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

DOVER, Del. — The Delaware 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, ruling only that the plaintiffs, a state elections inspector and a Republican legislator, had no legal standing to challenge the laws.

Judge Gary Traynor said Election Commissioner Michael Mennella and Senate Minority Leader Gerald Hocker had failed to meet their burden of proving “imminent or specific harm.” To qualify, he said, a plaintiff must show harm that is “more than a general grievance” shared by the public as a whole.

“Because we have concluded that plaintiffs have no standing to sue, we decline to address the merits of their claims under the state constitution,” Traynor wrote in an opinion for the court.

The judges said Hocker has not acquired status as a putative candidate because he will not seek re-election until 2026. “In our view, those elections are not imminent,” Traynor wrote.

The court also rejected Mennella’s argument that he has a reputation as an election inspector and would have the authority to reject voters based on his belief that the laws are unconstitutional.

The justices also said Hocker and Mennella lacked standing to assert their constitutional claims based on their status as registered voters whose votes would be diluted by illegally cast ballots.

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

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

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

The ruling comes after Supreme Court Justice Mark Conner said in February that Mennella and Hocker had shown by “clear and convincing evidence” that the laws were “contrary to 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 law improperly expanded eligibility for voting by mail, while allowing same-day registration to violate registration periods set forth in the Constitution.

In his ruling, Conner said a 2019 law that allows in-person voting for at least 10 days before an election violates a constitutional provision requiring general elections to be held on the Tuesday after the first Monday in November. “Our Constitution provides only one such day, not a day or series of days that the General Assembly deems appropriate,” he wrote.

Conner also noted that under Delaware’s constitution, voters can only apply for absentee status for specific elections in which they can’t appear at the polls. However, under a 2010 law, someone who voted absentee for a year because of the flu could continue to vote absentee in all future general elections, Conner noted.

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