       IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

REBECCA YOUNG, ELIZABETH H.                )
YOUNG and JAMES L. YOUNG                   )
                                           )
   Plaintiffs,                             )
                                           )
      v.                                   )     C.A. No. 10847-VCL
                                           )
RED CLAY CONSOLIDATED SCHOOL               )
DISTRICT and BOARD OF ELECTIONS            )
FOR NEW CASTLE COUNTY                      )
                                           )
   Defendants.                             )


                           MEMORANDUM OPINION

                           Date Submitted: July 10, 2015
                           Date Decided: October 2, 2015


Richard H. Morse, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF
DELAWARE, Wilmington, Delaware; Counsel for Plaintiffs Rebecca Young, Elizabeth
H. Young, and James L. Young.

Barry M. Willoughby, William W. Bowser, Michael P. Stafford, Margaret M. DiBianca,
YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware; Counsel
for Defendant Red Clay Consolidated School District.

Meredith S. Tweedie, Ann Woolfold, Scott W. Perkins, STATE OF DELAWARE
DEPARTMENT OF JUSTICE, Wilmington, Delaware; Counsel for Defendant Board of
Elections for New Castle County.

LASTER, Vice Chancellor.
       On February 24, 2015, residents of the Red Clay Consolidated School District

(―Red Clay‖) approved a referendum to increase the school-related property taxes paid by

owners of non-exempt real estate located in the district. Despite complaints that Red Clay

personnel violated the election laws, the Board of Elections for New Castle County (the

―Board of Elections‖) certified the results. The Board of Elections determined that it did

not have authority to investigate or make determinations regarding the alleged violations.

       The plaintiffs are residents of Red Clay who had difficulty accessing the polls.

They have petitioned for a writ of certiorari pursuant to which this court would review

the Board of Elections‘ certification of the results, determine whether the Board of

Elections considered the alleged violations of the election laws, and vacate the Board‘s

determination to the extent the Board failed to consider the alleged violations. They

separately seek relief against Red Clay, contending that because Red Clay personnel

violated the election laws, an injunction should issue barring implementation of the tax

increase. This decision does not address the plaintiffs‘ claims against Red Clay, which

will be the subject of a separate opinion.

       The Board of Elections moved to dismiss the petition for writ of certiorari for

failing to state a claim on which relief can be granted. Issuing a writ of certiorari is a

matter of discretion, and the power to issue the writ ordinarily lies with the Superior

Court. This decision does not address the difficult issue of whether, on the facts of this

case, this court would have jurisdiction to issue a writ under the cleanup doctrine. Rather,

this decision holds that the petition fails as a matter of law, because under longstanding

Delaware Supreme Court authority, the statutory regime at the time of the referendum did


                                             1
not permit the Board of Elections to consider the types of election violations alleged in

the Complaint when certifying the results of the vote.

                          I.       FACTUAL BACKGROUND

       The facts for purposes of the motion to dismiss are drawn from the Verified

Supplemental and Amended Complaint and Petition for Writ of Certiorari (the

―Complaint‖) and the documents it incorporated by reference. At this stage of the case,

the well-pled allegations of the Complaint are assumed to be true, and the plaintiffs

receive the benefit of all reasonable inferences.

A.     The Red Clay Referendum

       The Board of Education of Red Clay (the ―Red Clay Board‖) called a special

election to obtain authority to raise the tax rate on real property in the district by a total of

35 cents per $100 of assessed value (the ―Special Election‖). The Special Election took

place on February 24, 2015.

       Obtaining approval for the tax increase was important to Red Clay. To enhance the

likelihood that the tax increase would be approved, Red Clay engaged in get-out-the-vote

efforts. Among other things:

      On February 18, 2015, Red Clay‘s superintendent, Mervin B. Daugherty sent a
       letter to families with children living in the Red Clay school district urging them to
       vote in favor of the tax increase.

      On the day of the Special Election, Superintendent Daugherty used Red Clay‘s
       School Messenger notification service to send a reminder to families of children
       attending Red Clay schools to vote in favor of the tax increase.

      At least some principals of schools in Red Clay used their automated phone
       systems to make appeals to families to vote in favor of the tax increase.



                                               2
      At McKean High School, administrators called students who were eighteen or
       older out of class and took them to the polling location to vote.

