The state Department of Justice is set to appeal a recent ruling on absentee and early voting in Delaware.

Delaware DOJ to appeal absentee, early voting ruling

Jarek RutzGovernment, Headlines

The state Department of Justice is set to appeal a recent ruling on absentee and early voting in Delaware.

The state Department of Justice is set to appeal a recent ruling on absentee and early voting in Delaware.

The Department of Justice announced Tuesday it will move to appeal a Superior Court judge’s ruling on absentee and early voting.

Judge Mark Conner ruled last week in favor of former state attorney general Jane Brady’s suit that laws passed by the General Assembly – over objections that they were not constitutional – were indeed “inconsistent with our Constitution and therefore cannot stand.”

His ruling both denied the state’s motion to dismiss a partisan challenge to Delaware’s early voting law, and issued a judgment striking down early voting and the state’s 14-year-old permanent absentee voter law. The permanent absentee statute passed the General Assembly unanimously, including with the support of then-Rep. Gerald Hocker, the plaintiff in the Superior Court case. 

Attorney General Kathy Jennings, in addition to appeal of Superior Court ruling, vows support for constitutional amendment.

A statement from the Department of Justice pointed out that there were 21,000 permanent absentee voters – overwhelmingly the sick, disabled, and military servicemembers – are set to lose permanent absentee status, and 56,000 Delawareans voted early in 2022’s general election.

Conner’s ruling only applies to general elections. The ruling does not impact the April 2 presidential primary.  

“We respectfully but fundamentally disagree with this ruling and will appeal,” Jennings said. “No idea that requires silence to survive has any place in a democracy. But that is precisely the fight we’re having: in statehouses and courthouses alike, extremists are trying to empower losing ideas by eroding the right to vote itself.” 

Jennings had a press conference Tuesday, in which she emphasized three messages:

  1. “First, we respectfully but fundamentally disagree with this ruling. After our own legal analysis and speaking with Commissioner Albence, I have directed the Department of Justice to take all necessary steps to appeal the Superior Court’s ruling. We will file our appeal quickly and intend to request a decision from the Delaware Supreme Court so that voters have final clarity in time for the September primaries. 
  2. Second, it is critical for the state to have one policy on elections. There is an unambiguous solution to this problem, which is for the General Assembly to address voting rights through a constitutional amendment in the next three months, and to confirm it next year. I urge Democrats and Republicans alike to start by voting for Senate Bill 3, sponsored by Sen. Darius Brown.
  3. Third, to voters: here’s what you need to know. This ruling does not affect the upcoming presidential primary on April 2. Ballots will go out to permanent absentee voters soon and early voting locations will be open.”

Politicians react to court striking absentee, early voting laws

Originally published Feb. 26, 2024

Early and absentee voting was the focus of a recent Superior Court ruling that received a lot of response from state politicians. (Photo from Getty Images/iStockphoto)

Early and absentee voting was the focus of a recent Superior Court ruling that received a lot of response from state politicians. (Photo from Getty Images/iStockphoto)

A ruling by the Delaware Superior Court that restricts early and absentee voting – a highly contentious aspect of the 2020 Presidential Election – has state leaders reacting on party lines.

Judge Mark Conner ruled Friday in favor of former state attorney general Jane Brady’s suit that laws passed by the General Assembly – over objections that they were not constitutional – were indeed “inconsistent with our Constitution and therefore cannot stand.”

He also denied a request by the state Election Commissioner Anthony J. Albence and the Delaware Department of Elections to dismiss the complaint.

Conner’s 25-page opinion can be read here.

It rules that Delaware’s early voting law is in violation of the state Constitution.

The law in question is House Bill 38, sponsored by former Rep. David Bentz, D-Christiana. Passed in 2019, it established in-person early voting in Delaware beginning Jan. 1, 2022.

It also empowered the state’s election commissioner to determine whether in-person early voting would be by voting machine or paper ballot.

Bentz, who is no longer in office, could not be reached for comment Monday.

“This decision is not made lightly, and it should be noted that the spirit and goals of the challenged legislation are not what are being ruled on today,” Conner’s opinion said. “Nothing in this opinion and order should be read to suggest that policies intended to support the enfranchisement and inclusion of voters in Delaware are per se unconstitutional.”

The lawsuit, originally brought in the Court of Chancery, was transferred to the Superior Court last fall.

Republican response

“I am very satisfied with the Court’s analysis,” said Brady, the attorney representing Senate Minority Leader Gerald Hocker, R-Ocean View, and Michael Mennella.

