Delaware Republican Party Chair Jane Brady has filed a lawsuit in the Delaware Court of Chancery against the State of Delaware and Commissioner of Elections Anthony Albence claiming that vote by mail is unconstitutional and unnecessary and subject to fraud, two of three of which of course are outright false statements. Vote by Mail is of course necessary and there is no evidence of any fraud being successfully committed via mail ballots. There can be argument over its constitutionality, as you will see below, but it is argument that Jane Brady herself disagrees with.
First, by way of background, this GOP lawsuit is actually seeking to have House Bill 346 declared unconstitutional and seeks a permanent injunction to stop vote-by-mail for the November 3, 2020, general election. House Bill 346 passed the Senate 18-3, with significant Republican support, on June 25. It passed the House along party lines earlier in June by a vote of 25-13.
Under HB 346, the state Department of Elections (DOE) would mail an application for an absentee ballot to every qualified voter (in the state primary, this would be registered Democrats and Republicans). Any voter wishing to vote by mail with an absentee ballot would need to complete the application for an absentee ballot, sign and date it, and mail it back to the Department of Elections. Between four and 30 days before each election, the DOE will mail ballots to each voter who requested a vote-by-mail ballot.
Second, is this bill constitutional? Essentially, this bill is allowing everyone to apply to receive an absentee ballot if they are concerned with voting in person during a public health emergency. The instructions on the application indicate that you are to mark yourself “sick” or “temporarily or permanently disabled” as the reason you need an absentee ballot. These classifications are listed as some of the restricted reasons under the Delaware Constitution.
Here is what the Delaware Constitution, Article V, Section 4A says:
§ 4A. General laws for absentee voting.
Section 4A. The General Assembly shall enact general laws providing that any qualified elector of this State, duly registered, who shall be unable to appear to cast his or her ballot at any general election at the regular polling place of the election district in which he or she is registered, either because of being in the public service of the United States or of this State, or his or her spouse or dependents when residing with or accompanying him or her because of the nature of his or her business or occupation, because of his or her sickness or physical disability, because of his or her absence from the district while on vacation, or because of the tenets or teachings of his or her religion, may cast a ballot at such general election to be counted in such election district.
Obviously the General Assembly enacted a general law under this constitutional provision in House Bill 346 that addressed absentee voting by those who, due to the Covid-19 pandemic, consider themselves ill or disabled. The question as to constitutionality of House Bill 346 is whether fearing contracting the disease or transmitting it to others qualifies under this Constitutional provision as a “sickness” or “physical disability.” And I admit, I can see a strict constructionist judge in the mold of an Antonin Scalia saying no, fearing getting infected is not the same thing as being ill.
I, of course, disagree, and argue that, given the state of Emergency we are all living under during this Pandemic, preventing further infection is a laudable goal of the legislation and further, if you are elderly or have preexisting conditions that would make contracting COVID a death sentence, than you are most certainly ill or disabled.
And it would appear that Ms. Brady agrees with me. She said the following during the press conference announcing this lawsuit:
“We want anyone who believes their health would be adversely affected if they voted in person, to vote absentee.”
Well, ok then. Please withdraw your lawsuit, Ms. Brady. Because that is the only constitutional basis upon which HB346 can be invalidated, over what constitutes “ill” or “disability.” Fear of fraud or the unnecessariness of the bill are not constitutional bases to invalidate the statute.
Further, Brady and all Republicans continue to separate voting by mail and absentee voting in an attempt to deceive and suppress the vote. Voting by Mail IS Voting by Absentee. There is literally no difference. House Bill 346 simply requires the DOE to send out applications for an absentee ballot to all registered voters.
So what is the reason for this lawsuit, again? Oh right, you just want to supress the vote. Got it.
State Rep. Sean Lynn (D): “Frankly, I don’t believe that this is based on the merits that they’re saying, ‘Hey this is unconstitutional’ because that argument has any merit. It’s simply a way for designing persons to undermine the election.”
You are correct, Mr. Lynn. It looks like Brady is just acting on orders from President Trump.
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