Why Should Delaware Care?
A court ruling earlier this year could have removed early voting for voters this November as well as absentee voting for those who cannot make it to the polls on Election Day. A legislative fix is not possible before the November election, but the Delaware Supreme Court has allowed the practices to continue for now.
The Delaware Supreme Court restored the state’s permanent absentee and early voting statutes in a Friday ruling, turning back a lower court ruling that would have impacted tens of thousands of voters this fall but also leaving open the door to another legal challenge.
In February, Superior Court Judge Mark Conner ruled that early and permanent absentee voting statutes violate the First State’s Constitution. The complaint was filed by state election inspector Michael Mennella and Republican State Sen. Gerald Hocker.
In deciding the case, the Supreme Court unanimously ruled that Mennella and Hocker, who is not up for re-election this year, do not have legal standing to challenge the statutes and have thrown the case out.
What is ‘standing’ ?
For a plaintiff – or the suing party – to have their case considered by a court, they must first achieve “standing.” That means they must have been harmed by the defendant in a way that is demonstrable and imminent, and has to be more particularized than a generalized grievance. The requirement means that one cannot sue simply because they disagree with a law, but must have personally been harmed by it.
The Supreme Court specifically overruled the lower court’s belief that Hocker had standing as a presumptive candidate for future office. The justices argued that his next possible re-election campaign in 2026 was not imminent and that he was not currently harmed by the existing the statutes
Because State Sen. Gerald Hocker’s seat is not up for election this year, the Delaware Supreme Court ruled he did not have standing to challenge voting rights statutes. | PHOTO COURTESY OF DE SENATE GOP
The ruling means that while early and permanent absentee voting will now be available for this year’s September primaries and November general election, it does not resolve the merits of the case argued by the plaintiffs and leaves open the door to another case to challenge the law.
Jane Brady, a former Delaware Republican Party chair and state judge who represented Mennella and Hocker, has not yet responded to a request for comment on whether they would look for new plaintiffs to continue pressing the case.
Had the lower court ruling been upheld, thousands of Delawareans who are accustomed to voting early in past elections would have faced an additional obstacle to voting in the 2024 presidential election.
Nearly 56,000 Delawareans voted early in 2022, representing over 17% of voters in the First State, according to U.S. Election Assistance Commission data. About 21,000 people, including veterans, the disabled, and caregivers, used permanent absentee ballots.
Conner’s ruling also came after a 2022 decision by the Delaware Supreme Court struck down laws allowing residents to vote by mail and to register to vote up to Election Day.
Delaware Attorney General Kathy Jennings heralded the court ruling in a Friday statement, calling for an end of “these thinly-veiled partisan attempts to suppress votes — especially of our most vulnerable citizens.”
“Whether you voted for me or not, this is your most fundamental right, and I promised never to stop fighting for it. I’m grateful to the Court for its ruling and for agreeing to hear this case on an expedited basis so that Delawareans know their rights going into the September and November elections,” she said.
Delaware Attorney General Kathy Jennings argued the lawsuit over voting rights statutes was purely due to partisan politics. | SPOTLIGHT DELAWARE PHOTO BY JOSE IGNACIO CASTANEDA PEREZ
Democratic leaders in the State Senate thanked the Supreme Court for ruling in time for this year’s elections, but added that “voters never should have experienced this level of confusion about their voting rights.”
“The Delaware General Assembly enacted early voting in 2019 and permanent absentee voting in 2010 with support from both Democrats and Republicans, including one of the plaintiffs in this case [then -Rep. Hocker] who co-sponsored the legislation that created permanent absentee voting 14 years ago,” wrote the leaders, including Senate President Pro Tempore Dave Sokola, Senate Majority Leader Bryan Townsend, and Senate Majority Whip Elizabeth “Tizzy” Lockman. “That’s because there was once widespread agreement that Delawareans deserve options for how they can participate in our democracy. We are pleased the Delaware Supreme Court today removed this immediate roadblock to ensure this fall’s elections will continue to provide secure voting options to Delawareans.”
Have a question about or feedback on this story? Reach Jacob Owens at jowens@spotlightdelaware.org.
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