      At Alexis I. du Pont High School, school officials approached students who
       looked old enough to vote, asked if they were eighteen or older, and encouraged
       them to vote if they were old enough.

      To draw parents and guardians to the schools where voting was taking place, Red
       Clay scheduled family friendly events at its schools, including family fun nights,
       family bingo nights, activity nights, pizza parties, carnivals, dances, faculty
       basketball games, and a free dinner for parents and students at Heritage Middle
       School.

      At Austin D. Baltz Elementary School, signs encouraged parents to vote in favor
       of the referendum. Baltz also held a pajama dance party with pizza. Baltz
       personnel gave parents of students who voted a check-off card that had three
       boxes labeled, respectively, ―I ate,‖ ―I voted,‖ and ―I danced.‖ Once the ―I voted‖
       box was checked off, the holder was entitled to pizza, popcorn, and sodas.

      At A.I. DuPont Middle School, parents stationed at desks by the entrance told
       prospective voters that if they did not vote in favor of the tax increase, students
       would not have after-school activities.

       The Complaint alleges that Red Clay‘s actions made it difficult or impossible for

people with disabilities or reduced mobility to vote in the Special Election. Plaintiff

Rebecca Young is a resident of Red Clay. She tried to bring her elderly parents, plaintiffs

Elizabeth H. Young and James L. Young, to one of the schools to vote. Rebecca‘s parents

have disabilities that limit their mobility, but she could not park in the spots at the school

reserved for handicapped persons, because empty school buses were blocking the spaces.

Rebecca and her parents wanted to vote against the tax increase. Ultimately, Rebecca and

her parents did not vote because she was not able to park close enough for her parents to

access the polling place, and she did not feel comfortable leaving her parents unattended

in her vehicle while she voted. Other voters encountered similar access issues. See id.



                                              3
B.     The Certification Of The Results

       On March 10, 2015, the Board of Elections met to consider whether to certify the

results of the Special Election. The members of the Board of Elections who attended the

meeting were Robert L. Brady, Jr., Marilyn P. Whittington, Noel H. Kuhrt, Paul F.

Lanouette, Bette Ann Pase, John N. Pasquale, Jr., James A. Sterling, III, Lawrence A.

Thurrell, and Sharon A. Williams-Mayo. Brady served as President and presided over the

meeting.

       State Election Commissioner Elaine Manlove attended the meeting. So did

Anthony J. Albence, the Director of the Department of Elections, and Howard G. Sholl,

Jr., the Deputy Director. In a presentation to the Board of Elections, the Department staff

addressed the ―electioneering‖ issues that occurred during the Special Election. See

Compl. Ex. C. The presentation noted that there were ―[v]ery few issues reported on

Election Day.‖ Id. at 5. It discussed two issues related to the allegations in this case:

 Marbrook—a citizen called the Department at about 5:20 p.m. to complain about the
  lack of parking as well as illegal parking. . . .

 Highlands—Principal removed ―Vote No‖ signs. Barbara contacted District and
  explained that while the Department does not have jurisdiction on signs outside of 50
  feet, that in the interest of fairness schools should permit signs if they have signs[.]

Id. at 5-6.

       The Department of Elections‘ presentation contained a separate section addressing

―[c]omplaints received starting Wednesday Feb. 25th.‖ Id. at 7. Several related to the

allegations in this case:

 Brandywine Springs—accessibility issues (no parking available) and pizza was given
  away to people who voted . . . .


                                               4
 H.B. duPont—principal made a ―robo call‖ to parents in support of referendum[.]

 A I Middle School—the election place was compromised within 50 feet of the polling
  place, the Family Fun Night is a violation of election laws, people at a desk near the
  entrance (close to the voting room) were telling people to vote ―YES‖ or your
  children would not have after school activities[.]

 Baltz—there was a sign near or in the voting room that said something like ―Support
  the Baltz Bear by voting yes‖. [sic] Department comment: The sign was near the
  entrance to the school part of the building. The voter entrance was in the School
  District part of the building. The sign, however, should not have been in public view.

 Baltz—a person outside of the voting room was giving parents who voted a piece of
  green paper with three boxes, one of the boxes was checked stating that they had
  voted and once the three boxes were checked their child/children could get pizza
  and/or popcorn[.]

