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Delaware Supreme Court upholds early voting, permanent absentee, additional lawsuit possible

The Delaware Supreme Court reverses a February Superior Court decision to strike down early voting and permanent absentee voting.

In Friday's unanimous ruling, Justice Gary Traynor wrote in the court's opinion that plaintiffs, State Senate Minority Leader Gerald Hocker (R-Ocean View) and a former inspector of elections Michael Mennella, lacked standing to bring the case forward.

"Because we conclude that the plaintiffs have not met their burden of establishing imminent or particularized harm—crucial standing elements—our answer to the question is dispositive... We have concluded that neither of the plaintiffs has standing and therefore reverse the judgment of the Superior Court," Traynor wrote.

Traynor writes because the court determined the plaintiffs do not have standing, the court did not proceed with weighing in on the arguments that Delaware's permanent absentee and early voting statutes are unconstitutional.

"We disagree with the Superior Court’s conclusion that Senator Hocker established standing as 'a candidate.' We also find that plaintiffs’ arguments on standing not addressed by the Superior Court—based on Mennella’s purported position as an inspector of elections and each plaintiff’s position as a voter—do not establish that either has standing. And this lack of standing dictates that we should not address the plaintiffs’ substantive constitutional arguments," the decision reads.

Former Delaware Superior Court Judge and former Chair of the Delaware Republican Party Jane Brady, the plaintiffs' attorney, says other potential plaintiffs have already reached out to her who could better meet the standing requirements, and another case could be filed before the upcoming November election.

"Other candidates have already called me wanting to pursue this because they were awaiting the decision. So I respect the court's conclusion that it was too far away, but I don't agree with it because it is an issue that will be recurring," she said. "I've had a number of people contact me about refiling on their behalf, and I'm considering that now."

But the defendants’ attorney, Delaware Attorney General Kathy Jennings, says that “everyone needs to stand down and allow the voting process,” especially with the November election approaching.

“I do not think that there is a valid reason to bring another lawsuit, a whole new lawsuit, and certainly not one that would in any way disrupt the people’s right to vote in our state," she said.

In the Delaware Superior Court's initial February ruling, Judge Mark Conner noted the state'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, which he wrote is an "obvious" conflict.

Additionally, Conner wrote: "By granting indefinite absentee voting to those who are unable to vote in a single election, Delaware's Permanent Absentee Voting Statute impermissibly extends beyond the limited authority granted to the General Assembly by our Constitution."

Early voting was legalized in 2019, while permanent absentee voting was legalized in 2010 — both statutes remain in state code, not in the Delaware Constitution.

The Delaware Department of Elections confirmed the Supreme Court's decision will allow early voting and permanent absentee voting in the upcoming Sept. 10, 2024, statewide primary and the Nov. 5, 2024, general election.

In a joint statement, Senate President Pro Tempore Dave Sokola (D-Newark), Senate Majority Leader Bryan Townsend (D-Newark) and Senate Majority Whip Elizabeth Lockman wrote:

“We are grateful to the Delaware Supreme Court for handing down a ruling on this appeal in time for the Delaware Department of Elections to restore early voting and permanent absentee voting in time for the upcoming primaries and general election. Voters never should have experienced this level of confusion about their voting rights."

According to the Department of Justice, in the last election, 56,000 Delawareans used early voting and roughly 21,000 — including veterans, the disabled, and caregivers — used permanent absentee ballots.

In a statement, House Minority Whip Lyndon Yearick (R-Magnolia) responded to the ruling, noting the Republican caucus does support early voting.

“The High Court sidestepped the core question of constitutionality by throwing out the lower court's ruling on ‘standing,’" he said. “As the justices explained, ‘standing’ simply determines who can bring a legal challenge, not the merits of the case. This is frustrating because the constitutionality issue was our sole concern. We support early voting. In fact, immediately after the Superior Court issued its decision in late February, I introduced House Bill 320 to swiftly restore it. Senate [Minority] Leader Gerald Hocker, a plaintiff in this case, was also a prime sponsor of HB 320. However, the Democrat-controlled House Administration Committee stalled the bill for nearly four months without a hearing.”

Senate Republicans released their own statement, expressing a similar sentiment: "Our caucus’s position has been consistent, that our primary concern with those two laws was whether or not they were legal under the Delaware Constitution. Unfortunately, the Supreme Court’s ruling did not address this question, but rather stated the plaintiffs did not have standing."

While Yearick's bill did not receive a hearing, Democratic lawmakers brought forward their own version of a constitutional amendment to solidify early voting, permanent absentee voting and no-excuse absentee voting.

The bill passed in the Senate on a party-line vote, but failed to garner any Republican support in the House and was ultimately defeated 25-10.

During the bill's floor debate earlier this month, Yearick explained several of his Republican colleagues would opt not to vote on the constitutional amendment in order to wait for the Supreme Court’s ruling.

“We feel it’s rather disingenuous to disallow that — we want the court decision to happen first and foremost. It may make this completely a moot point. They may overturn the Superior Court [decision] and say what was initially voted on is going to come back into play," he said.

Attorney General Jennings says while the case is a win, she still believes Delaware needs to add these voting procedures to the state's constitution.

"We absolutely need to constitutionalize these voting rights. I know the legislature wants to — they are trying to," she said. "We need to because it can receive this sort of heightened importance, I think, when people realize, 'Hey, this is in our constitution. This is going to be permanent.' 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."

In a statement, Gov. John Carney wrote: “I’ve always believed that we should make it easier, not harder, for Delawareans to exercise their fundamental right to vote. I’m pleased that the Supreme Court has unanimously confirmed that Delaware can continue with permanent absentee voting and early voting. I want to thank the Attorney General for her efforts to ensure that Delawareans have their voices heard.”

Vote-by-mail — also known as no-excuse absentee voting — and same-day voter registration remain unconstitutional per a 2022 state Supreme Court decision.

Before residing in Dover, Delaware, Sarah Petrowich moved around the country with her family, spending eight years in Fairbanks, Alaska, 10 years in Carbondale, Illinois and four years in Indianapolis, Indiana. She graduated from the University of Missouri in 2023 with a dual degree in Journalism and Political Science.
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