First State Times

Delaware election laws allowing early voting and permanent status for absentee voting are in direct violation of the state’s constitution, the Public Interest Legal Foundation (PILF) alleges in a recent lawsuit filed against the state’s Department of Elections.

Local counsel for PILF, M. Jane Brady, who also serves as the chair of the Delaware Republican Party, told the First State Times that the lawsuit, while supported by the state’s GOP, is not partisan but purely legal in nature.

“The law creates so much uncertainty and confusion since the Constitution holds for only general elections,” said Brady, who served as Delaware's attorney general from 1995 to 2005. “We need consistency in all elections.”

The laws, approved by the General Assembly in 2019, were expanded leading up to the 2020 general election. Absentee ballot applications, for instance, were sent to all registered voters. The applications gave voters the option of “permanent absentee status.” 

The mailing of the absentee applications to all voters was a temporary practice adopted during the COVID-19 pandemic, but the 2019 law also allows voters to apply to the Department of Elections for permanent status.

Brady said that 23,962 voters currently have permanent status meaning they no longer have to be certified for eligibility before each election.

“Some on the list have died, some have moved,” she said. “The Constitution gives six reasons for voting absentee,” she said, noting that among them were military duty or disability.

State election law also allows up to 10 days of early voting. The Constitution states that residents must vote in person on Election Day, unless they are eligible for absentee voting under one of the six listed categories.

President Joe Biden carried his home state of Delaware with nearly 60% of the vote.

“The early and absentee voting statutes clearly conflict with the state Constitution,” PILF President J. Christian Adams said in a statement. “Inspectors of elections are forced to choose between obeying the statutes or following the state constitution. States cannot pass election laws that conflict with their constitutions. We are confident that the court will uphold the rule of law and the state’s Constitution.”

In 2020, PILF won a similar lawsuit in Virginia where it stopped guidance from the Department of Elections that required accepting absentee ballots without postmarks.

In January, a Pennsylvania court ruled that the state’s voting law covering mail ballots was unconstitutional because the General Assembly approved it without amending the state Constitution.

The PILF is based in Indianapolis.