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Court: Turning Election Day Into Election Week And Creating ‘Permanent’ Mail Voters Violates Delaware’s Constitution

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Democrat-passed laws authorizing a 10-day voting season and permanent absentee voting status violate the Delaware Constitution, a state court ruled on Friday.

Writing for the Superior Court of the State of Delaware, Judge Mark Conner determined that legislation enabling early and “permanent absentee” voting in Delaware elections does not comport with the state’s founding document. The lawsuit challenging the statutes in question was brought by the Public Interest Legal Foundation (PILF) on behalf of Michael Mennella, an inspector of elections for the Delaware Department of Elections. State Election Commissioner Anthony Albence and the Delaware Department of Elections are defendants in the case.

“The enactments of the General Assembly challenged today are inconsistent with our Constitution and therefore cannot stand,” Conner wrote.

In 2019, the Democrat-controlled General Assembly passed legislation permitting eligible electors to vote in person 10 days prior to Election Day. The legislature had also passed a law in 2010 granting registrants the ability to apply for “permanent absentee status” with the Delaware Department of Elections, which, as PILF explained, effectively gave “an individual eligibility to vote by absentee ballot in perpetuity, without consideration of the applicant’s eligibility in each subsequent election.”

Mennella initially filed his complaint challenging the aforementioned statutes in February 2022. His case wasn’t considered by the judiciary until nearly a year later, however, due to a separate suit he filed that same month challenging a different set of Delaware election procedures. In that case, the Delaware Supreme Court ruled in October 2022 that Democrats’ law permitting same-day voter registration and no-excuse mail-in voting violated the state’s constitution.

Regarding Mennella’s challenge of Delaware’s early and permanent absentee voting laws, Albence and the state elections department attempted to have the case dismissed, arguing the superior court “lacks jurisdiction” to hear the case because Mennella did not “properly transfer” his case from the Delaware Court of Chancery. Defendants also claimed Mennella “waived” his ability to contest the early and permanent absentee voting statutes because he failed to challenge them “at the time they were enacted.”

Conner disagreed with both arguments and denied the motion to dismiss. Regarding defendants’ challenge to the venue of the case, the Delaware judge determined that plaintiffs’ “admitted failure to file a written transfer of elections is insufficient to strip this Court of subject matter jurisdiction over these claims.” Conner separately noted how a “citizen’s right to challenge an allegedly unconstitutional statute is not waived by the mere passage of time, especially when the alleged constitutional violation is ‘in the single arena … most fundamental to a functioning democracy,’ voting rights.”

“Defendants’ position is essentially if unconstitutional laws are not challenged at the time of their enactment, the right to challenge them is waived,” Conner wrote. “This position on waiver ignores several landmark United States Supreme Court decisions overturning longstanding state statutes, constitutional provisions, and policies that unconstitutionally violated the fundamental rights of citizens.”

On the merits of the case, Conner ruled that plaintiffs had not only “stated claims upon which relief can be granted, but that they have proven by clear and convincing evidence that the challenged statutes violate the Delaware Constitution.”

More specifically, he highlighted how the 10-day early voting period illegally circumvents Article V, Section 1 of the Delaware Constitution, which mandates voters cast ballots on “the Tuesday next after the first Monday in … November.” Meanwhile, Democrats’ permanent absentee voting statute is inconsistent with the constitution’s required qualifications for absentee voting, Conner ruled.

“States cannot pass election laws that conflict with their state constitution,” PILF President J. Christian Adams said in a statement. “This decision is a win for the rule of law.”


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