The chair of the Republican Party of Delaware has filed a lawsuit in the Delaware Court of Chancery challenging the constitutionality of early voting and permanent absentee voting laws in Delaware.
Jane Brady, who is a lawyer and former attorney general of Delaware, filed the suit on behalf of Michael Mennella.
Mennella is a Newark resident and off-and-on temporary employee with the Delaware Department of Elections who has served as a polling place inspector during eight elections.
Brady emphasized at a press conference Thursday morning at the Christiana Hilton that she filed the suit in her private capacity as a lawyer, not as the GOP chair.
While Mennella is not presently employed by the department, the complaint asserts that Mennella’s job requires him to ensure that the people who vote in elections are entitled to do so under the law.
“The conflict in the laws requires him to choose between following the law and violating his oath,” Brady said during a press conference Thursday.
Among other things, that oath says, “I will not knowingly or willfully receive or consent to the receiving of the vote of any alien,” and “I will not receive or consent to the receiving of the vote of any person whom I shall believe not entitled to vote, unless my associates shall adjudge such person to be entitled to vote.”
The suit specifically challenges a new law that allows voters to cast their ballots at least 10 days before an election, including the Saturday and Sunday immediately before the election at certain locations as determined by the state election commissioner.
That law was passed by the General Assembly and signed by Gov. John Carney in 2019 as House Bill 38.
Brady argued that the Delaware Constitution says voters must vote in person on election day unless the voter qualifies under “very limited conditions” to vote absentee.
Those who have traditionally taken advantage of absentee voting include out-of-state college students, Delawareans who are serving in the military and their families, U.S. citizens who live abroad and disabled voters.
“Early voting clearly violates that requirement,” Brady said. “In addition, all the provisions related to absentee voting are transitional and temporary.”
Attempts to reach Delaware Commissioner of Elections Anthony Albence were unsuccessful.
This suit is being filed in conjunction with the Public Interest Legal Foundation, a conservative legal group that is known for suing states and local governments to purge non-active voters from election rolls.
Noel Johnson, an attorney with that group, said that treating permanent absentee status as an indefinite status that does not require certification or renewed application each election violates the Delaware Constitution.
“Following a review of Delaware’s Constitution and the statutes, we came to the conclusion that the statutes clearly violate the purpose, intent and language of the Delaware Constitution,” Johnson said. “Our mission as an organization is to ensure that election contests are conducted lawfully and that citizens of every jurisdiction have secure and fair elections.”
Brady noted that the provisions of the Constitution do not affect special elections, such as primaries or the one being held in the 4th Representative District on March 5.
“The language of the Constitution itself, and court decisions make clear that the provision we feel are being violated only apply to the General Election,” Brady said.
She emphasized that while she is chair of the Republican Party of Delaware, she is representing Mennella in a private capacity.
The press conference was arranged by the Republican Party of Delaware, however, and a representative of the Republican Party attended the press event to express the party’s support for the lawsuit.
“The election laws in our Constitution have protected the integrity of Delaware elections for decades,” said Hank McCann, national committeeman for the party. “We must ensure that our statutes conform to those protections.”
McCann argued that if the legislature wants to change Delaware’s election laws, they must begin by passing an amendment to the state constitution.
“The current, proposed amendment is flawed, as it gives the majority party the power to simply take away those constitutional provisions that have protected the integrity of our elections,” he said, referring to House Bill 75. That bill would amend the state constitution to allow Delaware voters to request mail-in ballots during all future elections without providing an explanation.
Constitutional amendments are also required to be passed separately during two consecutive legislative sessions.
Twelve Republicans voted in favor of the bill in 2019 during the 150th General Assembly. But in 2021, not one Republican voted in favor of the proposal, denying it the required two-thirds majority required to pass.
If House Bill 75 does not pass in 2022, it will have to be reintroduced during the next General Assembly and subsequently pass during two legislative sessions. That would delay the implementation date for no-excuse absentee voting by at least three years.
Julianne Murray, a Republican candidate for Delaware Attorney General, said in a written statement that some people have asked her why she, as an attorney and advocate for the rule of law, did not file a lawsuit challenging the state’s new election laws.
“I was a candidate so it would be inappropriate for me to file,” Murray said. “I have been encouraging the Republican chair since January 2021 to look into election irregularities because so many were reported to me. I think that nothing is more important than fair and free elections.
Asked if Mennella came to Brady seeking legal representation or if Brady went looking for a plaintiff and found one in Mennella, Brady said people were discussing the need to find a plaintiff in the Republican Party office and Mennella mentioned that he had worked for the Department of Elections.
“I said, ‘Were you compensated’ and he said, ‘Yes,’” Brady said. “I said, ‘You may work’ and so he offered if he was someone that would qualify as a plaintiff, to do that.
“We had to find someone that had a duty to enforce the law and was put in a position where they had to violate their oath to enforce the law or let early voting happen,” Brady said. “So really, what Mr. Mennella is seeking is an order of the court clarifying what his duties are so that he’s in compliance.”
Mennella said that he does plan to work for the Department of Elections during the upcoming general election.
He said he’s not worried that his lawsuit could jeopardize his chances of being rehired.
Brady cut in to say that “it would speak very poorly of the Department of Elections if they had entrusted the enforcement of the laws and the management of an entire polling place to someone six or eight different times and then did not because they found litigation trying to get clarification from the court on the law.”
Brady also said that the lawsuit has nothing to do with a recent announcement from the Patriots for Delaware, that said they would be filing a formal complaint against the Department of Elections. That group describes itself as a “non-partisan coalition of … voters that believe in constitutional values and family,”
The complaint, the group says, will be over the department’s “negligence in failing to purge Delaware’s voter registration database of deceased voters.”
The group claims to have found a total of 1,179 dead voters recorded as having voted in the Nov. 3, 2020 general election. It has refused to release a list to be checked by others, citing privacy concerns, but has said many seem to stem from nursing homes.
“It’s entirely unrelated,” Brady said. This has been in the works for months.”