With the Delaware Superior Court striking down early and permanent absentee voting last week, Democrats and Republicans look to find their own legislative solutions.
History of absentee voting in Delaware
In 2019, bi-partisan legislation was introduced to amend the Delaware Constitution by eliminating the limitations as to when an individual may vote by absentee ballot and allow the General Assembly to enact general laws providing the circumstances, rules and procedures for absentee voting.
The first leg of the constitutional amendment passed in the House of Representatives with only 3 "no" votes and eventually passed in the Senate after a second round of voting.
In order to pass a constitutional amendment, the first leg must pass with a 2/3 majority in both chambers, and a second leg must pass in the subsequent General Assembly under the same parameters.
When the amendment was re-introduced in 2021, Republican representatives who previously voted yes on the bill were no longer in favor. After failing in the House 25-14, the bill was rescinded and indefinitely laid on the table.
In 2022, Democrats instead introduced simple legislation to codify no-excuse mail-in voting, which passed on largely party-line votes in both chambers. No-excuse mail-in voting refers to an eligible voter not having to provide reasoning for requesting an absentee ballot. The same year, legislation was passed to allow same-day voter registration.
Both of these statues were struck down by a Delaware Supreme Court Ruling in 2022. The court said the vote-by-mail law "impermissibly expands the categories of absentee voters identified in Article V, Section 4A of the Delaware Constitution," rejecting the state's argument that Article V sets a floor, not a ceiling for absentee voting.
This ruling, however, did not address permanent absentee voting.
Permanent absentee voting was legalized in 2010, allowing disabled voters and individuals eligible to vote under the provisions of the Uniformed and Overseas Citizen Absentee Voters Act to request permanent absentee status. This meant they would not have to request an absentee ballot every year, considering their status keeping them from voting in-person was unlikely to change.
This eligibility was struck down in last week's Superior Court ruling. In his reasoning, Superior Court Judge Mark Conner says, "As it stands the Permanent Absentee Voting Statute would allow a voter who may be unable to appear at an upcoming election because of a temporary illness, such as the flu, to check a box on a form and automatically receive absentee ballots in all future general elections regardless of whether or not that voter is still ill at the time of those future elections."
There are currently 20,200 registered voters on the permanent absentee list in Delaware. Those voters will now have to re-apply for an absentee ballot for the upcoming election.
Senate Minority Leader Gerald Hocker (R-Ocean View) was a plaintiff on the lawsuit against early and permanent absentee voting but voted "yes" to pass Senate Bill 225, codifying permanent absentee voting when he was a member of the DE House of Representatives.
When asked about his change in support, Hocker says, "I feel I've always been against it, and I don't know why I'm registered 'yes' on that. I've never been in favor of permanent absentee voting."
Where lawmakers stand on early voting
House Bill 38 passed in 2019, legalizing in-person early voting at least 10 days before an election.
The bill passed with 6 "no" votes from the House and 5 "no" votes from the Senate — all from Republican lawmakers.
This statute was also struck down in last week's Superior Court ruling, with Judge Conner noting the constitution marks one particular day for the general election, while the early voting statute permits voting in person at least 10 days before an election. He says the conflict between the two is “obvious” and when such conflict arises, the constitution will prevail.
In a statement released Monday from House and Senate Republicans, leadership said, "Many House and Senate Republicans raised the unconstitutional nature of the legislation, House Bill 38, when it was debated in 2019. Unfortunately, our objections fell on deaf ears."
Despite their opposition to the legislation, Republican lawmakers say they are in favor of early voting, as long as it is constitutionalized.
“That’s why I was a plaintiff on the suit. I think it’s strictly unconstitutional. If we’re going to do this early voting – I’m not against early voting – let’s do it in the right way," Hocker says.
The statement said Republicans were planning to introduce a constitutional amendment on Thursday to "correctly implement the form of early voting that Delawareans used in the last election cycle, taking care to address the court's objections."
Interpretations of the court's ruling are leading lawmakers to believe early voting will still be available for the primary election, but unless the state is successful in its appeal, early voting will not be available for the general election in November of this year.
Because constitutional amendments have to pass in two separate General Assemblies, the earliest early voting could be re-instated constitutionally is 2025.
Proposed constitutional amendments from both parties
House Republicans did not file their early voting constitutional amendment during the House's legislation pre-file on Thursday. It is unclear as of now when they will file it.
On Thursday, House Majority leadership added additional language to a current proposed constitutional amendment, introduced in 2023, to constitutionalize in-person voting "at least 10 days preceding the date of the general election including the Saturday and Sunday immediately before the general election.”
This language builds upon the Democrat-sponsored senate bill, which had the initial goal of trying to allow lawmakers to pass legislation regarding the parameters surrounding mail-in voting after the failed attempt in 2021.
The proposed constitutional amendment would not only remove restrictions around mail-in voting, but would require "all absentee ballots to include an oath or affirmation that the qualified voter’s vote is free from improper influence."
The bill passed in the Senate last year, but with the new language on solidifying early voting, it will have to go back to the Senate for another vote.
While Democrats hold a 2/3 majority in the Senate, they would need at least 2 Republican House members to vote "yes" on the bill to make the official changes to the constitution.
Senate Majority Leader Bryan Townsend (D-Newark) says he hopes Republicans will consider joining discussions on expanding voting rights beyond just early voting.
“I’m under the impression that Democrats have been fighting for these rights for years and that if the Republicans now are willing to join us in some of them, we’d like to give the Republicans a chance to join us on all of them," Townsend says.
"Certainly, Republican votes are needed in the House, but I think it's important to proceed with the clear-eyed view that Republicans are just now coming to the table to indicate some level of support for Delaware's voting rights. We need to explore how sincere they are in that," he adds.
Hocker, who says he is a sponsor on the Republicans version of the early voting constitutional amendment, said Wednesday he will not support legislation in favor of permanent absentee voting but will support a Democrat-sponsored bill if it solely amends early voting rights.
Other projected sponsors of the Republican constitutional amendment, State Rep. Lyndon Yearick and State Rep. Mike Ramone, were unavailable for comment.
