IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

MICHAEL HIGGIN and MICHAEL 

MENNELLA,

Plaintiffs,

v.

THE HONORABLE ANTHONY J. 

ALBENCE, in his official capacity as 

State Election Commissioner, and 

STATE OF DELAWARE 

DEPARTMENT OF ELECTIONS,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

 

C.A. No. 2022-0641-NAC

AYONNE “NICK” MILES, PAUL J. 

FALKOWSKI, and NANCY M. 

SMITH,

Plaintiffs,

v.

DELAWARE DEPARTMENT OF 

ELECTIONS, and ANTHONY J. 

ALBENCE, State Election 

Commissioner,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

C.A. No. 2022-0644-NAC

MEMORANDUM OPINION

Date Submitted: August 31, 2022

Date Decided: September 14, 2022
M. Jane Brady, BRADY LEGAL GROUP LLC, Lewes, Delaware; Charlotte Davis, 

Noel H. Johnson, PUBLIC INTEREST LEGAL FOUNDATION, Indianapolis, 

Indiana; Counsel for Plaintiffs Michael Higgin and Michael Mennella.

Julianne E. Murray, LAW OFFICES OF MURRAY, PHILLIPS & GAY, 

Georgetown, Delaware, Counsel for Plaintiffs Ayonne “Nick” Miles, Paul J. 

Falkowski, and Nancy M. Smith.

Allison J. McCowan, Zi-Xiang Shen, Victoria R. Sweeney, STATE OF 

DELAWARE DEPARTMENT OF JUSTICE, Wilmington, DE, Counsel for 

Defendants Delaware Department of Elections and Anthony J. Albence, State 

Election Commissioner.

COOK, Vice Chancellor.
1

Delaware’s general election is set to occur on November 8, 2022. Earlier this 

year, our General Assembly enacted laws allowing Delawareans to register to vote 

the same day as the general election (the “Same-Day Registration Statute”) and to 

cast their ballot by mail in the general election for any reason (the “Vote-by-Mail 

Statute”).

1

 Within hours of the laws being put into effect, the plaintiffs in this 

litigation filed two separate lawsuits challenging the new laws’ constitutionality. 

The parties agreed to a highly expedited schedule and brought cross-motions for 

summary judgment to resolve the plaintiffs’ litigation well before ballots would be 

mailed to voters for the upcoming general election.

The plaintiffs represent various components of the election process—voters, 

a political candidate, and an election official. They argue that the Same-Day 

Registration Statute and the Vote-by-Mail Statute are irreconcilable with the 

Delaware Constitution. Accordingly, they ask the Court to (1) enjoin the 

defendants—the State’s Department of Elections and its commissioner, Anthony J. 

Albence—from implementing the statutes for the general election; and (2) declare 

that the statutes at issue are unconstitutional with respect to the general election. 

1 To be clear, the plaintiffs’ challenge only concerns the general election and has no bearing 

on the primary election held on September 13, 2022.
2

For their part, the defendants argue that the plaintiffs lack standing to 

challenge the laws. They also argue the plaintiffs have not met their burden for 

permanent injunctive relief. In particular, the defendants argue that the plaintiffs

cannot demonstrate actual success on the merits because the laws are valid, failed to 

demonstrate irreparable harm, and also failed to prove that the balance of the equities 

weighs in their favor. 

As for standing, although 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. Delaware state courts are not bound by the 

federal standing doctrine and adopt standing rules to avoid issuing advisory opinions 

to “mere intermeddlers.” 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. I also 

assume, for the purposes of this opinion, that the plaintiffs have standing to challenge 

the Same-Day Registration Statute. 

Turning to the merits, unlike the federal legislative power, our State’s General 

Assembly enjoys broad legislative power curtailed only by the limits of the state and 

federal constitutions. There is also a strong presumption of constitutionality, and to 

overcome that presumption, there must be “clear evidence” of its incompatibility 

with our State’s governing document. The plaintiffs’ challenge to the Same-Day 
3

Registration Statute does not overcome that presumption. Article V, Section 4 

provides that there must be “at least” two registration days within the time-period 

described there. By its own terms, it establishes a constitutional floor, not a ceiling. 

In addition, the General Assembly adopted an amendment to Article V, Section 4 in 

1925 that specifically deleted language requiring that registration “be completed” by 

a certain number of days before a general election. The plaintiffs’ arguments fail to 

grapple with this significant change to the constitutional text. Thus, the plaintiffs 

have failed to meet their burden of showing by “clear evidence” a constitutional 

violation, and the Same-Day Registration Statute stands.

The Vote-by-Mail Statute presents a much thornier issue. This is not the first 

time this Court has reviewed mail-in voting laws. In 2020, the General Assembly 

enacted a very similar vote-by-mail law under its emergency powers, which was 

upheld by this Court. Today, however, emergency powers are not invoked. The 

General Assembly, and the defendants, instead rely on Article V, Section 1, which 

provides that the General Assembly “may by law prescribe the means, methods and 

instruments of voting so as best to secure secrecy and the independence of the voter, 

preserve the freedom and purity of elections and prevent fraud, corruption and 

intimidation thereat.” 

The plaintiffs argue that Article V, Section 4A of the Delaware Constitution, 

however, provides for absentee voting in certain enumerated circumstances. Our 
4

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. As I describe 

in this opinion, were I to construe the relevant constitutional sections and statutes on 

a blank slate, I would likely conclude that the plain text of the constitution, coupled 

with the strong presumptions in favor of constitutionality of legislative acts, lead me 

to a different result. But, in light of applicable and controlling precedent, I must find 

that the Vote-by-Mail Statute is unconstitutional for purposes of the general election.

Finally, I conclude that, in light of my ruling on the merits, there would be 

irreparable harm in the absence of injunctive relief and that the balance of the 

equities favors entry of an injunction. 

For these reasons, the plaintiffs’ motion for summary judgment is denied in 

part and granted in part, and the defendants’ motion for summary judgment is also 

denied in part and granted in part.
5

I. BACKGROUND2

A. The Parties 

This matter involves two related actions commenced on July 22, 2022. 

Plaintiffs in both actions are Delaware residents. 

Plaintiffs Michael Higgin and Michael Mennella filed the first of the two 

actions. Mr. Higgin is a resident of Bear, Delaware; a registered voter; and a General 

Election candidate for State Representative in District 15.3 Mr. Mennella is a 

resident of Newark, Delaware; is a registered voter; and plans to vote in the 

upcoming General Election.4 Mr. Mennella has also served as an inspector of 

elections “in at least 8 elections during the last 5 to 6 years” and plans to serve as an 

inspector of elections during the upcoming General Election.5 Mr. Mennella states, 

2

I base the facts of this summary judgment ruling on the evidence submitted under affidavit 

with the briefing as well as the pleadings involving undisputed facts. No material facts are 

in dispute for purposes of resolving the parties’ cross-motions for summary judgment. See 

Pls.’ Combined Reply Br. in Support of Pls.’ Mot. for Summ. J. and Answering Br. in 

Resp. to Defs.’ Cross-Mot. for Summ. J. at 4 (C.A. No. 2022-0641-NAC, Dkt. 29) (“Pls.’ 

Combined Reply Br.”) (stating that Plaintiffs do not dispute Defendants’ recitation of facts 

other than one immaterial assertion by Defendants regarding 15 Del. C. § 4937).

3 Affidavit of Michael Higgin, ¶¶ 3–4 (C.A. No. 2022-0641-NAC, Dkt. 24) (“Higgin Aff.”).

4 Affidavit of Michael Mennella, ¶¶ 3, 5 (C.A. No., 2022-0641-NAC, Dkt. 23) (“Mennella 

Aff.”).

5 Mennella Aff., ¶¶ 4, 6. Mr. Mennella’s counsel acknowledged that, as of oral argument 

on Plaintiffs’ cross-motion for summary judgment, Mr. Mennella had not yet been selected 

to serve as an inspector of elections. 
6

“[i]n his role as inspector of elections, [he] is responsible for overseeing the election 

at his assigned polling place and administering the election in accordance with the 

Delaware Constitution, statutes, and other laws.”6 

Plaintiffs Ayonne Miles, Paul Falkowski, and Nancy Smith filed the second 

related action. Mr. Miles is a resident of Kent County, Delaware, and a registered 

voter.7 Mr. Falkowski is a resident of New Castle County, Delaware, and a 

registered voter.8 Ms. Smith is a resident of Sussex County, Delaware, and a 

registered voter.9

I refer to the first action as the “Higgin Action” and to the second action as 

the “Miles Action.” I refer to the plaintiffs in the Higgin Action as the “Higgin 

Plaintiffs” and to the plaintiffs in the Miles Action as the “Miles Plaintiffs.” 

References to “Plaintiffs” includes the Higgin Plaintiffs and the Miles Plaintiffs,

collectively.

6 Verified Complaint for Declaratory Judgment and Injunctive Relief, ¶ 14 (C.A. No. 2022-

0641-NAC, Dkt. 1) (“Higgin Compl.”); see also 15 Del. C. §4946 (providing the powers 

of election officers, including inspectors of election, to preserve order during elections).

7 Verified Complaint Seeking Injunctive Relief and Declaratory Judgment, ¶ 1 (C.A. No. 

2022-0644-NAC, Dkt. 1) (“Miles Compl.”).

8 Miles Compl., ¶ 2. 

9

Id., ¶ 3. 
7

The defendants in both the Higgin Action and the Miles Action are the same: 

Anthony J. Albence, in his official capacity as Delaware’s State Election 

Commissioner, and the State of Delaware Department of Elections (“DOE”) 

(collectively, “Defendants”).10 Commissioner Albence has statutory responsibilities 

to provide general supervision to the DOE and to develop regulations, policies, 

procedures, and guidelines in accordance with Title 15 of the Delaware Code.11 The 

DOE is the Delaware agency responsible for “administer[ing] the election laws of 

this State,” including registering and educating voters, conducting fair and impartial 

elections, managing campaign finance, and collecting and reporting election 

results.12

B. The Delaware Constitution

Article V of the Delaware Constitution governs elections. This litigation 

implicates multiple provisions of Article V of the Delaware Constitution.13 It is 

10 See Higgin Compl.; Miles Compl.

11 See 15 Del. C. § 302; Affidavit of Anthony J. Albence, ¶ 2 (C.A. No. 2022-0641-NAC,

Dkt. 28) (“Albence Aff.”).

12 15 Del. C. § 101(6); see also About Agency, STATE OF DELAWARE DEPARTMENT OF 

ELECTIONS, https://elections.delaware.gov/aboutagency.shtml (last visited September 14,

2022).

13 See Appx. A for the full text of the applicable provisions of Article V of the Delaware 

Constitution.
8

under the authority of Section 1 of Article V that the General Assembly purported 

to implement its “no-excuse” vote-by-mail system.14 The parties’ arguments 

concerning the Same-Day Registration Statute implicate Article V, Section 4, which

sets forth the laws governing the “[r]egistration of votes” and “days for registration.” 

The parties’ arguments concerning the Vote-by-Mail Statute implicate Article V, 

Section 4A, which sets forth “[g]eneral laws for absentee voting.”

C. Legislative Background

This litigation concerns the constitutionality of two recently passed Delaware 

laws. The first law allows Delaware voters to vote by mail in the General Election 

without providing a reason for doing so (referred to as the Vote-by-Mail Statute).15 

Of note, and as discussed in greater detail below, the Vote-by-Mail Statute was 

preceded by a similar vote-by-mail law passed during the COVID-19 pandemic. The 

second law at issue allows individuals to register to vote up through and including 

on the same day that they cast their ballot in the General Election (referred to as the 

Same-Day Registration Statute).16 Both statutes were signed into law on July 22, 

14 83 Del. Laws ch. 353 (2022).

15 83 Del. Laws ch. 353 (2022); Transmittal Affidavit of Zi-Xiang Shen, Ex. A (C.A. 2022-

0641-NAC, Dkt. 28) (“Shen Aff.”).

16 83 Del. Laws ch. 354 (2022); Shen Aff., Ex. B. 
9

2022, and became effective immediately, including for the September 13, 2022 

Primary Election and for the upcoming November 8, 2022 General Election.17

1. The Prior Vote-by-Mail Statute

In 2020, the General Assembly enacted a statute that permitted all Delaware 

voters to vote by mail (the “Prior Vote-by-Mail Statute”).18 The General Assembly 

passed the measure pursuant to its emergency powers due to the ongoing COVID19 pandemic.19

 The Prior Vote-by-Mail Statute expired by its own terms on January 

12, 2021.20 

The statute included multiple findings and declarations by the General 

Assembly. The eleventh finding and declaration of the General Assembly made 

therein states that the list of six reasons for absentee voting provided under Article 

V, Section 4A of the Delaware Constitution is “exhaustive.”21 In addition, the 

twelfth and thirteenth findings and declarations provide that the authority of the 

General Assembly to pass the Prior Vote-by-Mail Statute is found under the General 

17 Albence Aff., ¶ 12; Shen Aff., Exs. C–D. Plaintiffs commenced this litigation within 

hours after the Governor signed the two bills into law. 

18 82 Del. Laws ch. 245, § 3 (2020) (codified at 15 Del. C. § 5620), repealed by 82 Del. 

Laws ch. 245, § 4 (2020).

19 82 Del. Laws ch. 245, § 1 (2020).

20 82 Del. Laws ch. 245, § 4 (2020).

21 82 Del. Laws ch. 245, § 1 (2020).
10

Assembly’s emergency powers.22 This point was then reiterated in the synopsis, 

which provides, in part, that the General Assembly’s “authority to implement voting 

by mail stems from . . . Article XVII of the Delaware Constitution[,]” which provides 

the General Assembly with the power “to adopt measures that may be necessary and 

proper for insuring the continuity of governmental operations including 

nonconformity with the requirements of the Constitution when in the judgment of 

the General Assembly to do so would be impracticable.”23

The statute was then the subject of litigation in this Court, against the same 

defendants, in an action styled Republican State Committee of Delaware v. 

Department of Elections. The plaintiffs in that litigation challenged the Prior Voteby-Mail Statute as violating the Delaware Constitution.24

 Following expedited 

litigation, this Court granted summary judgment in favor of the defendants.25 

22 Id.

23 Del. H.B. 346 syn., 150th Gen. Assem. (2020) (emphasis added).

24 Republican State Comm. of Del. v. Dep’t. of Elections, 250 A.3d 911, 914 (Del. Ch. 

2020).

