Higgin v. Albence, Miles v. Dept. of Elections

Court of Chancery of Delaware·Decided September 19, 2022·No. 2022-0641-NAC, 2022-0644-NAC·Published

Opinion

COURT OF CHANCERY OF THE STATE OF DELAWARE NATHAN A. COOK LEONARD L. WILLIAMS JUSTICE CENTER VICE CHANCELLOR 500 N. KING STREET, SUITE 11400 WILMINGTON, DELAWARE 19801-3734

Date Submitted: September 19, 2022 Date Decided: September 19, 2022

M. Jane Brady, Esquire Allison J. McCowan, Esquire Brady Legal Group LLC Zi-Xiang Shen, Esquire 36365 Tarpon Drive4 Victoria R. Sweeney, Esquire Lewes, DE 19958 State of Delaware Department of Justice Carvel State Office Building Julianne E. Murray, Esquire 820 North French Street, 6th Floor Law Offices of Murray, Phillips & Gay Wilmington, DE 19801 215 E. Market Street Georgetown, DE 19947

Re: Michael Higgin, et al. v. Hon. Anthony J. Albence, et al. C.A. No. 2022-0641-NAC

Ayonne “Nick” Miles, et al. v. Delaware Dep’t of Elections, et al. C.A. No. 2022-0644-NAC

Dear Counsel:

This Letter Opinion addresses Defendants’ Motion for Injunction or Stay

Pending Appeal. For the reasons stated below, I grant Defendants’ motion and stay

the permanent injunction entered in this matter in all respects except as to the actual

mailing or other dissemination of mail-in ballots to voters. This stay will remain in

effect until the Delaware Supreme Court issues its decision in the pending expedited

appeal of this matter. C.A. No. 2022-0641-NAC C.A. No. 2022-0644-NAC September 19, 2022 Page 2

I issued my Memorandum Opinion on September 14, 2022. 1 The September

14 Memorandum Opinion addresses Plaintiffs’ claims that the Same-Day

Registration Statute and the Vote-by-Mail Statute violate the Delaware

Constitution’s restrictions concerning voter registration and absentee voting,

respectively, for purposes of general elections.2 I rejected the Same-Day

Registration Statute claim, but held that Delaware precedent required me to enjoin

the Vote-by-Mail Statute for general elections, including for the upcoming

November 8, 2022 general election.

Defendants filed a notice of appeal in the Delaware Supreme Court on

September 16, 2022.3 The Supreme Court has expedited that appeal and will hear

oral argument on October 5, 2022.4

1 See C.A. No. 2022-0641-NAC (Del. Ch. Sept. 14, 2022), Dkt. 37 (“September 14 Memorandum Opinion”). 2 I adopt the defined terms used in the September 14 Memorandum Opinion. I assume the parties’ familiarity with the September 14 Memorandum Opinion and refer readers to that decision for a more complete discussion of the factual background and analysis. 3 Notice of Appeal, Albence, et al. v. Higgin, et al., No. 342,2022 (Del. Sept. 16, 2022), Dkt. 1. 4 Order Granting Appellants’ Mot. to Expedite, Albence, et al. v. Higgin, et al., No. 342,2022 (Del. Sept. 16, 2022), Dkt. 3. C.A. No. 2022-0641-NAC C.A. No. 2022-0644-NAC September 19, 2022 Page 3

On September 16, 2022, Defendants also filed a motion before me to stay the

injunction of the Vote-by-Mail Statute pending the outcome of their appeal.5 Earlier

today, Plaintiffs filed their opposition to Defendants’ motion,6 and then Defendants

filed a reply.7

In considering Defendants’ motion, I am directed to weigh multiple factors:

Defendants’ chances of success on appeal, the relative balance of harms to Plaintiffs

and Defendants if I do or do not grant a stay, and the public interest.8 As to the first

factor, my September 14 Memorandum Opinion explained why I believed that

Delaware precedent required that I issue the injunction.9 The decision further

explained why I believed that the Delaware Supreme Court may desire to reconsider

that precedent.10 The first factor is therefore, at best, in equipoise.

