not requested that the stay pending appeal be conditioned on the provision
of security. Cf. Del. Const. art. IV, § 24. Accordingly, the stay is not conditioned on any.
E.g., In re UnitedHealth Gp., Inc., 2018 WL 2110958, at *3 (Del. Ch. Apr. 27, 2018).
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November 8 general election. This stay will remain in effect until the Delaware
Supreme Court issues its decision in the pending expedited appeal of this matter.
IT IS SO ORDERED.
Sincerely,
/s/ Nathan A. Cook
Nathan A. Cook
Vice Chancellor