Why Should Delaware Care?
Amid a flurry of election-related legal challenges across the country, the Delaware Supreme Court struck down a challenge to the state’s absentee voting protocols this week. The decision allows the state’s permanent absentee voting system to continue as-is this election cycle.
The Delaware Supreme Court knocked down a challenge to the state’s absentee voting protocols earlier this week, rejecting Senate Minority Leader Gerald Hocker’s (R-Ocean View) claim the system is unconstitutional.
Hocker argued in the lawsuit that Delaware’s current absentee voting rules violated the state’s constitution by allowing for the indefinite use of absentee ballots — even if voters no longer meet the state’s qualifications.
But the justices rebuffed that claim in a 20-page ruling written by Chief Justice C.J. Seitz, saying the “argument rests on a faulty premise.”
The Supreme Court sided with the Delaware’s Court of Chancery in its previous ruling against Hocker’s claim, saying the Delaware Department of Elections has protocols in place to police permanent absentee voters’ continued eligibility.
“The plaintiffs have lost sight of the mountain they must climb to succeed on a facial constitutional challenge to legislation,” Seitz wrote.
Delaware Attorney General Kathy Jennings called the ruling “a victory for the tens of thousands of veterans, senior citizens and Delawareans with disabilities who rely on permanent absentee voting.”
In a statement, she also said the lawsuit was a last-minute attempt by Hocker to “suppress the vote,” after initially voting in favor of legislation that first created permanent absentee voting.
But Jane Brady, a former state attorney general who represented Hocker in the case, said the senator’s lawsuit was about ensuring election integrity, not playing politics.
“It’s unfortunate if anyone would try to make this political and use keywords that are incendiary to try and create political fodder out of this,” Brady told Spotlight Delaware. “This was not about politics. It was about integrity, and even the constitution talks about the purity of our elections. This was to protect that.”
Brady said she accepts the court’s ruling and is grateful for its thorough consideration, but she still plans to look into future challenges. Those possible challenges, she said, would come after the November general election and likely be targeted toward how the permanent absentee voting process is implemented.
According to Jennings’ statement, the Department of Elections will soon begin sending out ballots to permanent absentee voters across the state.
How did we get here?
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 of Delaware-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. Days later, Brady, who also is a former state Republican Party chair, appealed that decision to the Delaware Supreme Court.
Hocker primarily argued that Delaware’s current absentee voting rules could jeopardize the accuracy of state election results if people no longer eligible to vote were still able cast ballots.
“As a candidate, Sen. Hocker wants a fair election and all votes made and tabulated in his race to be in accordance with the law,” the original complaint stated.
State law identifies five categories of people eligible for permanent absentee status, including those temporarily residing outside the United States, serving in the armed forces, sick or physically disabled, or already authorized for absentee status by federal law.
The lawsuit called for the state to require individuals to reapply for absentee ballot status each election cycle, instead of indefinitely being placed on the absentee ballot list.
The state Supreme Court decision comes amid a flurry of challenges to election processes across the country.
Jennings recently joined a group of 20 states challenging new Trump administration vote-by-mail requirements that Jennings and others said could stifle fair elections. A U.S. District Court in Massachusetts ruled in the states’ favor on Sept. 4, and the U.S. Supreme Court has also sided with the states.
Other voting lawsuits on the horizon
The Delaware Supreme Court will hear arguments this morning in another case related to voting rights, this time for people representing business entities like limited liability companies (LLCs).
The American Civil Liberties Union of Delaware is appealing an earlier decision from state Superior Court Judge Criag Karnsitz that found LLCs and other entities like family trusts have the right to vote in Fenwick Island’s elections. The ACLU contends the allowance diminishes human residents’ voting rights.
As previously reported by Spotlight Delaware, Hocker was a Senate sponsor of Fenwick’s original charter amendment extending voting rights to entities some 20 years ago. In the 2024 election, nearly a quarter of votes cast in Fenwick were by owners of entities. Fenwick is only one of five Delaware towns that allows more than just people to vote.
Mayor Natalie Madgeburger has previously said a majority of properties in the resort town are owned by family trusts, and described the voting system there as one that is “just, fair and gives everyone a voice.”
She did not respond to requests for comment on Tuesday.
Even if the court upholds Karsnitz’s ruling allowing entities to vote in Fenwick elections as they have since at least 2008, changes could still be possible — they would just require a constitutional amendment.
House Majority Leader Kerri Evelyn Harris (D-Dover) last year sponsored a bill to deny corporations voting rights in any Delaware election. Any such constitutional changes, however, require a two-thirds vote from two consecutive sessions of the General Assembly. That means the next group of lawmakers meeting in Dover will also have to approve the legislation with a supermajority in support.
Maggie Reynolds and Maddy Lauria contributed to this report.