25 Id. at 922. In the course of his ruling, Vice Chancellor Glasscock noted that “the DOE 

concedes that the Delaware Constitution lists reasons for which ballots may be provided 

for absentee voting, that this list of reasons is intended to be comprehensive, and that the 

current epidemic health crisis is not among them.” Id. at 913. During oral argument in 

this matter, Defendants’ counsel indicated that she did not agree with the point. Transcript 

of Oral Argument on Cross-Motions for Summary Judgment Held via Zoom at 100:14–

103:13 (C.A. No. 2022-0641-NAC, Dkt. 36) (“Summ. J. Arg. Tr.”). In any event, Plaintiffs 

have not made any serious effort to argue for estoppel in this litigation. 
11

2. Attempted Constitutional Amendment

In 2020, the General Assembly also approved the “first leg” of an amendment 

to the Delaware Constitution that would replace Article V, § 4A in its entirety with 

the following language: “The General Assembly shall enact general laws providing 

the circumstances, rules, and procedures by which registered voters may vote by 

absentee ballot.”26

In June 2022, the General Assembly attempted to pass the “second leg” of the 

amendment to Article V, § 4A.27 This time, however, the vote was unsuccessful, as 

it failed to obtain the necessary two-thirds approval of both houses of the 151st 

General Assembly.28 According to Plaintiffs, the Chairwoman of the House 

Administration Committee, who supported the amendment to Article V § 4A, “after 

realizing that there were not enough votes at the time to get the bill passed through 

a second session, . . . changed her vote to ‘No’ so the bill could later be brought to 

the floor if the sponsors were able to secure sufficient votes to pass the 

26 Del. H.B. 73, 150th Gen. Assem. (2020).

27 See Del. H.B. 75 syn., 151st Gen. Assem. (2021) (“This Act is the final leg of a 

constitutional amendment that would eliminate from the Delaware Constitution the 

limitations as to when an individual may vote by absentee ballot.”).

28 See House Bill 75, DELAWARE GENERAL ASSEMBLY, 

https://legis.delaware.gov/BillDetail?LegislationId=48291 (last visited September 12, 

2022).
12

amendment.”29 The parties agree that, once the amendment to the Delaware 

Constitution failed to obtain the necessary two-thirds approvals, the General 

Assembly passed the Vote-by-Mail Statute that is the subject of this litigation less 

than three weeks later by simple majority approval.30 

This alternative approach created significant controversy. The remarks by 

legislators indicate an awareness by at least some members of the General Assembly 

that the laws might not be constitutional and that a challenge in the courts would be 

forthcoming. For example, a member of the Senate, who was the primary sponsor 

of the Vote-by-Mail Statute, stated that, “[s]hould the Supreme Court determine at 

some point related to this bill . . . that we have exceeded our powers, the Supreme 

Court will tell us so” and that “having clarity on that issue is positive for this body 

[and] for the voters of Delaware . . . .”31 Perhaps most notably, the Speaker of the 

House stated, “I don’t know whether it’s constitutional or not constitutional, and 

29 Plaintiffs’ Amended Motion for Emergency Temporary Restraining Order, ¶ 8 (C.A. No. 

2022-0641-NAC, Dkt. 4) (“Pls’ Am. Mot. Emergency TRO”).

30 Compare House Bill 75, Delaware General Assembly, 

https://legis.delaware.gov/BillDetail?LegislationId=48291 (last visited September 12, 

2022), with Senate Bill 320, Delaware General Assembly, 

https://legis.delaware.gov/BillDetail?legislationId=129685 (last visited September 12, 

2022) (showing that House Bill 75 was defeated in the House on June 10, 2022, and Senate 

Bill 320 was passed by the House on June 29, 2022). 

31 151st Gen. Assem. Senate – 35th Legislative Day – Session 2 at 11:54:57 P.M (Senator 

Gay).
13

neither do you guys or anybody else in here. The best way to get this thing done is 

to hear this bill, move forward, and let a challenge go to the courts and let them 

decide it.”32

3. Current Vote-by-Mail Statute

The Vote-by-Mail Statute allows qualified, registered voters to apply and 

request a mail-in ballot from the DOE, which confirms that the elector qualifies to 

vote.33 The requested ballot is mailed to the voter, who must confirm and provide 

required identification information, seal the ballot envelope, sign the voter oath on 

the envelope, place a provided security label over the identification information, and 

either mail the ballot to the DOE or place it in a secure drop-box at a county election 

office.34 Once the DOE receives the mailed-in ballot, the DOE may process and 

scan the ballot, but it may not tabulate the ballot until the day of the election.35 

32 151st Gen. Assem. House – 33rd Legislative Day – Session 2 at 6:48:30 P.M. (Speaker 

Schwartzkopf); see also Plaintiffs’ Opening Brief in Support of Motion for Summary 

Judgment at 17–18 (C.A. No. 2022-0644-NAC, Dkt. 14) (stating that Senator Richardson 

argued the law was unconstitutional and observing that “[i]n both houses there was 

testimony from attorneys that SB 320 was unconstitutional”).

33 83 Del. Laws ch. 353, § 5604(A) (2022).

34 83 Del. Laws ch. 353, § 5608(A) (2022).

35 Id.; see also 83 Del. Laws ch. 353, § 5611A(6) (“The results of the mail ballots shall not 

be extracted or reported before the polls have closed on the day of the election.”). 
14

Commissioner Albence’s affidavit provides that election officers are not involved in 

opening, processing, or tabulating any mail-in ballots.36

Quite notably, at oral argument, counsel for the Defendants acknowledged 

that the current Vote-by-Mail Statute is not materially different from the Prior Voteby-Mail Statute, except that under the Prior Vote-by-Mail Statute all voters 

automatically received an application to vote by mail whereas voters must request

such an application under the current Vote-by-Mail Statute.

37

4. The Same-Day Registration Statute

The Same-Day Registration Statute extends the deadlines to register to vote 

in a primary, general, or special election to include the day of the election.38 Sections 

2036 and 2047 of Title 15 previously provided that voters had to be registered by 

the “fourth Saturday prior to the date of” a primary or general election, or by 10 days 

prior to a special election, in order to vote in that election.39 Title 15 does not 

36 Albence Aff., ¶ 17. 

37 Summ. J. Arg. Tr. at 99:3–100:3.

38 15 Del. C. § 2036; see also Del. H.B. 25 syn., 151st Gen. Assem. (2022) (“This bill 

provides for election day registration for presidential primary, primary, special, and general 

elections whereas currently the deadline is the fourth Saturday prior to the date of the 

election.”).

39 15 Del. C. § 2036 (2015); 79 Del. Laws ch. 275, § 2036; Albence Aff. ¶ 18.
15

establish a deadline prior to which a voter cannot register.40 Under the Same-Day 

Registration Statute, same-day registrations at polling locations will be handled at a 

“help desk,” and registration issues will be handled by DOE staff from the county 

offices.41 Commissioner Albence’s affidavit provides that election officers are not 

involved in addressing registration or eligibility concerns.42 The DOE will maintain 

an electronic poll list with updates made as close to real-time as possible; that list 

may be requested by an election candidate.43

D. Delaware’s 2022 Primary Election and General Election

The 2022 Delaware Primary Election took place on September 13, 2022. The 

2022 Delaware General Election will take place on November 8, 2022. None of the 

Plaintiffs in this litigation are challenging either statute with respect to the Primary 

Election. Their claims concern only the General Election. The DOE can begin 

40 15 Del. C. § 2036; Albence Aff., ¶ 18.

41 Albence Aff., ¶¶ 20–21. Plaintiffs dispute this fact and assert that 15 Del. C. § 4937 

specifies that “[i]n the event of a challenge as to the identity of the voter or residency of 

the voter, the voter’s right to vote shall be determined by a majority vote of the inspector 

and the 2 judges of the election.” Pls.’ Combined Reply Br. at 4. I note that this dispute is 

immaterial to the resolution of this case, and so is not addressed. 

42 Albence Aff., ¶ 21.

43 Albence Aff., ¶¶ 22–23.
16

distributing ballots to electors who requested to cast their vote by mail for the 

General Election no earlier than October 10, 2022.44

E. Procedural History

On July 22, 2022, within hours after Delaware’s Governor signed the 

challenged statutory enactments into law, the Higgin Plaintiffs filed their verified 

complaint for declaratory and injunctive relief, along with a motion to expedite and 

a motion for a temporary restraining order. On that same day, in a separate action, 

the Miles Plaintiffs filed their verified complaint for declaratory and injunctive relief 

and a motion to expedite and for entry of a status quo order. 

Both sets of plaintiffs have asserted claims that the Vote-by-Mail Statute

violates the Delaware Constitution and will dilute their votes by allowing individuals

to vote in a manner contrary to the Delaware Constitution. Only the Higgin Plaintiffs 

challenge the Same-Day Registration Statute as violating the Delaware Constitution. 

The parties agreed to treat this litigation as expedited to facilitate resolution 

before the DOE would need to disseminate mail-in ballots for the General Election.45 

44 Albence Aff., ¶ 16.

45 See Defendants’ Letter to the Court in Response to the Court’s Letter Dated July 27, 

2022, at 1-2 (C.A. No. 2022-0641-NAC, Dkt. 5) (“With respect to Plaintiffs’ motions for 

expedited proceedings, Defendants do not oppose expedition of the cases. The parties have 

reached an agreement to submit cross-motions for summary judgment on an expedited 

briefing schedule to attain timely final resolution of the issues.”).
17

Following a teleconference with the parties on Friday, July 29, 2022, the Miles 

Plaintiffs filed a letter with the Court on August 1, 2022, withdrawing their motion 

for a status quo order based on Defendants’ counsel’s representation that no ballots 

could be mailed to potential voters before October 10, 2022.46 That same day, 

August 1, counsel in the Higgin Action filed an Amended Motion for Emergency 

Temporary Restraining Order.47 

I denied the TRO by bench ruling on August 5, 2022.48 In doing so, I 

concluded that, while the Higgin Plaintiffs had demonstrated a colorable claim, they 

had not adequately shown imminent, irreparable harm, particularly given that this 

Court would rule on their claims well before the October 10 ballot mailing date.49 I 

noted that the balance of the equities also favored denying the TRO.50 This was 

because of the practical difficulties with implementing injunctive relief while the 

DOE was attempting to quickly implement the new Vote-by-Mail Statute for the 

46 Letter to Vice Chancellor Cook Withdrawing Request for Status Quo Order and 

Including Plaintiffs’ Proposed Scheduling Order (C.A. 2022-0644-NAC, Dkt. 9). 

47 Pls’ Am. Mot. Emergency TRO. 

48 Order (C.A. 2022-0641-NAC, Dkt. 18).

49 Transcript of Oral Argument and Rulings of the Court on Plaintiffs’ Motion for a 

Temporary Restraining Order at 33–51 (C.A. No. 2022-0641-NAC, Dkt. 31).

50 Id. at 50–51.
18

fast-approaching Primary Election—an aspect of the law that none of the Plaintiffs 

challenged.

51

II. ANALYSIS

A. The Relevant Legal Standards

Summary judgment is appropriate if there is no genuine issue of material fact 

and the moving party is entitled to judgment as a matter of law.52 “Where, as here, 

the only issues in contention are interpretations of statutory or constitutional 

language—both of which are questions of law—summary judgment is 

appropriate.”53

As noted, Plaintiffs ask this Court for not just declaratory relief but a 

permanent injunction enjoining Defendants from “enforcing Delaware statutes 

allowing mail-in voting” and “same-day registration.”

54 “The elements for 

permanent injunctive relief are: (1) actual success on the merits; (2) irreparable harm 

51 Id.

52 See Ct. Ch. R. 56(c); Del. Elevator, Inc. v. Williams, 2011 WL 1005181, at *7 (Del. Ch. 

Mar. 16, 2011).

53 Republican State Comm., 250 A.3d at 916; see also First Health Settlement Class v. 

Chartis Specialty Ins. Co., 111 A.3d 993, 998 (Del. 2015) (“Interpretation of a statute is a 

question of law . . . .”). 

54 Higgin Compl. at 19; see also Miles Compl. at 10 (requesting in their prayer that, among 

other relief, the court issue “a permanent injunction enjoining Defendants from 

implementing [the Vote-by-Mail Statute]” and “enjoining Defendants from publishing 

processes and procedures for implementation” of that law for the General Election). 
19

will be suffered if injunctive relief is not granted; and (3) the harm that will result 

from a failure to enjoin the actions that threaten plaintiff outweighs the harm that 

will befall the defendant if an injunction is granted.”55 Our Supreme Court has called 

a permanent injunction “an extraordinary form of relief.”56

B. Standing

Before addressing Plaintiffs’ claims, I must determine whether they have 

standing to bring them. “The term ‘standing’ refers to the right of a party to invoke 

the jurisdiction of a court to enforce a claim or redress a grievance.”57 “It is 

concerned only with the question of who is entitled to mount a legal challenge . . . 

55 Sierra Club v. Del. Dep’t of Nat. Res. & Env’t Control, 2006 WL 1716913, at *3 (Del. 

Ch. June 19, 2006); see also Jestice v. Buchanan, 2000 WL 875417, at *1 (Del. Ch. May 

23, 2000) (“In order to demonstrate entitlement to a permanent injunction, the plaintiff 

must demonstrate not only that she is correct in her legal claim, but that absent the 

injunction she will be irreparably harmed and that this harm outweighs harm reasonably 

likely to occur to the defendants should the injunction be entered.”). 

56 N. River Ins. Co. v. Mine Safety Appliances Co., 105 A.3d 369, 384 (Del. 2014). 

57 Dover Hist. Soc’y v. Dover Plan. Comm’n, 838 A.2d 1103, 1110 (Del. 2003).
20

.”58 Because standing is a “jurisdictional requirement[,]”59 it is “properly a threshold 

question that the Court may not avoid.”60

To establish standing, a plaintiff must show, among other things, an injury to 

a legally protected interest.61 The injury element divides into three components: 

injury in fact, causation, and redressability.62 Defendants only dispute Plaintiffs’ 

alleged injuries in fact. So I will start and end there.

To qualify as an injury in fact, the asserted harm must be “concrete and 

particularized, and . . . actual or imminent, not conjectural or hypothetical.”63 For

an injury to be particularized, “it must affect the plaintiff in a personal and individual 

58 Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, 1382 (Del. 1991) (emphasis in 

original).

59 Hall v. Coupe, 2016 WL 3094406, at *3 (Del. Ch. May 25, 2016) (citing Dover Hist. 

Soc’y, 838 A.2d at 1110).

60 Morris v. Spectra Energy P’rs (DE) GP, LP, 246 A.3d 121, 129 (Del. 2021) (internal 

quotation marks omitted); see Dover Hist. Soc’y, 838 A.2d at 1110 (“Standing is a 

threshold question that must be answered . . . affirmatively to ensure that the litigation . . . 

is a ‘case or controversy’ that is appropriate for the exercise of the court's judicial 

powers.”); see also Gerber v. EPE Hldgs., LLC, 2013 WL 209658, at *12 (Del. Ch. Jan. 

18, 2013) (“If there is no standing, there is no justiciable substantive controversy.”).

61 E.g., Gannett Co., Inc. v. State, 565 A.2d 895, 897 (Del. 1989).

62 E.g., Oceanport Indus., Inc. v. Wilm. Stevedores, Inc., 636 A.2d 892, 904 (Del. 1994).

63 Id. (internal quotation marks omitted).
21

way.”64 For an injury to be concrete, it “must be ‘de facto’; that is, it must actually 

exist.”65 A “risk of real harm” may qualify as concrete.66

Standing “cannot be inferred argumentatively” but rather must “affirmatively 

appear in the record.”67 “When a motion for summary judgment is filed” on the 

question of standing, “the plaintiff can no longer rest on ‘mere allegations.’”68 

Instead, the plaintiff “must set forth by affidavit or other evidence specific facts”

supporting its standing.69 

64 Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (internal quotation marks omitted).