Id. at 5-9.

       The presentation by the Department of Elections‘ staff stated that the Department

would send a letter to the Attorney General asking that the Department of Justice

―investigate and take appropriate action regarding‖ four issues, including (i) the ―Baltz

Bear‖ sign at Baltz, (ii) the alleged ―food for voting‖ at Baltz and Brandywine Springs,

and (iii) the alleged electioneering at A.I. DuPont Middle School. Id. at 8-9. The

Department of Elections recommended that the Board of Elections certify the results of

Special Election, noting that the vote counts were correct. Id. at 10.

       State Senator Karen E. Petersen made a presentation to the Board of Elections.

She asked that the results not be certified. She described how she became concerned

about the conduct of the Special Election after receiving complaints from her

constituents, and she noted that she had sent a letter to the Attorney General and the State

Election Commissioner asking for an investigation. She explained that after a news



                                              5
article appeared about her request for an investigation, she had been inundated with

emails and phone calls from Red Clay residents who wanted to complain about what

happened at their polling places.

          Senator Petersen identified a number of issues resembling those set forth in the

Complaint. She provided the members of the Board of Elections with copies of her

remarks and the letters and emails she had received. Separately, the Board of Elections

acknowledged receipt of a letter from State Representative Deborah Hudson, who had

expressed her own concerns about the Special Election.

          Two Red Clay staff members, Ted Amman and Patti Nash, were present at the

meeting. Nash stated that Red Clay addressed the purported issues that occurred prior to

and the day of the Special Election.

          President Brady determined the Board of Elections did not have the authority to

investigate or make determinations regarding the alleged election law violations. He

stated that the only authority that the Board of Elections possessed was to certify the

voting counts as accurate. The Board of Elections certified the results by a vote of eight

to one.

C.        Procedural History

          On March 27, 2015, the plaintiffs filed a verified complaint that included a

petition for writ of certiorari directed to the Board of Elections. On April 13, the plaintiffs

filed the currently operative pleading.

                               II.     LEGAL ANALYSIS




                                              6
       This decision addresses the Board of Election‘s motion to dismiss the petition for

writ of certiorari on the grounds that it fails to state a viable claim. See Ct. Ch. R.

12(b)(6). The plaintiffs seek a writ of certiorari to review the Board of Elections

certification of the results of the Special Election. The Board of Elections has moved to

dismiss, arguing that the Delaware Code did not grant the Board of Elections authority to

consider legal violations when certifying the results. When considering such a motion,

       (i) all well-pleaded factual allegations are accepted as true; (ii) even vague
       allegations are well-pleaded if they give the opposing party notice of the
       claim; (iii) the Court must draw all reasonable inferences in favor of the
       non-moving party; and (iv) dismissal is inappropriate unless the plaintiff
       would not be entitled to recover under any reasonably conceivable set of
       circumstances susceptible of proof.

Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (footnotes and internal

quotation marks omitted).

       This decision concludes that under the statutory scheme that existed at the time of

the Special Election, the Board of Elections had no authority to consider legal violations

when certifying the results beyond fraud that was apparent on the face of a ballot or

certificate. Before explaining the basis for this conclusion, there are two threshold issues

worthy of note. The first is whether the Board of Elections is the proper party to have

been named in the petition. Under Delaware law as it existed at the time of the Special

Election, the Department of Elections—not the Board of Elections—was charged with

―canvass[ing] the vote and certify[ing] the results‖ of the Special Election. 14 Del. C. §

1083(a) (2014). Under the statutory scheme as it then existed, Delaware had three

departments of elections, one for each county in the state. Id. at § 201. Each department



                                             7
was defined by statute as ―the board of elections and such staff as the board shall appoint

under this title.‖ Id. at § 101(6). The statute further provided that ―[t]he department in

each county, under the direction of the board of elections, shall administer the election

laws of this State as defined in this title.‖ Id. (emphasis added); cf. 8 Del. C. § 141(a)

(providing that ―[t]he business and affairs of every corporation organized under this

chapter shall be managed by or under the direction of a board of directors‖). Thus, under

the operative statutory scheme, the board of elections was a constitutive part of its

respective department of elections and operated as the governing body of that

department. Each board of elections was not a separate governmental entity in itself.

