May 2, 2022

12:00 pm - 1:30 pm, Eastern Time

ACS Delaware: Election Law: From the Voting Booth to the Electoral College

An essential aspect of the rule of law is a shared belief that the process by which the law is made, interpreted and applied has some fundamental integrity. Critical to that inquiry is the election process by which those who make and apply the law are chosen. The integrity of the election processes in the United States have been questioned by both major parties. This program will examine the current efforts to reform the Electoral Count Act of 1887 in light of the inadequacies of that statute and the events of January 6. In addition, the program will report on the current state laws treating ballot access, voting security and the counting of the vote and examine whether consensus on those issues is possible. Finally, the program will address Delaware’s current election law including efforts to change that law and legal challenges to proposed changes. 

TOPIC 1: Reform of the Electoral Count Act of 1887 to avoid another January 6 or worse.

Six scholars of election law in an opinion published in the Washington Post on January 4, 2022 proposed that the Electoral Count Act adopted in 1887 be amended “to avoid a repeat of Jan. 6, or worse.” The revision they proposed “should be based on the premise that Congress is not a national recount board or a court for litigating the outcome of presidential elections. It is not the role of Congress to revisit a state’s popular vote tally.” Professor Michael McConnell was one of authors of that article and will explain the proposal and the current bipartisan discussions of that topic.


Michael W. McConnell, Richard & Frances Mallery Professor, Stanford Law School; Director, Stanford Constitutional Law Center; Senior Fellow, Hoover Institution and Circuit Judge on the United States Court of Appeals for the Tenth Circuit (2002-2009). 

TOPIC 2: How states conduct elections and can there be a bipartisan consensus?

The election of 2020 and subsequent events have produced charges of election fraud from Republicans and voter suppression from Democrats. The charges from both sides threaten to undermine public faith in the integrity of the election process. The Uniform Law Commission created a Study Committee on Election Law to assess the state of that law and whether a bipartisan consensus could be forged on provisions of a model state election code. Professor Steven Huefner is the Reporter for that committee, and he will discuss the spectrum of election laws in the states and whether there is sufficient commonality to produce a bipartisan consensus.


Steven Huefner, C. William O’Neill Professor in Law and Judicial Administration at The Ohio State University Moritz College of Law; Deputy Director, Election Law at Ohio State; Director of Clinical Programs/Legislation Clinic Director Moritz College of Law; Reporter for the Uniform Law Commission Study Committee on Election Law

TOPIC 3: The manner of voting in Delaware 

Election Commissioner Anthony Albence will provide an overview of election law in Delaware and how Delaware’s election laws compare to those of other states.

Senator Gay will discuss will discuss Article V, Section 1 of the Delaware Constitution, which broadly provides that “…the General Assembly may by law prescribe the means, methods and instruments of voting so as best to secure secrecy and the independence of the voter, preserve the freedom and purity of elections and prevent fraud, corruption and intimidation thereat.” Section 4A of that Article requires the General Assembly to allow a certain class of voters who are absent from the State for certain specified reasons to vote by absentee ballot. Does this grant of a right to voters absent from the state to vote by absentee ballot preclude the General Assembly from establishing mail voting as one of “the means, methods and instruments of voting” for all voters?  Is the General Assembly precluded from establishing early voting as challenged in a recent lawsuit?  


Senator Kyle Evans Gay, Delaware State Senator (District 5) and Of Counsel, Connolly Gallagher, LLC

Anthony Albence, Delaware State Election Commissioner