Delaware’s early voting and permanent absentee laws are unconstitutional, a judge says
DOVER, Del. — Laws allowing early voting and permanent absentee status violate Delaware’s Constitution and are invalid, a judge ruled in a lawsuit filed by a state elections inspector and a Republican lawmaker.
The laws are “contrary to our Constitution and therefore cannot stand,” Supreme Court Justice Mark Conner said in a ruling late Friday.
Elections Inspector Michael Mennella and Senate Minority Leader Gerald Hocker showed by “clear and convincing evidence” that the laws were unconstitutional, the judge said.
Friday’s ruling follows a 2022 state Supreme Court decision that found laws allowing universal voting by mail and registration on Election Day were unconstitutional. The justices said the vote-by-mail statute impermissibly expanded absentee voting, while same-day registration violated registration periods set forth in the Constitution.
“The words in our Constitution have meaning, and they are given their plain meaning by the courts,” Jane Brady, former attorney general of Delaware and former state chairman of the Republican Party, said in a statement Monday. Brady represented Mennella and Hocker, having previously joined Georgetown attorney and current GOP chair Julianne Murray in challenging mail-in voting and same-day registration legislation.
It is unclear whether government officials will appeal the ruling.
“For five years, this office has fought hard to protect voting rights. We will not stop now,” Democratic Attorney General Kathleen Jennings said in a statement. Jennings plans to hold a news conference Tuesday.
Conner found that a law allowing in-person voting for at least ten days before an election violated a constitutional provision that requires a general election to be held on the Tuesday after the first Monday in November.
“Our Constitution provides for only one such day, not any day or series of days that the General Assembly deems appropriate,” he wrote.
State attorneys argued that the General Assembly has the authority to enact voting laws, but Conner noted that the Constitution says those laws must be intended to “ensure the secrecy and independence of the voter, to safeguard the freedom and purity of elections preserve and prevent fraud, corruption and fraud”. intimidation.” The defendants failed to demonstrate how early voting achieves these goals, he said.
The judge also said that under the Constitution, voters can only request absentee status for specific elections where they cannot show up at the polls. However, under a 2019 law, someone who has voted absentee for a year due to the flu could continue to vote absentee in all future general elections, Conner noted.
Delaware currently has more than 20,000 permanent absentee voters, out of more than 770,000 registered voters.
State attorneys argued that Conner did not have jurisdiction to hear the case because Mennella did not meet the requirements for transferring the case to another court, but the judge declined to dismiss the case on a technicality. He also rejected defense arguments that the lawsuit was barred by the passage of time, and that the plaintiffs waived their right to challenge the laws because they had not done so when they came into effect.
The law allowing the permanent absence of certain voters dates back to 2010, when it was passed unanimously by the General Assembly. The Democratic-controlled Legislature overwhelmingly passed the early voting law in 2019, with all dissenting votes cast by Republicans. The law was used in the 2022 general election, as well as a special election that year to fill a vacant state House seat.
Democratic leaders of the House of Representatives on Monday called the ruling “very disappointing,” while Democratic leaders of the Senate accused Republicans of “impeding voting rights.”
“It is a partisan issue in the General Assembly, where Republicans have refused to support changes to modernize Delaware’s Constitution that would increase Delawareans’ ability to participate in elections,” Senate Democrats said.
Republican lawmakers said they do not object to early voting, but that allowing it would require an amendment to the Constitution. They plan to introduce such an amendment this week.
Democrats have repeatedly tried to expand voting access through legislation rather than amending the Constitution, because constitutional amendments require a two-thirds majority vote in each chamber in two consecutive legislative sessions. They have enough votes in the Senate to pass constitutional amendments without any support from the Republican Party, but not in the House of Representatives.
Following the state Supreme Court’s 2022 ruling, Senate Democrats last year passed a constitutional amendment removing restrictions on absentee voting. The bill has not been put to a vote in the House of Representatives.