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DOVER, Del. - Delaware’s `permanent’ absentee voter statute doesn’t violate the state constitution in part because it doesn’t really confer permanent status on absentee voters, the Delaware Supreme Court ruled in a lawsuit by two disgruntled politicians.
State Sen. Gerald W. Hocker and Steven Washington, a candidate in the 2026 election, argued the 2010 statute impermissibly expanded the pool of absentee voters, which the Delaware Constitution limits to specified reasons including disability, military service, vacation and business occupation. The permanent absentee statute passed in 2010 allows a subset of those voters to automatically receive absentee ballots, including if they are in military service or authorized to vote absentee under federal law.
Over 38,000 Delawareans voted absentee in 2024. The Delaware Supreme Court struck down a similar statute in 2022 allowing same-day voting and expanding absentee privileges to all voters. Both provisions were unconstitutional, the court held, because they expanded the pool of absentee voters and eliminated the ability of interested persons to appeal decisions over voter registration lists.
The plaintiffs challenged permanent absentee voting on similar grounds, but they were off base, the Delaware Supreme Court said Sept. 21. By making a facial challenge to the legislation, the plaintiffs had to prove the statute was unconstitutional in every possible application, the court said. But the permanent absentee voting law only applied to voters already authorized to receive ballots under the constitution and required them to certify each year, under penalty of perjury, that they were still eligible.
“The plaintiffs’ argument rests on a faulty premise – that the permanent absentee voting statute allows voters, who no longer qualify as absentee voters, to vote absentee indefinitely in a general election,” the court said. “The statute as written regulates permanent absentee voting but does not permit permanent absentee voting by Delawareans ineligible to vote absentee.”
The plaintiffs also argued the statute was unconstitutional because it presumed voters were eligible for absentee status instead of verifying it each election. They cited a 1955 Delaware Supreme Court decision stating the General Assembly must “take all possible precaution against fraudulent abuse” of the absentee voting process.
While the statute “does not measure up to the plaintiffs’ vision of what is needed to ensure compliance with constitutional voting requirements,” the state constitution left it to the legislature to “prescribe the means methods, and instruments of voting so as best to secure” the “purity of elections.”
“At bottom, the plaintiffs have lost sight of the mountain they must climb to succeed on a facial constitutional challenge to legislation,” the court concluded.
State Attorney General Kathy Jennings called the ruling a victory for tens of thousands of veterans, senior citizens and Delawareans with disabilities.
"At the same time, we should be clear about what this lawsuit was: a last-minute attempt to suppress the vote by a plaintiff who once voted in favor of the very law he sought to overturn,” she added.
