Mail-in vote bill passes despite constitutionality questions

By Joseph Edelen
Posted 6/29/22

DOVER—Delawareans will have the chance to vote by mail in upcoming elections as legislation officially passed through both chambers of the General Assembly on Wednesday night.

Senate Bill …

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Mail-in vote bill passes despite constitutionality questions

Sen. Colin Bonini prepares for a Senate session on Wednesday.
Sen. Colin Bonini prepares for a Senate session on Wednesday.
Delaware State News/Marc Clery

DOVER—Delawareans will have the chance to vote by mail in upcoming elections as legislation officially passed through both chambers of the General Assembly on Wednesday night.

Senate Bill 320, sponsored by Sen. Kyle Evans Gay, D-Talleyville, was debated by members of the House for over two hours, a common theme for the bill during the legislative process.

During the Senate’s consideration of the bill on June 16, Sen. Colin Bonini, R-Dover, introduced 25 amendments to the bill, 23 of which he struck, which caused the bill to receive final Senate approval just before midnight.

Though Wednesday’s House session did not see the use of any legislative hurdles from opponents, several House Republicans spent lengths cross-examining a variety of witnesses. Prior to the questioning of witnesses, Rep. Bryan Shupe, R-Milford, introduced an amendment to the legislation,

The amendment would change the effective date of the bill to Jan. 1, 2023. He said the reason for the amendment was that since the state’s primary election is just 77 days away, changing the voting rules for the upcoming election on such short notice could set a dangerous precedent. The bill’s presenter and additional sponsor, Rep. Krista Griffith, D-Fairfax, said the amendment was “unfriendly” since voters who voted in 2020 have become accustomed to voting by mail. However, Rep. Shupe said this was not the case, because voters were permitted by law to vote by mail in 2020 due to the “highly contagious nature of COVID-19 and the need to protect electors and poll workers.” The amendment was defeated after a roll call vote.

Rep. Griffith emphasized the difference between voting by mail in 2020 and SB 320, stating that in 2020, ballots were sent out to voters. Under SB 320, she said, voters would have to request a mail-in ballot.

“It is within our constitutional powers to create the system going forward and it will have many benefits. For one, I can just think of my family as an example. Two busy parents, shuttling kids, getting to work on time. So many like us don’t have the ability to get to the polls for different reasons. This will give that individual those voters the opportunity to securely request a ballot mailed to them,” Rep. Griffith said.

Once the amendment was defeated, House Minority Leader Danny Short, R-Seaford, called the constitutionality of SB 320 into question. He said that if Delaware were to consider allowing voting by mail, it should take a change to the state’s constitution. Rep. Short then introduced the first witness of the day, House Attorney Ron Gray, who said that he believed the legislation was unconstitutional due to a series of court cases in the early-to-mid 1900s that related to voting in the state.

“The cases definitely got into what is allowable ways to vote, and in 1939, there was no absentee ballot. It wasn’t in the Constitution,” Mr. Gray said. “It was on the day of the election and was in-person voting. The Constitution didn’t have any other provisions as to absentee voting or anything. Absentee voting for Delaware actually didn’t come into existence until 1943.”

Rep. Griffith responded to Mr. Gray’s testimony, stating that SB 320 would simply address the voting process and the means, the method, and the instruments of how one can vote. She said that issues relating to absentee voting deal with who can vote and not the actual process. Afterwards, she introduced her own witness, Mark Cutrona, director of the Division of Research.

Mr. Cutrona agreed that absentee balloting focuses on the person and their unavailability in the election while vote by mail is focused on the message and means of voting

This prompted a back and forth between Rep. Short and Mr. Cutrona regarding the constitutionality of SB 320, one which Mr. Cutrona said he deemed constitutional. He said he believes the bill is constitutional because members of the General Assembly have the power to determine the means and methods of voting.

Rep. Mike Ramone, R-Newark, subsequently began a line of questioning on Mr. Cutrona relating to the logistics of voting by mail — who would be able to vote by mail, how voting by mail will be oversaw, and more. After several lengthy questions, Speaker of the House Pete Schwartzkopf, D-Rehoboth Beach, and House Majority Leader Valerie Longhurst, D-Bear, called for the questioning to be directed to one of SB 320’s co-sponsors or another witness.

Several House Republicans, including Rep. Lyndon Yearick, R-Magnolia, and Rep. Ruth Briggs King, R-Georgetown, took the opportunity to question witnesses throughout the session, but after Mr. Gray was summoned back to the podium a second time, Rep. Schwartzkopf said it is time to move on with the bill and let the courts deal with whether it was constitutional or not.

This sparked a heated response from Rep. Michael Smith, R-Pike Creek, who questioned why Rep. Schwartzkopf had “wasted two years of [their] time” on House Bill 75, which amends the state constitution regarding absentee voting. He questioned why Rep. Schwartzkopf had constituent groups call House Republicans about HB 75, to then go and pass a vote-by-mail bill without an amendment to the constitution.

After cooler heads prevailed, the state Commissioner of Elections, Anthony Albence, Zoomed into the session as a witness to answer a variety of question relating to voter fraud. One of the biggest voting fraud concerns by opponents was the forgery of votes by deceased voters. Mr. Albence said that the Department of Elections keeps a record of deceased voters that receives continuous updates, as well as a consortium of 30-plus states that use state agencies to retrieve voter information to ensure this fraud does not occur.

Rep. Ruth Briggs King, R-Georgetown, then questioned Mr. Albence about how voter fraud was overseen in the 2020 election during the pandemic. Mr. Albence said mail-in voting accounted for nearly 43% of ballots in 2020, and of those ballots, about 1% were contested.

After brief questioning from Rep. Briggs King, Rep. Ramone took the opportunity to review each of Mr. Albence’s answers with him and pose questions of his own. This included requesting exact figures relating to voter fraud, how mail-in votes are counted, and the process that is taken to certify each vote.

At the conclusion of Rep. Ramone’s questioning, lawmakers made their intent clear to call the roll on the bill. Just before the vote, Rep. Shupe made a final point that if the state were really steadfast on permitting voting by mail, a constitutional amendment would have been the best way to go about it.

“The Delaware Constitution gives us the avenue to not rely on or guessing on intentions and what that may be. It allows for a dialogue, discussion, public opinion over two consecutive sessions and it requires a two-thirds vote to change election laws,” Rep. Shupe said. “It is written in our Constitution in this fashion to protect the right to vote and the integrity of election. Whether you call it absentee for any reason or you call it mail in voting, in short, it protects Delaware residents against politicians creating election laws to benefit themselves.”

SB 320 was passed by a vote of 25 for, 12 against, 3 not voting, and one absent, and will now head to Gov. Carney’s desk for signature.