65 Id. at 340.

66 Id. at 341–42; see, e.g., Save the Courthouse Comm. v. Lynn, 408 F. Supp. 1323, 1332 

(S.D.N.Y. 1975) (Even if “a benefit hardly can be quantified,” a “loss of it [still may] 

support a finding of standing.”); accord Dover Hist. Soc’y, 838 A.2d at 1112; see also 

Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 

U.S. 464, 472 (1982) (To establish injury in fact, the plaintiff must “show that he personally 

suffered some actual or threatened injury as a result of the putatively illegal conduct of the 

defendant.” (emphasis added) (internal quotation marks omitted)).

67 Spencer v. Kemna, 523 U.S. 1, 10–11 (1998) (internal quotation marks omitted).

68 Dover Hist. Soc’y, 838 A.2d at 1110; see also Appriva S’holder Litig. Co., LLC v. EV3, 

Inc., 937 A.2d 1275, 1284 n.14 (Del. 2007) (“The burden is on the Plaintiffs to prove 

jurisdiction exists.” (internal quotation marks omitted)).

69 Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (internal quotation marks and 

citation omitted); accord Dover Hist. Soc’y, 838 A.2d at 1110. 
22

1. Standing to Challenge the Same-Day Registration Statute

Only the Higgin Plaintiffs challenge the Same-Day Registration Statute. Each 

of them asserts a separate harm. 

Higgin alleges that the Same-Day Registration Statute harms his political 

candidacy. He claims that the Same-Day Registration Statute (i) has weakened or 

frustrated his campaign; and (ii) ultimately will make the General Election 

unreliable.70

For his part, Mennella alleges harm based on his anticipated role as a volunteer 

election inspector. According to Mennella, an election inspector “oath” will require 

him to admit to the polls any person who is authorized to vote under the Same-Day 

Registration Statute.71 But because that Statute is unconstitutional, he insists, he 

effectively will be required to approve illegal voting.72 Worse, if he refuses to admit 

same-day-registered voters, he claims he would face fines and even incarceration.73

In Defendants’ view, none of these grounds is sufficient to confer standing 

because each one rests on a speculative injury. There is some appeal to this argument 

70 See Higgin Aff. ¶¶ 7, 9–10.

71 See Mennella Aff. ¶¶ 7–9.

72 See id. ¶¶ 11–12.

73 See id. ¶¶ 10, 13.
23

as applied to Higgin. Faced with a motion for summary judgment, Higgin must 

marshal “specific facts” supporting his standing.74 He has not. Higgin offers very 

little, if any, evidence that his campaign efforts have been disrupted.75 Nor has he 

explained how the Same-Day Registration Statute has personally or concretely 

impeded (or will impede) his continuing campaign efforts.76

In addition, as discussed later in this decision, Higgin argues that the Delaware 

Constitution requires all registration for the General Election to occur no less than 

10 days prior to the General Election. Assuming that is true, the maximum harm 

caused by the Same-Day Registration Statute would be contained to the limited 

number of voters who register to vote over those final 10 days. Compared with the 

number of votes that may ultimately be cast via the Vote-by-Mail Statute,77 the 

74 Dover Hist. Soc’y, 838 A.2d at 1110 (internal quotation marks omitted).

75 See Higgin Aff. ¶ 6 (affirming simply that Higgin is “actively campaigning”).

76 See id. ¶ 7 (raising concerns about proper allocation of campaign resources, but omitting 

specific facts supporting a finding that the Same-Day Registration Statute has negatively 

impacted resources already devoted or strategies or methods designed to devote resources 

in the future).

77 A brief review of Delaware election data suggests that, when made available to everyone, 

mail-in voting significantly increases the number of absentee votes cast for each candidate. 

Compare 2020 General Election Report, Del. Dep’t of Elections, 

https://elections.delaware.gov/results/html/index.shtml?electionId=GE2020 (last updated 

Nov. 11, 2020, 2:45 PM), with 2016 General Election Report, Del. Dep’t of Elections, 

https://elections.delaware.gov/archive/elect16/elect16_general/html/election.shtml (last 

updated Nov. 17, 2016, 4:35 PM).
24

alleged harm inflicted by the Same-Day Registration Statute is small and 

Defendants’ arguments concerning the speculative nature of the minimal evidence 

put forward by Higgin have more force.

With respect to Mennella, Defendants’ arguments are more fluid. Mennella 

and Defendants contest whether Mennella would, as an election inspector, be 

required to have any involvement whatsoever in connection with voter registration 

under the Same-Day Registration Statute.

78

 Defendants, however, also have 

maintained that the challenged statutes were only recently enacted and that their 

implementation is on-going.79 

Defendants also wade into the thickets of Mennella’s specific responsibilities 

as an election inspector vis-à-vis the Same-Day Registration Statute.

80

 For standing 

78 Although Mennella has not yet been selected as an election inspector, see Mennella Aff. 

¶ 6, he anticipates, based on his prior years of service, that he will be selected, see Summ. 

J. Arg. Tr. at 19:11–18. Defendants have noted that Mennella has not yet been selected, 

but have not contested the likelihood that he will be selected. See, e.g., Summ. J. Arg. Tr.

at 72:8–15. Accordingly, I treat this fact as undisputed.

79 See, e.g., Albence Aff. ¶ 26 (listing DOE’s “ongoing efforts” to implement the new laws). 

Indeed, the fluidity surrounding the DOE’s implementation of the challenged statutes was 

a theme of Defendants’ opposition to the Higgin Plaintiffs’ motion for a temporary 

restraining order. See Defs.’ Opp’n to Pls.’ Am. Mot. for Emergency TRO ¶ 19 (C.A. No. 

2022-0641-NAC, Dkt. 12) (characterizing as “speculative” the idea that Mennella “would 

be required to conduct his duties under conflicting direction” without explaining why that 

is so).

80 See generally 15 Del. C. §§ 4904, 4937(c), 4938, 5112, 5126.
25

purposes in this particular expedited context, I do not believe that I am required to 

dwell on all the possible hypothetical fact scenarios that could arise, particularly 

when the challenged law is new, the implementation of the law is on-going, and 

questions surrounding how it will ultimately be implemented will likely remain 

outstanding (or continue to arise) until the General Election.81

In any event, because of my decision below concerning success on the merits, 

I need not actually decide if the Higgin Plaintiffs have standing to challenge the 

Same-Day Registration Statute. In Republican State Committee, Vice Chancellor 

Glasscock assumed, without deciding, the existence of standing because the 

claimant’s underlying challenge failed on the merits anyway.82 That approach is 

appropriate here because, even if they had standing, the Higgin Plaintiffs still would 

not prove actual success on the merits of their challenge to the Same-Day 

Registration Statute. Accordingly, and given the expedited nature of this litigation, 

I will assume they have standing so I may resolve that aspect of this case.

81 See In re Del. Pub. Schs. Litig., 239 A.3d 451, 510 (Del. Ch. 2020) (“State courts . . . are 

free to reject procedural frustrations [involving standing] in favor of just and expeditious 

determination on the ultimate merits.” (internal quotation marks omitted)).

82 See Republican State Comm., 250 A.3d at 918.
26

2. Standing to Challenge the Vote-by-Mail Statute

All Plaintiffs challenge the Vote-by-Mail Statute. Separately, the Higgin 

Plaintiffs reassert the same bases for standing that I discussed previously. Together, 

each of the Plaintiffs argues that the Vote-by-Mail Statute will undermine the 

election by allowing unauthorized votes to be cast. This injury is particularized and 

concrete, they say, because it is likely to “dilute” or cancel out their votes.83

Plaintiffs’ use of the word “dilution” has led Defendants to advance a phalanx 

of cases holding that voter dilution is a paradigmatic generalized grievance 

insufficient to differentiate an individual voter from any other citizen.84

It is generally true that, “[i]n order to achieve standing, the plaintiff’s interest 

in the controversy must be distinguishable from the interest shared by other members 

of a class or the public in general.”85 And this is particularly true under federal law, 

on which Defendants almost exclusively rely. But Defendants’ narrow focus on 

federal standing doctrine overlooks Delaware standing doctrine. Delaware standing 

doctrine is less rigid. In Delaware, standing is “predominantly discretionary and 

83 Pls.’ Combined Reply Br. at 11–12.

84 See Defs.’ Opening Br. in Supp. of Mot. for Summ. J. at 18–19 (C.A. No. 2022-0641-

NAC, Dkt. 28) (“Defs.’ Opening Br.”).

85 Stuart Kingston, 596 A.2d at 1382. 
27

prudential”86 and applied “as a matter of self-restraint to avoid the rendering of 

advisory opinions at the behest of parties who are ‘mere intermeddlers.’”87 

As discussed below, I do not find Plaintiffs to be “mere intermeddlers.” They

are voters, a political candidate, and an election official. They represent various

groups directly affected by these laws. The constitutionality of laws that change

basic aspects of voting—one of the most fundamental rights Delawareans possess—

are of great public importance. All this is enough to establish standing.

a. Plaintiffs’ Standing under Delaware Law

The standards for evaluating standing to sue in federal court are “generally the 

same as the standards for determining standing to bring a case or controversy within 

the courts of Delaware.”88 Even so, Delaware courts may apply them differently. 

“Unlike the federal courts, where standing may be subject to stated constitutional 

limits,”89 Delaware courts derive their adjudicative authority from the “plenary and 

unenumerated powers” of state sovereignty.90 As a result, Delaware courts “may 

86 In re Del. Pub. Schs. Litig., 239 A.3d at 510. 

87 Dover Hist. Soc’y, 838 A.2d at 1111 (quoting Stuart Kingston, 596 A.2d at 1382).

88 Id. at 1111.

89 Id.

90 In re Del. Pub. Schs. Litig., 239 A.3d at 510.
28

impose more lenient standing requirements than federal courts[.]”91 After all, “state 

courts are not bound by . . . federal rules of justiciability[.]”92 State courts may keep 

ajar the courthouse doors federal law has shut.93 

The remedial flexibility afforded to state courts is reflected in the Delaware 

Constitution. Under the Delaware Constitution, courts are open to “every person” 

who suffers an injury.

94

 Given this constitutional guarantee, Delaware courts, unlike 

federal courts, have “a duty to afford a remedy for every substantial wrong[.]”95 

Indeed, “somewhat uniquely,” Delaware provides “a remedy at law for any injury.”96

Delaware’s permissive approach to standing is reinforced by its “historic and 

constitutional separation of law and equity.”97 “Historically, equity jurisdiction has 

91 Id. (internal quotation marks omitted).

92 ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989).

93 See In re Del. Pub. Schs. Litig., 239 A.3d at 510 (“Based on the structure of our 

cooperative federal system, state court standing doctrine is appropriately more flexible than 

federal standing doctrine, because the state courts play a different and more expansive role 

than the federal courts.”).

94 Del. Const. art. I, § 9.

95 Randy J. Holland, The Delaware State Constitution 75 (2d ed. 2017). 

96 Maurice A. Hartnett, III, Delaware’s Charters and Prior Constitutions, in The Delaware 

Constitution of 1897: The First One Hundred Years 29 (Randy J. Holland & Harvey 

Bernard Rubinstein eds., 1997).

97 Monroe Park v. Metro. Life Ins. Co., 457 A.2d 734, 738 (Del. 1983).
29

taken its shape and substance from the perceived inadequacies of the common law 

and the changing demands of a developing nation.”98 “The Court of Chancery thus 

‘has an expansive power[] to meet new exigencies’ and ‘to meet changing needs.’”99 

And that power may bestow relief “a court of law . . . would be powerless to 

give[.]”100 Accordingly, this Court may adapt or reshape existing “doctrine[,]” like 

standing, “to new relations[,]” and existing “remedies[,]” like an injunction, to “new 

circumstances[.]”101 Where law leaves a gap, equity may fill it. 

Founded on equity, this Court’s power “to hear claims has always been . . . 

broad and flexible.”102 But it is not alone. All “Delaware courts can and do apply 

the principles of standing more broadly than their federal counterparts[.]”103 And 

they have done so in cases, like this one, where an individual citizen challenges laws 

affecting the entire citizenry.

98 Schoon v. Smith, 953 A.2d 196, 204 (Del. 2004) (internal quotation marks omitted).

99 In re Del. Pub. Schs. Litig., 239 A.3d at 511 (quoting Schoon, 953 A.2d at 205 n.24, 

206)).

100 Schoon, 953 A.2d at 205 (internal quotation marks omitted).

101 Id. at 204–05 (internal quotation marks omitted).

102 In re Del. Pub. Schs. Litig., 239 A.3d at 511; see Monroe Park, 457 A.2d at 737

(“[E]quity regards substance rather than form.”).

103 In re Del. Pub. Schs. Litig., 239 A.3d at 512.
30

For example, the Delaware Supreme Court has recognized taxpayer 

standing,104 “[e]ven absent a showing of particularized injury,” to challenge use of 

public funds.105 Federal courts, by contrast, have required taxpayers to satisfy all 

standing elements, including injury in fact.106 By relaxing injury in fact—the 

“quintessence of standing”107—in cases involving issues of public concern and 

government accountability, Delaware law has shown a willingness to look beyond 

“federal complexities and technicalities involving standing . . . in favor of [a] just . . 

. determination on the ultimate merits.”108

Given Delaware’s willingness to recognize standing in cases involving public 

issues that affect all citizens, it is reasonable to conclude that public interest concerns 

are relevant factors in deciding whether an individual citizen has established an 

injury in fact. Prudential standing and the public interest, in many ways, are related. 

Here, they arguably go hand-in-hand.

104 See City of Wilm. v. Lord, 378 A.2d 635, 637–38 (Del. 1977).

105 Reeder v. Wagner, 2009 WL 1526945, at *2 (Del. June 2, 2009) (TABLE).

106 See John Dimanno, Beyond Taxpayers’ Suits: Public Interest Standing in the States, 41 

Conn. L. Rev. 639, 646–56 (2008).

107 Ritchie CT Opps, LLC v. Huizenga Managers Fund, LLC, 2019 WL 2319284, at *9 

(Del. Ch. May 30, 2019).

108 In re Del. Pub. Schs. Litig., 239 A.3d at 510 (internal quotation marks omitted).
31

Plaintiffs base their standing on an issue of fundamental public importance: 

voting. They allege that the Vote-by-Mail Statute will undermine the upcoming 

General Election by allowing unconstitutional votes to be counted. And those illegal 

votes may be decisive, Plaintiffs’ urge, because it is not uncommon for state 

elections to be decided by a hair.109 For Higgin, a political candidate, and Mennella, 

an anticipated election official, an election implicating votes cast in contravention 

of the Delaware Constitution may have significant real-life consequences.

Plaintiffs’ concerns raise more than voting dilution. They strike at the voting 

right itself. Plaintiffs, like all voters, have a right to participate in free and fair 

elections under which all votes legally made—and only votes legally made—

count.110 Regardless of how laudable the purpose behind the Vote-by-Mail Statute 

may be, the statute cannot introduce into the General Election votes prohibited under 

the Delaware Constitution. Plaintiffs adequately allege that it could. Accordingly, 

they have stated an injury in fact. 

109 Cf. Summ. J. Arg. Tr. at 65:10–22 (Higgin Plaintiffs’ Counsel discussing triple recount 

incident involving the State of Washington that revealed improperly rejected votes and 

ultimately led to a gubernatorial victory by a slim margin).

