Delaware's early voting and permanent absentee laws are unconstitutional, a judge says

DOVER, Del. (AP) — Laws allowing early voting and permanent absentee status violate Delaware's constitution and are invalid, a judge ruled in a lawsuit brought by a state elections inspector and a Republican lawmaker.

The laws are “inconsistent with our constitution and therefore cannot stand," Superior Court Judge Mark Conner declared 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 laws allowing universal voting by mail and Election Day registration were unconstitutional. The justices said the vote-by-mail statute impermissibly expanded absentee voting eligibility, while same-day registration conflicted with registration periods spelled out in the constitution.

“The words in our constitution have meaning, and they are given their plain meaning by the courts,” Jane Brady, former Delaware attorney general and former state GOP chair, said in a statement Monday. Brady represented Mennella and Hocker, having earlier joined Georgetown lawyer and current GOP chair Julianne Murray in challenging the vote-by-mail and same-day registration laws.

It is unclear whether state officials will appeal the ruling.

“For five years, this office has fought like hell to protect voting rights. We’re not stopping now,” Democrat 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 a least 10 days before an election violated a constitutional provision stating that general elections must be held on the Tuesday following the first Monday in November.

“Our constitution provides only one such day, not any day or series of days the General Assembly sees fit,” he wrote.

State attorneys argued that the General Assembly has authority to enact voting laws, but Conner noted that the constitution says those laws must be intended to “secure secrecy and the independence of the voter, preserve the freedom and purity of elections and prevent fraud, corruption and intimidation.” The defendants failed to demonstrate how early voting accomplishes those goals, he said.

The judge also said that, under the constitution, voters can request absentee status only for specific elections at which they cannot appear at the polls. Under a 2019 law, however, a person who voted absentee one year because of 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 lacked jurisdiction to hear the case because Mennella failed to comply with requirements for transferring the case from a different court, but the judge refused 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 rights to challenge the laws because they failed to do so when they were enacted.

The law allowing permanent absentee status for certain voters dates to 2010, when it unanimously passed the General Assembly. The Democrat-controlled legislature passed the early voting law overwhelmingly 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 vacated state House seat.

House Democratic leaders described the ruling Monday as “profoundly disappointing,” while Senate Democratic leaders accused Republicans of “obstructing voting rights.”

“It’s a partisan issue in the General Assembly where Republicans have refused to support changes to modernize the Delaware constitution that would enhance the ability of Delawareans to participate in elections," Senate Democrats said.

Republican lawmakers said they have no objection to early voting, but that allowing it requires amending the constitution. They plan to introduce such an amendment this week.

Democrats have tried repeatedly to expand voting access through legislation instead of amending the constitution, because constitutional amendments require two-thirds majority votes in each chamber in two consecutive legislative sessions. They have enough votes in the Senate to pass constitutional amendments without any GOP support, but not in the House.

Following the 2022 state Supreme Court ruling, Senate Democrats passed a constitutional amendment last year eliminating restrictions on absentee voting. The bill has not been put to a floor vote in the House.