The ruling follows the guidance of the Delaware Supreme Court in the decision regarding mail-in ballots and same-day registration, she said.

“The words in our Constitution have meaning, and they are given their plain meaning by the courts,” Brady said.

A statement from House and Senate Republican leaders said their concerns with the bill in 2019 fell on deaf ears.

“To be clear, we take no issue with in-person early voting,” the statement read. “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.”

Republican leaders applaud the court for validating the arguments they made five years ago.

Brady, chair of the organization A Better Delaware, was the state attorney general for a decade and a Delaware Superior Court for 12 years.

She said it’s unfortunate that the state will have different laws for the general elections and not primary or special elections. That may cause some voter confusion, she said.

That’s because the language of the Constitution only applies to general elections.

General elections are held in November – and this year will feature national and state races.

“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,” Brady said. “We therefore have different rules for voting in different elections.”

Delaware Attorney General Kathy Jennings plans to hold a press conference at 1 p.m. Tuesday, to comment on the ruling and describe the Department of Justice’s path forward.

House Minority Leader Mike Ramone, R-Newark/Pike Creek, and Rep. Mike Smith, R-Pike Creek will introduce a constitutional amendment top allow early voting in the 10 days leading up and include the day of the general election.

Hocker is expected to be a prime sponsor of the new measure.

“We hope all legislators on both sides of the aisle will join us in support of this measure and enacting early voting that is legally sound and compliant with our state constitution,” the Republican leadership statement read.

Democrat response

Matt Meyer, the New Castle County executive  running for governor this year, said Saturday that the court’s ruling 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,” his statement said.

Senate President Pro Tempore Dave Sokola, D-Newark; Senate Majority Leader Bryan Townsend, D-Newark; and Senate Majority Whip Elizabeth “Tizzy” Lockman, D-Wilmington, issued a joint statement Monday afternoon criticizing Conner’s opinion.

“Despite Democrats’ ongoing efforts to modernize Delaware’s elections and give voters more flexibility, Republicans have blocked Delawareans from their rights to no-excuse absentee voting, vote-by-mail, same-day registration, and now, early voting and permanent absentee voting,” the statement read.

The three Democrats called the ruling a significant blow to thousands of Delawareans who require predictable, hassle-free access to absentee voting.

“This is not a partisan issue within a judiciary tasked with interpreting constitutional language,” their statement read. “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.”

At the same time, it said Senate Democrats are heartened that the judge made clear that the spirit of their voting reform efforts was never in question.

A joint House Democrats leadership statement said that voting rights are under attack.

“This decision reinforces the urgency of our past efforts to amend Delaware’s Constitution for voting and underscores the importance of continuing to advocate for voter protections at the federal level,” it read.

The statement was from House Speaker Valerie Longhurst, D-Bear; House Majority Leader Melissa Minor Brown, D-New Castle; and House Majority Whip Kerri Evelyn Harris, D-Dover South.

“Restricting early and permanent absentee voting will directly impact the ability of parents, low-income workers, shift workers, those with disabilities, and the elderly, to have their voices heard as personal schedules and needs don’t always align with the state’s predetermined voting day,” the statement read.

“For this reason, these two methods of voting have proved to be incredibly popular and effective, improving access and opportunities for all voters to exercise their constitutionally protected right.”

In the other chamber, the joint Senate Democrats statement took aim at Ramone and Smith, saying they both represent Democratic-majority districts and changed their votes to block a constitutional amendment on voting rights after former President Donald Trump began claiming the 2020 election was stolen.

In response, Smith said. “They know my number. Give me a call.”

“It’s a shame how partisan governing has become in the state of Delaware and our nation, generally speaking,” he said. “They fail to mention the governor nominating and then confirming the Democrat judges who ruled against them. They failed to mention there was a poison pill in the original constitutional amendment that would allow any new voting change to be done by simple majority vote.”

The point is this, he said, Democrats do not want all voices included in the governing process.

“They preach equity, they preach inclusion, but they don’t mean it when it comes to governing,” he said. “They only mean it when it fits their narrow definition. I challenge any of them to debate on the topic anywhere anytime in a public forum. Don’t hide behind your social media statements.”

Smith said he’s also happy to sit around a table to craft something that makes sense, not something that makes sense for just them.

“Blame is not a strategy for change, but since they’ve held control of both chambers, the lieutenant governor’s office and the governor’s office for half my lifetime, that’s all they have,” he said.

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