110 See Del. Const., art. I, § 3 (“All elections shall be free and equal.”).
32

b. Shared Grievances

To reach the opposite conclusion, Defendants try to generalize Plaintiffs’ 

injuries. They reason that if everyone is harmed by an illegal vote, then no one is 

harmed by an illegal vote.111 When made by the Department of Elections, this 

argument is, at best, ironic. From a standing standpoint, it makes little sense.

Generalized grievances defeat standing. But to be generalized, an injury must 

be “not only widely shared, but . . . also of an abstract and indefinite nature[.]”112 

The mere fact that an injury is felt by many does not make the injury abstract.113 

Stated conceptually, an injury that is shared also may be particular and concrete.114

The Delaware Supreme Court has adopted this reasoning. In Dover 

Historical, the Delaware Supreme Court held that an “aesthetic” injury may establish 

standing. To reach that conclusion, the Delaware Supreme Court distinguished a 

general or abstract injury from a shared injury. General or abstract harm does not 

111 See Defs.’ Opening Br. at 21 (“If every voter suffers the same incremental dilution of 

the franchise caused by some third-party’s fraudulent vote, then these voters experienced 

a generalized injury.” (internal quotation marks omitted)).

112 Fed. Election Comm’n v. Akins, 524 U.S. 11, 23 (1998).

113 See Lynn, 408 F. Supp. at 1332 (Even if “a benefit hardly can be quantified,” a “loss of 

it [still may] support a finding of standing.”); accord Dover Hist. Soc’y, 838 A.2d at 1112.

114 See Massachusetts v. EPA, 549 U.S. 497, 522 (2007) (“Where a harm is concrete, 

though widely shared, the Court has found ‘injury in fact.’”) (alteration and citation 

omitted).
33

supply a person with standing. But a shared injury might: “the fact that a grievance 

is widely held does not make it abstract and not judicially cognizable if individual 

plaintiffs can demonstrate a concrete and particularized injury.”115 

If aesthetic injuries, even when shared, may be sufficiently particular and 

concrete to confer standing on an individual aesthete, then it surely follows that 

injuries to fundamental rights—e.g., voting—even when shared, may be sufficiently 

particular and concrete to confer standing on an individual voter.116 After all, “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.”117 Given 

the fundamental nature of voting to our form of government, I think it should be 

plain that Plaintiffs have standing to challenge the Vote-by-Mail Statute.

118

115 Dover Hist. Soc’y, 838 A.2d at 1113.

116 See Akins, 524 U.S. at 24 (“Thus the fact that a political forum may be more readily 

available where an injury is widely shared . . . does not, by itself, automatically disqualify 

an interest for Article III purposes. Such an interest, where sufficiently concrete, may 

count as an ‘injury in fact.’ This conclusion seems particularly obvious where (to use a 

hypothetical example) . . . large numbers of voters suffer interference with voting rights 

conferred by law.”).

117 League of Women Voters of Del., Inc. v. Dep’t of Elections, 250 A.3d 922, 925 (Del. 

Ch. 2020) (emphasis added). 

118 Although I do not rely on legislative history to find standing, the pre-enactment debates 

surrounding the Vote-by-Mail Statute are illuminating. At least some Delaware legislators 

expected the Vote-by-Mail Statute to prompt judicial review. See, e.g., 151st Gen. 

Assemb. Senate – 35th Legislative Day – Session 2 at 11:54:57 P.M (Senator Gay); 151st 

Gen. Assemb. House – 33rd Legislative Day – Session 2 at 6:48:30 P.M (Speaker 
34

In any event, Plaintiffs’ injuries are not generalized. The harm to voters who 

do comply with the requirements for voting under the Delaware Constitution is 

distinct from the harm to voters who do not. The harm may be shared by all the 

members of the compliant group, but it is no less personal to each group member.119 

If illegal voting laws do not cause particularized harm to voters, then no voter 

would ever have standing to challenge illegal elections. Despite the gravity of such 

an outcome for the individual right to vote, Defendants say, in effect, “too bad.” 

According to Defendants, “the assumption that if [Plaintiffs] have no standing to 

sue, then no one would have standing, is not a reason to find standing.”120 On 

different facts, that may be correct. But on these facts, Defendants’ position lacks 

merit. 

Dover Historical remains instructive. There, the Delaware Supreme Court 

encountered the same generalized grievance argument Defendants make here. In 

rejecting that argument, the Delaware Supreme Court discussed a Third Circuit case, 

Schwartzkopf). These statements further support a conclusion that, in approving the Voteby-Mail Statute, the legislature (or at least some members thereof) envisioned judicial 

review—and concomitant standing.

119 See Public Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 449–50 (1989) (“The fact that 

other citizens or groups of citizens might make the same complaint . . . does not lessen 

[their] asserted injury . . . .”).

120 Def.’ Reply Br. in Supp. of Mot. for Summ. J. at 7 (C.A. No. 2022-0641-NAC, Dkt. 32) 

(internal quotation marks and emphasis omitted). 
35

Society Hill Towers,

121 approvingly. Society Hill Towers involved a challenge by a 

group of residents of a historic neighborhood to a state grant permitting the City of 

Philadelphia to modernize the area. The City argued that the individual residents 

lacked standing because the asserted harm would affect all residents generally.

The court of appeals disagreed. It reasoned that if the residents could not 

challenge the state grant, then no one could. In Dover Historical, the Delaware 

Supreme Court accepted that analysis, describing it as “apt:”

The [Third Circuit] determined: “it is clear that the [residents of the historic 

district] are alleging injury to a legally protected interest—that of maintaining 

the environmental and historic quality of their neighborhood.” The [Third 

Circuit] aptly noted that if the residents of the historic district in the City of 

Philadelphia did “not have standing to protect the historic and environmental 

quality of their neighborhood, it is hard to imagine that anyone would have 

standing to oppose this UDAG grant. If that is the case, the requirement for 

public hearings, and public input would be little more than a meaningless 

procedural calisthenic that would provide little or no protection to those most 

directly affected by the governmental action—the people who live in the 

vicinity of a federally funded project and who lives are most directly impacted 

by the expenditure of UDAG funds.”

122

121 Soc’y Hill Towers Owners’ Ass’n v. Rendell, 210 F.3d 168 (3d Cir. 2000).

122 Dover Hist. Soc’y, 838 A.2d at 1113 (second alteration in original) (emphasis added) 

(quoting id. at 176).
36

So too here. Voting rights are plainly within the zone of interest implicated

by the Vote-by-Mail Statute and the Delaware Constitution.123 Defendants do not 

contend otherwise. Yet, in Defendants’ view, no voters could vindicate harm caused 

by the Vote-by-Mail Statute because, in that scenario, every voter would be harmed 

by it. Taking that theory to its logical extreme, no one covered by the Vote-by-Mail 

Statute would have standing to challenge it.124 Dover Historical forecloses this 

result.

Public interest considerations likewise undermine Defendants’ position. In a 

representative system of government, voting plays a vital role. Citizens generally 

cannot direct the actions of officials once they are elected. Instead, citizens exercise 

direct influence via the ballot box. That is why “‘the right to vote is accorded 

123 See Gannett Co., 565 A.2d at 897 (requiring merely that asserted interest be “arguably

within the zone of interest to be protected or regulated by the statute or constitutional 

guarantee in question”) (emphasis added); see also Match-E-Be-Nash-She-Wish Band of 

Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (“[W]e have always 

conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any 

doubt goes to the plaintiff.”); Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 403 (1987) (finding 

asserted interest to fall within relevant zone of interest where interest had “plausible 

relationship to the policies underlying” disputed statute).

124 Indeed, when pressed to identify who, if anyone, would have standing under the Voteby-Mail Statute, Defendants initially argued that no voter would, see Summ. J. Arg. Tr. at 

78:17–23, and then speculated that DOE “probably would have standing” and Board of 

Canvass members “might have standing . . . hypothetically[,]” id. at 79:20–21, 79:24–80:1.
37

extraordinary treatment[.]’”125 Without it, “a citizen cannot hope to achieve any 

meaningful degree of individual political equality if granted an inferior right of 

participation in the political process.”

126

 Laws that permit citizens to vote in a 

manner inconsistent with our Constitution harm a citizen’s basic right to elect 

representatives of her choosing. 

If I were to adopt Defendants’ argument on standing, I would endorse a 

scenario where the legislature could, by simple majority, adopt voting laws in 

violation of the Delaware Constitution that no Delaware citizen can challenge 

because the harm of such laws would be “generalized” to all Delaware voters. For 

a host of reasons, that seems unwise. 

To be sure, there are sound practical reasons counseling against granting 

standing to a plaintiff who bases a challenge to state action unrelated to voting on 

the sole fact that the plaintiff is a voter. This decision does not suggest otherwise. 

But when the challenge is directed to laws governing voting itself, the analysis is 

different. In that latter setting, meritless challenges can be addressed on the 

125 Young v. Red Clay Consol. Sch. Dist., 122 A.3d 784, 831 (Del. Ch. 2015) (alteration 

omitted) (quoting Plyler v. Doe, 457 U.S. 202, 233 (1982)).

126 Id. at 832 (internal quotation marks omitted).
38

merits.127 At this standing stage, all that matters is whether Plaintiffs are proper 

claimants to challenge the Vote-by-Mail Statute. They are. 

In sum, Plaintiffs have standing to challenge the Vote-by-Mail Statute. I 

proceed to the merits.

C. Plaintiffs Have Not Demonstrated Actual Success on the Merits on 

Their Same-Day Registration Statute Claim But Have Demonstrated 

Actual Success on the Merits on Their Vote-by-Mail Statute Claim

Having decided to proceed on the merits, my next inquiry is whether the 

elements for a permanent injunction have been met—the first of which is that the 

plaintiff must demonstrate actual success on the merits. In this case, that means 

Plaintiffs must prove that the Vote-by-Mail Statute and the Same-Day Registration 

Statute are unconstitutional. For the reasons explained below, I am persuaded that

Plaintiffs have proven success on the merits only as to their challenge to the Voteby-Mail Statute. The Higgin Plaintiffs have not proven success on the merits as to 

their challenge to the Same-Day Registration Statute.

1. Broad Legislative Power

Before discussing canons of construction that aid the Court in considering the 

constitutionality of legislative enactments, I begin by acknowledging the broad 

127 See Stuart Kingston, 596 A.2d at 1382 (At the standing stage, courts are not “concerned 

. . . with the merits of the subject matter of the controversy.”).
39

legislative powers the Delaware General Assembly wields. Article II, Section 1 of 

the Delaware Constitution provides that “[t]he legislative power of this State shall 

be vested in a General Assembly, which shall consist of a Senate and House of 

Representatives.”128 

Instead of granting only certain enumerated legislative powers as the United 

States Constitution does, the Delaware Constitution “limits the powers which the 

state inherently possesses as a sovereign entity. Only provisions of Delaware’s 

Constitution as well as the United States Constitution restrain the General 

Assembly’s legislative power . . . .”129 Nearly 100 years ago, our Supreme Court 

acknowledged this “familiar principle which is nowhere questioned”; namely, “that 

in the American States, as distinguished from the Federal Government, the 

legislative power is as broad and ample in its omnipotence as sovereignty itself, 

except in so far as it may be curtailed by constitutional restrictions express or 

necessarily implied.”130

As our Supreme Court stated in Opinion of the Justices:

The answer to [a question posed by the governor] lies in the 

fundamental precept that the General Assembly has all legislative 

power not expressly or impliedly limited by the Constitution. The 

128 Del. Const. art. II, § 1; see also Appx. A.

129 Randy J. Holland, The Delaware State Constitution 91–92 (2d ed. 2017). 

130 Collison v. State, 2 A.2d 97, 100 (Del. 1938).
40

‘legislative hand is free except as the constitution restrains.’ This is 

sometimes known as the residual power doctrine. 

Accordingly, it is not necessary to find in the Constitution an express 

grant to the General Assembly of authority to provide for absentee 

voting in primary elections; the inquiry is whether there is any 

limitation in the Constitution upon the power of the General Assembly 

to do so. In the absence of such constitutional limitation, the power of 

the General Assembly to provide for [the law at issue] is 

unquestionable.131

Thus, I agree with Defendants that “the inquiry is not whether the Delaware 

Constitution permits the General Assembly to enact the statute. The inquiry is 

whether any constitutional provisions prohibit the General Assembly from passing 

such legislation.”132 Concerning election laws, the General Assembly has broad 

authority under Article V, Section 1 of the Delaware Constitution to “prescribe the 

means, methods and instruments of voting so as best to secure secrecy and the 

independence of the voter, preserve the freedom and purity of elections and prevent 

fraud, corruption and intimidation thereat.”133 This Court has recognized the 

“transcending public importance” of election laws, which “touch upon [and] give 

vitality to the most fundamental of our rights.”134

131 Op. of the Justices, 295 A.2d 718, 720 (Del. 1972) (quoting Collison, 2 A.2d at 108).

132 Defs.’ Opening Br. at 27 (emphasis in original). 

133 Del. Const. art. V, § 1. 

134 Bartley v. Davis, 1986 WL 8810, at *9 (Del. Ch. Aug. 14, 1986).
41

2. Presumption of Constitutionality and Other Canons of 

Construction

With this backdrop in mind, I turn next to principles of constitutional 

construction. “The legislative hand is free except as the constitution restrains.”135 

“‘It is a proposition too plain to be contested, that the constitution controls any 

legislative act repugnant to it.’ Therefore, ‘an act of the legislature, repugnant to the 

constitution, is void.’”136

Although the Delaware Constitution trumps any conflicting statute, 

“[e]nactments of the Delaware General Assembly are presumed to be 

constitutional.”137 Indeed, this presumption is “strong”138 and can be overcome only 

by “clear and convincing evidence of unconstitutionality.”139 Delaware courts 

“ha[ve] a duty to read statutes ‘so as to avoid constitutional questionability and 

135 Op. of the Justices, 295 A.2d at 720 (quoting Collison, 392 A.2d at 108).

136 Evans v. State, 872 A.2d at 553 (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)). 

137 Hoover v. State, 958 A.2d 816, 821 (Del. 2008). 

138 Monceaux v. State, 51 A.3d 474, 477 (Del. 2012).

139 Sierra v. Dep’t of Servs. for Child., Youth & their Families, 238 A.3d 142, 155–56 (Del. 

2020) (citing Monceaux, 51 A.3d at 477); see also League of Women Voters of Del., Inc. 

v. Dep’t of Elections, 250 A.3d at 926 (“Statutes enjoy a presumption of constitutionality, 

and I may not invalidate . . . state statutes on ground of unconstitutionality unless that 

unconstitutionality is clear.”).
42

patent absurdity.’”140 This presumption assists the court in exercising proper judicial 

restraint and “requires deference to legislative judgment in matters ‘fairly 

debatable.’”141 And our Supreme Court has counseled us to give “great weight” to 

the “General Assembly’s articulation of public policy.”142

At the same time, our Supreme Court is also clear that “the Constitution and 

each part thereof must be harmonized and construed as a whole; that it cannot be 

presumed that any clause of the Constitution is intended to be without full force and 

effect.”143 Indeed, such a rule is “[c]ardinal” in our law.144 In addition, Delaware 

courts are charged to interpret the Constitution in a way to avoid “produc[ing] an 

irrational result.”145 That interpretation is not policy-driven, however; “[t]he ruling 

must come from the interrelationship of concepts set forth in the Constitution, the 

140 Monceaux, 51 A.3d at 477 (quoting Op. of the Justices, 295 A.2d at 721–22).

141 Helman v. State, 784 A.2d 1058, 1068 (Del. 2001) (quoting Wilm. Med. Ctr., Inc. v. 

Bradford, 382 A.2d 1338, 1342 (Del. 1978)).

