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Lawsuit claims new election laws are unconstitutional

July 27, 2022

On Friday, July 22, Jane Brady, chair of the Delaware Republican Party, filed a lawsuit challenging two laws signed earlier that day by Governor John Carney. The laws allow for mail-in voting and same-day voter registration. 

The lawsuit was filed on behalf of Michael Higgin, a candidate for state representative in the 15th district, and Michael Mennella, who serves as an inspector at polling locations on Election Day,

“It is our contention that the laws are unconstitutional,” Brady said.

Delaware‘s Constitution provides that a voter must appear in person at their polling location on election day unless they have one of several listed reasons why they are unable to do so. 

Those reasons include being sick or disabled, being out of the state for work or business or in service to the military for our state or country.

"The new vote by mail law does not require that you meet any such criteria to vote remotely and therefore is unconstitutional,” Brady said.

Similarly, there are specific provisions in the Constitution regarding registering to vote. 

Those provisions require that new voters be allowed to register to vote and voters allowed to change their address and other information but specifically provides that the period to do so must end at least 10 days before the election.  

“For that reason, it is our contention that that law is also unconstitutional,” Brady added.The legislators who voted for these laws and particularly for the vote by mail law know that it is unconstitutional. 

“They have attempted for four years to pass a constitutional amendment that would allow them the freedom to make whatever laws they wanted with regard to our elections.” 

A constitutional amendment requires a super-majority vote, that is more than a simple majority. 

When the Republican House caucus stood firmly and unified against that law, the Democrats were unable to pass the amendment. 

“Their actions and even their words show that they know that what they did was unconstitutional,” Brady said. “Now the taxpayers of Delaware will be paying lawyers for the state to defend, if they choose to do so, those unconstitutional laws.”  

Brady some time ago filed a lawsuit regarding early voting and permanent absentee status. The court has not yet acted on that lawsuit.

“Secure elections are necessary to a confident and trusting citizenry, an important part of any democracy,” Brady said.

“Every Delawarean who is legally entitled to vote should be able to do so and know that election results accurately reflect the decision made by the legitimate electorate. 

“When individuals fraudulently cast ballots, it projects doubt on the outcome of one of the most important activities of a self-governed population. 

“The right to vote is sacred. The responsibility of voting should be undertaken after careful consideration of each candidate’s position. It is critical to secure the integrity of an election and the strength of each person’s vote.”

 Brady wants the Department of Elections to work with state agencies, the Register of Wills and Recorder of Deeds from each county to be sure voter rolls remain valid. 


A Senate Concurrent Resolution, authored by state Senator Dave Wilson, called for a thorough review of the voter roles by a bi-partisan group. That resolution failed to gain any support from the Democrats and failed to pass.

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