Del. Dems vow to protect voting rights after state’s high court strikes down permanent absentee law: ‘We’re not stopping now’

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This story was supported by a statehouse coverage grant from the Corporation for Public Broadcasting.

Delaware elected leaders on both sides of the aisle are reacting to a Delaware Superior Court decision late last week that struck down two statutes that expanded access to the voting booth.

Judge Mark Conner denied a motion by State Election Commissioner Anthony J. Albence and the Delaware Department of Elections, to dismiss a complaint that argued Delaware’s early voting and permanent absentee voting statutes violated the First State’s constitution.

The legislature passed a law in 2019 that allowed 10 days of early voting beginning 2022. Lawmakers passed no-excuse absentee voting in 2022.

Conner ruled last week that lawmakers overreached in their authority by passing these statutes. He sided with the plaintiffs, who argued that the constitution only allows the general election to be held on one day and that  “granting indefinite absentee voting to those who cannot vote in a single election” goes too far.

Delaware Attorney General Kathy Jennings signaled an appeal may be forthcoming.

“For five years, this office has fought like hell to protect voting rights,” the Democrat said in a statement. “We’re not stopping now.”

The lawsuit was filed in 2022 by the Public Interest Legal Foundation on behalf of an inspector of elections and Senate Minority Leader Gerald Hocker, who challenged the state’s early voting and absentee voting laws.

Hocker and other Senate and House Republican leaders said they support early voting, but Democrats passed the policy by creating a law, not by changing the state constitution to extend the days of voting allowed.

Republicans said they plan to introduce a constitutional amendment to add the option of early voting back to residents on Thursday. They say it will address the court’s objections. Amendments must be approved by the General Assembly twice in two separate years and be signed by the governor to take effect. That means the earliest it could go back into effect is 2025 unless the state appeals the judge’s decision.

“No way am I against early voting,” Hocker said. “I think it’s a popular thing now. I think our constituents have accepted it, shown by the percentage that is now using early voting.”

U.S. Rep. Lisa Blunt Rochester, a Democrat, said she’s concerned the elimination of these options by the court will “disenfranchise Delawareans.”

“Especially voters who may be busy working parents,” she said. “Or older voters or individuals with disabilities. To me, we just need safe, fair and equitable access to the ballot box.”

A 2022 lawsuit filed by the Public Interest Legal Foundation on behalf of a former Republican state House candidate, Michael Higgin, successfully led to same-day registration and no-excuse absentee voting being struck down by a court ruling.

Hocker said he opposes permanent absentee voting, also known as mail-in voting. Before the ruling, voters were able to have ballots automatically mailed to them without having to apply every year.

“I want a true, fair election,” he said. “And I don’t think you can do that with absentee voting, same day registration and voting without ID.”

Democratic state Sen. Bryan Townsend said he’s concerned about the removal of early voting and permanent absentee voting for this year’s election.

“It’s just unfortunate, no matter what happens and looks like for 2024, these options are off the table or extremely handcuffed,” he said.

Democrats have attempted to pass a constitutional amendment to allow no-excuse voting since 2019, but the effort has lacked sufficient Republican support. GOP support wasn’t an issue when the first leg of the amendment was approved with the help of several Republicans in 2019. But some of those Republicans opposed it in later votes.