Lawsuit: Delaware’s Early & Absentee Voting Statutes Violate the State Constitution  

Published On: February 24th, 2022

(Dover, DE) – February 24, 2022: Today, the Public Interest Legal Foundation (PILF) filed a lawsuit in Delaware against the Department of Elections for enforcing election statutes that violate the state’s constitution. The Foundation’s client is Michael Mennella, an inspector of elections for the Delaware Department of Elections.

In 2019, the Delaware General Assembly passed a law that permitted early voting in person at least 10 days before the general election day. This violates the state’s constitution which requires the general election to be held on one specific day.

Additionally, the new Delaware statute permits registrants to apply to the Department of Elections for “permanent absentee status.” But the constitution only allows for absentee voting with strict restrictions on eligibility. The statute violates the constitution because it grants an individual eligibility to vote by absentee ballot in perpetuity, without consideration of the applicant’s eligibility in each subsequent election.

The Foundation’s client Michael Mennella, an election official, is forced to choose between enforcing the Constitution of Delaware or these statutes. He wants clarity on which law he must follow – the statutes or the constitution.

“The early and absentee voting statutes clearly conflict with the state constitution,” said PILF President J. Christian Adams. “Inspectors of elections are forced to choose between obeying the statutes or following the state constitution. States cannot pass election laws that conflict with their constitutions. We are confident that the Court will uphold the rule of law and the state’s constitution.”

The Foundation has won a similar lawsuit in Virginia. In 2020, the Foundation represented Thomas Reed, a local electoral board member, to stop Department of Elections guidance that required accepting absentee ballots without postmarks. This guidance was found to be in violation of Virginia law.

Additionally, litigation in Pennsylvania to ensure election law adheres to the state constitution has also been successful. In January, a court ruled that the Commonwealth’s mail-in voting law was unconstitutional because the legislature did not have the power to alter voting laws without amending the constitution.

Jane Brady of Brady Legal Group LLC is serving as local counsel.

Public Interest Legal Foundation (PILF) is the nation’s only public interest law firm dedicated wholly to election integrity. The Foundation exists to assist states and others to aid the cause of election integrity and fight against lawlessness in American elections. Drawing on numerous experts in the field, PILF seeks to protect the right to vote and preserve the Constitutional framework of American elections. PILF has brought lawsuits and won victories in Texas, Mississippi, North Carolina, Virginia, Maryland, Pennsylvania, Michigan, and across the United States.


Public Interest Legal Foundation