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Delaware Superior Court strikes down early voting, permanent absentee voting

Delaware’s Superior Court strikes down statutes allowing for early voting and permanent absentee status.

Superior Court Judge Mark Conner ruled both statutes unconstitutional.

On early voting, he noted Delaware’s constitution marks one particular day for the general election, biennially on the Tuesday after the first Monday in the month of November, while the early voting statute permits voting in person at least 10 days before an election.

Conner says the conflict between the two is “obvious” and when such conflict arises, the constitution will prevail.

The state constitution only names the general election, so for other elections – such as primaries, school board, and special elections – early voting and permanent absentee voting can continue. The Department of Elections says it has no comment at this time while it reviews the decision.

Former Delaware GOP party chair Jane Brady represented the plaintiffs in the lawsuit. She says it was never about policy, but about the inconsistency.

“I think the court did a great job in outlining the legal result, and made it clear this is not a comment on a policy decision that might be made but rather the legality of what the General Assembly did,” Brady says.

Brady adds the permanent absentee law was “highly dangerous” to election security, arguing that 12 to 15% of the permanent absentee list was inaccurate when cross-checked with the post office.

“Either people on it were dead, or they had moved from the address they had given to the Department of Elections when they filed the request to be a permanent absentee voter," Brady says.

She notes the permanent absentee list before COVID was a few thousand people, but after the pandemic, it soared to nearly 29,000.

Delaware Senate leadership, Senate President Pro Tempore Dave Sokola, Senate Majority Leader Bryan Townsend, and Senate Majority Whip Elizabeth “Tizzy” Lockman, released a joint statement Monday pointing the finger at Republicans for refusing to support changes to modernize the Delaware Constitution.

Townsend says a constitutional amendment could have been in place already if some Republican lawmakers didn’t drop their support of it.

“They supported it in 2019, then the 2020 election happened, President Trump lost reelection, January 6th insurrection, the Big Lie started, and then in 2021, it would have been the second leg of the constitutional amendment, the Republicans in the House refused to vote again for the language they had just voted on,” Townsend says.

The joint statement says while it would be easy to focus on Brady and Senate Minority Leader Gerald Hocker, one of the Plaintiffs in the lawsuit, they also place blame “squarely” at the feet of House Minority Leader Mike Ramone and Rep. Mike Smith, who both represent Democratic-majority districts and together changed their votes to block a constitutional amendment on voting rights.

“While the Senate has the Democratic majority needed to pass constitutional amendments over Republican obstructionism, the House requires two Republicans to show courage and support a constitutional amendment—such as Sen. Darius Brown’s SB 3, which is pending in the House—or Delawareans will continue to face some of the most restrictive barriers to voting in the country,” Senate Democratic leadership says in the statement.

Townsend says some people have been on the permanent absentee list for 14 years now who will now face some sort of administrative hurdle to cast their ballot this year.

“That should haunt us all,” he says. “That this disenfranchisement of Delawareans is happening to anybody, but particularly to this group."

Townsend adds he is not aware of any inconsistencies with the permanent absentee list that Brady references, and says to his knowledge, there was never any outreach from Republicans to improve the system.

“They just filed multiple lawsuits trying to take away voting rights,” Townsend says.

This is not the first challenge Democrats have faced regarding expanding voting access – in 2022 the Delaware Supreme Court found vote-by-mail and same-day voter registration laws unconstitutional as well.

Townsend says SB 3 is designed to make clear that the constitution gives room to the legislature to modify voting laws as the world, technology, and people’s needs change.

“SB 3 would modernize certain constitutional language that the courts have found constrain the ability of the General Assembly to provide more voting options for Delawareans,” Townsend says.

In a statement, House and Senate Republicans say they take “no issue” with in-person early voting – their main objection is that it violated the state constitution. They add that during the upcoming House of Representatives’ prefile on Thursday, they will be introducing their own constitutional amendment to “correctly implement the form of early voting that Delawareans used in the last election cycle, taking care to address the court’s objections.”

Hocker will be a prime sponsor.

“I am in no way against early voting, I’m just saying it needs to be done the right way,” Hocker says. “But I am totally against no-excuse absentee voting, once they send you an absentee you’ll be good forever. I’m totally against absentee voting without a verified signature or a verified address.”

Hocker says he does not support mail-in voting or same-day registration either. He says “anyone” could be filling out absentee and mail-in ballots, and says there is “no way you can check out if it is a legitimate registration when you register and you go vote in the same hour.”

Townsend finds the move to reintroduce voting rights “disingenuous.”

“For them to do a lawsuit that rips away people’s voting rights, then offer up a constitutional amendment, which from I understand them to be offering, is narrower than the rights they just evicerated… anything they do now to try and restore the voting rights they just took away, is not going to apply to the 2024 election,” Townsend says. “So that hypocrisy and disservice needs to be highlighted.”

House Majority leaders House Speaker Valerie Longhurst, House Majority Leader Melissa Minor Brown, and House Majority Whip Kerri Evelyn Harris released a joint statement calling the Superior court’s decision “profoundly disappointing” and that restricting early and permanent absentee voting will “directly impact the ability of parents, low-income workers, shift workers, those with disabilities, and the elderly, to have their voices heard as personal schedules and needs don't always align with the state's predetermined voting day,” also noting the two methods have proved “incredibly popular and effective.”

Other elected officials have released statements including Congresswoman Lisa Blunt Rochester who points to Republican extremists.

“Trapped in the balcony overlooking the House floor when insurrectionists attacked our Capitol on Jan. 6., I saw firsthand how fragile our democracy is — and how one man’s obsession with power almost overturned the will of the American people,” she says. “Make no mistake, there is a through-line from [Friday’s] ruling and that dark day for our nation: a toxic blend of politics that seeks to subvert our elections.”

Candidate for U.S. Congress and State Sen. Sarah McBride also says the ruling “makes it clear that no state is safe from Republican Party extremists looking to reduce voter participation and take away access to the ballot box until Congress passes stronger voting rights protections.”

“In the Delaware General Assembly, I have joined many of my colleagues in passing vote by mail, early voting, and same-day voter registration,” McBride says. “These efforts have been blocked by extremist voices peddling Donald Trump's lies to undermine the right to vote. I'm hopeful that the decision on Friday will be overturned on appeal but in the meantime, it's clear we need Federal action to protect and expand voting rights and access

Lt. Gov. and Democratic candidate for Governor Bethany Hall-Long, says the Delaware Superior Court's decision to strike down early voting after already doing away with permanent mail-in voting is “a blow to the foundational principles our country is built on.” She also points to surrounding states that already allow no-excuse absentee voting.

New Castle County Executive and Democratic candidate for Governor Matt Meyer says the decision “undermines fundamental principles of democracy. It is the latest attempt by Republican extremists to restrict people’s access to the ballot box and create unnecessary obstacles for countless Delawareans, denying them their democratic rights.” He also adds early and absentee voting has been “a vital tool in ensuring that individuals, particularly those with disabilities, older adults, and those facing transportation or scheduling challenges, can participate fully in our democratic process.”

Rachel Sawicki was born and raised in Camden, Delaware and attended the Caesar Rodney School District. They graduated from the University of Delaware in 2021 with a double degree in Communications and English and as a leader in the Student Television Network, WVUD and The Review.