142 Id.

143 State v. Roberts, 282 A.2d 603, 606 (Del. 1971); see also Op. of the Justices, 225 A.2d 

481, 484 (Del. 1966).

144 Roberts, 282 A.2d at 606. 

145 Id. (quoting Op. of the Justices, 225 A.2d at 484).
43

language of the Constitution, and the prior case law that has construed the 

Constitution.”146

3. The Same-Day Registration Statute

The Higgin Plaintiffs (but not the Miles Plaintiffs) challenge the Same-Day 

Registration Statute with respect to the General Election. In particular, the Higgin 

Plaintiffs argue that the Same-Day Registration Statute violates Article V, Section 4 

of the Delaware Constitution. In particular, the Higgin Plaintiffs focus their analysis 

and arguments on the following italicized language in the second paragraph of 

Article V, Section 4:147

There shall be at least two registration days in a period commencing not 

more than one hundred and twenty days, nor less than sixty days before, 

and ending not more than twenty days, nor less than ten days before, 

each General Election, on which registration days persons whose 

names are not on the list of registered voters established by law for such 

election, may apply for registration, and on which registration days 

applications may be made to strike from the said registration list names 

of persons on said list who are not eligible to vote at such election; 

provided, however, that such registration may be corrected as 

hereinafter provided at any time prior to the day of holding the 

election.

148

146 State ex rel. Gebelein v. Killen, 454 A.2d 737, 747 (Del. 1982); see id. (“Our view of 

the best policy does not govern.”). I note that the Supreme Court subsequently disavowed 

dicta in Killen; that dicta is not relevant here. State ex rel. Oberly v. Troise, 526 A.2d 898, 

900–901 (1987).

147 See Appendix A to this Opinion for the full text of Article V, Section 4.

148 Del. Const. art. V, § 4 (emphasis added).
44

The Higgin Plaintiffs say that this language requires that voter registration end at 

least ten days before the General Election and corrections conclude prior to the date 

of the election. They claim that, because the Same-Day Registration Statute permits 

registration on the same day as the General Election, the law is unconstitutional.

I begin my analysis of the Same-Day Registration Statute with an

understanding that it is my “duty to read statutory language so as to avoid 

constitutional questionability” as well as “patent absurdity.”149 With this command 

in mind, I find Plaintiffs’ argument unpersuasive. 

The language at the beginning of the applicable section states that “there shall 

be at least two registration days” within the time period specified. A plain-language 

reading of Section 4 suggests that it provides for a minimum period of registration, 

and the Same-Day Registration Statute providing for additional days would not 

disturb that constitutionally-protected minimum. 

Similarly, the proviso at the end of the second paragraph of Section 4—that 

“such registration may be corrected as hereinafter provided at any time prior to the 

day of holding the election”—does not, in my view, foreclose the possibility of 

same-day registration. The Higgin Plaintiffs would, in essence, have me modify the 

constitutional text so that “such registration” instead reads as “all registration” and, 

149 Op. of the Justices, 295 A.2d at 721-22. 
45

in doing so, insert an implied limitation on legislative power into Section 4 that does 

not appear in the plain text. As I understand my duty in this context, however, I 

should avoid inserting judicially-created implied limitations into the plain text of the 

Constitution absent clear evidence that the implied limitation is required. With that 

understanding, I believe a reasonable interpretation of the proviso is that “such 

registration” refers to registrations described in the immediately preceding passage 

and is silent as to registrations occurring on the day of the general election.150 

I also understand that reasonable minds may disagree on these points. In 

analyzing the constitution, however, my duty is not to seek out ways to invalidate 

statutes. To the contrary, under the doctrine of constitutional avoidance, I believe 

my duty is to consider whether a reasonable interpretation supports the validity of 

the statute and only find constitutional invalidity when I have clear and convincing 

evidence of such invalidity. 

The Higgin Plaintiffs rely on State ex rel. Walker v. Harrington, decided in 

1943, for the proposition that Section 4 requires all issues of voter eligibility to be 

resolved prior to election day.151 In my view, Harrington cannot support the entire 

150 Yet another reasonable interpretation is that the proviso concerns “corrections” to 

registration and is therefore, once again, silent as to registrations that occur for the first 

time on the day of the general election, as there is nothing to “correct.”

151 30 A.2d 688 (Del. 1943). 
46

weight of the Higgin Plaintiffs’ argument. In that case, the Court considered the 

constitutionality of the aptly termed “Soldiers’ Vote Act,” which enabled qualified 

voters in the military “to exercise the right of suffrage” by voting from “their place 

of encampment” instead of the “election district or ward of their residence.”152 In 

passing, the Court stated that Section 4 of Article V “prescribed for uniform laws for 

registration of voters for the purpose of determining that prospective voters duly 

possess the necessary and prescribed qualifications” and “provides that all questions 

of the qualifications of voters should be determined before election day, and on that 

day, beyond the fact of the identity of the persons, the sole ground of challenge 

should be the violation of said Section 3 of Article V.”153 

There can be no question that this language, at least indirectly, supports the 

Higgin Plaintiffs’ argument. The Harrington Court summarized Section 4 as 

signaling that “all questions of the qualifications of voters should be determined 

before election day.” But this language is dicta.154 The Court did not hold that 

Section 4 is so limited but described it so in passing. In addition, as Defendants 

152 Id. at 690.

153 Id. at 691.

154 See, e.g., Nelson v. Frank E. Best Inc., 768 A.2d 473, 483 (Del. Ch. 2000) (“Indeed, 

perhaps the most well-settled proposition of common law is that dictum does not constitute 

binding precedent.”) (emphasis in original); Op. of the Justices, 198 A.2d at 690 (“It is a 

well-settled rule of law that statements amounting to mere obiter dicta do not become 

binding precedents and fall outside the rule of stare decisis.”). 
47

point out, the language used—“should be determined”—suggests that it is not 

mandatorily limited as such. At bottom, while the Harrington court summarized 

what it viewed Section 4’s function to be, it did not foreclose the plain language 

interpretation I adopt here.

In addition, the construction offered by the Higgin Plaintiffs would render 

other (unchallenged) parts of the election laws unconstitutional. The Higgin 

Plaintiffs do not challenge the registration statutes on the basis of when individuals 

can begin registering and, indeed, since 1993, Title 15 has enabled individuals to 

register to vote at the time they apply for a motor vehicle driver’s license with the 

Division of Motor Vehicles and other state agencies.155 Construing Article V, 

Section 4 to cabin all registration dates to those enumerated therein, instead of 

providing a constitutional baseline, would render these (unchallenged) statutes 

unconstitutional as well. Such a result is to be avoided if possible.156 Here, it is not 

only possible but in alignment with the plain language of the Constitution itself.

155 See 15 Del. C. § 2050.

156 See, e.g., Clark v. Martinez, 543 U.S. 371, 380–81 (2005) (“[W]hen deciding which of 

two plausible statutory constructions to adopt, a court must consider the necessary 

consequences of its choice. If one of them would raise a multitude of constitutional 

problems, the other should prevail—whether or not those constitutional problems pertain 

to the particular litigant before the Court.”); Op. of the Justices, 295 A.2d at 722 (“We are 

required to give to statutory language a reasonable and suitable meaning; it is to be 

presumed that the Legislature did not intend an unreasonable, absurd, or unworkable 

result.”).
48

Finally, Article V, Section 4 was subject to a quite significant amendment in 

1925. The original version of Article V, Section 4, as included in the Delaware 

Constitution of 1897, provided in relevant part: 

The General Assembly shall provide by law for a uniform biennial 

registration of the names of all the voters in this State who possess the 

qualifications prescribed in this Article, which registration shall be 

conclusive evidence to the election officers of the right of every person 

so registered to vote at the general election next thereafter . . . .

Such registration shall be commenced not more than one hundred and 

twenty days nor less than sixty days before and be completed not more 

than twenty days nor less than ten days before such election. 

Application for registration may be made on at least five days during 

the said period; provided, however, that such registration may be 

corrected as hereinafter provided, at any time prior to the day of holding 

the election.157

In 1925, the General Assembly amended Article V, Section 4 (i) to delete the 

requirement for biennial registration and (ii) to replace Section 4 with the current 

version of the text.158 In doing so, the General Assembly struck the requirement that 

registration “be completed” not less than ten days before the General Election.159 

157 Del. Const. of 1897, art. V, § 4 (emphasis added).

158 34 Del. Laws ch. 1 (1925). The General Assembly also amended Section 4 in 1907 to 

remove the requirement to pay a registration fee. See 24 Del. Laws ch. 7 (1907). This 

amendment, however, is not relevant to the Same-Day Registration Statute.

159 Id. The parties unfortunately did not identify this amendment in their briefing. The 

Court requested that the parties be prepared to address the amendment during oral 

argument. Dkt. 33. Defendants’ counsel argued that removal of the “be completed” 

language, particularly when read in connection with the removal of the requirement for 

biennial voter registration, indicated that the General Assembly revised Article V, Section 
49

The Higgin Plaintiffs’ primary focus is on Section 4’s reference to a 

registration period preceding the general election. The Higgin Plaintiffs’ argument, 

however, fails to grapple with the unambiguous deletion of “be completed” from the 

text. The Higgin Plaintiffs ignore two key points. First, the 1897 version of the 

Constitution required biennial registration that “shall be commenced” by a certain 

number of days before the general election and “shall . . . be completed” no fewer 

than “ten days before such election.” Second, the 1925 amendment to the 

Constitution replaced the 1897 text with vastly less restrictive language, disposing 

of narrow biennial registration in favor of mandating only a constitutional minimum 

of “at least two registration days in a period” before “each General Election . . . .”160 

I believe it would be inconsistent with principles of constitutional analysis for me to 

ignore this very significant change to the text of Article V, Section 4 in analyzing 

the Higgin Plaintiffs’ challenge. To the contrary, it is my view that the amendment 

not only supports my prior reasoning, but also independently compels the conclusion 

4 to provide for a minimum number of registration days before each General Election, not 

to cabin the number of such days. Summ. J. Arg. Tr. 116–17. Plaintiffs’ counsel disagreed 

and explained that they did not attach any significance to this amendment insofar as it 

concerns the Same-Day Registration Statute. Id. at 50–55.

160 Notably, Harrington does not consider the 1925 amendment at all, which is unsurprising 

given that its passing reference to registration was dicta. 
50

that the Higgin Plaintiffs have failed to show clear evidence that the Same-Day 

Registration Statute violates the Delaware Constitution. 

Finally, it bears repeating that the express purpose of election laws in this state 

is to provide for “free and equal” elections161 where Delawareans have an 

“unfettered” right to vote162—one of “the most fundamental of our rights.”163 The 

General Assembly has determined that the Same-Day Registration Statute would 

enhance “meaningful participation from [Delaware’s] citizenry.”164 This is entitled 

to “great weight” in the Court’s review of its constitutionality. “Clear and 

convincing evidence of unconstitutionality” is what would be needed to overturn this 

law,165 and the evidence in this case simply falls short of that mark.

In sum, despite Harrington’s dicta, given the plain language of Section 4, the 

strong presumption of constitutionality, and the advisability of keeping the existing 

statutory scheme harmonious, I cannot conclude the Same-Day Registration Statute 

is clearly unconstitutional such that the Higgin Plaintiffs have proven success on the 

merits of their claim.

161 See Del. Const. art. I, § 3.

162 See Young, 122 A.3d at 857 (quoting Abbott v. Gordon, 2008 WL 821522, at *19 (Del. 

Ch. Mar. 27, 2008)). 

163 Bartley, 1986 WL 8810, at *9.

164 See Republican State Comm., 250 A.3d at 921.

165 See Sierra, 238 A.3d at 155–56. 
51

4. The Vote-by-Mail Statute

I turn next to the Vote-by-Mail Statute. Plaintiffs assert that the Vote-by-Mail 

Statute is unconstitutional on two grounds. Plaintiffs argue that the Delaware 

Constitution only allows for absentee voting in limited, enumerated circumstances, 

as contained in Article V, Section 4A. Plaintiffs also argue that that the Vote-byMail Statute violates the Delaware Constitution’s requirement that an election be 

held on one day as expressed in Article V, Section 1. Because I conclude that the 

Vote-by-Mail Statute is inconsistent with Article V, Section 4A—as it has been 

interpreted in case law—I do not reach Plaintiffs’ challenge under Article V, Section 

1.

a. Prior Vote-by-Mail Statute

The Vote-by-Mail Statute is not the General Assembly’s first effort to pass a 

general vote-by-mail law; nor is this litigation the first challenge to such a law. In 

2020, the Court of Chancery considered a very similar vote-by-mail statute in 

Republican State Committee. In that action, the plaintiffs challenged a 2020 statute 

passed by the General Assembly that allowed for mail-in voting by all Delaware 

voters for the 2020 election.

166

 The General Assembly approved the 2020 statute

166 Republican State Comm., 250 A.3d at 912–13. During oral argument, Defendants’ 

counsel acknowledged that the 2022 Vote-by-Mail Statute employed much of the same text 

as the 2020 statute and that the only material difference is that, under the Prior Vote-byMail Statute, all voters automatically received an application to vote by mail whereas 
52

under its emergency powers in Article XVII, Section 1 of the Delaware Constitution,

which permits legislative action to “[e]nsure the continuity of State and local 

governmental operations in periods of emergency.”167 Vice Chancellor Glasscock

noted that, in light of the COVID-19 pandemic, the legislature “made a 

determination that vote-by-mail is necessary for the continued operation of 

governmental functions, and that it would be impracticable to address this problem 

other than by otherwise-extraconstitutional means.”168 The Vice Chancellor

concluded that the General Assembly’s “findings [were] not clearly erroneous” and 

therefore denied the plaintiffs’ motion for summary judgment.169

In the course of his analysis, the Vice Chancellor also noted that the parties to 

that litigation did not dispute that the 2020 vote-by-mail statute would be 

impermissible but for the General Assembly’s invocation of its emergency powers: 

The parties agree that the list in Article V, § 4A of those citizens entitled 

to vote by absentee ballot is meant to be exhaustive. Thus, the General 

Assembly may only expand remote voting beyond that list by properly 

invoking the emergency powers of Article XVII, § 1 to “[e]nsure the 

continuity of State and local governments.”

voters must request such an application under the current Vote-by-Mail Statute. Summ. J. 

Arg. Tr. at 99.

167 Del. Const. art. XVII, § 1; see also Appx. A for full text of Article XVII.

168 Republican State Comm., 250 A.3d at 922. 

169 Id.
53

. . . [Section 4A] provides a list of reasons for which a registered voter 

may submit an absentee ballot to be counted in a general election. The 

need for social distancing to minimize public health risks is not on that 

list, nor do the Defendants argue that it is, and the list is meant to be 

exhaustive. Therefore, absent some other authority, Article V, § 4A 

prohibits the General Assembly from allowing general absentee voting

for the November 4, 2020 general election based on the threat posed by 

the COVID-19 virus.170

In stating that Section 4A’s list is meant to be “exhaustive,” the Vice Chancellor 

cited to Opinion of the Justices, 295 A.2d 718 (Del. 1972).

b. Prior Constitutional Case Law on Absentee Voting 

In Opinion of the Justices, an advisory opinion, the Supreme Court of 

Delaware answered three questions posed to the Supreme Court by Delaware’s

Governor in 1972.

