Election law troubles in Biden’s home state: Lawsuit alleges early voting rules violate Delaware Constitution

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Michael Mennella of Newark, Delaware, has served as an election inspector for the past five years, swearing himself and other election workers to uphold election laws. A violation of this oath could mean a fine or even a prison sentence.

Mennella filed a lawsuit against the Delaware Department of Elections supporting a law that goes into effect this year expanding early voting for in-person and mail-in ballots conflicts with the Delaware Constitution’s narrower approach and requires poll workers to follow the law or follow the constitution.

“The penalties are criminal, so there would probably have to be a guilty mind, but that puts [election] workers in a difficult position to make a legal decision that the courts are better able to adjudicate,” Mennella told Fox News Digital. “And now that the workers are aware of the dispute, they want the court to decide the matter even more.


Mennella noted that several other election workers are concerned, “but some of them fear retaliation or the loss of their jobs.” State early voting laws are inconsistent with the Delaware Constitution which specifies that an election can only be held on one day and sets out specific standards for allowing mail-in voting.

President Biden speaks at the Atlanta University Center Consortium, Jan. 11, 2022, in Atlanta.
(AP Photo/Patrick Semansky)

Delaware, state President Biden represented in the Senate for more than three decades, will have an early vote for the first time due to a law 2019 granting 10 days of in-person early voting. Delaware also now allows residents to be “permanently absentee voters.”

After Biden called a 2021 Georgia electoral reform law “Jim Crow in the 21st century,” some of the president’s critics noted that Georgia allowed 17 days of in-person early voting, while his home state allowed zero . Even the Washington Post’s fact-checking column gave Biden “four Pinocchiosfor his rhetoric about the Georgia law. He noted that Georgia had seven days more early voting than Delaware after its law went into effect in 2022.


Delaware, the first state to ratify the US Constitution, was among the last in the country to allow early voting, as 43 states allow some form with an average of 19 days before Election Day, according to the National Conference of Legislatures. States.

Young voters show "I voted" stickers after voting at a polling place in Plano, Texas on November 3, 2020.

Young voters display “I Voted” stickers after casting their ballots at a polling place in Plano, Texas on November 3, 2020.
(Dan Tian/Xinhua via Getty)

Delaware law allows registrants to apply to the Department of Elections for “permanent absentee status,” which means that instead of applying for an absentee ballot each election, a person can vote by mail in perpetuity, without take into account the applicant’s eligibility at each subsequent election. .

However, the lawsuit claims that relaxing some of Delaware’s strict election laws could be illegal under the Delaware Constitution.


“Mr. Mennella is aggrieved because he must choose between applying the laws of Delaware and applying the Constitution of Delaware,” the lawsuit filed in state court reads. “The Delaware statutes and the actions of the defendants also harm Mr. Mennella because they require him to train and direct those under his supervision to violate the Delaware Constitution and violate their respective oaths and duties. Mr. Mennella may face severe penalties and even jail time if he violates Delaware law or his duties as an inspector of elections.”

Mennella is represented by the Public Interest Legal Foundation, a nonprofit legal organization that has won victories to compel courts to sweep the names of deceased persons and noncitizens from voter registration rolls. The group, led by former Justice Department lawyer J. Christian Adams, also regularly advocates for voter ID laws.

The defendant, the Delaware Department of Elections, did not respond to inquiries about this story.

The complaint specifically refers to the Delaware Constitution of 1831, as amended in 1855, which states: “All elections for Governor, Senators, Representatives, Sheriffs and Coroners shall be held on the Tuesday following the first Monday in the month of November of the year in which they must be held, and be done by ballot.”

The Delaware Constitution of 1897 – the version currently in force – says specifically: “The general election shall be held every two years on the Tuesday following the first Monday in the month of November and shall be by ballot.”

With respect to mail-in ballot eligibility, the state constitution states that “every qualified voter of this state, duly registered, who shall be unable to present himself to vote in any general election at the ordinary polling place of the electoral district in which he is registered, either because he is in the public service of the United States or of that state, or because his spouse or dependents reside with or accompany him[,] because of the nature of his business or profession, because of his illness or physical disability, because of his absence from the district on vacation, or because of the tenets or teachings of his religion, may cast a ballot at that general election to be counted in that electoral district. »


The lawsuit only applies to the November general election since that is all the Constitution governs.

The Election Inspector is the supervisor of a particular polling station and is responsible for resolving any disputes that may arise, providing security at the election site, supervising the conduct of other election workers, and administering the oath to other election workers.

“I had taken a few courses on the Constitution in Delaware, and it seemed contradictory to me,” said Mennella, a 22-year-old Delaware resident who served as an inspector in eight elections including primary contests and general elections. .

“I think I first learned of the Permanent Absenteeism Act during the last election and was concerned about the inaccuracies.”