           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                       IN AND FOR KENT COUNTY

LA MAR GUNN, THE KENT COUNTY                :
REPUBLICAN COMMITTEE, and                   :      C.A. No: K14M-11-010 RBY
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
                            Decided: December 23, 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

                                     ORDER

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

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


Young, J.
Gunn, et. al. v. McKenna, et. al.
C.A. No.: K14M-11-010 RBY
December 23, 2014

                                    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,

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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 votes; and 3) the third
recount showed Ms. McKenna winning by a two vote margin.
       Following these divergent recount results, the Board of Canvass considered a
suggestion by Mr. Gunn that the absentee ballots be re-scanned by the Department,
and that only those ballots showing no vote, be recounted by hand. According to Mr.
Gunn, the Board of Canvass initially agreed to this approach, but then changed its
mind. In any event, the Board of Canvass determined to certify the third recount,
declaring Ms. McKenna the winner of the election for Recorder of Deeds. Mr. Gunn
alleges that this decision was made arbitrarily. Ms. McKenna counters that the third

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December 23, 2014

recount was certified, as it was the only one which matched up with the total number
of votes cast in the Election. Mr. Gunn contests the result of the third recount, which
found Ms. McKenna the victor.
                                       DISCUSSION
       The November 2014 election for Kent County Recorder of Deeds has produced
two motions: 1) Petitioners’ Petition Contesting the Election; and 2) Respondent’s
Motion to Dismiss. These motions require the resolution of two questions: 1) whether
Mr. Gunn has a statutory right to contest the election; and 2) whether this Court
should order a recount to determine the victor. The Court first addresses the threshold
issue of the Mr. Gunn’s right to contest said election.
       Both parties are in agreement that the controlling statute concerning who may
bring a contest is 15 Del. Code § 5941. Additionally, all agree that La Mar Gunn
meets the first criterion, as a “person claiming to be elected to an office to be
exercised in and for any county...”1 Ms. McKenna disputes, however, the standing of
the Kent County Republican Committee (“KCRC”) and the Delaware Republican
Party (“DRP”) to bring this petition. Presumably pursuant to a plain reading of 15
Del. Code § 5941, Ms. McKenna argues that neither organization is a “person
claiming to be elected.”2 This is correct. The KCRC and DRP are, therefore,
DISMISSED from this suit for lack of standing.3

       1
           15 Del. C. § 5941.
       2
           Id.
       3
        The Court notes that Petitioners have not formally addressed the standing issue in their
papers before this Court.

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       Primarily, the parties disagree as to whether Mr. Gunn has articulated one of
the four enumerated causes for an election contest. Mr. Gunn contends that
subsection (1) of 15 Del. Code § 5941, has been satisfied by the circumstances
underlying his petition: “malconduct on the part of the election officers or clerks
holding the election, or any one of them.”4 The malconduct alleged is the Board of
Canvass’ decision to certify the third recount of the absentee ballots, since the two
previous recounts showed Mr. Gunn to be the winner. Moreover, none of the recounts
resulted in the same vote count. Drawing, apparently, from a related statute in Chapter
59, Mr. Gunn argues that “malconduct” is understood as “inequality” or “improper
conduct.” 5
       Ms. McKenna advocates for a different meaning of “malconduct.” Her first
argument deals with the scope of “malconduct” covered by the governing statute. She
reads the statute to concern only “malconduct” relating to the “holding” of an
election, where as the conduct complained of occurred outside of the Election. Ms.
McKenna does not consider a recount as the “holding” of an election, which in her
view is limited temporally to the date of the Election.6 In the alternative, even if the
recount were to be considered part of the “holding” of an election, it is Ms.
McKenna’s position that “malconduct” requires some kind of intentional, malicious



       4
           15 Del. C. § 5941(1).
       5
         15 Del. C. § 5942 (stating that “inequality” or “improper conduct” not dealing with
election results does not constitute behavior leading to invalidation of election).
       6
           The Recount was held on November 6, 2014, two days after the Election.

