LEAGUE OF WOMEN VOTERS OF DELAWARE, INC. and RACHEL GRIER-REYNOLDS, Plaintiffs, v. STATE OF DELAWARE DEPARTMENT OF ELECTIONS and ANTHONY J. ALBENCE, State Election Commissioner, Defendants.
C.A. No. 2020-0761-SG
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
Date Submitted: October 6, 2020
Date Decided: October 9, 2020
GLASSCOCK, Vice Chancellor
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.
MEMORANDUM OPINION
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
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.
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 virаl 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 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
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 should5—provide regulatory legislation for еlections. 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.
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
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 аgree 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 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 considerаtions 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 disenfranchisеment, if widespread, could
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 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.
I. BACKGROUND13
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
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
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 examplе, 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 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
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 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 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 Specificаlly, 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
According to the Plaintiffs, such disenfranchisement will violate two provisions of the Delaware Constitution: the Elections Clause found at Article I, § 3 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 thе 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 on November 6, 2020, and 8:00 PM on November 13, 2020, bearing a postmark, scan code, or other offiсial 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
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 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
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
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
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
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
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 face69 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
Thus, for the Plaintiffs to succeed on the merits, they must show clearly that the statutory deadlines in
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.
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
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
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
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 Statutе. 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
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
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 unconstitutionаl. 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
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 Defеndants, 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
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 obtаining a nationwide injunction prohibiting Mr. DeJoy from
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.
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 circumstances interfere with the constitutional right to a free and equal election, the matter is not beyond remedy.90
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
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.