171

 Each of the Governor’s questions concerned primary elections. 

In the course of providing the Supreme Court’s views on primary election laws, the 

Supreme Court added a “caveat as to general elections”:

[Article 5, Section 4A of the Delaware Constitution] specifically 

enumerates the classifications of persons eligible to vote by absentee 

ballot at general elections. We are of the opinion that by expressly 

including certain classifications, the drafters of s 4A impliedly excluded 

all other classifications. It is beyond the power of the Legislature, in 

170 Id. at 917–18 (emphasis added); accord id. at 913 (“The DOE concedes that the 

Delaware Constitution lists reasons for which ballots may be provided for absentee voting, 

that this list of reasons is intended to be comprehensive, and that the current epidemic 

health crisis is not among them.”); id. at 917 (“The General Assembly, via the Act, has 

extended eligibility for remote voting beyond those electors entitled to so vote by Article 

V, § 4A of the Delaware Constitution. The parties agree that the list in Article V, § 4A of 

those citizens entitled to vote by absentee ballot is meant to be exhaustive.”).

171 Op. of the Justices, 295 A.2d at 720.
54

our opinion, to either limit or enlarge upon the s 4A absentee voter 

classifications specified in the Constitution for general elections.172 

On this basis, the Supreme Court explained that certain classifications in the statute 

under consideration would be “unconstitutional limitations” and other classifications 

in the statute would be “an unconstitutional enlargement” of absentee voting, 

“insofar as general elections are concerned . . . .”

173

 The Supreme Court, however,

acknowledged that its statements and conclusion as to general elections were not 

necessary to its analysis, writing: “While the questions before us are confined to 

primary elections, we have taken the occasion to raise this caveat as to general 

elections for the timely consideration of all concerned.”174 

The Opinion of the Justices advisory opinion does not cite any case law in 

support of the passage described above. However, an earlier passage in the advisory 

opinion points the way: 

We have considered the force and effect of State ex rel. Walker v. 

Harrington, and State v. Lyons. In each of those cases, the Court found 

in the Constitution an implied limitation upon absentee voting in 

general elections. Shortly after the Harrington decision, the 

Constitution was amended by adding s 4A to Article 5. It is clear that 

172 Id. at 722 (emphasis added). 

173 Id. 

174 Id. at 723.
55

the holdings in Lyons and Harrington are limited to general elections, 

as are the provisions of the resultant Art. 5, s 4A.175

Thus, I look to the decisions in Lyons and Harrington for the source of the 

Constitution’s “implied limitation upon absentee voting in general elections.”176 

In Lyons, the Delaware Court of General Sessions177 considered the 

constitutionality of laws broadly allowing for qualified Delaware electors to vote by 

mail.178 The court considered the constitutionality of the mail-in voting laws in 

connection with a criminal indictment against seven persons alleged to have 

committed conspiracy to abet fraud relating to casting votes under the law.179 The 

175 Id. at 721. 

176 Id.

177 Prior to 1951, Delaware did not have a formal supreme court. Instead, Delaware utilized 

a “left-over-judge” system whereby state judges who had not heard the case on appeal

would serve as the tribunal of final appeal. Under this system, the Court of General 

Sessions, together with the Courts of Oyer and Terminer, sat as the higher criminal 

tribunals in the first instance. See Paul Dolan, History of the Supreme Court, 56 Dick. L. 

Rev. 166, 166–67 (1952) (available at 

https://courts.delaware.gov/supreme/history/history1.aspx). Therefore, for purposes of the 

Lyons case, which was a criminal case, the Court of General Sessions acted as the court of 

final appeal. In the Lyons case, two then-Superior Court Judges, the Honorable Richard 

Rodney and the Honorable Frank Speakman, sat on the appeal.

178 See 33 Del. Laws ch. 103 (1923) (providing that “any qualified elector . . . who may be 

in the public service of the United States of America or of this State . . . or who because of 

the nature of his work or business, may be absent, or may expect to be absent, from this 

State . . . or who because of sickness or physical disability cannot appear at [his or her] 

polling place” may vote by mail-in ballot).

179 Lyons, 5 A.2d at 496.
56

Delaware Court of General Sessions found the mail-in voting laws unconstitutional, 

holding that Article V, Section 2 “contemplates and requires the personal attendance 

of the voter at the polls, and no power now exists in the Legislature to provide for 

absentee voting.”180 In its decision, “the Court relied on the debates of the 1897 

Convention as well as Article V, Section 3’s provision for challenging a voter on the 

grounds of bribery.”

181

In Harrington, the Delaware Supreme Court found the Soldiers’ Vote Act, 

which allowed Delaware voters stationed at military encampments to vote in those 

encampments, to be unconstitutional.182 The question before the court was “whether 

the Constitution requires that the polling places for the reception of ballots be located 

within the geographical and territorial confines of the State of Delaware.”183 As 

former Justice Holland wrote, the Harrington court acknowledged Lyons but 

ultimately concluded that polling places must be located within Delaware: 

The court did not disagree with the Lyons court’s interpretation of Section 2, 

but was of the mind that “the question before the Court can only be determined 

by a consideration of all the material and pertinent provisions of the 

Constitution.” As in Lyons, the court relied on the right to challenge a voter 

180 Id. at 503.

181 Randy J. Holland, The Delaware State Constitution 211 (2d ed. 2017).

182 Harrington, 30 A.2d at 692–93; see also Randy J. Holland, The Delaware State 

Constitution 211 (2d ed. 2017).

183 Harrington, 30 A.2d at 691.
57

on the grounds of bribery in Section 3, but also relied on Section 5’s protection 

of electors while traveling to and from polling places and the inability of the 

Board of Canvass to bring before it election officers from outside the state and 

fulfill its duties as announced in Section 6.184

The framers of the 1897 Constitution were deeply concerned with vote buying 

and election fraud, which were considered rampant in Delaware at the time.185 

Indeed, these concerns were so paramount to the framers of the 1897 Constitution 

that they took the extraordinary step of laying out in great specificity the substance 

of the crimes of voter fraud and bribery within the Constitution.

186

 The Lyons

opinion also made note of this history. There, the court cited at length a quote from

Judge Spruance at the 1897 Constitutional Convention, where he stated that the 

Convention had considered adopting the absentee voting provision provided under 

the New York Constitution but decided such a provision was not necessary.187 

184 Randy J. Holland, The Delaware State Constitution 211 (2d ed. 2017).

185 Randy J. Holland, The Delaware State Constitution 26 (2d ed. 2017).

186 Id; see also Randy Holland & Harvey Rubenstein, The Delaware Constitution of 1897: 

The First One Hundred Years 444 (stating that vote buying was ubiquitous in Delaware 

and that it was “the intention of the [1897] Constitutional Convention to put a stop to the 

pollution of the ballot”) (citing News Account Dated February 14, 1897, Sunday 

Philadelphia Times Special Edition)).

187 Lyons, 5 A.2d at 501–02. Judge Spruance specifically noted that the applicable 

provision in the New York Constitution was included to address absentee voting during 

the Civil War and that it was thought that “such an unfortunate condition of affairs . . . 

would not be likely to occur again.” Id.
58

c. Constitutionality of the Vote-by-Mail Statute

I now turn to the Vote-by-Mail Statute and the implication of this 

constitutional history. As discussed in Section I.C.2 herein, the Vote-by-Mail 

Statute allows qualified, registered voters to apply and request a mail-in ballot from 

the DOE.188 As also previously noted, counsel for the Defendants at oral argument 

acknowledged that the current Vote-by-Mail Statute is not materially different from 

the Prior Vote-by-Mail Statute.189 Furthermore, the General Assembly, in the Prior 

Vote-by-Mail Statute, specifically stated that the list of reasons permitting absentee 

voting under Article V, Section 4 of the Delaware Constitution is exhaustive and 

that the General Assembly passed the Prior Vote-by-Mail Statute pursuant to its 

emergency powers.190

Plaintiffs argue that the Vote-by-Mail Statute does not comport with Article 

V, Section 4A or the related statutory scheme. It simply provides that “[a] qualified, 

duly registered elector wishing to vote by mail” need only “[c]omplete a handwritten 

or electronic application to vote by mail,” “[s]ign and date the application,” and 

“[m]ail, deliver, or cause to be mailed or delivered, the completed application to the 

188 83 Del. Laws ch. 353, § 5604(A) (2022).

189 Summ. J. Arg. Tr. at 99.

190 82 Del. Laws ch. 245 (2020). See Section I.C.1.
59

Department by the deadline provided by the Department.”191 The elector must also 

sign an oath on the ballot but need not provide a reason why they cannot or chose 

not to vote by mail—it is available to anyone “wishing to vote by mail.”192 

Plaintiffs argue that this is in direct conflict with Article V, Section 4A, which 

they claim only allows those “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.”193 They also argue that this court’s opinion in Republican 

State Committee194 and the Delaware Supreme Court’s Opinion of the Justices195

support their construction.

After careful consideration, I conclude that, based on precedent, I am 

compelled to agree. The Vote-by-Mail Statute is functionally the same as the 2020 

statute, with much of the same text and the only material difference being irrelevant 

to my analysis here.196 Unlike in 2020, however, the General Assembly did not 

191 83 Del. Laws ch. 353, § 5604A (2022).

192 Id.

193 Del. Const. art. V § 4A.

194 250 A.3d 991 (Del. Ch. 2020).

195 295 A.2d 718 (Del. 1972). 

196 See Summ. J. Arg. Tr. at 99:3–6 (Defendants acknowledging that the only material 

difference between the statutes is that, under the 2020 statute, mail-in ballots were 

distributed directly to voters, whereas the 2022 statute uses an opt-in system).
60

invoke its emergency powers in approving the Vote-by-Mail Statute in 2022. 

Opinion of the Justices provides clear guidance that the General Assembly may 

neither expand nor limit the categories of absentee voters identified in Article V, 

Section 4A.197 The Vote-by Mail Statute, however, vastly expands the categories of 

such voters and, as such, is inconsistent with the Constitution. 

Defendants argue that the language from Republican State Committee and 

Opinion of the Justices is not binding on this court. Opinion of the Justices is an 

advisory opinion given to the Governor, and in it the Justices acknowledged that “all 

questions before us are confined to primary elections.” The language from 

Republican State Committee is likewise dicta, they say; as explained, the Vice 

Chancellor held that the General Assembly acted within its emergency powers under 

Article XVII, Section 1 of the Delaware Constitution when it enacted mail-in voting 

laws for the year 2020. In neither case did the court hold that no-excuse mail-in 

voting runs afoul Article V, Section 4A.

To a trial judge, Defendants’ attempt to minimize the only precedent that has 

touched on this issue is, ultimately, unpersuasive. The language from both our 

Supreme Court and this court is unequivocal that Section 4A’s list is exhaustive. 

197 Op. of the Justices, 295 A.2d at 722.
61

Indeed, the State appears to have conceded this very point just two years ago. More 

importantly, it is the only guidance given, and I am obliged to follow it. 

Defendants also argue that there is an important distinction between mail-in 

voting and “absentee voting.” According to Defendants, a Delawarean votes 

“absentee” when she is unable to come to the regular polling place, whereas mail-in 

voting refers to people present in the county who simply would prefer not to vote inperson. The Vote-by-Mail Statute is not unconstitutional, they say, because Section 

4A deals with absentee voting, not mail-in voting generally, and vice versa for the 

Vote-by-Mail Statute.

Defendants offer no authority supporting this distinction. This court’s 2020 

opinion consistently used the terms interchangeably.198 And Defendants agree that 

the 2020 statute is functionally the same as the Vote-By-Mail Statute. I cannot adopt 

a distinction that is contradicted by Delaware law and, frankly, common usage.

In addition, Plaintiffs argue that Defendants’ attempt to draw a highlynuanced distinction between absentee and mail-in voting unreasonably risks 

rendering Section 4A superfluous. The decision in Lyons rests on the question of 

198 See Republican State Comm., 250 A.3d at 915 (“As signed into law by Governor John 

Carney on July 1, 2020, the Vote By Mail Statute amends Title 15 of the Delaware Code 

to allow voters who would not meet the usual requirements for absentee voting to vote by 

mail.”).
62

whether a voter has appeared in-person at a polling place. To the Court in Lyons, 

this was the key constitutional question. The decision in Harrington comports with 

this understanding, as well. Thus, at least according to Lyons and Harrington—on 

which Opinion of the Justices relies—the constitutional fulcrum on which validity 

and invalidity turns is whether or not the voter is required to appear at the polling 

place and not simply how a vote is cast.

Under this reading of the case law, if both Section 4A and the Vote-By-Mail 

Statute enable citizens to vote without appearing in-person, and the Vote-By-Mail 

Statute is unlimited as to such eligibility, then the Vote-By-Mail statute necessarily 

would paint over the specific categories of eligible citizens enumerated in Section 

4A. In short, permitting widespread voting by mail would—regardless of whether 

you call it absentee voting, mail-voting, or something else—improperly render 

Section 4A surplusage under Lyons, Harrington, and Opinion of the Justices. 

Finding Delaware law to be no help, Defendants turn elsewhere. Citing 

McLinko v. Department of State,

199 a Pennsylvania decision, and Lyons v. Secretary 

of Commonwealth (“Mass. Lyons”),200 a Massachusetts decision, Defendants 

contend that Section 4A does not prevent the General Assembly from expanding the 

199 279 A.3d ----, 2022 WL 3039295 (Pa. Aug. 2, 2022).

200 192 N.E.3d 1078 (Mass. 2022).
63

list of persons eligible for mail-in voting. McLinko and Mass. Lyons interpreted their 

own state constitutions against the background of different decisional law and 

legislative amendments. Compared with Delaware decisions that interpret the 

Delaware Constitution in the context of Delaware legal history, McLinko and Mass. 

Lyons start at a disadvantage.201 

In McLinko, the Supreme Court of Pennsylvania upheld the validity of a 

universal mail-in voting statute. To do so, the McLinko court overruled 160 years’ 

worth of Pennsylvania precedent holding that the Pennsylvania Constitution 

required in-person voting unless the voter fell into one of the textually enumerated 

categories of persons eligible for absentee voting.202 The McLinko court emphasized 

that “any restrictions” on the legislature’s power to enact voting legislation “must be 

explicit.”203 After McLinko, the Pennsylvania legislature may prescribe any method 

of voting so long as the method promotes secrecy.204 

201 See Jones v. State, 745 A.2d 856, 864 (Del. 1999) (“A state constitution’s language may 

itself provide a basis for reaching a result different from that which could be obtained under 

[a different source of] law.” (internal quotation marks omitted)).

202 2022 WL 3039295, at *19–29.

203 Id. at *31.

204 Id. at *30–34.
64

In Mass. Lyons, the Supreme Judicial Court of Massachusetts also upheld a 

universal absentee voting statute. In doing so, the Mass. Lyons court described the 

Massachusetts Constitution as a “statement of general principles and not a 

specification of details.”205 Consistent with its unrestricted structure, the Mass. 