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Gunn, et. al. v. McKenna, et. al.
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December 23, 2014

act, meant to “manipulat[e] or misrepresen[t] the true count of votes...”7 Although
there is some dispute between the parties as to what exactly transpired during the
Board of Canvass’ Recount, Ms. McKenna avers that the Board chose to certify the
third recount as it was the only one during which the count matched the total number
of votes cast in the Election. According to her position, such a decision by the bi-
partisan Board, does not fit the nefarious action contemplated by the term
“malconduct.”
       In considering what is meant by 15 Del. Code § 5941(1)’s use of “malconduct,”
the Court recognizes the dearth of prior case law at its disposal. It must, therefore,
proceed with an exercise in statutory construction. First and foremost, when
interpreting a statute, the Court must take great care to “ascertain and give effect to
the General Assembly’s intent.”8 The Court must then make the initial determination
of whether the statute is ambiguous.9 A statute is ambiguous where “it can reasonably
be interpreted in two or more ways.”10 If ambiguous, the Court must consider the
statue “as a whole, rather than in parts, and [the Court] read[s] each section in light
of all others to produce a harmonious whole.”11
       To begin, the Court notes that both parties’ readings of “malconduct” are

       7
           Respondent’s Letter to Court, dated November 20, 2014, at p. 2.
       8
         Sussex Cnty. Dep’t Of Elections v. Sussex Cnty. Republican Comm., 58 A.3d 418, 422
(Del. 2013).
       9
           Id.
       10
            Id.
       11
            Id. (internal quotations omitted).

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December 23, 2014

reasonable, especially in light of the fact that subsection (1), in which the word is
found, provides no other language shedding light on the Legislature’s intent. As such,
the Court determines the statute in this particular circumstance is ambiguous. That
being said, the Court perceives Mr. Gunn’s broader interpretation of its meaning, to
be the correct one. This reading is in harmony with the other sections of the statute,
as well as in line with the Dictionary definition of the prefix “mal.”
       The Court finds Mr. Gunn’s citation to 15 Del. Code § 5942 to be especially
instructive. § 5942 limits the occasions entitling election contests. It is only where the
“inequality” or “improper conduct” complained of “shall have been such to procure
the person whose right to have the office may be contested to be declared duly elected
when he or she has not received the highest number of legal votes cast at the
election.”12 In restricting the types of events warranting an election contest, the
Legislature defined the “malconduct” referred to in 15 Del. Code § 5941(1). Neither
“inequality” nor “improper conduct,” strikes this Court as requiring a premeditated,
intentionally malicious act on the part of an election officer. La Mar Gunn has a right,
under § 5941(1), to contest the election results, which derived from alleged “improper
conduct” by the Board of Canvass in choosing the third recount, where a
mathematical and statistical cloud hung over this decision. Such a reading of
§ 5941(1) is, most importantly, in harmony with the Legislature’s use of “inequality”
and “improper conduct” in § 5942.
       Although not dispositive, given the statutory construction standard, the



       12
            15 Del. C. § 5942 .

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Gunn, et. al. v. McKenna, et. al.
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December 23, 2014

Dictionary definition of “mal” with its uses in other legal contexts has been a
persuasive aid to this Court in its interpretation of the Legislature’s intent. Webster’s
New Collegiate Dictionary defines “mal” as follows: “bad,” “abnormal,” or
“inadequate.” 13 Two of the three definitions contain no connotation of malicious or
nefarious behavior. The Board of Canvass’ conduct had only to be “abnormal” or
“inadequate” in overseeing the recount. The Court is further aware of the
consideration of the legal term “malpractice.” In suits for professional malpractice,
for example, Plaintiff need show merely that the Defendant did not conduct himself
according to a standard of care required of professionals in the field.14 Such lawsuits
do not necessarily involve professionals who purposefully and wrongfully commit
acts deviating from the standard of care.15 These examples, taken together with the
other sections of the statute, convince this Court that the “malconduct” required by
15 Del. Code § 5941, need only be action that was incorrect or deficient. The Board
of Canvass did not need, and certainly did not have, any pernicious intent in choosing
to certify the third recount.
       The determination herein is in accord with the overriding Legislative intent and
community desire to have election results accurately count every single vote cast and


