Delaware Supreme Court reverses ruling invalidating early voting and permanent absentee status laws

DOVER, Del. -- Delaware’s Supreme Court on Friday reversed a judge’s ruling that state laws allowing early voting and permanent absentee status are unconstitutional.

The Supreme Court did not address the merits of the case, but it instead found only that the plaintiffs, a state elections inspector and a Republican lawmaker, did not have legal standing to challenge the laws.

Justice Gary Traynor said elections inspector Michael Mennella and Senate Minority Leader Gerald Hocker had not met their burden of establishing “imminent or particularized harm.” To achieve standing, he said, a plaintiff must demonstrate an injury that is “more than a generalized grievance” shared by the population at large.

“Because we have concluded that the plaintiffs do not have standing, we do not reach the merits of their state constitutional claims,” Traynor wrote in an opinion for the court.

The justices said Hocker did not establish standing as a purported candidate because he will not stand for reelection until 2026. “That election, in our view, is not imminent,” Traynor wrote.

The court also rejected Mennella’s argument that he has standing as an inspector of elections and would have the authority to turn away voters based on his belief that the laws are unconstitutional.

The justices also said Hocker and Mennella did not have standing to assert their constitutional claims by virtue of their status as registered voters whose votes would be diluted by illegally cast votes.

In a concurring opinion, Justice Karen Valihura agreed that Hocker did not establish standing as a candidate, and Mennella’s status as an election inspector also was not sufficient. But she said her colleagues went too far in focusing on lawsuits over the 2020 presidential election while addressing the thorny issue of registered voter standing.

“I believe that the highly expedited nature of this proceeding counsels for a narrower holding that identifies and reserves for another day a more careful delineation of the boundaries of registered voter standing,” Valihura wrote.

The court issued its ruling just three weeks after hearing oral arguments, and less than three months before the Sept. 10 primary elections.

The ruling comes after Superior Court Judge Mark Conner declared in February that Mennella and Hocker had shown by “clear and convincing evidence” that the laws were “inconsistent with our constitution.”

Conner’s ruling came after the Supreme Court declared in 2022 that laws allowing universal voting by mail and Election Day registration in general elections 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.

In his ruling, Conner said a 2019 law allowing in-person voting for at 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.

Conner also found that, under Delaware’s constitution, voters can request absentee status only for specific elections at which they cannot appear at the polls. Under a law dating to 2010, however, a person who voted absentee one year because of the flu could continue to vote absentee in all future general elections, Conner noted.