Issue 599 - June 28, 2024

Court Ruling Puts Early Voting Back in Play for this Year's Elections

The Delaware Supreme Court has vacated a lower court decision that found early voting and permanent absentee voting violated the state constitution.

Today's finding reverses an earlier Superior Court decision (February 23, 2024), which found that Delaware’s early voting and permanent absentee statutes were unconstitutional. 

The early voting law allows in-person voting at designated polling places for ten days leading up to Election Day. That conflicts with the Delaware State Constitution (Article V, Section 1), which specifies a single Election Day. In its decision, the Superior Court cited case law that in instances of conflict between the state constitution and a simple statute, the former prevails.

The Superior Court took no issue with absentee voting, which allows voters to cast ballots by mail if they cannot be present at their polling place on Election Day.* However, it found that the legislature overstepped its authority in passing a law to grant some voters permanent absentee voter status, which requires the Department of Elections to automatically send an absentee ballot to these voters for each election.

Today’s decision by the High Court did not refute the lower court’s findings on the constitutional issues. Instead, the justices found that the plaintiffs did not have “standing” to file the lawsuit.

As stated in the decision: “Standing is a concept that is concerned only with the question of who is entitled to mount a legal challenge and not with the merits of the subject matter of the controversy…To achieve standing, a plaintiff must allege an injury...that is both concrete and actual or imminent. The injury must also be more than a generalized grievance—it must be particularized, that is, the plaintiff’s interest in the controversy must be distinguishable from the interest shared by other members of a class or the public in general.”

The justices found that the plaintiffs—Micheal Mennella, a prospective inspector of elections, and State Senator Gerald Hocker—did not meet the standard for standing and reversed the Superior Court decision.

House Minority Whip Lyndon Yearick (R-Camden, Wyoming) said the High Court sidestepped the core question of constitutionality. “As the justices explained, ‘standing’ simply determines who can bring a legal challenge, not the merits of the case. This is frustrating because the constitutionality issue was our sole concern. We support early voting. In fact, immediately after the Superior Court issued its decision in late February, I introduced House Bill 320 to swiftly restore it. Senate Minority Leader Gerald Hocker (R-Ocean View) is also a prime sponsor of HB 320. However, the Democrat-controlled House Administration Committee stalled the bill for nearly four months without a hearing.”

In a column written in late February, State House Minority Leader Mike Ramone (R-Pike Creek South), a co-sponsor of HB 320, said he had no issue with in-person early voting. “It is a concept many Delawareans have welcomed and embraced,” he wrote. “In 2022, about 28% of all Delaware voters cast their ballots before Election Day. Until the state Superior Court ruling, Delaware was one of 46 states that offered early voting. While it does require a more significant investment of resources, it provides a much greater opportunity for our citizens to participate in the electoral process, makes it easier to fit voting into a busy schedule, and…does not sacrifice integrity in the pursuit of convenience.”

According to the Delaware Department of Elections, today’s court decision means that permanent absentee voting and early voting will be in effect for this year’s primary elections (September 10) and general elections (November 5).

* The Constitution specifies a wide range of reasons a voter can be issued an absentee ballot, including vacation, sickness, injury, infirmity, military service, and conflicts with work or school schedules.

Two-Year Struggle Over State Retiree Health Benefits Came to a Head this Week

- The Action Included the First Veto Override in Nearly Five Decades -

Two bills that became law this week were touted as victories by state retirees in a battle over health benefits that started more than two years ago.

In February 2022, state officials made a cost-cutting decision to replace retirees' Medicare Supplement plan with a Medicare Advantage plan, which was widely perceived as a significant reduction. The move surprised and angered retired state workers and led to the formation of "RISE Delaware" to fight the proposal. Ultimately, the group's efforts and alliances with past and current state lawmakers led to a package of legislation.

One of those measures, House Bill 281 (as amended), became law on Wednesday. This statute eliminates the Medicare Advantage Plan (a.k.a. Medicare Part C) as an option for providing healthcare insurance to state pensioners. 

"The passage of House Bill 281 guarantees employees and retirees that they will get the benefits they were promised," said RISE Delaware President Lisa Diller in a prepared statement.