       13
            Webster’s New Collegiate Dictionary 695 ( Henry Bosley Woolf et al. eds. 1973).
       14
         See e.g., 18 Del. C. § 6853(e) (“[n]o liability shall be based upon asserted negligence
unless expert medical testimony is presented as to the alleged deviation from the applicable
standard of care”).
       15
         See e.g., Green v. Weiner, 766 A.2d 492 (Del. 2001) (allegation of malpractice
stemmed from removal of catheter from patient’s vein during surgery. There was no allegation
the Defendant did this intentionally to cause harm to the Plaintiff).

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accurately reflect in every election the desire of the majority of the electorate. As has
been noted, it is imperative “that the expression of popular will is not thwarted and
the integrity of the political system is maintained.”16
       Having established Mr. Gunn’s right to contest the election for Recorder of
Deeds, the Court DENIES Ms. McKenna’s Motion to Dismiss.
       Accordingly, then, this Court may, pursuant to15 Del. Code § 5953, “make an
examination of the ballots given in such an election...” Noted is Ms. McKenna’s point
that this particular statutory section does not come into effect until the Court has
recognized a proper election contest. Therefore, Mr. Gunn’s petition is GRANTED,
and the Court proceeds under its § 5953 authority.
       There exists some debate as to the method of examination that should be
ordered. Indeed, Ms. McKenna deems this the “most troublesome question” in this
case.17 The absentee ballots cast in the Election could be re-scanned by the
Department of Elections, with those for which no vote is registered being examined
by hand. Unfortunately, the inability of the scanners to read some of the absentee
ballots is a significant part of the original problem. The real concern is that the chosen
method be “open,” “transparent” and “accurate.”18
       Each of the three recounts conducted by the Board of Canvass yielded a
different vote total and result. Evidently, this Election will be decided by a mere few


       16
            Chandler v. Workman, 348 A.2d 185, 188 (Del. Super. Ct. 1975).
       17
            Respondent’s Letter to Court, Dated November 20, 2014, at p. 2.
       18
            Petitioner’s Letter to Court, Dated December 1, 2014, at ¶ 3.

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Gunn, et. al. v. McKenna, et. al.
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votes. The adage, “every vote counts,” seems plainly appropriate. Hence, this
circumstance calls for another statutorily prescribed “examination of the ballots.”19
Therefore, the Department of Elections is to conduct a hand recount of the absentee
ballots cast in the election for Recorder of Deeds.
       Finally, the Court notes Ms. McKenna’s argument that the relief sought by Mr.
Gunn can be afforded only by either the Department of Elections or the Board of
Canvass. As such, Ms. McKenna argues that these two bodies are indispensable
parties, who should be joined to the suit. The Court and the parties addressed this
contention during the November 20, 2014 teleconference. Mr. Gunn agreed to file an
Amended Petition, adding the Department of Elections and Board of Canvass as
Defendants to this action. This Amended Petition was filed on November 20, 2014.
That having been done, this Court finds Ms. McKenna’s argument to be moot.
                                    CONCLUSION
       For the foregoing reasons the Court:
1) GRANTS Mr. Gunn’s Petition to Contest the Election; and
2) GRANTS in part, and DENIES in part, Ms. McKenna’s Motion to Dismiss.
       IT IS SO ORDERED.
                                           /s/ Robert B. Young
                                                      J.

RBY/lmc
oc: Prothonotary
cc: Counsel
     Opinion Distribution
     File

       19
            15 Del. C. § 5953.

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