The 153rd General Assembly passed eight proposed constitutional amendments, which will now await consideration by the next incarnation of the state legislature.
Delaware is unique in the way it alters its state constitution. It is the only state in the nation that amends its constitution without requiring approval by voters. Instead, proposed amendments become effective after receiving a minimum two-thirds approval in two consecutive General Assemblies. Unlike other lawmaking, constitutional amendments are not signed by the governor.
Citizens participate indirectly in the amendment process by having an opportunity to select the members of the next General Assembly that will vote on the second leg of the proposals.
In the House, constitutional amendments must receive at least 28 “yes” votes for passage and garner no fewer than 14 votes in the 21-member Senate.
The following pending amendments will soon be printed in multiple Delaware newspapers to inform citizens of some of the amendments at stake when they head to the polls in November.
- SS 1 for SB 2 – Early Voting: This proposed amendment would change the Delaware State Constitution to specifically allow for early, in-person voting, 10 days before a general, primary, or special election. The General Assembly passed legislation in 2019 allowing it, but it was later found to be unconstitutional. That decision was vacated by the Supreme Court in 2024 on the grounds the plaintiffs “did not have standing,” not because the legal argument did not have merit. So while Delaware still has early in-person voting without the amendment, it stands on shaky legal ground.
- SS 1 for SB 3 with HA 1 – No Excuse Absentee Voting: At present, people wishing to cast an absentee ballot must meet one of the qualifying criteria specified under the law (e.g., vacation, illness, impairment, military service, work conflict, etc.).This amendment would legalize “no excuse” absentee voting. Voters would still be required to submit an absentee ballot application. It would also enshrine the current permanent absentee voting status and the reasons for granting it.
- SS 2 for SB 100 – Same-Sex Marriages: This proposal seeks to add marriage as a fundamental right in the state constitution, “that may not be denied or abridged on the basis of gender or any other legally protected criteria” (e.g., race, color, national origin). The bill cleared the legislature on a contested vote. Opponents did not challenge the established concept of same-sex unions, but rather contended that there was no compelling need for an amendment at this time. Marriage equality is already well-protected under Delaware law, with the state having legalized the practice 13 years ago. More importantly, a U.S. Supreme Court decision in 2015 held that the right to same-sex marriage is protected under two clauses of the 14th amendment to the U.S. Constitution. There is no case pending consideration by the High Court that poses any threat to this right.
- SB 264 – Filling a Vacancy in the Office of Lt. Governor: This bill is a proposal to hold a special election when there is a vacancy in the office of Lieutenant Governor, unless the vacancy occurs on or after July 1 in a year when the office is on the ballot. This amendment is modeled after the process of filling a vacancy in the General Assembly.
- HS 1 for HB 35 – Abolishing the Death Penalty: Delaware has not had a functional death penalty for the last decade. On August 2, 2016, the Delaware Supreme Court declared the state’s capital sentencing procedures unconstitutional. Two years ago, lawmakers removed the flawed capital punishment statute from the Code. While most House Republicans supported striking the broken law from the books, they take issue with amending the state constitution to tie the hands of future legislators and prevent them from revisiting the issue in the future. In an earlier debate on the issue, State Rep. Jeff Spiegelman (R-Townsend, Clayton) said the cautious and sparing use of capital punishment should remain as an extreme alternative to deal with those convicted of the most horrendous crimes. While he conceded that the way Delaware has applied the death penalty in the past has been legally problematic, to remove this option from Delaware law through a constitutional amendment would “potentially place our children and grandchildren in a courtroom with a monster and an inability to administer anything approaching a just sentence.” HS 1 for HB 35 cleared the House with the minimum number of votes needed.
- HB 180 – Restoration of the Voting Rights of Ex-Felons: This proposed amendment seeks to restore the voting rights of convicted felons after they have served their sentence or were pardoned. Voting rights would be restored even if the former felon has not paid court-ordered restitution. The amendment would also eliminate the suspension of voting rights as part of the punishment for crimes related to interfering with or tampering with an election. The legislation also deletes outdated provisions of the voting laws dealing with voter qualifications that were long ago superseded by federal law. The bill was contested, with 10 House Republicans opposing it.
- HS 1 for HB 320 w/ HA 1 – Technical Changes: This measure seeks to make necessary technical corrections identified by legislative staff while adding earlier amendments to the Delaware Constitution.
- HB 430 – Barring Corporate Business Owners from Voting in Municipal Elections: About a dozen municipalities in Delaware allow non-resident property owners, including corporations and trusts, to cast votes in their elections. In many cases, these practices have been in place for decades, and all were previously approved by the General Assembly. Late last year, the ACLU filed a lawsuit against the Town of Fenwick Island, which is one of the municipalities allowing such voting. The advocacy group argued that this infringed on the principle of “one person, one vote” and violated the state constitutional mandate of “free and equal” elections. The town’s attorneys countered that every qualified voter—human or entity—is limited to a single vote. They also noted that since property owners pay taxes and are subject to the town’s ordinances, they had a right to be involved in the electoral process. The Delaware Superior Court dismissed the lawsuit, ruling in favor of Fenwick Island. Just days before the decision was handed down, House Bill 430 was filed. House Republicans overwhelmingly opposed the measure, contending that it tramples local control, imposes a solution to a problem that has not been demonstrated to exist, and would leave many local businesses and homeowners subject to taxation without representation. The amendment cleared the House with the minimum 28 votes.
