Delaware Supreme Court Victory Upholding Permanent Absentee Voting Law  

On September 21, 2026, Munger, Tolles & Olson secured a unanimous victory in the Delaware Supreme Court upholding the state’s permanent absentee voting law. 

Working with the Delaware Department of Justice, MTO represented State Election Commissioner Anthony Albence and the Delaware Department of Elections in Hocker et al. v. Albence et al. The expedited lawsuit sought to invalidate Delaware’s permanent absentee voting statute and prevent certain permanent absentee ballots from being counted in the November 2026 general election. 

On September 4, the Delaware Court of Chancery granted summary judgment to the defendants, holding that the statute neither expands the circumstances in which a voter may cast an absentee ballot nor permits an otherwise ineligible voter to vote absentee. Following oral argument by MTO Partner Don Verrilli, the en banc Delaware Supreme Court unanimously affirmed. 

The Delaware Supreme Court held that the statute is consistent with the Delaware Constitution because it limits permanent absentee status to a subset of voters who are constitutionally eligible to vote absentee and requires voters to remain eligible in each election. The court also rejected the plaintiffs’ challenge to the Department of Elections’ procedures for monitoring continued eligibility, concluding that the Delaware Constitution leaves the selection of election safeguards to the General Assembly. 

The decision preserves a voting option used by thousands of Delawareans, including veterans, voters with disabilities and caregivers. More than 38,000 Delaware voters used absentee ballots in the November 2024 general election. 

The ruling follows MTO’s 2024 appellate victory in a related challenge to Delaware’s permanent absentee and early voting laws. In that case, the Delaware Supreme Court reversed a lower court decision invalidating both laws after holding that the plaintiffs lacked standing. The latest decision resolves the renewed challenge to the permanent absentee statute on the merits and confirms that the law does not violate the Delaware Constitution. 

The MTO team included Don Verrilli, Ginger Anders and Brandon Thomas. 

The victory was covered by Law360, Law.com, Bloomberg Law and other outlets.