       Admittedly the statute was not entirely clear on this point. It elsewhere defined a

board of elections as ―that body of individuals appointed by the Governor and confirmed

by the Senate to serve as a board of elections for their respective counties and are, as

such, vested with the responsibility and power to see to the administration of the election

laws of this State in their respective counties as more particularly defined in this title.‖ 15

Del. C. § 101(2); see id. at § 202 (defining composition of Board of Elections of New

Castle County). One could read this provision as having established each board of

elections as a separate body. A court‘s task, however, is to construe a statutory scheme as

a whole. Sierra Club Citizens Coal., Inc. v. Tidewater Envtl. Servs., Inc., 51 A.3d 463,

470 (Del. 2012). The structure of Title 15 established the boards of elections as the

governing bodies of their respective departments of elections. Even the definitional

passage found in Section 101(2) included the phrase ―as more particularly defined in this

title,‖ suggesting the manner in which the boards of elections were expected to exercise


                                              8
―the responsibility and power to see to the administration of the election laws of this

State‖: they were to do so as the governing bodies of the county departments of elections.

       Given these provisions, the appropriate defendant in this case was the Department

of Elections, not the Board of Elections. It is true that the actual decision to certify the

results of the Special Election was made by humans who served as members of the Board

of Elections, but that is because a legal entity (here, the Department) only can act through

human agents, and the Board of Elections was the institutional actor within the

Department with authority to make the final decision. The Board‘s decision in its official

capacity constituted the act of the Department. The Department, not the Board, had the

statutory obligation to ―canvass the vote and certify the results,‖ which the plaintiffs

contend was breached. 14 Del. C. § 1083(a); see Gunn v. McKenna, 116 A.3d 419, 426

(Del. 2015) (suggesting that proper defendant in a challenge to conduct by the election

officers would be the Department of Elections).

       The plaintiffs might have attempted to sue the individual members of the Board of

Elections on a theory that they violated the plaintiffs‘ constitutional rights under color of

office. Cf. Heaney v. New Castle Cty., 672 A.2d 11, 15 (Del. 1995) (discussing claim

under 42 U.S.C. § 1983). But if the plaintiffs had done that, then the appropriate

defendants would have been the individual members themselves, not the Board of

Elections as a collective.

       From an analytical perspective, treating the Department of Elections as the actual

defendant simplifies matters, because the statutory provisions governing elections almost

invariably refer to the Department, not the Board. Had the issue been raised, I would have


                                             9
permitted the plaintiffs to substitute the Department. See Ct. Ch. R. 15(c)(3). In light of

the statutory focus on the Department rather than the Board, the legal analysis in this

opinion refers to the Department. The outcome is the same.

       A second threshold issue is one of jurisdiction. Under Article IV, Section 7 of the

Delaware Constitution, the Delaware Superior Court has ―original and exclusive

jurisdiction among trial courts . . . to issue common law writs of certiorari.‖1 This court

therefore generally lacks jurisdiction to consider the issuance of the common law writ.2

       This case could be a rare exception in which ―the facts involved in the legal and in

the equitable claims are so intertwined that it would be undesirable or impossible to sever

them.‖ Clark v. Teevan Hldg. Co., 625 A.2d 869, 882 (Del. Ch. 1992). This court

previously determined that it has subject matter jurisdiction over the principal claims in

this action, in part because they seek equitable relief.3 Whether the Department of




       1
         Maddrey v. Justice of the Peace Court 13, 956 A.2d 1204, 1207 (Del. 2008); see
1 Victor B. Wooley, Practice in Civil Actions and Proceedings in the Law Courts of the
State of Delaware §§ 894-896 (1906) (describing common law writ of certiorari as falling
within authority of Superior Court).
       2
         See In re New Maurice J. Moyer Acad., Inc., 108 A.3d 294, 323 n.188 (Del. Ch.
2015) (noting that the defendants had raised ―significant issues concerning whether the
Court of Chancery has subject matter jurisdiction over‖ a petition for writ of certiorari);
Gladney v. City of Wilm., 2011 WL 6016048, at *4 (Del. Ch. Nov. 30, 2011) (―[T]he true
substance of the relief [plaintiff] seeks is a writ of certiorari, which is both an adequate
remedy at law and a remedy reserved to the exclusive jurisdiction of the Superior
Court.‖); see also In re Daniel Kloiber Dynasty Tr., 98 A.3d 924, 938 (Del. Ch. 2014)
(explaining the General Assembly‘s use of the term ―exclusive jurisdiction‖ to allocate
jurisdiction among Delaware courts).
       3
         See Steele v. Stevenson, 1990 WL 114218, at *2 (Del. Ch. July 31, 1990)
(―[E]quitable jurisdiction exists to declare a referendum election void ‗where some

