STATE ex rel. MITCHELL et al.
WOLCOTT et al.
Original proceeding by the State of Delaware on the relation of LeRoy M. Mitchell and others against Daniel F. Wolcott and James B. Carey, associate judges of the Superior Court of the State of Delaware at large and for Sussex County, respectively, constituting the Board of Canvass in and for Sussex County, Delaware, for a writ of mandamus commanding respondents to reconvene and ascertain the state of an election held in Sussex County and in so doing to reject all votes cast in specified election district. The successful candidates at election were permitted to intervene and they filed a motion for summary judgment. The Supreme Court, Southerland, C. J., held that the Board of Canvass had no power to inquire into alleged misconduct of election officers in keeping election open almost two hours after the time fixed by statute for election to be closed and that board was under no legal duty to act upon a petition alleging such misconduct.
Motion for summary judgment granted and petition dismissed.
[46 Del. 370] Daniel J. Layton, Jr., of Georgetown, for relators.
Robert W. Tunnell, of Tunnell & Tunnell, of Georgetown, for interveners.
Before SOUTHERLAND, C. J., SEITZ, Chancellor, and RICHARDS, P. J.
SOUTHERLAND, Chief Justice.
This is an original petition for a writ of mandamus to the Superior Court of Sussex County, constituting the Board of Canvass. [46 Del. 371] Relators seek an order commanding it to reconvene and ascertain the state of the election held in Sussex County on November 7, 1950; and, in so doing, to reject all the votes cast in one of the election districts in the County for certain candidates for office.
Several questions are raised, but the only one we need consider is this:
May the Superior Court, sitting as a Board of Canvass to ascertain the state of the election, take cognizance of a charge that the election officers unlawfully held open the polls for a period of time beyond the legal closing hour of the election, and received and counted ballots tendered during that period?
The essential facts are these:
On November 7, 1950, the day of the general election, the polling place of the Second Election District of the Third Representative District of Sussex County, was opened, in accordance with law, between seven and seven-thirty o'clock in the morning and remained open during the day for the reception of ballots. Upon the approach of the time fixed by law for closing the election (six o'clock), a substantial number of electors were standing in line outside the polling place, awaiting an opportunity to enter and cast their ballots. It was apparent that if the election should be closed at six o'clock many electors would be unable to vote. An understanding was reached between the Democratic County Chairman and the Republican District Committeeman that all persons standing in line at six o'clock should be permitted to vote, and this understanding was made known to the waiting electors and others. One of those present protested this decision, both to the committeemen and to one of the Judges of Election. The objection was unavailing. The electors in line at six o'clock (or very shortly thereafter), numbering 284, were permitted to vote. Sometime after six o'clock those still in line, numbering about 250, were admitted to the polling place. The [46 Del. 372] last voter cast his ballot at 7:45 p. m., and the election was closed.
On November 9, 1950, the day fixed for the convening of the Superior Court as the Board of Canvass (hereinafter called ‘ the Board of Canvass'), certain of the relators, who were the Republican candidates for certain county offices balloted for at the election, and who, on the face of the returns, had been defeated, presented to the Court a petition under oath alleging the more important of the facts above set forth. The petitioners asserted that the ballots of the 284 electors voting after six o'clock were illegal, and, having been intermingled with valid ballots, were no longer identifiable, and charged that the acts of the committeemen and the election officers amounted to fraud and changed the outcome of the election. The petition prayed that the Board make an order rejecting the entire vote of the election district.
The Board of Canvass declined to act upon the petition; whereupon, on December 6, 1950 the relators (together with one other unsuccessful candidate) filed the petition now before us. Subsequently the successful Democratic candidates were permitted to intervene and assume the defense of the action. The interveners filed answers and also a motion for summary judgment with supporting affidavits. Relators filed answering affidavits and also a motion to dismiss the motion for summary ...