Delaware Supreme Court restores access to early voting, permanent absentee voting

The Delaware Supreme Court heard the case on an expedited basis ahead of the November general election.

Voters outside of a building

File photo: Voters head to the polls at Claymont Elementary in Claymont, Del., Tuesday, Sept. 15, 2020. (AP Photo/Jason Minto)

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The Delaware Supreme Court struck down a lower court ruling Friday that barred early voting and permanent absentee voting in the state’s general elections. But the plaintiff’s attorney, Former judge and chair of the Delaware Republican Party Jane Brady, said she plans to file another lawsuit in the coming days and months to continue challenging the constitutionality of those laws.

In a 5-0 ruling, the state’s top court ruled that the plaintiffs lacked standing to sue. The Public Interest Legal Foundation filed a lawsuit in 2022 against the state elections commissioner and Department of Elections on behalf of an inspector of elections and Senate Minority Leader Gerald Hocker, a Republican.

The court decided that because the plaintiffs could not prove they would be harmed by the laws, it did not have to rule on the merits of the case.

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Brady said she’s disappointed by the decision.

“The issue is the same for any candidate facing election, whether they’re facing election now or later,” she said. “I appreciate the court’s concern that there’s not an immediate harm, but I’ve already heard from candidates who want me to file again on their behalf.”

Lawmakers passed a law in 2019 that allowed 10 days of early voting beginning in 2022. The permanent absentee law was approved in 2010. At issue is early and permanent absentee voting in general elections because of language referencing them in Delaware’s Constitution. Currently early voting and permanent absentee voting in primaries and special elections is allowed and unaffected by the current legal fight.

The Superior Court ruling sided with Hocker and the foundation earlier this year, striking down early voting and permanent absentee voting laws. The Delaware Department of Justice appealed the decision for the state.

Delaware Attorney General Kathy Jennings said she’s pleased with the decision. But she said she believed legislators should enshrine the laws to the state’s Constitution.

“It gives people a sense of safety and security that their vote really counts and that it won’t be scuttled by a court opinion, or by a different kind of legislature,” she said. “What we’re seeing here is the beginning. But it’s by no means the end.”

The House failed to pass a constitutional amendment earlier this month that would allow for no-excuse absentee voting. It also included an amendment that would provide for 10 days of early voting.

House Minority Whip Lyndon Yearick issued a statement expressing his dissatisfaction with the court not reaching a ruling on the facts. He said Republicans have an early voting bill that has stalled in committee.

“This is frustrating because the constitutionality issue was our sole concern,” the statement said. “We support early voting.”

House and Senate Democratic leadership issued statements Friday that celebrated the Supreme Court’s decision.

“Accessible voting is the cornerstone of our democracy and thousands of Delawareans depend on early or absentee voting to exercise their constitutional right to participate in our electoral process,” said a joint statement by House Speaker Valerie Longhurst, Majority Leader Melissa Minor-Brown and Majority Whip Kerri Evelyn Harris.

The Senate statement pointed out Hocker’s support in 2010 for the absentee voting law.

“That’s because there was once widespread agreement that Delawareans deserve options for how they can participate in our democracy,” said Senate President Pro Tempore David Sokola, Majority Leader Bryan Townsend and Majority Whip Elizabeth “Tizzy” Lockman.

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Brady said she’s unsure at this point which court she would file the lawsuit in and if the court would decide on the merits of the case in time for election workers to prepare for November’s election.

“So we’ll just see what they say,” she said. “But I believe [the arguments I made] are correct under the law.”

Jennings said the Supreme Court ruled on an expedited basis so the state’s election officials could prepare ahead of November’s election. She says another lawsuit could jeopardize that.

“The bottom line is, in our country, we have fundamental values and I think the most fundamental of those values is the right to vote,” she said. “So why aren’t we making it convenient?”

Delaware Supreme Court justices heard arguments in the case on constitutionality of the laws earlier this month.

Brady argued the case on behalf of Hocker and the elections inspector. She said the state’s constitution specifies only one day that the election can be held, making early voting unconstitutional. She also argued that the language in the constitution requires voters to apply for an absentee ballot for each election.

“We claim that the statutes on their face are unconstitutional. They don’t comply with the language in the constitution,” she said. “Clearly, the drafters intended to address two issues: the time of the election and the manner of the election.”

Former U.S. Solicitor Donald Verrilli, representing the state, countered by arguing that both permanent absentee and early voting are employed in many other states across the U.S. and are consistent with Delaware’s Constitution and within the power of lawmakers to enact.

“Article Five, Section One [of the state constitution] provides an express delegation to the General Assembly to prescribe the means, methods and instruments of election to further a whole set of important goals,” he said. “That seems to me to be a structural indication that the Legislature has broad power here to set the means and methods of elections.”

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