Delaware Supreme Court to hear GOP challenge to absentee voting rules

The Delaware Supreme Court will hear arguments Wednesday in a top state Republican’s challenge to legislation that allows some voters to automatically receive an absentee ballot each election cycle — a lawsuit the state attorney general has called a last-minute bid to suppress the vote. 

Earlier this month, a state court upheld Delaware’s law allowing people with disabilities and military service members, among others, to apply for “permanent absentee ballot” status.

Senate Minority Leader Gerald Hocker — Delaware’s leading Republican — and independent state senate candidate Steven Washington sued Anthony Albence, Delaware’s election commissioner, alleging that the law violated the state constitution’s absentee ballot rules.

After the lower court’s Sept. 4 ruling, Hocker and Washington appealed to the state Supreme Court.

Wednesday’s oral arguments will center on whether Delaware has taken eligibility for permanent absentee status too far. Hocker and Washington argue that the law improperly extends it “indefinitely,” while Albence contends that it enables qualified voters to fully participate in elections.

The lower Court of Chancery agreed with the Delaware government, concluding that the statute did not expand or contradict the state constitution’s rules for absentee ballots.

Individuals granted permanent eligibility automatically receive an absentee ballot before each election, but they are only permitted to use it when unable to vote in person. The Delaware Department of Elections also cancels voters’ eligibility if they no longer qualify.

Still, Hocker and Washington say the law allows ineligible voters to stay on the absentee list, including 1,170 voters who no longer live at their registered address. The judge dismissed this figure as insufficient to overturn the law.

“Even imperfect procedures for policing permanent absentee voters’ continued eligibility do not render ‘every application’ of the Permanent-Absentee-Statute unconstitutional,” Vice Chancellor Bonnie David wrote in her Sept. 4 ruling.

In August, Delaware Attorney General Kathy Jennings decried the lawsuit as an “11th-hour voter suppression attempt.”

“Tens of thousands of veterans, senior citizens, and Delawareans with disabilities rely on permanent absentee voting,” Jennings said in a press release. “We’ve beaten this lawsuit before and we’ll do it again.”

Hocker is running for reelection to the state senate, and Washington is running for a currently vacant senate seat.

But in an odd twist, Hocker was also one of the original co-sponsors of Delaware’s permanent absentee law when it passed in 2010. He filed a similar challenge to the law in 2024, but it was dismissed because he was not running for reelection and therefore did not have standing in court.  

Delaware’s law mirrors those of nine other states that allow voters with disabilities to apply for permanent absentee status, including New York and Mississippi. Eleven states allow any voter to apply for such status.

Absentee ballots have become a central target in right-wing attempts to curtail voting access in the lead-up to the November elections.

The Delaware oral arguments will come just two days after the U.S. Supreme Court blocked the Trump administration’s attempt to limit mail voting nationwide, refusing to greenlight the implementation of a last-minute U.S. Postal Service rule. 

The rule would have required states to report the names and addresses of voters who had requested mail ballots and carry out a last-minute ballot-envelope redesign. If states did not comply, the postal agency said it would not deliver ballots to their voters.