Has “Jim Eagle” Landed in Delaware? State Supreme Court Blocks Universal Mail-in Balloting

We recently discussed a federal court upholding the Georgia election law as constitutional, rejecting challenges based on voter suppression by a group associated with Democratic Georgia gubernatorial candidate Stacey Abrams. President Biden has denounced pre-2020 and post-2020 changes to the state election laws as not just “Jim Crow on steroids” but “Jim Eagle,” an awkward effort to suggest something more scary than Jim Crow. However, some of us pointed out that provisions criticized by the President are found in many blue states, including his own state of Delaware. Now, the Delaware Supreme Court has rejected a Democratic universal mail-in voting law as unconstitutional.

The Delaware Supreme Court ruled on Friday that a state law enacting universal mail-in voting violated the state’s constitution. At issue was the Vote-by-Mail statute under which Democrats sought to expand the categories of absentee voters. However, Article V, Section 4A of the Delaware Constitution is explicit on those categories. The provision states with specificity the grounds for such absentee voting:

§4A. General laws for absentee voting.

Section 4A. The General Assembly shall enact general laws providing that any qualified elector of this State, duly registered, who shall be unable to appear to cast his or her ballot at any general election at the regular polling place of the Election District in which he or she is registered, either because of being in the public service of the United States or of this State, or his or her spouse or dependents when residing with or accompanying him or her, because of the nature of his or her business or occupation, because of his or her sickness or physical disability, because of his or her absence from the district while on vacation, or because of the tenets or teachings of his or her religion, may cast a ballot at such general election to be counted in such election district.

The legislature decided to simply ignore the constitutional provision. It is a standard canon of construction that “the expression of one thing is the exclusion of the other” (“Expressio unius est exclusio alterius”).

President Biden’s claims about the Georgia law have been refuted, including by the Washington Post. Indeed, not only has the President misrepresented the law but Delaware has some provisions more restrictive than Georgia’s law.

Now it appears that universal mail-in voting is barred in the state. Does that mean that “Jim Eagle” has landed in Delaware? No. The Supreme Court is clearly correct and the legislature knowingly violated the Constitution. Indeed, the Governor John Carney and Democratic sponsors were warned at the time that it was unconstitutional. If they want universal mail-in voting, they will have to change, not simply ignore, their constitution.