                                            10
Elections acted properly is a matter that assumed significance only as a potential defense

to the primary claims. As the plaintiffs saw it, Red Clay would contend that because the

Department had certified the results, there was no basis for this court to inquire into the

propriety of the vote. The plaintiffs sought to address this argument preemptively by

pleading in the alternative that a writ should issue to review that decision.

       The interrelationship between the primary claims and the basis for the writ

suggests that this might be a rare and fact-specific situation in which a court of equity

could exercise jurisdiction under the clean-up doctrine. That head of equitable

jurisdiction recognizes that once the Court of Chancery properly takes jurisdiction over a

case, it can exercise jurisdiction ―over any legal matters properly arising during the



positive and material requirement of the law has been disregarded or ignored.‘‖);
Cochran v. Supinski, 794 A.2d 1239, 1240 (Del. Ch. 2001) (Strine, V.C.) (exercising
jurisdiction to enforce preliminary injunction over City Democratic Committee to require
it to exclude from an election any person who failed to file candidacy information by a
given date); Mirzakhalili v. Chagnon, 2000 WL 1724326, at *7 n.23 (Del. Ch. Nov. 28,
2000) (Strine, V.C.) (requiring an organization created by the General Assembly that
regulated the practice of engineering in Delaware to hold a special election despite
possibility that the election dispute could be ―considered by the Superior Court under an
appropriate writ, such as certiorari, mandamus, or, if the Attorney General cooperates,
quo warranto‖); Page v. Kopf, 1992 WL 245968, at *8 (Del. Ch. Sept. 30, 1992)
(enforcing injunction to compel the Department of Elections to accept a candidate‘s
nomination as the Republican candidate for New Castle County Executive and place his
name on the ballot); Bartley v. Davis, 1986 WL 8810, at *11 (Del. Ch. Aug. 14, 1986)
(Allen, C.) (issuing injunction in election dispute to require Delaware Election
Commissioner to place candidate on ballot because of alleged failure to comply with
election laws), aff’d, 519 A.2d 662 (Del. 1986). The principal Delaware authority
addressing government campaign speech in connection with a tax referendum—Brennan
v. Black, 104 A.2d 777 (Del. 1954)—was an appeal from a decision by the Court of
Chancery in which the plaintiff sought equitable relief after a tax had been approved. See
Cronin v. Greenhouse, 1992 WL 403111, at *2 (Del. Ch. Dec. 26, 1992) (describing
procedural history of Brennan), aff'd, 623 A.2d 1142 (Del. 1993) (ORDER).


                                             11
course of the litigation if the assertion of such jurisdiction will further the goal of

rendering full and final relief as to all aspects of the controversy.‖ Donald J. Wolfe, Jr. &

Michael A. Pittenger, Corporate and Commercial Practice in the Delaware Court of

Chancery § 2.04, at 2-85 (2012). Like the Delaware Superior Court‘s jurisdiction over

writs of certiorari, this court‘s equitable jurisdiction is constitutional. Article IV, Section

10 of the Delaware Constitution confers on the people of Delaware the full benefits of ―a

tribunal to administer the remedies and principles of equity.‖ In re Arzuaga-Guevera, 794

A.2d 579, 585 (Del. 2001); accord DuPont v. DuPont, 85 A.2d 724, 729 (Del. 1951).

       No Delaware case has addressed whether the Court of Chancery could exercise

clean-up jurisdiction to issue a common law writ of certiorari. The parties have not cited

precedents from other jurisdictions that might shed light on the question, nor have they

dusted off venerable treatises on equity practice and procedure. Moreover, any answer

that this court might give would not be definitive. Only the Delaware Supreme Court

could reconcile two competing sources of jurisdiction, each of constitutional magnitude.

