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Gunn v. McKenna

Superior Court of Delaware, Kent

December 23, 2014

LA MAR GUNN, THE KENT COUNTY REPUBLICAN COMMITTEE, and THE DELAWARE REPUBLICAN PARTY, Petitioners,
v.
BETTY LOU MCKENNA, THE KENT COUNTY BOARD OF CANVASS, and THE KENT COUNTY DEPARTMENT OF ELECTIONS, Respondents.

Submitted: December 5, 2014

Upon Consideration of Respondent's Motion to Dismiss GRANTED IN PART and DENIED IN PART

Upon Consideration of Petitioner's Petition to Contest the Election GRANTED

Richard A. Forsten, Esquire, Saul Ewing, LLP, Wilmington, Delaware for Petitioners.

John W. Paradee, Esquire, Prickett, Jones & Elliott, P.A., Dover, Delaware for Respondents.

ORDER

Young, J.

SUMMARY

Presently before the Court are two motions arising out of the November 2014 Election for the Kent County Recorder of Deeds, one filed by each of the two candidates for the post: La Mar Gunn, and Betty Lou McKenna. Originally, Mr. Gunn was declared the victor of the Election by 2 votes. Following the Election, the Kent County Board of Canvass ("the Board of Canvass") conducted three recounts of the absentee ballots. Each of the three counts yielded a different vote count. The Board of Canvass certified the third recount, officially holding Ms. McKenna to be the winner.

Mr. Gunn, the Delaware Republican Party, and the Kent County Republican Committee ("Petitioners") have filed a petition to contest the decision of the Board of Canvass, pursuant to 15 Del. Code § 5941(1). In response, Ms. McKenna moves to dismiss the petition, arguing a lack of standing to bring the claim.

The crux of the parties' dispute concerns the definition of "malconduct, " and whether the Board of Canvass' actions entitle Mr. Gunn to contest the Election result. The Court finds that La Mar Gunn has proper standing to bring the petition. In the interest of preserving the democratic process of elections, the Department of Elections will conduct an additional hand recount to determine the true victor. Thus, Mr. Gunn's Petition is GRANTED and Ms. McKenna's Motion to Dismiss is GRANTED in part, and DENIED in part.

FACTS AND PROCEDURES

__The November 4, 2014 election for Kent County Recorder of Deeds, was a contest between La Mar Gunn, the Republican Candidate, and Betty Lou McKenna, the Democratic Candidate. On that night, the Department of Elections declared Mr. Gunn the winner by two votes: 19247 to 19245. Mr. Gunn received 18558 machine votes and 689 absentee votes. Ms. McKenna received 18445 machine votes and 800 absentee votes. Pursuant to 15 Del. Code § 5702, the eligibility of a candidate to apply for a recount occurs when the distance between two candidates is less than 1000 votes or less than ½ of one-percent of all votes cast. In this case, the distance was 2 votes and not 0.5%, not 0.05% but 0.005%.

Additionally, the Department of Elections then determined that 60 absentee ballots did not register a vote for either candidate. Absentee ballots are read by special scanners. Evidently, these scanners were unable to identify for whom those 60 votes were cast.

Consequently, the Board of Canvass conducted a hand recount of the absentee ballots on November 6, 2014. In fact, three counts in total were made with the following results: 1) the first recount increased Mr. Gunn's lead from 2 to 3 votes; 2) the second recount increased Mr. Gunn's lead from 3 to 7 ...


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