Delaware Supreme Court to Rule on Early Voting and Permanent Absentee Voting

A sign reminding voters they can cast their votes early in Stonington, Conn., on March 27, 2024, in the April 2 presidential primary in Connecticut was placed outside the Stonington Town Hall. Susan Haigh/AP Photo

Delaware is asking the state Supreme Court to overrule a recent Superior Court decision that declared the state’s practice of allowing 10 days of early voting and the option to vote absentee in perpetuity violated the state constitution.

The Delaware statute expanded Election Day beyond the constitutionally designated day, and the permanent absentee voter law does not conform to constitutional requirements, ruled Superior Court Judge Mark H. Conner.

Ten days of early voting was instituted by the General Assembly in 2019.

The Delaware Constitution specifies “the Tuesday next after the first Monday in the month of November” as the day on which the General Election shall be held.

Former judge and Delaware Attorney General Jane Brady, a Republican, and the Public Interest Legal Foundation (PILF), a nonpartisan and nonprofit public interest law firm dedicated to election integrity, are hoping to restore the “day” in Election Day.

The state constitution “mandates one Election Day, not 10 separate days,” PILF said in a statement about the case.

In 2010, the Delaware General Assembly passed laws providing that, if a person qualified to vote absentee in an election, the voter could, upon application, be granted permanent absentee voter status. Once granted such status, the voter would automatically be mailed an absentee ballot for every future election.

Constitutional Arguments

PILF attorneys said in the statement that the Delaware Constitution lists specific qualifications for voting absentee. Permissible reasons to receive an absentee ballot include going on vacation, work obligations, disability, illness, and serving in the military, among others.

“Delaware’s law granting permanent absentee voting privileges conflicts directly with the constitution that requires consideration of eligibility to vote absentee at each election,” the organization stated.

When the Delaware Superior Court struck down both laws as unconstitutional, the state appealed to the Delaware Supreme Court.

The Delaware Supreme Court heard oral arguments in the state’s appeal on June 5.

“States cannot pass election laws that conflict with their state constitutions,” said PILF President J. Christian Adams. “This lawsuit will restore the rule of law in Delaware’s elections.”

(R to L) PILF Pres. J. Christian Adams, local attorney Jane Brady, and PILF Litigation Counsel Noel Johnson outside of the Supreme Court Building in Dover, Delaware on June 5, 2024. Courtesy of the Public Interest Legal Foundation

After the oral arguments, Lauren Bowman Bis, PILF’s director of communications, told The Epoch Times the organization expects a decision before the 2024 general election.

In the run-up to the 2020 presidential election, the Democrat-controlled Delaware General Assembly passed laws that allowed universal no-excuse mail-in voting and same-day voter registration.

After a legal challenge by PILF, the Delaware Supreme Court ruled in 2022 that both election practices were prohibited by the Delaware Constitution.

The legal actions challenging the constitutionality of same-day registration, universal vote-by-mail, permanent absentee voter status, and early voting were first initiated by Michael Mennella, an inspector of elections with the Delaware Department of Elections.

Delaware state Senate Minority Leader Gerald W. Hocker, a Republican, joined the Mennella lawsuit over early voting and permanent absentee status as a co-plaintiff.

The Delaware Election Commissioner’s office, the appellant in the case, and the Delaware Department of Justice did not respond to a request for comment.

The Public Interest Legal Foundation has brought lawsuits and won victories in Delaware, Texas, Mississippi, North Carolina, Virginia, Maryland, Pennsylvania, and Michigan, as well as other states.