By Jeff Montgomery

Law360 (September 24, 2020, 7:09 PM EDT) -- A Delaware vice chancellor pressed an attorney for state Republicans on the party's challenge to a recent mail-in voting law, noting Thursday that the bid to purportedly protect the vote could nullify more than 500,000 vote-by-mail applications already issued.

Vice Chancellor Sam Glasscock III raised the point during teleconference arguments on a partisan battle in Delaware over voting by mail. The state's Democratic-controlled House and Senate and Democratic Gov. John Carney approved the measure in what was described as an effort to blunt the risks of standing in lines and voting in person on Nov. 3 during a deadly pandemic, but the state's Republican leadership objected and sued.

President Donald Trump on Wednesday refused to commit to a peaceful transfer of power if mail-in voting rules remain in place around the country and he loses the election, adding to the pressure surrounding the issue.

Delaware Republicans sued the state Department of Elections for an injunction on Aug. 19 to enjoin a blanket mail-in voting right approved by lawmakers in late June. The suit argued that the General Assembly impermissibly stretched emergency powers in the state constitution — granted in order to preserve the continuity of government — in order to adopt temporary, universal mail-in voting upon request.

"There's just some irony to the fact that your opening [argument] was a very impassioned plea for the sanctity of the vote, and yet the equity you're asking me to administer is to spoil ballots of people who thought they were voting in a quadrennial election," Vice Chancellor Glasscock told Julia B. Klein of Klein LLC, counsel to the Republican State Committee of Delaware.

Delaware's election agency already has approved and commenced distribution of more than 500,000 mail-in ballot applications, a solid majority of the 729,888 voters registered as of September. The mail-in law expires at the end of the year.

The Delaware League of Women voters has separately sued in Chancery Court to require the state elections agency to continue counting mail-in votes received until Nov. 13, as long as they were mailed on or before Election Day.

"We are not trying to downplay the effect that COVID has had on so many aspects of our lives, or that it's highly infectious," Klein said. "There may be a burden associated with undoing this, but if something is unconstitutional, it's unconstitutional."

Delaware Attorney General Kathleen M. Jennings told the vice chancellor that the Republicans' complaint sought to block the mailing of ballots, but its brief morphed into a request to enjoin the counting of ballots issued at a cost of $2 million.

"This extraordinary request will, if they succeed, likely disenfranchise tens of thousands of Delaware voters who chose vote-by-mail because they are living in the midst of a deadly pandemic that has killed more than 200,000 Americans to date," Jennings said. "They do not want to put their lives at risk. They do want to vote."

Jennings said the GOP's challenge should be tossed in part because it was raised too late and too long after the law passed in June. She also said the Republican committee had failed to overcome past court rulings barring attempts to challenge the "wisdom" of a legislative act.

"You don't need to convince me that this is an extraordinary time," the vice chancellor said. "The question is whether the findings of the legislature are sufficient to overcome the constitutional limitations on the right to vote by mail or absentee ballot."

Legislators and the governor determined that it was not "practicable" during the pandemic to require voting in person by all but the limited number of residents who meet constitutionally established qualifications for absentee ballots, Jennings said.

Past court rulings, the attorney general said, have assumed that legislative acts have a "presumption" of validity, with challengers having to overcome "every conceivable justification" to show that the actions were wrong or irrational.

The arguments touched in part the complexities of hammering out partisan disputes in a three-county state with many practicing attorneys and a brisk corporate law industry, but fewer than 1 million residents and ample opportunities for intersections, or collisions, of professional and personal interests.

The mail-in voting challenge was brought by a party chaired by M. Jane Brady, who has held the roles of state prosecutor, state attorney general and Superior Court judge. Brady has experience with the so-called "Delaware Way" of bipartisanship and consensus building, although that "way" is under pressure from economic, social and political change.

Vice Chancellor Glasscock asked Klein in mock-seriousness "why in a state full of lawyers one couldn't be found for weeks and weeks and weeks" to get the GOP's complaint on the docket sooner.

Klein, who described herself later as a German immigrant and "diehard liberal," acknowledged that it was a political case.

"If [Brady] had come to me sooner I would have said, you shouldn't have been looking at big law firms because they're always going to find conflicts," Klein said, adding that the conflict trouble was the main argument in the party's defense against dismissal for delay.

Vice Chancellor Glasscock, noting the potential for an appeal, said he would issue a written decision by the end of the day on Monday.

The Republican Party, long an underdog in Delaware, has seen its clout rise somewhat in recent years, particularly in southernmost Sussex County, where an influx of retirees in areas near the state's coastal resorts has shifted that county toward the Republican column.

As of September, only Sussex County had a Republican majority, 70,977 to 65,168 Democrats and 39,526 with no party affiliation, along with about 3,500 aligned with minor parties. Statewide, Democrats dominate by 348,007 to 201,818 Republicans, with 164,869 independents and 15,000 others.

It was Sussex County, and anemic GOP voting to the north, that led to the U.S. Senate primary upset a decade ago of former Republican governor and then-Rep. Mike Castle by conservative candidate Christine O'Donnell, later defeated by U.S. Sen. Chris Coons.

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 Haylee Pearl.

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