Lyons court observed that the Massachusetts Constitution grants the legislature 

“plenary . . . authority . . . to regulate the process of elections.”206 Based on that 

plenary authority, the Mass. Lyons court held that the Massachusetts legislature may 

prescribe any method of voting so long as the method chosen “protect[s] and 

enhance[s] . . . the right to vote” and is not “repugnant” to another provision in 

Massachusetts Constitution.207 

Notably, the Mass. Lyons plaintiffs also invoked the maxim of expressio unius 

est exclusio alterius to argue that, by specifying only three categories of persons 

eligible for absentee voting, the Massachusetts Constitution prohibited universal 

mail-in voting by negative implication. The Mass. Lyons court rejected this 

argument.

208

 The Mass. Lyons court explained that expressio unis is ill-suited to 

205 192 N.E.3d at 1086 (internal quotation marks omitted).

206 Id. at 1087 (internal quotation marks omitted).

207 Id. at 1091–92.

208 192 N.E.3d at 1092.
65

constitutional interpretation and so cautioned that it should not be used to restrain a 

legislature from enacting laws that advance fundamental rights: 

[Expressio unis] is a maxim that has oft been considered in connection with 

interpreting statutes . . . . It is a guide to construction, not a positive command,

and at most only a fallible aid to decision . . . . Cases from other jurisdictions 

have consistently counselled that the maxim should be applied with even 

greater caution when interpreting a State constitution . . . . Silence is subject 

to multiple interpretations; it is not sufficient to rebut the presumption of 

constitutionality or to prove repugnancy.209

McLinko and Mass. Lyons share similarities to this case. Both cases examined 

universal mail-in voting laws. Both cases analyzed constitutional provisions 

purporting to limit absentee voting to finite categories of eligibility. And both cases 

stand for a general proposition that state constitutions should not be interpreted to 

impliedly restrict the legislature’s power to universalize mail-in voting. 

McLinko and Mass. Lyons, however, are incompatible with currently binding 

Delaware precedent. They may well serve as useful authority in the inevitable 

appeal of this decision, but my analysis is constrained by Delaware precedent.

As already explained, based on the weight of precedential authority, I must 

conclude that the Vote-by-Mail Statute violates the Delaware Constitution. 

However, although I am compelled by Delaware precedent to find that Plaintiffs 

have demonstrated actual success on the merits as to the Vote-by-Mail Statute, I 

209 Id. at 1093 (cleaned up).
66

believe the Delaware Supreme Court may conclude that it has grounds to revisit that 

precedent. 

First, Opinion of the Justices was an “advisory opinion” not subject to the 

adversarial process.210 Second, Opinion of the Justices expressly acknowledges that 

the “caveat as to general elections” at issue here is unnecessary to the analysis.211 

As such, one might conclude that the passage is dictum in an advisory opinion. 

Third, I believe that reasonable minds might now—eight decades later—have reason 

to question the source of this dictum, namely State v. Lyons and State ex rel. 

Harrington v. Walker. 

Both Lyons and Harrington locate no express prohibition on absentee voting 

in the Delaware Constitution. Instead, both decisions identify an implied

prohibition.212 Yet, the identification of an implied constitutional restriction on 

legislative authority, where no express limitation exists, is a conclusion that I would 

draw with significant hesitancy. As has already been discussed, powerful doctrines 

of constitutional analysis are implicated here. These include the doctrine of 

constitutional avoidance and the understanding that, unlike the federal government, 

210 Randy J. Holland, The Delaware State Constitution 181 (2d ed. 2017).

211 295 A.2d at 722-23.

212 Op. of the Justices, 295 A.2d at 721 (“In each of those cases, the Court found in the 

Constitution an implied limitation upon absentee voting in general elections.”). 
67

the General Assembly is imbued with all legislative power absent a limitation on 

that power that can be demonstrated clearly and convincingly. 

The 1939 decision in Lyons invalidates a vote-by-mail statute adopted by the 

General Assembly in 1923. It appears that, just twenty-six years after the 1897 

constitutional convention, the General Assembly adopted a relatively “broad[] in 

scope” statute that “provided for the casting of ballots by mail by persons unable to 

be personally present at the polling places in their districts on election day.”213 This 

state of affairs continued for the next decade-and-a-half, without apparent 

constitutional concern, until an indictment was brought against seven individuals for 

“conspiracy to abet fraud in connection with the casting of [absentee] votes . . . .”214 

It is unclear from the decision who six of the individuals were, but it appears that 

one of the individuals (named in the case caption) has been described as “one of the 

last of the old time political bosses” and was, at the time, the Wilmington chairman 

of a political party.215 Lyons quashed the criminal indictment because the decision 

located, seemingly for the first time, an implied requirement in the Delaware 

213 Harrington, 30 A.2d at 690 (describing the statute challenged in Lyons). 

214 Lyons, 5 A.2d at 496.

215 Obituary of G.E. Lyons, N.Y. Times (Feb. 7, 1960), 

https://timesmachine.nytimes.com/timesmachine/1960/02/07/119095555.pdf?pdf_redirec

t=true&ip=0; see also Carol E. Hoffecker, Corporate Capital: Wilmington in the Twentieth 

Century 148 (1983).
68

Constitution that voters appear in person at the polls and thus an implied prohibition 

on absentee voting. This made the underlying absentee vote-by-mail statute void 

and required that the indictment be quashed, because the defendants could not be 

prosecuted for conspiracy to violate a constitutionally void statute. 

Over 80 years later, I obviously cannot draw any conclusions, particularly in 

this expedited context. But I believe we should at least be aware of the historical 

context of the Lyons decision, which invalidated a significantly older vote-by-mail 

statute that had been in place for years and which was the first decision to locate the 

implied restriction that now ties the hands of the General Assembly. 

Just four years after Lyons, the decision in Harrington invalidated a statute 

that had long permitted soldiers to vote at their encampments.216 Both Lyons and 

Harrington looked to various provisions of Article V to imply a prohibition on 

absentee voting. Quite significantly, however, the General Assembly adopted the

statute at issue in Harrington—the Soldiers’ Vote Act—in 1898, just a year after the 

1897 constitutional convention. One would think that the General Assembly of 1898 

knew well the intent of the 1897 framers and that the adoption of the 1898 law would 

216 Harrington, 30 A.2d at 692–93.
69

constitute significant evidence that the Delaware Constitution contained no implied 

prohibition on voting away from one’s polling place.217 

The Lyons decision also relied on a brief passage during a speech at the 

constitutional convention by Judge Spruance (as briefly discussed above) to support 

the notion that the absentee voting was prohibited. The passage follows: 

I say this [Article 5, Sec. 2] is based mainly upon the corresponding provision 

in the New York Constitution[, but, concerning a portion of the provision in 

the New York Constitution providing for absentee voting for soldiers,] [t]hat 

applied more particularly, perhaps, to such times as in the late War of the 

Rebellion when large numbers of citizens were in the service of the country 

and their votes, under special act of Assembly, were taken in the field. It was 

thought that such an unfortunate condition of affairs as that would not be 

likely to occur again. At all events, it was so removed that we thought it was 

not necessary to put it in.218

I believe reasonable minds could easily disagree about how the passage should 

be read—i.e., as suggesting an affirmative prohibition on absentee voting (as Lyons 

concludes) or as indicating no firm position, one way or another, on the matter. The 

217 See Lynch v. Donnelly, 465 U.S. 668, 674 (1984) (recognizing “the Court’s emphasis 

that the First Congress ‘was a Congress whose constitutional decisions have always been 

regarded, as they should be regarded, as of the greatest weight in the interpretation of that 

fundamental instruction’”) (quoting Myers v. United States, 272 U.S. 52, 174-75 (1926)). 

One might also conclude that the decision in 1943—during World War II—to invalidate 

the Soldiers’ Vote Act was eased significantly by the anticipated second leg of the 

amendment enacting Article V, Section 4A, which would be passed just two months after 

the Harrington decision and arguably make the outcome somewhat academic at the time. 

44 Del. Laws ch. 118 (1943).

218 Lyons, 5 A.2d at 501–02.
70

brief passage from the convention debates that Lyons quotes is, then, arguably made 

to bear more weight than it deserves. 

Finally, the plain text of Article V, Section 4A does not clearly and 

convincingly reflect a prohibition on expanding the categories of permitted absentee 

voting. The text of Section 4A instead reads as an affirmative grant of power to the 

General Assembly, not a limitation. It says “[t]he General Assembly shall enact 

general laws” providing for absentee voting in certain circumstances. Under that 

reading, nothing would prohibit the General Assembly from enacting laws providing 

for absentee voting in additional circumstances. Coupled with the strong 

presumptions in favor of constitutionality and strong policy reasons for allowing the

General Assembly to promote unfettered voting, that construction would likely 

control.

As I have already noted, I see my duty in this instance as determining whether 

there is a reasonable interpretation of the Constitution that would uphold the validity 

of the Vote-by-Mail Statute, rather than seeking out an interpretation that would 

result in the statute’s invalidation. If I am able to interpret the constitution without 

straining or stretching and, in doing so, find a statute constitutionally valid, I believe 

I would be compelled to adopt that interpretation. 

Here, the most straightforward interpretation of the constitutional text is that 

it speaks in terms of in-person voting at the polling place and is simply silent as to 
71

absentee voting. Certainly, the framers of the Constitution of 1897 were aware of 

the potential for absentee voting. Indeed, the brief passage from the convention cited 

in Lyons makes this clear. But a reasonable interpretation of the short statement by 

Mr. Spruance at the convention is that the framers chose not to impose prohibitions 

or directives as to absentee voting and thereby left the issue up to future members of 

the General Assembly. The fact that Judge Spruance reported the omission of a 

provision specifically addressing absentee voting from the constitution does not 

automatically mean that the framers prohibited absentee voting. To the extent the 

framers wanted to, they could have easily included express language saying so. Yet 

they did not. In addition, the adoption of the Soldiers’ Vote Act in 1898 and the 

broad mail-in voting act of 1923—all close in time to the constitutional 

convention—further suggest that the framers did not understand there to be an 

implied prohibition on absentee voting in the Constitution. 

Certainly, the framers were deeply concerned with the issue of fraud in 

elections given their experience with elections in the nineteen-century, and they 

debated and put in place a detailed process governing in-person voting. Obviously, 

the framers believed they needed to develop a detailed system governing the basic 

and traditional form of voting, i.e., in-person voting. To say that it then follows that 

the framers decided to prohibit, by implication, any other form of voting—and, in 

particular, absentee voting—is a leap seemingly inconsistent with principles of 
72

constitutional interpretation. One might, therefore, be concerned that the Lyons and 

Harrington decisions cobble together various passages and, in doing so, stretch and 

strain to imply a constitutional restriction where none appears in the plain text of the 

document or based on ordinary principles of constitutional interpretation. 

I state the foregoing with a clear recognition that the doctrine of stare decisis 

is a cornerstone of our law. Among its many features, the doctrine promotes 

stability, predictability, and overall coherence in our law. Any departure from stare 

decisis is not to be considered lightly. 

When I am confronted, however, with an implied limitation in our 

fundamental law (the Constitution) to citizens’ fundamental right (voting), I believe 

I have a duty to consider—however, briefly—the source of the implied limitation. 

In this instance, no party has pointed me to any detailed appellate review of the 

implied absentee-voting restriction by our modern-era Supreme Court. The only 

modern-era authority that has been identified is the non-adversarial, advisory 

Opinion of the Justices, which, as explained above, notes the implied restriction 

briefly in self-described dicta. The precedent relied on in Opinion of the Justices 

seems to be the decisions of Lyons and Harrington, two decisions from the “leftover 
73

judge” era of appellate review.219 Given the fundamental nature of the voting rights 

at issue, the Lyons and Harrington decisions may be worth revisiting. But that is a 

decision for the Supreme Court. 

Thus, if I were writing on a blank slate, I would likely conclude that the Voteby-Mail Statute is not prohibited by the Delaware Constitution. In that scenario, to 

invalidate the Vote-by-Mail Statute, I would need to find clear and convincing 

evidence of an express or implied prohibition in the Constitution and that is a very 

high bar to clear.220 I am not writing on a blank slate, however. And as a trial judge, 

I am not in a position to revisit Opinion of the Justices or the decisions on which it 

relies—Lyons and Harrington.

221

219 Henry R. Horsey & William Duffy, The Supreme Court Until 1951: The “Leftover 

Judge” System, Delaware Supreme Court, 

https://courts.delaware.gov/supreme/history/history2.aspx (last visited Sept. 14, 2022).

220 The fact that the General Assembly adopted Article V, Section 4A in 1943; adopted 

amendments to expand absentee voter categories since then; employed emergency powers 

to adopt the 2020 statute; and attempted a constitutional amendment in 2022 would not 

change this result. These are all natural responses to the existence of case law finding an 

implied prohibition against absentee voting. If a sign says “Electric Fence,” one generally 

assumes the veracity of the statement without need for independent confirmation.

221 Should the Delaware Supreme Court determine to revisit Lyons, Harrington, and 

Opinion of the Justices, then Defendants have identified a straightforward and compelling 

harmonization of the Vote-by-Mail Statute and Article V, Section 4A. Namely, 

Defendants, citing McLinko, argue that Article V, Section 4A provides a constitutional 

floor for categories of absentee voting that cannot, by a simple majority of the legislature, 

be revoked. 2022 WL 3039295, at *33 (“While it is accurate that Act 77’s provision of 

universal mail-in voting provides a way for designated absentee voters to cast their vote 

without resorting to the absentee voting provisions of the Election Code, this current ability 

to do so does not render Section 14 of Article VII surplusage. As discussed, nothing in 
74

D. Plaintiffs Have Satisfied the Remaining Elements for a Permanent 

Injunction

As noted, to obtain a permanent injunction, a plaintiff must establish: (1) 

actual success on the merits; (2) irreparable harm will be suffered if injunctive relief 

is not granted; and (3) the harm that will result from a failure to enjoin the actions 

that threaten plaintiff outweighs the harm that will befall the defendant if an 

injunction is granted. Because I have concluded that precedent constrains me to 

interpret the Vote-by-Mail Statute as unconstitutional, Plaintiffs have satisfied the 

first prong. Plaintiffs have also satisfied the second and third prongs for their 

requested injunctive relief. 

1. Irreparable Injury

I am satisfied that Plaintiffs have shown that they will suffer irreparable injury 

if the Vote-by-Mail Statute is not permanently enjoined. The unconstitutional 

infringement upon the voting franchise of Delawareans presented here is a harm that 

cannot be remediated by any remedy at law. Furthermore, if I were to not enjoin the 

Vote-by-Mail Statute, then the courts would be faced with the impossible task of 

Article VII prohibits the legislature from eliminating the ability of qualified voters to cast 

their votes by mail, just as nothing in the Constitution required it to do so. By recently 

enacting Act 77, the legislature made a policy decision, based on the authority afforded it 

by our Charter, to afford all qualified voters the convenience of casting their votes by mail. 

However, acts of the legislature are not guaranteed to be permanent.”). Under this reading, 

and without the implied constraints of Lyons, Harrington, and Opinion of the Justices, the 

Vote-by-Mail Statute does not render Section 4A surplusage.
75

“unscrambling the eggs” of an election undermined by unconstitutional votes.222 

Given these considerations, Plaintiffs will suffer irreparable injury if the Vote-byMail Statute is not enjoined and doing so is necessary in the interests of justice.

