Albence v. Mennella

320 A.3d 212

The Honorable Anthony J. ALBENCE, in his official capacity as State Election Commissioner, and State of Delaware Department of Elections, Defendants Below, Appellants,

v.Michael MENNELLA and the Honorable Gerald W. Hocker, Plaintiffs Below, Appellees.

No. 120, 2024

Supreme Court of Delaware.

Submitted: June 5, 2024

Decided: June 28, 2024

West Codenotes

Negative Treatment Vacated

15 Del. Code §§ 5402, 5503(k)

Court Below: Superior Court of the State of Delaware, C.A. No. S23C-03-014

Upon appeal from the Superior Court. REVERSED.

Kathleen Jennings, Esquire, Attorney General of the State of Delaware, Alexander S. Mackler, Esquire, Patricia A. Davis, Esquire, Kenneth Wan, Esquire, DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware; Donald B. Verrilli, Jr., Esquire, (argued), Ginger D. Anders, Esquire, MUNGER, TOLLES & OLSON LLP, Washington, DC, for Appellants the Honorable Anthony J. Albence and the State of Delaware Department of Elections.

M. Jane Brady, Esquire, (argued), BRADY LEGAL GROUP LLC, Lewes, Delaware, for Appellees Michael Mennella and the Honorable Gerald W. Hocker.

Noel H. Johnson, Esquire, PUBLIC INTEREST LEGAL FOUNDATION, Alexandria, Virginia, for Appellee Michael Mennella.

Nicole M. Mozee, Esquire, Wilmington, Delaware; Andrea Joy Campbell, Esquire, Attorney General of the Commonwealth of Massachusetts, M. Patrick Moore, Jr., Esquire, David C. Kravitz, Esquire, Adam M. Cambier, Esquire, Vanessa A. Arslanian, Esquire, Erin E. Fowler, Esquire, Boston, Massachusetts, for Amici Curiae Massachusetts, Arizona, California, The District of Columbia, Hawaii, Illinois, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Vermont, and Washington, in support of Appellants.

David C. McBride, Esquire, YOUNG CONAWAY STARGATT & TAYLOR LLP, Wilmington, Delaware; Richard H. Morse, Esquire, COMMUNITY LEGAL AID SOCIETY, INC., Wilmington, Delaware, for Amici Curiae Community Legal Aid Society, Inc. and The ARC of Delaware, in support of Appellants.

Dwayne Bensing, Esquire, Andrew Bernstein, Esquire, ACLU FOUNDATION OF DELAWARE, Wilmington, Delaware, for Amici Curiae American Civil Liberties Union Foundation of Delaware and The League of Women Voters of Delaware in support of Appellants.

Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, LeGROW, and GRIFFITHS, Justices constituting the Court en banc.

TRAYNOR, Justice:

The plaintiffs—a citizen who hopes to serve as an inspector of elections during this year’s election and a Delaware State Senator who will not be on the ballot in that election—have challenged, and the Superior Court has struck down, a pair of statutes affecting this State’s voting procedures. One of the statutes, which allows absentee voters to request "permanent absentee" status, has been on the books for nearly 15 years; the other, which is of a more recent vintage, authorizes qualified, duly registered voters to vote in person during at least 10 days before an election.

According to the plaintiffs, the statutes clash with the provisions of the Delaware Constitution that govern elections and voting.

[1–4] In the Superior Court and again in this Court, the State Election Commissioner and the State of Delaware Department of Elections have challenged the plaintiffs’ standing to assert their constitutional claims. Standing—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"¹—is a threshold question in cases such as this. To achieve standing, a plaintiff must allege an injury in fact 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."² As the United States Supreme Court has observed, requiring imminent, particularized harm for standing ensures litigants have "a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of the concerned bystanders."³

Because we conclude that the plaintiffs have not met their burden of establishing imminent or particularized harm—crucial standing elements—our answer to the question is dispositive. For the reasons that follow, we have concluded that neither of the plaintiffs has standing and therefore reverse the judgment of the Superior Court.

I

Because we have concluded that the plaintiffs do not have standing, we do not reach the merits of their state constitutional claims. All the same, we begin with a brief overview of the statutes in question and the procedural history of the plaintiffs’ challenge.

