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Delaware Rules Permanent Absentee Voting Violates State Constitution

Superior Court Judge Mark Conner found that 'granting indefinite absentee voting...impermissibly extends beyond the limited authority granted to the General Assembly'

Delaware Rules Permanent Absentee Voting Violates State Constitution

A judge in Delaware found the state’s permanent absentee voting statute to be unconstitutional.

Delaware’s Election Commissioner Anthony J. Albence and the state’s Department of Elections had asked the court to dismiss a complaint that challenged regulations on early voting and absentee voting.

Superior Court Judge Mark Conner denied the requests and sided with the plaintiffs.

The enactments of the General Assembly challenged today are inconsistent with our Constitution and therefore cannot stand,” he wrote in his opinion published Feb. 26.

Conner agreed that Delaware’s Permanent Absentee Voting Statute “is clearly at odds with Article V, Section 4A” of the state’s constitution because the cited section allows voters to participate in an election via absentee ballots only when they are unable to appear in person.

Conner wrote:

As it stands the Permanent Absentee Voting Statue would allow a voter who may be unable to appear at an upcoming election because of a temporary illness, such as the flu, to check a box on a form and automatically receive absentee ballots in all future elections regardless of whether or not that voter is still ill at the time of those future elections. At each future election the Department of Elections requires no further affirmation that the voter is still in a situation that would require them to cast an absentee ballot…

Article V, Section 4A limits absentee voting to only such general elections where the voter cannot cast a ballot in person for a constitutionally enumerated reason. By granting indefinite absentee voting to those who are unable to vote in a single election, Delaware’s Permanent Absentee Voting Statue impermissibly extends beyond the limited authority granted to the General Assembly by our Constitution.

Conner also found that Delaware’s early voting statute did not meet the state’s constitutional requirement for secrecy and independence for the voter and that it failed to “preserve the freedom and purity of elections and prevent fraud, corruption and intimidation.” The judge also ruled the legislature had overstepped its authority by approving a 10-day voting period.

The plaintiffs were state Senator Gerald Hocker and Michael Mennella, an inspector of elections for the Delaware Department of Elections. Mennella was represented by the Public Interest Legal Foundation.

“This decision invalidated Delaware laws that allowed for early and permanent absentee voting,” said J. Christian Adams, the president of PILF, in a statement. “States cannot pass election laws that conflict with their state constitution. This decision is a win for the rule of law.”

Congresswoman Lisa Blunt Rochester of Delaware denounced Conner’s ruling, calling it an “urgent reminder that we need federal voting rights protections.”

“Yesterday’s Delaware Superior Court decision is another reminder of where we are at this moment — no matter where you live in our country, Republican extremists will stop at nothing to attack our access to the ballot box,” she said in a statement, per Delaware Online.

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