Wilmington, DE — On Friday, August 23 a federal court declined to grant a preliminary injunction that would have ensured eligible incarcerated voters in Delaware would be able to cast a ballot this November.
The ruling stems from a lawsuit filed by the ACLU of Delaware, American Civil Liberties Union, Shaw Keller LLP, and Proskauer Rose LLP on behalf of Prisoners for Legal Advocacy Network (PLAN).
The groups argue that Delaware’s failure to provide in-person voting opportunities to eligible incarcerated voters in its correctional facilities — people awaiting trial or those convicted of misdemeanor offenses — constitutes a violation of those voters’ First and 14th Amendment rights guaranteed by the U.S. Constitution.
Delaware does not provide in-person voting within its correctional facilities. And, in 2022, the Delaware Supreme Court held that the categories for legally permissible absentee voting enumerated in the Delaware Constitution are exhaustive; neither “incarceration” nor “detention” are listed.
However, in this case, the state has repeatedly represented that it believes that eligible incarcerated voters may vote absentee. And because of this lawsuit, the Delaware Department of Justice has vowed not to prosecute these voters for voting absentee in the November 2024 election.
“We are disappointed that eligible incarcerated voters do not have the opportunity to vote in-person in the upcoming election,” stated Andrew Bernstein, Cozen Voting Rights Fellow at the ACLU of Delaware. “We will continue working towards expanding access to the ballot for these voters — the status quo, in which only a handful of voters have successfully cast ballots in recent elections, is simply unacceptable.”
“It is of paramount importance that eligible incarcerated voters be able to exercise their fundamental constitutional right to vote, like all other Delaware voters,” said Jonathan Topaz, staff attorney with the ACLU’s Voting Rights Project. “We hope that the state will provide these voters with in-person voting opportunities in the upcoming November election and beyond.”
The suit was filed with the U.S. District Court for the District of Delaware and the oral ruling was issued by District Judge Jennifer L. Hall.
