The Ballot Bulletin: October 5, 2022

Welcome to The Ballot Bulletin, where we track developments in election policy at the federal, state, and local levels. In this month’s issue:

  1. Delaware state court strikes down law allowing no-excuse absentee/mail-in voting
  2. California enacts three election-related bills
  3. Legislation update: Legislation activity in September 2022

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Delaware state court strikes down law allowing no-excuse absentee/mail-in voting

On Sept. 14, Vice Chancellor Nathan Cook, of the Delaware Court of Chancery, ruled that a state law allowing any registered voter to vote by absentee/mail-in ballot was unconstitutional. However, on Sept. 19, Cook delayed implementation of his ruling, pending an expedited appeal to the state supreme court. 

The law in question

On July 22, Gov. John Carney (D) signed SB320 into law, establishing no-excuse absentee/mail-in voting in any non-presidential primary election, general election, or special election to fill a vacancy in a statewide office or the General Assembly. The state Senate approved the bill 13-8 on June 16, with 13 Democrats voting in favor and one Democrat and seven Republicans opposed. The state House approved the bill 25-12 on June 29, with 24 Democrats and one Republican voting in favor and 12 Republicans opposed. The bill took retroactive effect on July 1.

Article V, Section 4A, of the state constitution states:

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.

The parties to the lawsuit and their arguments

The plaintiffs are five registered voters: Michael Higgin (who is also a Republican candidate for Delaware House District 15), Michael Mennella (who plans to serve as an election inspector in the Nov. 8 general election), Ayonne Miles, Paul Falkowski, and Nancy Smith. The defendants are Delaware State Election Commissioner Anthony J. Albence and the Delaware Department of Elections. 

The plaintiffs, arguing that SB320 is “irreconcilable with the Delaware Constitution,” asked the court to declare the law unconstitutional and bar its enforcement in the Nov. 8 general election. 

The defendants argued the plaintiffs lacked standing to challenge SB320. The defendants further argued that SB320 was constitutional. 

How the court ruled

Cook ruled:

  • The plaintiffs had standing to challenge SB320. Cook wrote, “[A]lthough the plaintiffs likely would not have standing under federal jurisprudence, I conclude that the plaintiffs have standing to challenge the Vote-by-Mail Statute under state law. … In this case, the plaintiffs represent various parts of the election process, and I conclude they have a substantial interest in this court reaching a decision on the merits, particularly given the fundamental nature of voting.” 
  • SB320 violates the state constitution: Cook wrote, “The plaintiffs argue that Article V, Section 4A, of the Delaware Constitution … provides for absentee voting in certain enumerated circumstances. Our Supreme Court and this Court have consistently stated that those circumstances are exhaustive. Therefore, as a trial judge, I am compelled by precedent to conclude that the Vote-by-Mail Statute’s attempt to expand absentee voting to Delawareans who do not align with any of Section 4A’s categories must be rejected.” 

Cook concluded an injunction (i.e., an order barring the state from enforcing SB320) was appropriate because “there would be irreparable harm in the absence of injunctive relief and … the balance of the equities favors entry of an injunction.” 

What comes next

On Sept. 19, Cook stayed enforcement of his ruling, pending an expedited appeal to the state supreme court, which was scheduled to hear oral argument in the case on Oct. 5. 

California enacts three election-related bills

In September, California Gov. Gavin Newsom (D) signed three election-related bills into law.

  • AB1631: Existing law requires elections officials to make public a list of the precincts to which precinct officials who are fluent in a non-English language and in English were appointed, and the language or languages other than English in which the officials will provide assistance. This bill requires the county elections official to make this list available on the county elections official’s website.
  • AB2815: This bill requires a county, for a statewide primary or general election, to provide an additional vote-by-mail ballot drop-off location on each California State University main campus within its jurisdiction and, upon request, each University of California campus within its jurisdiction.
  • SB1131: Existing law requires an election official to post a list of all polling places and precinct board members at specified times before an election. This bill would eliminate the requirement to post the names of the precinct board members, but would still require the election official to post the political party preference for all precinct board members, as specified.

Legislation update: Legislation activity in September 2022

In September, legislatures in five states and the District of Columbia took action on 36 election bills. 

The chart below identifies the 10 most common policy areas implicated by the bills that state lawmakers acted on in September. The number listed on the blue portion of each bar indicates the number of Democratic-sponsored bills dealing with the subject in question. The number listed on the red portion of the bar indicates the number of Republican-sponsored bills. The purple and gray portions of the bar indicate the number of bipartisan-sponsored bills and bills with unspecified sponsorship, respectively. Note that the total number of bills listed will not equal the total number of enacted bills because some bills deal with multiple subjects.

Democrats sponsored 21 of the 36 bills acted on in September (58.3%). Republicans sponsored 7 (19.4%). Bipartisan groups sponsored eight (22.2%). 

This information comes from Ballotpedia’s Election Administration Legislation Tracker, which went live on June 29. This free and accessible online resource allows you to find easy-to-digest bill tags and summaries—written and curated by our election administration experts! We update our database and bill-tracking daily. Using our powerful interactive search function, you can zero in on more 2,500 bills (and counting) covering these topics:

  • Absentee/mail-in voting and early voting policies
  • Ballot access requirements for candidates, parties, and ballot initiatives
  • Election dates and deadlines
  • Election oversight protocols
  • In-person voting procedures
  • Post-election procedures (including counting, canvassing, and auditing policies)
  • Voter ID
  • Voter registration and eligibility

To make your search results more precise, we first place bills into one of 22 parent categories. We then apply to each bill one or more of the 88 tags we’ve developed. 

If you don’t want to immerse yourself in the world of election legislation quite that often, we have a free, weekly digest that goes straight to your inbox and keeps you caught up on the week’s developments.