Why Should Delaware Care?
Election integrity has become a hot-button issue in recent years, as the Trump administration has questioned the validity of election results, and elected officials have raised concerns that noncitizens are voting. The continuation of a lawsuit challenging Delaware’s absentee voting systems creates uncertainty as to where a state voting voting statute will stand ahead of the midterm election.
A lawsuit filed by state Senate Minority Leader Gerald Hocker (R-Ocean View) could throw Delaware’s absentee voting protocol into question ahead of this year’s November election.
The lawsuit, which comes amid a flurry of challenges to election processes across the country, alleges that Delaware’s current absentee voting rules allow for the indefinite use of absentee ballots — even if voters no longer meet the state’s qualifications.
Currently awaiting a decision by the Delaware Supreme Court, Hocker is fighting for the state to require voters to apply for absentee status before each election.
While he argues a ruling in his favor would create a more fair voting process, state election officials say they are making an effort to distribute clear information and assuage voters’ concerns amid the lawsuit.
And with absentee voting for this year’s primary election already underway, it remains to be seen how any potential changes spurred by Hocker’s lawsuit will impact the upcoming November general election. It will not impact Tuesday’s primary election.
Hocker first filed the lawsuit against the Delaware Department of Elections in early August, after a similar claim he filed in 2024 was dismissed.
Steve Washington, an Independent Party-affiliated candidate running for a Wilmington-area state Senate seat, was added to the case as a second plaintiff in mid-August.
The Court of Chancery ruled against Hocker’s claims in a Sept. 4 opinion. But Hocker’s attorney, former Delaware Attorney General and state Republican Party Chair Jane Brady, appealed that decision to the Delaware Supreme Court on Sept. 8.
The state Supreme Court is scheduled to hear the case on Sept. 16, and is expected to issue a “prompt ruling” following that argument, a spokesperson for the state Department of Elections, the defendant in the lawsuit, told Spotlight Delaware.
Those arguments would be made less than two months from the Nov. 3 general election.
Hocker did not respond to Spotlight Delaware’s request for comment.
When asked by Spotlight Delaware whether there is a link between the Delaware absentee ballot lawsuit and the pattern of challenges to election procedures around the country, Brady said she does not see a connection.
“It’s not a concerted effort with anyone else,” Brady said. “This is strictly Delaware-related and involves Delaware people.”
Separately, Delaware Attorney General Kathy Jennings is a plaintiff in a lawsuit filed by a group of 20 states challenging new Trump administration vote-by-mail requirements.
A U.S. District Court in Massachusetts ruled in the states’ favor on Sept. 4. The Supreme Court is expected to consider the case in the coming days.
Cathleen Hartysky-Carter, a spokesperson for the state Department of Elections, declined to comment on pending lawsuits.
Carter did say there has not been any disruption in the absentee voting process since Hocker filed his lawsuit.
She said the department is reaching out to encourage permanent absentee voters to submit a new absentee ballot application, in order to “ensure that whatever the outcome of the litigation, the Department will be permitted to send them a ballot for the 2026 General Election.”
Michael Weingartner, a lawyer and election scholar at the University of Pennsylvania, said a state constitutional challenge like this one is “very rare,” because Delaware’s absentee voting is structured differently than other states.
While Delaware has a state statute spelling out who can qualify for an absentee ballot, most states leave it up to their legislature to decide who will receive absentee voting status, Weingartner said.
What’s in the suit?
Hocker’s primary argument is that current state law could allow individuals no longer eligible to vote via absentee ballot to continue voting that way, thus throwing the accuracy of state election results into question.
“As a candidate, Senator Hocker wants a fair election and all votes made and tabulated in his race to be in accordance with the law,” the complaint states.
But Hocker did not have a challenger in his reelection bid at the time the lawsuit was filed in early August. The Democratic Party subsequently nominated Harry Gold to challenge Hocker for the Ocean View-area seat on Aug. 25.
Washington, the second plaintiff, will face the winner of the Democratic primary between incumbent Sen. Dan Cruce (D-Wilmington) and his challenger Adriana Bohm.
Brady told Spotlight Delaware she waited until Hocker had an opponent and brought Washington into the case to ensure they had legal standing. Hocker’s 2024 case was dismissed because he was not up for reelection at the time.
The current state law identifies five categories of people eligible to receive permanent absentee status, including those temporarily residing out of the United States, serving in the armed forces, sick or physically disabled, or already authorized for absentee status by federal law.
The complaint calls for the state to require individuals to re-apply for absentee ballot status during each election cycle, instead of indefinitely being placed on the absentee ballot list.
As of February 2026, there were 22,800 people registered on the Department of Elections permanent absentee list — 1,170 of whom no longer receive mail at their address on file, and 193 of whom were deceased, according to Hocker’s complaint.
Deputy Attorneys General Emily Burton and Patricia Davis, who are representing the Department of Elections, wrote in their response to the complaint that the department already works year-round to ensure the integrity of the absentee voting process by sending letters to permanent absentee voters and reminding them of the requirements to participate.
The defendants also requested that the court stay, or pause, the litigation through the 2026 election cycle, and instead schedule it for a final resolution “well in advance of the 2028 primary election.”
The Chancery Court denied this request, instead granting Hocker’s request to expedite the legal proceedings before the Nov. 3 election.
Legal standing
While the Chancery Court was definitive in its rejection of Hocker’s claims, the lawsuit’s ultimate fate with the state Supreme Court remains to be seen.
In a Sept. 4 ruling, Vice Chancellor Bonnie David wrote that the state’s permanent absentee status program is constitutional because voters are already required to notify the Department of Election of changes in their eligibility. The state then cancels a person’s absentee status if they no longer qualify.
“In other words, ‘permanent’ is a misnomer,” David wrote in her opinion.
Brady, Hocker’s attorney, said she is unsurprised by the Chancery Court decision because a lower court “usually maintains the status quo.” She is optimistic about the Supreme Court ruling.
At the same time, Carter said her department has been working to mail letters to all Delawareans with permanent absentee voting status explaining the ongoing litigation, and telling them how to submit a new absentee ballot application so that they are allowed to receive a 2026 General Election ballot, regardless of the ultimate ruling.
“The Department is committed to election security, integrity, transparency, and voting accessibility for all Delaware voters,” Carter wrote.
Weingartner, the election scholar, said a ruling in Hocker’s favor is likely to be an uphill battle. Comparable election integrity litigation in the past has gone in states’ favor, he said.
“Election litigation has a lot of surprises,” he said. “But the path to victory here would require the court to be willing to do something that hasn’t been done yet in Delaware.”
Maggie Reynolds is a Report for America corps member and Spotlight Delaware reporter who covers rural communities in Delaware. Your donation to match our Report for America grant helps keep her writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://spotlightdelaware.org/support/.
