Court strikes down early voting law in Biden’s home state: 'A little bit of irony'

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A court in President Joe Biden’s home state determined a state law allowing 10 days of early voting and permanent absentee voting violated the Delaware constitution. 

After coming into office in 2021, Biden regularly launched rhetorical bombs at Georgia and other states as being "Jim Crow 2.0" or "Jim Eagle," for requiring voter ID for mail-in voting. However, Georgia allows three weeks of early voting. 

Delaware Superior Court Judge Mark H. Conner ruled in a 25-page opinion, "The enactments of the General Assembly challenged today are inconsistent with our Constitution and therefore cannot stand."

Delaware’s constitution in Article 5 Section 1 states that a "general election shall be held biennially on the Tuesday next after the first Monday in the month of November." The Delaware early voting law, enacted in 2019, allows in-person voting up to 10 days before an election.  

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Delaware’s constitution in Article 5 Section 1 states that a "general election shall be held biennially on the Tuesday next after the first Monday in the month of November." (Paul L Richards)

"The conflict between these two passages is obvious," the judge wrote. "Our Constitution enumerates the one day an election shall be held biennially, and the Early Voting Statute allows for voting at least 10 days before that date."

The Delaware Board of Elections argued that the words, "election shall be held" refers to the last day votes can be cast. 

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The plaintiffs in the case were Delaware state Sen. Gerald Hocker, a Republican, and Delaware resident Michael Mennella, an inspector of elections for the Delaware Department of Elections. Mennella was represented by the Public Interest Legal Foundation, a Northern Virginia-based election watchdog group.

"This shows that states have to follow their own constitutions," J. Christian Adams, president of the Public Interest Legal Foundation, told Fox News Digital. 

Delaware is the home state of President Joe Biden. (Mandel Mgan)

He noted this comes days after a New York state appeals court ruled that New York City’s law to allow noncitizens to vote in municipal elections violated the state constitution. 

When asked about Biden’s remarks toward other states such as Georgia, Adams said there was some irony. 

"There is a little bit of irony, though he never served in the Delaware legislature that passed these laws," Adams said. "But if he wants to talk about state voting, he might want to devote his energy to Delaware."

Currently 46 states and the District of Columbia allow early in-person voting, according to the National Conference of State Legislatures. That tally includes Delaware, which could still appeal the decision.

Neither the Delaware Board of Elections nor the state attorney general’s office responded to inquiries from Fox News Digital for this story about whether there were plans to appeal. Adams said he was not aware of the state’s plans.

A New York state appeals court recently ruled that New York City’s law to allow noncitizens to vote in municipal elections violated the state constitution.  (Andrew Lichtenstein)

This marks Mennella and the legal foundation’s second victory over the state of Delaware in less than two years. In December 2022, the Delaware Supreme Court ruled in Mennella’s favor when he challenged the constitutionality of the state’s universal vote-by-mail and same-day voter registration laws. 

The lower court judge on Friday also determined a provision of the early voting law that allowed registered voters to get permanent absentee voting status was unconstitutional based on Article 5 Section 4A. This section was added to the state constitution in 1943 and specifies conditions when someone is "unable to appear" for in-person voting because a voter is away from home or is sick or disabled. This would also be determined on a per-election basis. 

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"By granting indefinite absentee voting to those who are unable to vote in a single election extends beyond the limited authority granted to the General Assembly by our Constitution," the judge ruled.