The Delaware Supreme Court will hear arguments Wednesday in a top state Republican’s challenge to legislation that allows some voters to automatically receive an absentee ballot each election cycle — a lawsuit the state attorney general has called a last-minute bid to suppress the vote. 

Earlier this month, a state court upheld Delaware’s law allowing people with disabilities and military service members, among others, to apply for “permanent absentee ballot” status.

Senate Minority Leader Gerald Hocker — Delaware’s leading Republican — and independent state senate candidate Steven Washington sued Anthony Albence, Delaware’s election commissioner, alleging that the law violated the state constitution’s absentee ballot rules.

After the lower court’s Sept. 4 ruling, Hocker and Washington appealed to the state Supreme Court.

Wednesday’s oral arguments will center on whether Delaware has taken eligibility for permanent absentee status too far. Hocker and Washington argue that the law improperly extends it “indefinitely,” while Albence contends that it enables qualified voters to fully participate in elections.

The lower Court of Chancery agreed with the Delaware government, concluding that the statute did not expand or contradict the state constitution’s rules for absentee ballots.

Individuals granted permanent eligibility automatically receive an absentee ballot before each election, but they are only permitted to use it when unable to vote in person. The Delaware Department of Elections also cancels voters’ eligibility if they no longer qualify.

Still, Hocker and Washington say the law allows ineligible voters to stay on the absentee list, including 1,170 voters who no longer live at their registered address. The judge dismissed this figure as insufficient to overturn the law.

“Even imperfect procedures for policing permanent absentee voters’ continued eligibility do not render ‘every application’ of the Permanent-Absentee-Statute unconstitutional,” Vice Chancellor Bonnie David wrote in her Sept. 4 ruling.

In August, Delaware Attorney General Kathy Jennings decried the lawsuit as an “11th-hour voter suppression attempt.”

“Tens of thousands of veterans, senior citizens, and Delawareans with disabilities rely on permanent absentee voting,” Jennings said in a press release. “We’ve beaten this lawsuit before and we’ll do it again.”

Hocker is running for reelection to the state senate, and Washington is running for a currently vacant senate seat.

But in an odd twist, Hocker was also one of the original co-sponsors of Delaware’s permanent absentee law when it passed in 2010. He filed a similar challenge to the law in 2024, but it was dismissed because he was not running for reelection and therefore did not have standing in court.  

Delaware’s law mirrors those of nine other states that allow voters with disabilities to apply for permanent absentee status, including New York and Mississippi. Eleven states allow any voter to apply for such status.

Absentee ballots have become a central target in right-wing attempts to curtail voting access in the lead-up to the November elections.

The Delaware oral arguments will come just two days after the U.S. Supreme Court blocked the Trump administration’s attempt to limit mail voting nationwide, refusing to greenlight the implementation of a last-minute U.S. Postal Service rule. 

The rule would have required states to report the names and addresses of voters who had requested mail ballots and carry out a last-minute ballot-envelope redesign. If states did not comply, the postal agency said it would not deliver ballots to their voters.

What’s in the letters?

Bayhealth officials sent the first letter mid-August to the state’s health resource board, followed by TidalHealth days later and Beebe Healthcare earlier this month.

“We have significant questions regarding the additional proposed Georgetown and Camden hospitals, and we are not an outlier in our opposition,” a Bayhealth spokesperson said in a written statement to WHYY News. “Bayhealth will continue to address these issues through the appropriate regulatory process, with a focus on responsible, sustainable healthcare planning for Delaware.”

Bayhealth Executive Vice President and Chief Operating Officer Kyle Benoit wrote the initial letter. It was set to be reviewed by the state Health Resources Board at its August 25 meeting but was tabled. The board is not set to meet again until October.

The letter did not directly ask the board to deny the two applications, but it took issue with them using the term “microhospital” to describe the projects.

In the ChristianaCare statement to WHYY News, a spokesperson said that microhospitals are “an emerging model of care delivery designed to provide the right level of care, in the right place, at the right time.”

ChristianaCare has already worked with the model, opening a neighborhood hospital at its West Grove campus in Chester County, Pennsylvania last year.

Benoit wrote that Delaware law does not define a microhospital or recognize it as a model. He said that ChristianaCare would not be able to meet regulatory requirements since they don’t exist.

The TidalHealth letter, written by CEO Steven Leonard, also stated that the neighborhood or microhospital designation “does not meet the threshold definition of a ‘hospital.’”

The letter specifically opposes the Georgetown campus, which Leonard said will focus largely on emergency-based care and won’t be “primarily engaged in providing inpatient services,” as hospitals are defined in state code. Moreover, he wrote that if a microhospital category is not created under state code, then the application would be considered premature.

Unlike the Bayhealth letter, the TidalHealth letter does request the board to deny ChristianaCare’s Georgetown application. The letter states that TidalHealth supports expanding care in Sussex County and does not oppose the health center aspects of the applications.

TidalHealth officials did not respond to a request for comment by WHYY News.

The letter submitted by Beebe Healthcare also said that the Georgetown campus should be denied unless ChristianaCare complies with state law.

David Tam, the president and CEO of Beebe Healthcare, wrote in his letter that the Georgetown neighborhood hospital does not meet requirements to be considered a general hospital. Under state law, a general hospital must have X-ray, clinical laboratory, operating room and emergency department services. According to Tam, the application indicates that the campus won’t have a clinical laboratory or operating room.

Additionally, all three letters noted that the ownership and structure of the hospitals conflict with recently adopted state law.

Gov. Matt Meyer signed Senate Bill 313 into law earlier this summer, establishing a two-year moratorium that keeps the state’s nonprofit hospitals from being purchased by private equity firms.

ChristianaCare plans to partner with the for-profit entity Emerus Holdings, a developer of neighborhood hospitals, on both campuses. Benoit said that Emerus will have almost 50% ownership interest and governance rights for the two campuses.

“If the governing agreements provide a for-profit participant with rights that constitute prohibited ownership, control, or operational authority, the applications are not legally eligible for approval,” Benoit wrote in the Bayhealth letter.

Tam noted that under the new law, for-profit entities are not able to submit an application to the regulators, and the board cannot accept any application that violates that law.

“The issue is not whether a microhospital model may offer certain benefits, but whether the specific project proposed complies with Delaware law governing acute care hospitals and [Certificate of Public Review] applications,” Tam wrote.

Beebe Healthcare officials declined to comment further when contacted by WHYY News.