       The issuance of a common law writ of certiorari is discretionary. Newell v.

Hampton, 40 A. 469, 470 (Del. 1893) (per curiam). This opinion need not reach the

question of whether a court with jurisdiction ultimately would issue the common law

writ, because the predicate issue in dispute on the motion to dismiss is a straightforward

matter of statutory interpretation. The dispositive question is whether the Department of

Elections possessed authority to consider electoral violations when canvassing the vote

and ascertaining the results of the election. Answering that question is not the equivalent

of deciding whether to issue the writ. It merely requires an interpretation of the statutory


                                              12
scheme. If this court were to conclude that the Department had the statutory authority to

consider electoral violations, then at that point the court would have several options. It

could decide whether to assert jurisdiction under the clean-up doctrine and attempt to

issue the writ itself. It could transfer the case to the Superior Court for the potential

issuance of the writ by its sister court. See 10 Del. C. § 1902 (providing for transfer of

cases between Court of Chancery and Superior Court). Or, as the Board of Elections

pointed out, I could ask the Chancellor to consider making a written request to the Chief

Justice to empower me to sit as a judge of the Superior Court pro hac vice, thereby

sidestepping the jurisdictional issue. See Del. Const. art. IV, § 13(2) (empowering the

Chief Justice of the Delaware Supreme Court, upon written request by the Chancellor or

by the President Judge of the Superior Court, to designate a judicial officer ―to sit in the

Court of Chancery [or] the Superior Court . . . , as the case may be, and to hear and

decide such causes in such Court and for such period of time as shall be designated‖). By

contrast, if this opinion concludes that the Department lacks the statutory authority to

consider electoral violations (as it does), then the complaint fails to state a claim for relief

and the matter need go no further. Cf. Woo v. Robinson, 484 A.2d 950, 955 n.6 (Del.

1984) (denying motion to stay and observing that because there was no basis for a writ of

mandamus, it was ―unnecessary . . . to decide the very troublesome question whether one

member of [the Delaware Supreme Court] has the authority under Supreme Court Rule 3,

even in an emergency, to grant a writ of mandamus‖).

       There does not appear to be any jurisdictional problem with this court interpreting




                                              13
the election laws, which it has done on prior occasions.4 Handling the motion in this

fashion seems particularly efficient because the statutory issue appears controlled by

settled Delaware Supreme Court precedent. Moreover, effective July 1, 2015, the General

Assembly made several statutory amendments that would affect materially any future

analysis of similar issues. See 79 Del. Laws ch. 275 (2015) (codified at 15 Del. C. §§

101-7710).

A.     Precedents Addressing The Scope Of Statutory Authority To Canvass Votes

       Under Delaware law as it existed at the time of the Special Election, the

Department of Elections had the responsibility to ―canvass the vote and certify the

results.‖ 14 Del. C. § 1083(a) (2014). As an agency created by statute, the Department‘s

authority was limited to the powers granted by the statute. Wilm. Vitamin v. Tigue, 183

A.2d 731, 740 (Del. Super. 1962). An unbroken line of precedent dating back to 1897

makes clear that absent explicit statutory authority to do more, a governmental body

charged with canvassing the vote and certifying the results fulfills an administrative and

ministerial role that does not include considering electoral law violations.

                     a.     McCoy




       4
         See Page, 1992 WL 245968, at *3 (interpreting 15 Del. C. § 3303 regulating
timing of certificates); Bartley, 1986 WL 8810, at *7-8 (interpreting 15 Del. C. § 3103,
governing filing fees, and 15 Del. C. § 3106, regulating candidate filing for primary
elections); cf. Cochran, 794 A.2d at 1247-50 (interpreting City Democratic Committee‘s
rules in determining whether to issue an injunction); Mirzakhalili, 2000 WL 1724326, at
*9-10 (interpreting 15 Del. C. § 3303 and bylaws of an organization created by the
General Assembly that regulates the practice of engineering in Delaware).


