By Rachel Sawicki

NEWARK — A lawsuit was filed against the Delaware Department of Elections on Thursday on behalf of Michael Mennella, an inspector for the department who claims he is at risk of violating his oath should he follow state laws on early and absentee voting.

A bill passed in the last General Assembly, which went into effect at the beginning of this year, established in-person early voting at least 10 days before an election, up to and including the Saturday and Sunday immediately before Election Day, at locations determined by the election commissioner.

The Delaware Constitution, however, requires the general election to take place on one specific day. Furthermore, the constitution allows absentee voting only with strict restrictions.

Mr. Mennella, of Newark, claims that permanent absentee voting laws could potentially allow unqualified voters to cast ballots, including those who are deceased. The lawsuit claims that “on information and belief, as of Feb. 11, 2022, Delaware’s permanent absentee voter list includes registrants who are potentially deceased, according to the Social Security Death Index and published obituaries.”

“Right now, that list, based on our assessment, is about 12 to 15% inaccurate,” said M. Jane Brady, chair of the Delaware Republican Party and counsel for Mr. Mennella. “So you can die and still be on the list, and you’re going to get a ballot.”

Ms. Brady emphasized that the suit is not a partisan issue but simply about the law.

“We’re not challenging absentee voting, only the permanent status of absentee voting,” she said. “The constitution clearly provides that a voter is to vote on Election Day at their assigned voting location unless they qualified to vote absentee for certain very specific reasons. Early voting, on its face, violates that language, and the specific reasons enumerated in the constitution to permit absentee voting are all temporary or transitional circumstances.”

Senate Bill 225 from the 145th General Assembly session, signed in 2010, established a permanent absentee status for disabled voters and individuals eligible to vote under the Uniformed and Overseas Citizen Absentee Voters Act, which include members of the U.S. military, Merchant Marines, their family members and U.S. citizens residing outside the country.

Mr. Mennella has served as an inspector of elections for the Department of Elections in at least eight votes during the last five to six years and plans to do so in November and in the future.

In his role, he is responsible for overseeing his assigned polling place and administering the election in accordance with the Delaware Constitution, statutes and other laws. When a Delaware statute conflicts with the state constitution, the constitution wins out.

The lawsuit says that Delaware statutes on early and absentee voting “harm Mr. Mennella because they require him to violate the oath he must take as an inspector of elections.”

Noel Johnson, an attorney for the Public Interest Legal Foundation, said that this lawsuit is not challenging whether absentee and early voting are right or wrong but is addressing the inconsistencies between the laws and the constitution.

“We are a public interest law firm involved in this litigation … so that Mr. Mennella can have the clarity he needs to perform his job lawfully,” Mr. Johnson said. “It is very important here that Mr. Mennella has that clarity. He must take an oath to perform his job in accordance with the laws of Delaware, and he faces severe penalties if he does not. The law imposes fines and even prison time.”

The Delaware Republican Party released a statement Thursday afternoon, applauding the lawsuit.

“The election laws in our Constitution have protected the integrity of Delaware elections for decades,” said Henry McCann, national committeeman for the Delaware State Republican Party. “We must ensure that our statutes conform to those protections. If the legislature wants to change our election laws, they must properly enact an Amendment to the 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.”

Ms. Brady said this filing is not related to a formal complaint that Patriots for Delaware plans to file Monday. In a release earlier this week, that group said it will bring a lawsuit against the Department of Elections for its negligence in failing to purge Delaware’s voter registration database of deceased voters.

Patriots for Delaware claims that a total of 1,179 dead voters are recorded as having voted Nov. 3, 2020.

The Department of Elections had not yet responded to request for comment as of Thursday afternoon.