While HB 281 passed the General Assembly unanimously, Gov. John Carney refused to sign it, allowing it to be enacted without his signature—a modest protest against the measure that he believes is financially imprudent.

The governor took a more provocative step by vetoing the second measure, House Bill 282 (as amended), on Tuesday. The legislation changes the organization and membership of the State Employee Benefits Committee (SEBC), which is responsible for managing the benefits plans available to active employees and non-Medicare retirees. The legislation also requires the group to notify workers and retirees of proposed benefit changes.

"For years, the State of Delaware has been facing increases in healthcare costs that far outpace the growth in state revenues," Gov. Carney said in his veto message. "Today, the cost of providing healthcare benefits to state active employees and retirees exceeds $1 billion and is growing faster than any other expense in the state budget…Working together, this General Assembly and my administration are taking serious steps to address this problem…Unfortunately, HB 282 runs counter to those efforts."

The governor continued, saying the bill replaces SEBC members with relevant expertise with new, less knowledgeable members who "would have no obligation to protect and secure the state's overall fiscal health"—an apparent reference to state retirees being added to the group.

Overriding a veto requires a three-fifths vote by each legislative chamber. Yesterday, the state Senate completed the process by following the example set the previous day by the House of Representatives, approving the override unanimously. It is reportedly the first time the Delaware legislature has successfully enacted a law by overriding a veto in 47 years.

"I voted to override the veto because this bill was all about transparency and accountability," said State Rep. Bryan Shupe (R-Milford South). "I wanted to ensure our state retirees have a seat at the table when any proposed changes to their benefits are being discussed."

Rep. Shupe said he was not surprised that lawmakers engaged in a rare instance of bipartisan cooperation in a conflict between the legislative and executive branches. "I think that everyone understands, on both sides of the aisle, that if you work for an employer and you are promised a certain benefit, you should receive that in the future as pledged."

While Rep. Shupe said he and other legislators are concerned about rising healthcare costs, he criticized the governor's veto message as somewhat hypocritical, noting that the governor has repeatedly exceeded his own state budget growth benchmarks in recent years and that increased spending has far outpaced revenue growth. State revenues for the three years—FY 2022 through FY 2024—have increased by 9.2%, while General Fund spending has jumped 17.5%. Over the last two years, FY 2024 & 2025, the operating budget has grown by over 20% (more than $1 billion).

By a vote of 39 to 2, the House has sent legislation to the governor that would legalize the sale of unpasteurized milk directly from dairy producers to consumers.

All milk sold in The First State must currently undergo pasteurization, a heating process that eliminates most pathogens. While effective at reducing the risk of illness and lengthening shelf life, critics say those gains come at a severe cost.

Raw milk consumers cite its richer taste and and its reported health benefits. Advocates say raw milk contains probiotics, essential nutrients, helpful bacteria, and enzymes that support the immune system—aspects destroyed or warped by pasteurization.

"I grew up on a dairy farm drinking raw milk," said State Rep. Lyndon Yearick (Camden, Wyoming), adding that he welcomed a chance to support the bill and was confident the product would be safe, healthy, and nutritious. 

The Delaware Department of Agriculture, in consultation with the Department of Health and Social Services, will adopt regulations to administer the sales. Only direct transactions between milk producers and consumers will be allowed. Raw milk producers would require a state permit and comply with sanitation, safe handling, labeling, testing, and inspection requirements. 

Supporters of the Consumer Choice Milk Act, authored by Sen. Eric Buckson (R-South Dover), say it could help revitalize the flagging dairy industry and spark the creation of new businesses. There are only 13 active Delaware dairy farms, 64 fewer than a decade ago. According to the Raw Milk Institute, producers of unpasteurized milk can earn a profit nearly ten times that of traditional milk sales.

Nineteen states, including neighboring Pennsylvania, have legalized retail sales of unpasteurized milk. At least 14 other states allow direct farm-to-consumer sales, similar to Delaware's proposal.

If Gov. John Carney signs the measure into law, it would also allow the sale of products made from unpasteurized milk. However, state officials have indicated that the initial regulatory framework will focus solely on milk sales.