A

Title 15, Chapter 55 of the Delaware Code addresses "Absentee Voting." The provision challenged by the plaintiffs here, 15 Del C. § 5503(k), the "Permanent-Absentee Statute," was added to Chapter 55 through a 2010 amendment, and was amended again in 2012.⁴

An elector who desires to vote by absentee ballot for one of the reasons set forth in § 5502(1)-(8) may request an absentee ballot by no later than noon the day before the election.⁵ Section 5503(k) further permits eligible absentee voters—specifically those qualified under § 5502 (1),(2),(4),(7), or (8)—to apply for "permanent absentee" status.⁶ Once a voter is granted perma- nent-absentee status, the Department "shall automatically send an absentee ballot … for each election in which the person is entitled to vote."⁷

The State Election Commissioner must promulgate instructions for voters to follow in applying for permanent-absentee status⁸ and "shall cancel" a person’s permanent-absentee status upon: the return of an absentee ballot or other correspondence as undeliverable; the person’s death or disqualification; the cancellation of voter registration; the receipt of a written request; or receipt of other written notification that the person’s stated reason for voting by absentee ballot is no longer valid.⁹ The Department must maintain a list of eligible permanent-absentee voters on its website,¹⁰ and those voters granted permanent-absentee status must keep the Department informed as to changes in their name, address, or reason for voting by absentee ballot.¹¹

According to the plaintiffs’ amended complaint, the Department sent a letter to all permanent-absentee voters in January 2022, explaining that such voters "are … responsible, for keeping the Department informed of any changes in your residential address, mailing address (if you have one) or political party affiliation."¹² The letter also instructed the voters to contact the Department if they "no longer qualify to be or wish to remain a Permanent Absentee voter."¹³

The plaintiffs also alleged that, as of February 11, 2022, there were approximately 23,000 registrants on the permanent-absentee voter list; fourteen months later, the list showed that there were over 20,250 registrants on the list.¹⁴ This represents 3.05% and 2.63%, respectively, of all Delaware registered voters.¹⁵

B

Delaware’s "Early-Voting Laws," (together with the Permanent-Absentee Stat- ute, the "Challenged Statutes"), 15 Del. C. §§ 5401-5408, were introduced and signed into law in 2019, becoming effective, by design, on January 1, 2022.¹⁶ The statutes require the Commissioner to designate locations for primary, general, and special elections,¹⁷ at which qualified, registered voters may vote in person during at least ten days before an election.¹⁸ Early voting locations must be published at least thirty days in advance of an election and meet the requirements of 15 Del C. § 4512, which deals with the designation and preparation of polling places.¹⁹ The Commissioner is to determine whether early voting will be by machine or paper ballot,²⁰ and the Department of Elections is to establish the procedures for daily updates of polling records to ensure the integrity of each election.²¹ Ballots cast by early voters must be tabulated at the same time as votes cast by absentee ballots.²²

C

In February 2022, Michael Mennella filed suit in the Court of Chancery, seeking injunctive and declaratory relief against the Department.²³ Mennella alleged that he would be harmed by the enforcement of the Challenged Statutes because he planned to serve, as he had done in previous election cycles, as an inspector of elections at the 2022 general election and other future elections. According to Mennella, his duties as an inspector of elections under the Delaware Constitution were irreconcilable with the Challenged Statutes.

Mennella asserted that the Early-Voting Laws violate Article V, § 1 of the Delaware Constitution, which sets forth the "[t]ime and manner of holding [the] general election," because the laws "expand the administration of the general election beyond its constitutionally designated day."²⁴ In Mennella’s view, in-person voting is constitutionally permissible on only one specific date: "the Tuesday next after the first Monday in the month of November."²⁵ Mennella argued that, by permitting voters to cast ballots early, the Early-Voting Laws "allow the election to occur on ten separate days."²⁶ As to the Permanent-Absentee Statute, Mennella averred that the statute violates Article V, § 4A of the Delaware Constitution, which establishes "General laws for absentee voting," because the statute "grant[s] eligibility to vote by absentee ballot indefinitely, and without consideration of the applicant’s eli- gibility at each subsequent election[.]"²⁷ Mennella asked the Court of Chancery to declare that the Challenged Statutes violate the constitutional provisions mentioned above and to enjoin the Department from enforcing them.

The Department moved to dismiss Mennella’s complaint in the Court of Chancery in May 2022 based, in part, on a lack of subject-matter jurisdiction. The State also took the position that both the Early-Voting Laws and the...