While a somewhat elusive topic,223 “[i]rreparable harm is generally defined as 

harm for which there can be no remedy at law, which is ‘typically taken to mean that 

an award of compensatory damages will not suffice.’”224 However, under Delaware 

law, the concept of irreparable harm is broader: “[i]t is not necessary that the injury 

be beyond the possibility of repair by money compensation but it must be of such a 

nature that no fair and reasonable redress may be had in a court of law and that to 

refuse the injunction would be a denial of justice.”225 This Court frequently finds 

222 Notably, the Pennsylvania Supreme Court highlighted in McLinko the impossibility of 

attempting to unwind an election. 2022 WL 3039295 at *3. There, the Pennsylvania 

Supreme Court remarked that a previous challenge to the Pennsylvania universal mail-in 

voting law was barred by laches because the petitioners had waited until after the applicable 

election and such a challenge could not be adjudicated while the ballots were in the process 

of being tallied. See id. at *3. Given that Plaintiffs have established the unconstitutionality 

of the Vote-by-Mail Statute, a failure to enjoin the statute could raise a similar situation, 

and it is imperative that this be avoided.

223 As quipped in a learned treatise on the subject, irreparable injury, in contrast to the 

Supreme Court’s notable definition of obscenity, “is often more easily defined than 

identified.” Donald J. Wolfe & Michael A. Pittenger, Corporate and Commercial Practice 

in the Delaware Court of Chancery (“Wolfe & Pittenger”) § 14.03(b)(4), at 22 (2019).

224 AM Gen. Hldgs. LLC v. Renco Grp., Inc., 2012 WL 6681994, at *4 (Del. Ch. Dec. 21, 

2012) (quoting Wolfe & Pittenger §14.03(b)(4), at 22).

225 State v. Del. State Educ. Ass’n, 326 A.2d 868, 875 (Del. Ch. 1974).
76

actions by boards of directors that threaten the voting franchise for stockholders as 

constituting irreparable harm.226 Similarly, this Court will find irreparable harm 

where failing to enjoin conduct that interferes with the stockholder voting franchise 

would result in an outcome that cannot be easily unwound.227 It is obvious that this 

Court should afford at least the same protection to the voting rights of Delaware 

citizens as it does to stockholders of Delaware corporations.

Plaintiffs will suffer irreparable harm if the Vote-by-Mail Statute is allowed 

to proceed because the law violates the constitutional protections afforded to their 

226 See, e.g., Blasius Indus., Inc. v. Atlas Corp., 564 A.2d 651, 659 (Del. Ch. 1988) (“The 

shareholder franchise is the ideological underpinning upon which the legitimacy of 

directorial power rests.”); Third Point LLC v. Ruprecht, 2014 WL 1922029, at *23 (Del. 

Ch. May 2, 2014) (holding that improper use of a shareholder rights plan by the company’s 

board of directors caused a threat of irreparable harm because it would be potentially 

dilutive of stockholders’ voting power); Telcom-SNI Invs., L.L.C. v. Sorrento Networks, 

Inc., 2001 WL 1117505, at *9 (Del. Ch. Sept. 7, 2001) (holding that actions by a board of 

directors that had dilutive voting effects “denied Plaintiffs their voting rights guaranteed to 

them by the Certificate”); Phillips v. Insituform of N. Am., Inc., 1987 WL 16285, at *11

(Del. Ch. Aug. 27, 1987) (holding that the “loss of voting power constitutes irreparable 

injury” where a stockholders’ statutory right to vote for directors is impeded); Wolfe & 

Pittenger § 14.03(b)(4), at 33 (stating that Delaware courts have a “tacit assumption that 

the unlawful interference with the corporate electoral process and the fundamental right of 

the stockholder to vote is inherently irremediable.”).

227 See, e.g., Police & Fire Ret. Sys. of City of Detroit v. Bernal, 2009 WL 1873144, at *2 

(Del. Ch. June 26, 2009) (holding that the plaintiff had established likelihood of irreparable 

injury in part because it would be impossible to attempt to unwind a merger once it had 

been completed); Fisk Ventures, LLC v. Segal, 2009 WL 1478490, at *1 (Del. Ch. May 

15, 2009) (holding that transactions that will result in a significant and perhaps 

unrecoverable loss represented “a clear example of irreparable harm”); ODS Tech., L.P. v. 

Marshall, 832 A.2d 1254, 1263 (Del. Ch. 2003) (noting that allowing an uninformed 

stockholder vote to proceed would force the court to “unscramble the eggs”).
77

voting rights. As already discussed, the Vote-by-Mail Statute will result in the 

dilution of constitutional votes with unconstitutional votes. Furthermore, the fact 

that votes will be cast under this unconstitutional law means that the election will 

not be conducted in strict accordance with our Constitution. As Plaintiffs note, it 

would be “virtually impossible” to unwind the election, and “[f]rom a practical 

standpoint, the only remedy Plaintiffs have” is to prevent votes from being cast in 

violation of Article V, Section 4A as interpreted by our State’s courts.228 Consistent 

with this Court’s established precedent in the stockholder voting context, irreparable 

harm is clear given the threats presented by vote dilution, an unfair election and that 

the outcome of such an election could not be unwound.

While I denied Plaintiffs’ request for a temporary restraining order because 

Plaintiffs failed to show a threat of imminent irreparable harm, that had to do with 

the alleged harm in the interim between the TRO ruling and the issuance of this 

decision. The expedited schedule agreed to by the parties allowed for a decision 

well before the first mail-in ballots would be distributed, and therefore, the harm was 

not imminent. Any potential harm at that point was speculative because DOE had 

not mailed out any ballots. Moreover, the alleged harm of voter confusion about the 

228 Pls.’ Combined Reply Br. at 35.
78

availability of mail-in voting was not irreparable, given the time before the general 

election to inform the public regarding the laws’ challenge in the courts. 

At this point, the nature of the harm is entirely different. When Plaintiffs 

requested a temporary restraining order, the issue was interim injunctive relief on a 

minimal record while the DOE was trying to implement a new law for primary 

elections, a law which is not challenged in this case. Today, the primary is over, and 

the next step is the imminent mailing of ballots and voting for the general election. 

Here, the irremediable nature of the harm is clear and entirely different. A failure to 

enjoin the Vote-by-Mail Statute would permit unconstitutional interference with the 

voting franchise and the results of such interference could not be easily unwound. 

This harm is imminent, non-speculative and would be irreparable.

2. Balance of the Equities

The balance of the equities favors Plaintiffs. Where, as here, a plaintiff 

demonstrates success on the merits and irreparable harm, the scope of my inquiry on 

the question of the balance of the equities is much narrower in focus than it is in the 

interlocutory context.229 As the Supreme Court held in Richard Paul, Inc., 

229 See Wolfe & Pittenger § 16.02(f), at 38.
79

permanent injunctive relief should only rarely be denied based on a balance of the 

equities where a plaintiff has established clear violations of his or her rights.230

Here, I have found that Plaintiffs have demonstrated success on the merits and 

that a failure to enjoin the Vote-by-Mail Statute will result in irreparable harm. 

Given this, Defendants must meet a high bar to show that public interest tips the 

scale in their favor. Defendants have not met this bar. 

Although Delawareans have an indisputably strong interest in voting for their 

chosen slate, they also have an equally strong interest in the election being held in 

compliance with constitutional constraints. Defendants argue that a ruling striking 

down the Vote-by-Mail Statute is likely to result in voter confusion. But, as I 

observed in my ruling denying Plaintiffs’ request for a temporary restraining order, 

the highly expedited schedule was to allow sufficient time to cure any confusion 

well before the general election. Defendants’ argument is also belied by the fact that 

the DOE will not begin mailing ballots to electors who have requested to vote by 

mail until October 10, 2022. Since no ballots have been distributed, DOE will have 

more than sufficient time to make clear the categories of persons eligible to vote by 

absentee ballot. In contrast, if the Vote-by-Mail Statute is not permanently enjoined, 

230 Richard Paul, Inc. v. Union Imp. Co., 91 A.2d 49, 54–55 (Del. 1952).
80

then the risk of voter confusion is significantly higher because mail-in ballots would 

be sent out to persons not eligible to vote by mail.

Through their balance of the equities arguments, Defendants invite me to 

consider whether the Vote-by-Mail Statute constitutes good public policy in 

weighing whether to issue injunctive relief. As a trial judge in this context, however, 

my role is very limited. I acknowledge that Delaware has a strong policy in favor of 

its citizens robustly exercising their right to vote. I further acknowledge that voters 

may be unable to exercise their right to vote for numerous reasons, including because 

they are working on election day or suffer resource constraints (e.g., childcare or 

transportation constraints). My thoughts on the policy underlying the Vote-by-Mail 

Statute, however, are fairly irrelevant. Delaware precedent—at least as its stands 

today—requires me to issue an injunction.

Thus, the balance of equities weighs in favor of Plaintiffs, and their requested 

injunctive and declaratory relief as to the Vote-by-Mail Statute must be granted. 

III. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for summary judgment is 

GRANTED IN PART and DENIED IN PART. Defendants’ motion for summary 

judgment is likewise GRANTED IN PART and DENIED IN PART. 

The parties shall confer and submit a proposed implementing order within two 

business days.
1

APPENDIX A

RELEVANT CONSTITUTIONAL TEXT

The Delaware Constitution

Article I. Bill of Rights

§ 3. Free and equal elections.

Section 3. All elections shall be free and equal.

* * * *

Article II. Legislature

§ 1. General Assembly to hold legislative power; composition.

Section 1. The legislative power of this State shall be vested in a General Assembly, 

which shall consist of a Senate and House of Representatives.

* * * *

Article V. Elections

§ 1. Time and manner of holding general election.

Section 1. The general election shall be held biennially on the Tuesday next after the 

first Monday in the month of November, and shall be by ballot; but the General 

Assembly may by law prescribe the means, methods and instruments of voting so as 

best to secure secrecy and the independence of the voter, preserve the freedom and 

purity of elections and prevent fraud, corruption and intimidation thereat.

§ 4. Registration of voters; days for registration; application to strike name 

from list; appeals; registration as prerequisite for voting.

Section 4. The General Assembly shall enact uniform laws for the registration of 

voters in this State entitled to vote under this Article, which registration shall be 

conclusive evidence to the election officers of the right of every person so registered 
2

to vote at any General Election while his or her name shall remain on the list of 

registered voters, and who is not at the time disqualified under the provisions of 

Section 3 of this Article; and no person shall vote at such General Election whose 

name does not at that time appear in said list of registered voters.

There shall be at least two registration days in a period commencing not more than 

one hundred and twenty days, nor less than sixty days before, and ending not more 

than twenty days, nor less than ten days before, each General Election, on which 

registration days persons whose names are not on the list of registered voters 

established by law for such election, may apply for registration, and on which 

registration days applications may be made to strike from the said registration list 

names of persons on said list who are not eligible to vote at such election; provided, 

however, that such registration may be corrected as hereinafter provided at any time 

prior to the day of holding the election.

From the decision of the registration officers granting or refusing registration, or 

striking or refusing to strike a name or names from the registration list, any person 

interested, or any registration officer, may appeal to the resident Associate Judge of 

the County, or in case of his or her disability or absence from the County, to any 

Judge entitled to sit in the Supreme Court, whose determination shall be final; and 

he or she shall have power to order any name improperly omitted from the said 

registry to be placed thereon, and any name improperly appearing on the said registry 

to be stricken therefrom, and any name appearing on the said registry, in any manner 

incorrect, to be corrected, and to make and enforce all necessary orders in the 

premises for the correction of the said registry. Registration shall be a prerequisite 

for voting only at general elections, at which Representatives to the General 

Assembly shall be chosen, unless the General Assembly shall otherwise provide by 

law.

The existing laws in reference to the registration of voters, so far as consistent with 

the provisions of this Article, shall continue in force until the General Assembly 

shall otherwise provide.

§ 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 
3

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.

* * * *

Article XIV. Oath of Office

§ 1. Form of oath for members of General Assembly and public officers.

Members of the General Assembly and all public officers executive and judicial, 

except such inferior officers as shall be by law exempted, shall, before they enter 

upon the duties of their respective offices, take and subscribe the following oath or 

affirmation:

“I, (name) , do proudly swear (or affirm) to carry out the responsibilities of the office 

of

(name of office) to the best of my ability, freely acknowledging that the powers of 

this office flow from the people I am privileged to represent. I further swear (or 

affirm) always to place the public interests above any special or personal interests, 

and to respect the right of future generations to share the rich historic and natural 

heritage of Delaware. In doing so I will always uphold and defend the Constitutions 

of my Country and my State, so help me God.”

No other oath, declaration or test shall be required as a qualification for any office 

of public trust.

Article XVII. Continuity of Governmental Operations

§ 1. Continuity of state and local governmental operations in periods of 

emergency.

Section 1. The General Assembly, in order to insure continuity of State and local 

governmental operations in periods of emergency resulting from enemy attack, 

terrorism, disease, accident, or other natural or man-made disaster, shall have the 
4

power and the immediate duty (1) to provide for prompt and temporary succession 

to the powers and duties of public offices whose immediate succession is not 

otherwise provided for by this Constitution, of whatever nature and whether filled 

by election or appointment, the incumbents of which may become unavailable for 

carrying on the powers and duties of such offices, and (2) to adopt such other 

measures as may be necessary and proper for insuring the continuity of 

governmental operations. In the exercise of the powers conferred by this section, the 

General Assembly shall in all respects conform to the requirements of this 

Constitution except to the extent that in the judgment of the General Assembly to do 

so would be impracticable or would cause undue delay.
5

The Delaware Constitution of 1897

Article V. Elections

Section 4. The General Assembly shall provide by law for a uniform biennial

registration of the names of all the voters in this State who possess the

qualifications prescribed in this Article, which registration shall be conclusive

evidence to the election officers of the right of every person so registered to vote at 

the general election next thereafter, who is not disqualified under the provisions of 

Section 3 of this Article; but no person shall vote at such election unless his name 

appears in the list of registered voters.

Such registration shall be commenced not more than one hundred and twenty days 

nor less than sixty days before and be completed not more than twenty nor less 

than ten days before such election. Application for registration may be made on at

least five days during the said period; provided, however, that such registration

may be corrected as hereinafter provided, at any time prior to the day of holding 

the election.

Voters shall be registered upon personal application only, and each voter shall, at 

the time of his registration, pay a registration fee of one dollar, for the use of the 

county where such registration fee is paid.

From the decision of the registration officers granting or refusing registration, or 

striking or refusing to strike a name or names from the registration list, any person 

interested, or any registration officer, may appeal to the resident Associate Judge of 

the county, or in case of his disability or absence from the county, to any judge 

entitled to sit in the Supreme Court, whose determination shall be final; and he shall 

have power to order any name improperly omitted from the said registry to be placed 

thereon, and any name improperly appearing on the said registry to be stricken 

therefrom, and any name appearing on the said registry, in any manner incorrect, to 

be corrected, and to make and enforce all necessary orders in the premises for the 

correction of the said registry. Registration shall be required only for general 

biennial elections at which Representatives to the General Assembly shall be chosen, 

unless the General Assembly shall otherwise provide by law.

The existing laws in reference to the registration of voters, so far as consistent with 

the provisions of this Article, shall continue in force until the General Assembly 

shall otherwise provide.