Biden's home state election law trouble: Lawsuit alleges early voting rules violate Delaware Constitution

Michael Mennella of Newark, Delaware, has been an inspector of elections for the last five years, taking an oath himself and administering the oath to other election workers to obey voting laws. A violation of that oath could mean a fine or even prison time. 

Mennella has filed a lawsuit against the Delaware Department of Elections contending a law that takes effect this year expanding early voting for both in-person and absentee ballots conflicts with the Delaware Constitution’s narrower approach and forces election staff to either follow the statute or follow the constitution. 

"The penalties are criminal, so there probably would need to be a guilty intent, but it puts [election] workers in a difficult position of making a legal ruling that the courts are better able to decide," Mennella told Fox News Digital. "And now that the workers know about the conflict, they even more want the court to decide the issue." 

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Mennella noted several other election workers are concerned, "but some of them are worried about retaliation or loss of their jobs." The state laws on early voting are not compatible with the Delaware Constitution that specifies an election can only be held one day and lays out specific standards to allow absentee voting.

Delaware, the state President Biden represented in the Senate for more than three decades, will have early voting for the first time because of a 2019 law granting 10 days of early in-person voting. Delaware is also now allowing residents to be "permanent absentee voters."

After Biden called a 2021 Georgia election reform law "Jim Crow in the 21st century," some of the president’s critics noted that Georgia allowed 17 days of early in-person voting, while his home state allowed zero. Even The Washington Post’s fact-check column gave Biden "four Pinocchios" for his rhetoric about the Georgia law. It noted Georgia had seven more early voting days than Delaware would after its law takes effect in 2022. 

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Delaware, the first state to ratify the U.S. 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 State Legislatures.

The Delaware statute permits registrants to apply to the Department of Elections for "permanent absentee status," meaning instead of applying for an absentee ballot each election, an individual could vote by absentee ballot in perpetuity, without consideration of the applicant’s eligibility in each subsequent election.

However, the lawsuit asserts relaxing some of Delaware’s strict voting laws could be illegal with regard to the Delaware Constitution. 

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"Mr. Mennella is harmed because he must choose between enforcing Delaware statutes and enforcing the Delaware Constitution," the complaint filed in state court states. "Delaware statutes and defendants’ actions also harm Mr. Mennella because they require him to train and direct those under his supervision to violate Delaware’s Constitution and violate their respective oaths and duties. Mr. Mennella may face severe penalties and even prison time if he violates Delaware law or his duties as an inspector of elections."

Mennella is represented by the Public Interest Legal Foundation, a legal nonprofit that has racked up victories to require jurisdictions to sweep the names of dead people and noncitizens from voter registration lists. The group, run 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 for this story.

The complaint specifically references the Delaware Constitution of 1831, as amended in 1855, that says, "All elections for Governor, Senators, Representatives, Sheriffs and Coroners shall be held on the Tuesday next after the first Monday in the month of November of the year in which they are to be held, and be by ballot."

The Delaware Constitution of 1897 – the version presently in effect – says specifically, "The general election shall be held biennially on the Tuesday next after the first Monday in the month of November, and shall be by ballot." 

With respect to eligibility for absentee voting, the state’s constitution says "any qualified elector of this State, duly registered, who shall be unable to appear to cast his or her ballot at any general election at the regular polling place of the election district in which he or she is registered, either because of being in the public service of the United States or of this State, or his or her spouse or dependents when residing with or accompanying him or her[,] because of the nature of his or her business or occupation, because of his or her sickness or physical disability, because of his or her absence from the district while on vacation, or because of the tenets or teachings of his or her religion, may cast a ballot at such general election to be counted in such election district."

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

The inspector of elections is the supervisor of a particular polling site and is charged with resolving disputes that might occur, ensuring the safety of the election site, overseeing the conduct of the other election workers there and administering the oath to other election workers. 

"I had taken a few classes on the Constitution in Delaware, and it seemed to me to conflict," said Mennella, a resident of Delaware for 22 years who was an inspector in eight elections counting primary contests and general elections. 

"I think I first became aware of the permanent absentee law the last election and was concerned with the inaccuracies."