5 Defs.’ Mot. for Inj. or Stay Pending Appeal, C.A. No. 2022-0641-NAC, Dkt. 40. 6 Pls.’ Resp. in Opp’n to Defs.’ Mot. for Inj. or Stay Pending Appeal, C.A. No. 2022-0641- NAC, Dkt. 42. 7 Defs.’ Reply in Further Supp. of Defs.’ Mot. for Inj. or Stay Pending Appeal, C.A. No. 2022-0641-NAC, Dkt. 45. 8 See Kirpat, Inc. v. Del. Alcoholic Beverage Comm’n, 741 A.2d 356, 357 (Del. 1998). 9 See September 14 Memorandum Opinion at 51–65. 10 See id. at 65–73. C.A. No. 2022-0641-NAC C.A. No. 2022-0644-NAC September 19, 2022 Page 4

In considering the balance of harms to Plaintiffs and Defendants if the stay is

or is not granted, I find that the harm to Defendants of not granting a stay pending

appeal far outweighs any identified harm to Plaintiffs of granting a stay.

Importantly, Plaintiffs have not identified any material harm that they will personally

suffer if the stay pending appeal that I described at the outset of this decision is

granted. In contrast, Defendants have explained that, as a result of last week’s

injunction, they have ceased implementation of the Vote-by-Mail Statute, including

processing mail-in voting applications and preparing ballots.11 Defendants state that,

if their expedited appeal succeeds, the continued pendency of an injunction between

now and a decision on their appeal would put at serious risk Defendants’ ability to

fulfill their statutory mandate to make mail-in voting available to Delaware voters

for the November 8 general election.12 The balance of these harms therefore tips

strongly in Defendants’ favor.

The last factor I am directed to consider is the public interest. Of all the factors

I must consider, I believe this one is, by far, the most important in this context.

11 See Defs.’ Mot. for Inj. or Stay Pending Appeal ¶ 7. 12 Id. ¶¶ 12–13. C.A. No. 2022-0641-NAC C.A. No. 2022-0644-NAC September 19, 2022 Page 5

The right to vote is the most fundamental right held by a citizen of our State,

or of any other. It is the well-spring from which all other rights in our democracy

ultimately flow. Through voting, our citizenry determines the nature of our

government and its policies. To my mind, the robust exercise of the right to vote is

unquestionably in the public interest.

My injunction in this matter was compelled by an advisory decision from five

decades ago that, in turn, cited precedent from eight decades ago. If our Supreme

Court determines to revisit that precedent and concludes that the Vote-by-Mail

Statute is consistent with the Delaware Constitution, there is a serious risk that,

absent a stay pending appeal, Delaware voters will be denied the opportunity to

exercise their right to vote in the upcoming General Election by all constitutional

means. That would be a grave injustice.

This matter is now the subject of an expedited appeal before the Delaware

Supreme Court, and I anticipate that a decision on that appeal will be made in short

order. To the extent that any truly material harm might arise from a stay in the

interim, it would only arise upon the distribution of mail-in ballots to voters pursuant

to the Vote-by-Mail Statute. If the Delaware Supreme Court determines that the

Vote-by-Mail Statute is inconsistent with the Delaware Constitution, the prior C.A. No. 2022-0641-NAC C.A. No. 2022-0644-NAC September 19, 2022 Page 6

receipt of Vote-by-Mail Statute ballots by Delaware voters would present a serious

risk of voter confusion that could not be easily fixed. I therefore am not granting a

stay of the injunction as to the actual mailing or other dissemination of mail-in

ballots to voters pursuant to the Vote-by-Mail Statute.

Plaintiffs say that I should deny Defendants’ motion for a stay pending appeal

entirely. Plaintiffs argue that even permitting Defendants to “take applications and

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