Lyndon Yearick

PHOTO COURTESY OF legis.delaware.gov

Rae Moore

PHOTO COURTESY OF legis.delaware.gov

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Legislative Hall
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By Joseph Edelen

DOVER — The first leg of a constitutional amendment to expand absentee ballot voting was defeated in the House of Representatives on Thursday, as Republican abstentions prevented the bill from receiving its required number of votes.

Senate Bill 3 — which was amended on the House floor with clarifications — would remove limitations listed in the Delaware Constitution for when individuals can utilize an absentee ballot.

The proposal is being led by Sen. Darius Brown, D-Wilmington, and Rep. Rae Moore, D-Middletown, and follows the October 2022 state Supreme Court decision that struck down voting by mail and same-day voter registration.

“I think we were pretty consistent with our opposition to it, … with the first variation of it that was going to create the ability for the General Assembly (to), carte blanche, be able to pass legislation-changing laws in regard to voting,” House Minority Whip Lyndon Yearick, R-Magnolia, said on the House floor. “That could be good, could be bad. We felt it was a poor position to begin with because we feel like the constitution should be honored.”

Currently, Delawareans can vote absentee if they qualify for one of several reasons, including having a disability, observing religious holidays, temporarily living outside the United States or being a primary caregiver.

But a no-excuse absentee ballot bill was enacted by Gov. John Carney in July 2022, after passing the legislature that June. It was then struck down by Delaware’s Court of Chancery in September 2022 and has been the subject of court battles since.

When the bill was considered two years ago, Republican lawmakers warned that it would be struck down because it did not adhere to the processes of a constitutional amendment, which requires two-thirds majority support from two consecutive General Assemblies.

The most recent legal developments result from an amended complaint filed by a plaintiff from that original consolidated challenge.

In addition to that original plaintiff, Michael Mennella, the updated complaint includes Senate Minority Leader Gerald Hocker, R-Ocean View, who challenged the policy’s constitutionality.

Delaware Superior Court ruled in favor of the plaintiffs Feb. 23, though the case has since been moved to the state Supreme Court. The high court is expected to issue a decision by June 30, according to state elections commissioner Anthony Albence.

In the ruling, Judge Mark Conner wrote, “This decision is not made lightly, and it should be noted that the spirit and goals of the challenged legislation are not what are being ruled on today. Nothing in this opinion and order should read to suggest that policies intended to support the enfranchisement and inclusion of voters in Delaware are per se unconstitutional.”

Following the decision, Senate Democratic leadership took aim at Republican lawmakers for their attempts to curtail a constitutional amendment for absentee voting.

Specifically, leadership referenced Sen. Hocker for his role in the lawsuit, and House Minority Leader Mike Ramone, R-Newark, and Rep. Mike Smith, R-Pike Creek — both of whom represent majority Democratic districts — for switching their votes on the second leg of a constitutional amendment to expand voting rights after the Jan. 6, 2021, insurrection.

On Thursday, the ongoing litigation was cited by Rep. Yearick as a reason his Republican colleagues would either be voting no or abstaining.

His issues with the bill extend further, as he raised concerns about creating a class of absentee voters when there are already procedures for doing so, as well as about Democrats’ insistence to pass early and absentee voting in one fell swoop.

“We feel it’s rather disingenuous. … We want the court decision to happen, first and foremost; it may make this completely a moot point. They may overturn the Superior Court and say what was initially voted on is going to come back into play,” Rep. Yearick said when explaining his colleagues’ votes.

There was no debate on the legislation during its consideration Thursday, but Rep. Moore stressed that, since a constitutional amendment requires passage from two consecutive General Assemblies, House members should act now to expedite the process.

“I just want to make a note that, as we sit and wait for the pending decision, ... we still have a responsibility to our constituents in making sure that we’re doing something. ... The court decision came because this wasn’t in our constitution, and we should be moving forward and doing that,” she said.

SB 3, as amended, ultimately failed to garner the two-thirds support, with 25 in favor, 10 opposed and six lawmakers not voting.

After the vote, Sen. Brown and Rep. Moore released a joint statement about the bill’s defeat, which continued to advocate for the ability to vote absentee.

“For the past several months, we have negotiated in good faith with our colleagues on the other side of the aisle, striving to find common ground and ensure that every eligible Delawarean has the opportunity to vote,” it reads.

“This should not be a political issue. Both absentee and early voting have consistently proven to be secure and effective methods in Delaware, boosting voter turnout and ensuring that more voices are heard in our democratic process.”

In a release issued in response, House Republican spokesperson Joe Fulgham reiterated that any Delawarean who may not be able to cast their ballot in person can continue to utilize absentee voting, “which remains legal, available and easily accessible.”

“(Their) statement is disingenuous on its face. They say, ‘this should not be a political issue,’ but ran the bill knowing they didn’t have the support to pass it for the sole purpose of issuing a prewritten partisan press release just minutes after the vote was taken,” Mr. Fulgham’s statement reads.

“House and Senate Democrats have only themselves to blame for the failure of the previous laws they enacted on early voting and permanent absentee voting. They were warned repeatedly that their proposals violated the state constitution but, exhibiting their usual disregard for our state’s foundational document, they passed them anyway.”

Though the amended version of SB 3 was defeated Thursday, House Majority Leader Melissa Minor-Brown, D-New Castle, changed her vote from yes to no to allow the bill to be reconsidered before the final legislative day June 30.