Lawsuit Filed Challenging Delaware Pretrial Voter Disenfranchisement

Affiliate: ACLU of Delaware
December 7, 2023 3:00 pm

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WILMINGTON, Del. — The ACLU of Delaware, American Civil Liberties Union, Shaw Keller LLP, and Proskauer Rose LLP filed a lawsuit challenging Delaware’s failure to provide eligible incarcerated voters any constitutionally guaranteed method of voting, which violates their First and 14th Amendment rights guaranteed by the U.S. Constitution.

The coalition represents Prisoners for Legal Advocacy Network (PLAN), a nonprofit voting rights coalition for system-impacted voters, against the Delaware Department of Correction, Department of Elections, and Gov. John Carney.

Those awaiting trial or convicted of misdemeanor offenses are still eligible to vote in state and national elections. To do so, they rely solely on absentee ballots since Delaware does not provide in-person voting within its correctional facilities. Yet in 2022, the Delaware Supreme Court struck down universal mail-in voting, with few exceptions that did not include eligible incarcerated voters. These groups were completely disenfranchised as a result. As of October 2023, Delaware was incarcerating nearly 1,300 people on pretrial detention alone.

“The Delaware Supreme Court decision and the agencies’ inaction leaves eligible incarcerated voters completely disenfranchised — unable to vote in-person in jail and without constitutional guarantee that they can vote absentee,” stated Andrew Bernstein, Cozen Voting Rights Fellow at the ACLU-DE. “This disenfranchisement falls particularly hard along lines of race and class, as low-income people and people of color are more likely to be incarcerated while awaiting trial. We’re suing to make sure everyone who is eligible to vote has the opportunity to do so.”

“Wherever they are, all eligible Delawareans should be able to vote with full confidence that their ballots will be counted and without fear of criminal prosecution, by no fault of their own, by current or future state administrations,” said Paul Stanley Holdorf, supervising attorney of the Prisoners Legal Advocacy Network (“PLAN”). “Truly democratic election outcomes must reflect the choices of all voters, and provide eligible incarcerated voters equal access to the ballot.”

“Right now, and ahead of the 2024 election, Delaware is denying the right to vote to an entire class of eligible voters: those incarcerated in Delaware facilities,” said Jonathan Topaz, staff attorney with the ACLU’s Voting Rights Project. “These voters must be able to exercise their fundamental constitutional right to vote, like all other eligible Delaware voters.”

ACLU-DE previously sent letters to the Dept. of Correction and the Dept. of Elections on behalf of the interests of detained voters to demand voting access be assured for those eligible. The demands included providing opportunities for voter registration and voting machine access in any Dept. of Correction facility that houses eligible voters. The agencies responded to say that the state has no plans to meet these demands.

The complaint is here: https://www.aclu-de.org/sites/default/files/field_documents/1079.pdf

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