By Jeff Montgomery

Law360 (September 28, 2020, 7:01 PM EDT) -- Delaware's temporarily expanded vote-by-mail option for the Nov. 3 election survived an initial challenge Monday, with a vice chancellor dismissing an attempt by state Republicans to invalidate a measure approved by pandemic-wary lawmakers this year.

Vice Chancellor Sam Glasscock III rejected Republican State Committee teleconference arguments on Thursday that the measure unlawfully expanded specific, limited qualifications for absentee ballot voting — such as illness, military service or absence from the state — detailed in Delaware's current Constitution, approved in 1897.

"The maintenance of polling places with their volunteer staff, itself a governmental function, is threatened by massive in-person voting," the vice chancellor wrote. "The foregoing was the rationale of the legislature, and, in light of that determination, it is not clearly unreasonable or manifestly incorrect that the act is necessary to the continuity of governmental operations."

In his decision, the vice chancellor noted that "legislation enjoys the presumption of constitutionality," and observed that Delaware's General Assembly has the power to act extra-constitutionally "in light of a health emergency, where necessary to preserve the continuity of government."

The vice chancellor said the Republican State Committee had not convinced him that lawmakers were "clearly erroneous" in concluding that any other approach would be impracticable, adding: "Because its findings rationally relate to the authority invoked, this facial challenge to the constitutionality of the act must fail."

Delaware, although less hard-hit by COVID-19 than some of its neighbors, has recorded 634 deaths among its nearly 1 million residents, a rate of 5.2 per 100,000. Sixty individuals remained hospitalized on Monday, with 20,389 confirmed cases overall.

The mail-in voting change was approved as a temporary emergency measure only for this year's primary and general election by the state's Democratic-majority House of Representatives and Senate in June. It allows voters to request balloting by mail or email, with completed documents able to be returned in person before or on Election Day by mail, fax or email attachment.

Similar loosening of ordinary voting practices has drawn swarms of objections and suits around the country, led by President Donald Trump's insistence that the measures will encourage fraud.

Neither the Republican State Committee nor the state Department of Justice, counsel to the Department of Election, which was named in the GOP suit, immediately responded to a request for comment.

In his opinion, the vice chancellor said the Republican suit "does not come close" to the required "clear and convincing" argument that the General Assembly's action is not a "necessary and proper" response to the threat to government operations posed by COVID-19.

Left unresolved, the opinion said, were state government arguments that the Republican committee had not proven an "injury" that would give it standing to sue, and had not fully defended state claims that the lawsuit, filed months after passage of the law, was too late.

"The delay here has clearly caused harm, as hundreds of thousands of ballot applications have already been mailed under the act," the vice chancellor wrote. "Whether the delay was unjustified, however, is intensely a matter of fact that cannot be addressed on this record," and could not be examined with the Nov. 3 vote looming.

In their suit, state Republicans sought a permanent injunction barring mail-in voting, as well as a declaratory judgment that lawmakers exceeded their authority under the state's Constitution and impermissibly used emergency powers to work around the absentee voting limitations.

The vice chancellor said the risk of spreading viral infections after in-person voting was "inimical" to the continuity of government.

"It is true, I suppose, that the few or many who were unable to vote absentee under previous law, and were willing to undertake a health risk to exercise their franchise in person, could serve as the electorate by which officials could be chosen and government 'continued,'" Vice Chancellor Glasscock wrote, "But it is also clear that continuity of a democratically-elected government requires meaningful participation from the citizenry."

The Republican State Committee of Delaware and voters John Foltz and Paula Manolakos are represented by Julia B. Klein of Klein LLC.

The state Department of Elections is represented by Kathleen M. Jennings, Aaron R. Goldstein, Ilona M. Kirshon, Allison J. McCowan and Frank J. Broujos of the Delaware Department of Justice and Max B. Walton, Matthew F. Boyer and Trisha W. Hall of Connolly Gallagher LLP.

The case is The Republican State Committee of Delaware et al. v. The State Department of Elections et al., case number 2020-0685, in the Court of Chancery of the State of Delaware.

--Editing by Orlando Lorenzo.

Update: This article has been updated with details from the opinion and background on the case.

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