Early voting deemed unconstitutional

Permanent absentee voting also thrown out by Superior Court judge
February 26, 2024

A Delaware Superior Court judge has struck down the state’s early voting law for general elections, and also permanent absentee voting laws, saying they are unconstitutional.

The state’s early voting law, passed by the General Assembly and signed into law in 2019, goes against the Delaware Constitution that states “the general election shall be held biennially on the Tuesday next after the first Monday in the month of November,” wrote Superior Court Judge Mark H. Conner in his 25-page opinion.

Plaintiff Michael Mennella, an inspector for the Delaware Department of Elections, originally filed a Chancery Court complaint in 2022 against early voting, before the case was transferred to Superior Court in 2023, when Sen. Gerald Hocker, R-Ocean View, was added as a plaintiff.

“The court’s role – indeed, our duty – is to hold the challenged statutory enactments up to the light of our constitution and determine whether they are consonant or discordant with it. The enactments of the General Assembly challenged today are inconsistent with our constitution and therefore cannot stand,” Conner wrote.

In reviewing the law for permanent absentee voting, Conner used a grammatical analysis of the law to determine it is at odds with the constitution. The wording states a voter is allowed to participate in absentee voting at only the election at which they are unable to appear, he writes – a process not meant to be permanent.

“The use of the singular ‘a’ before the singular ‘ballot’ demonstrates that only one absentee ballot may be cast for any such general election at which the voter shall be unable to appear,” the opinion states.

Conner struck down a request to dismiss the case by defendant State Election Commissioner Anthony J. Albence and the state Department of Elections over claims that plaintiffs failed to transfer the cases from Chancery Court to Superior Court in a timely manner. He also states that a constitutional challenge to the permanent absentee voting statute passed in 2010 is not barred by the three-year statute of limitations set forth in Delaware code.

Jane Brady, a former attorney general, Superior Court judge and previous head of the state GOP, who litigated the case, said the decision only applies to general elections, not special elections or primaries.

“It is unfortunate that we will have different laws for the general election than for other elections, which may cause some voter confusion,” said Brady in a statement following the Superior Court opinion. “Previously, the General Assembly has been careful to comply with the constitution when they pass laws, but these laws clearly violate the constitution, as did the same-day registration and mail-in voting bills. We, therefore, have different rules for voting in different elections.”

Both Democrat gubernatorial candidates issued statements stating, if elected governor, they will fight for expanded voting rights through a constitutional amendment.

“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,” said Lt. Gov. Bethany Hall-Long.

Her opponent, New Castle County Executive Matt Meyer, blamed Republican extremists for the change.

“This 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 said.

Delaware Congresswoman Rep. Lisa Blunt Rochester, who is running for the U.S. Senate, also blamed Republicans for the attacking “access to the ballot” box, and she pledged to work for federal voting rights protections.

Brady, however, said no matter how people try to characterize the ruling, the court was careful to note this lawsuit was not about whether Delaware should have early voting, or permanent absentee status, any more than the previous lawsuit was about whether Delaware should have same-day registration or mail-in ballots. 

“The question was do these laws comply with the constitution, and the answer is clearly ‘no,’” she said.

Republicans in the House and Senate released a statement Feb. 26 saying they raised concerns with the early voting bill in 2019, but “our objections fell on deaf ears.”

“To be clear, we take no issue with in-person early voting. It is a convenience that many Delawareans have embraced and has been accepted by voters nationwide. In 2022, about 28% of all Delaware voters cast their ballot prior to Election Day. Until Friday’s ruling, Delaware was one of 46 states that offered early in-person voting,” wrote the Republican leadership team of Hocker; Sen. Brian Pettyjohn, R-Georgetown; Rep. Mike Ramone, R-Pike Creek; and Rep. Lyndon Yearick, R-Magnolia. “Our main objection to the statute was that it violated the state constitution. We applaud the court for validating the arguments we made five years ago.”

Republicans said they plan to file legislation for a 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.”


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