The Delaware Supreme Court hears arguments on challenges to the state’s early voting and permanent absentee statutes.
A Superior Court judge struck down both laws in February. Former GOP party chair Jane Brady brought the lawsuit on behalf of an elections inspector in 2022, claiming the early voting statute passed in 2019 and absentee voting approved by the legislature in 2010 are unconstitutional.
Brady says the argument is not about policy, but about conflicting language between the laws passed and the state constitution.
“The public policy of the state is in the hands of the General Assembly, the law of the state and the interpretation of that law is in the hands of the judiciary," Brady says. "And the judiciary does not engage in legislating. So if the law does not support what the legislature does, then it will be struck down as inconsistent with the law.”
Brady says the constitution outlines one specific day for the election to be held – so even the General Assembly’s authority to regulate the means and manner by which ballots are cast cannot fall outside of that time frame.
She also says reasons listed to vote absentee are all temporary or transitional, and argues voters must certify their absentee status each time they cast a ballot, according to constitutional language.
Attorney General Kathy Jennings points to some Delawareans who are permanently disabled, arguing their situations are not temporary or transitional, and who rely on permanent absentee voting.
She says in a democracy, they should make it as easy as possible for as many people as possible to cast their ballot.
“If we all accept the principle that as many eligible voters as can in our state vote, then we should make it as easy as possible within the bounds of the constitution," Jennings says. "And I think it is very clear that we are within the bounds of our constitution.”
The state also argues Delaware’s constitution allows the General Assembly to prescribe the means and manner of voting. They also argue that another plaintiff, State Sen. Gerald Hocker, does not have standing in the lawsuit because he is not actively campaigning.
Former U.S. Solicitor General and defense counsel Don Verrilli says by the plaintiff's logic, that the absentee list is currently inaccurate and not regularly certified, it should be growing – which it did during the pandemic, but has shown a decrease from 2023 to 2024.
Verrilli also notes that 46 other states have early voting laws, and 29 of those states have constitutional provisions that are very close to Delaware’s.
The court is expected to rule within the next 60 days.
