Background
Gerald W. Hocker and Steven Washington, candidates in Delaware’s November 2026 general election, challenged the state’s permanent absentee voting statute, 15 Del. C. § 5503(k). The statute allows certain voters who qualify to vote absentee under the Delaware Constitution to obtain permanent absentee status and automatically receive ballots in later elections.
The candidates argued that the statute improperly expanded the constitutionally permitted categories of absentee voters because a person could continue receiving absentee ballots after the original qualifying condition ended. They also contended that the Department of Elections’ procedures did not adequately verify continued eligibility or protect against fraud. The Court of Chancery granted summary judgment to the State Election Commissioner and Department, rejecting the candidates’ facial constitutional challenge.
The Court’s Holding
The Delaware Supreme Court unanimously affirmed. It held that the permanent absentee statute does not expand the categories of voters permitted to vote absentee under Article V, Section 4A of the Delaware Constitution. The statute applies only to a subset of constitutionally eligible absentee voters and does not authorize anyone who has become ineligible to cast an absentee ballot.
The court also rejected the argument that the Constitution requires the Department to recertify every permanent absentee voter before each election. Permanent absentee voters must report changes affecting eligibility, the Department sends eligibility reminders and removes certain ineligible voters, and each voter must attest under penalty of perjury to continued eligibility when submitting a ballot. Article V, Section 1 leaves the choice of election safeguards to the General Assembly and does not mandate a particular verification system.
Because this was a facial challenge, the candidates had to establish that the statute was unconstitutional in every application. They could not meet that burden: the statute can constitutionally apply to voters who remain eligible, and allegedly imperfect enforcement procedures do not make every application unconstitutional.
Key Takeaways
- Delaware’s permanent absentee statute does not enlarge the Constitution’s enumerated categories of absentee voters.
- The Delaware Constitution does not require election officials to recertify each permanent absentee voter before every general election.
- A facial challenge cannot succeed merely because procedures for monitoring continued eligibility may be imperfect.
Why It Matters
The decision preserves Delaware’s permanent absentee voting system for qualifying voters and confirms that “permanent” status concerns the administrative process for receiving ballots, not an unconditional right to vote absentee after eligibility ends.
The ruling also underscores the demanding standard for facial constitutional challenges and the deference Delaware courts afford the General Assembly in selecting election-administration safeguards where the Constitution does not prescribe a specific procedure.