                                             14
       In 1897, Delaware‘s highest court—then the Court of Errors and Appeals5—first

considered the extent to which a body empowered to canvass votes, ascertain the state of

the election, and certify the results could consider broader issues of election law. See

McCoy v. State, 36 A. 81 (Del. 1897). The statutory scheme as it then existed established

a board of canvass consisting of the sheriff from the county where the election took place

and the inspectors for each hundred within the county, all of whom were designated as

―judge[s] of the general election.‖ Del. C. 1852, §§ 11, 24. The statute provided that on

the Thursday after the election, the inspectors were to deliver to the board of canvass the

―certificate[s] of election‖ from the voting districts in the county. Id. at §§ 23-24. At that

point, the statute provided that

       [t]he said board of canvass shall publicly . . . ascertain the state of the
       election throughout the county, by calculating the aggregate amount of all
       the votes . . . .

       After the state of the election shall have been ascertained . . . the board of
       canvass . . . shall, before any adjournment or separating of said board, make
       under their hands . . . certificates [of election]. . . .

       [The] presiding officer of the board of canvass shall, either personally or by



       5
          The Court of Errors and Appeals was Delaware‘s highest court under the
Delaware Constitution of 1831. Del. Const. of 1831, art. VI, § 7. It used a system of
rotating three-judge panels comprised of trial court judges. Maurice A. Hartnett III,
Delaware Courts’ Progression, in Delaware Supreme Court Golden Anniversary 10
(Randy J. Holland & Helen L. Winslow eds., 2001). The Delaware Constitution of 1897
replaced the Court of Errors and Appeals with the Delaware Supreme Court, which
originally used a ―leftover judge‖ system. Id. at 13; Del. Const. art. IV, §§ 1, 11-12. At
the time there were six judges who sat on the statewide courts. The five judges other than
the trial judge who originally heard the case comprised the appellate panel. Hartnett,
supra, at 13. In 1951, Delaware amended its Constitution to create the current Supreme
Court with its permanent membership of justices. Id. at 18.


                                             15
       a person deputed by him for that purpose, deliver and lodge the said
       certificates of the election . . . within five days next ensuing the day of
       calculating the votes and ascertaining the state of the election as aforesaid .
       ...

Id. at §§ 28, 29, 32. Additionally, the board of canvass had a singular enforcement power:

if an inspector did not deliver the election results, the board could issue a warrant to

compel his attendance and delivery of the certificate of election. Id. at § 27. Otherwise

the statute did not authorize the board of canvass to do anything other than count votes

and certify the results.

       After an election allegedly rife with ―bribery, violence, and lawlessness,‖ the

petitioners in McCoy sought a writ of certiorari, arguing that the board failed to ascertain

the state of the election by taking into account whether election law violations occurred.

36 A. at 82. The high court held that the board of canvass was a ministerial body charged

with counting votes:

       In discharging said duty, the powers of said board are, in general,
       ministerial, and not discretionary or judicial, in their character. While said
       board of canvass must necessarily determine that such certificates are
       genuine, and not fabricated, and are made and signed in the form and
       manner prescribed by law, yet said boards of canvass in this state are not
       empowered, and have no lawful authority, to inquire into the validity of any
       election in any hundred or election district, nor into the irregularity or
       misconduct attending any election therein, nor into the legality of any vote
       or votes given therein, nor to throw out, nor to refuse or fail to count, every
       vote or votes appearing to have been given therein, upon the face of the said
       certificates of election duly made and delivered and produced before said
       board, in the form and manner prescribed by law.

Id.

       The high court recognized that the board of canvass had a limited and specific role

that went beyond counting: it could look at ballots to determine whether they were ―made


                                             16
and signed in the form and manner prescribed by law,‖ and as part of that review, the

board could reject ballots that were ―fabricated.‖ Id. at 82. The court stressed that the

board could not conduct any investigation beyond the face of the documents, and that the

certificates of election delivered by the inspectors constituted ―the sole and exclusive

evidence from which [the board of canvass could] ascertain the state of the election

throughout the county.‖ Id.

       In support of broader authority for the board of canvass, the relators cited the

statutory reference to each inspector as a ―judge of the general election.‖ Del. C. 1852, §

11 (emphasis added). Notwithstanding the use of this term, the high court held that the

board‘s powers were ―in general, ministerial, and not discretionary or judicial.‖ McCoy,

36 A. at 82. Consequently, even if the members of the board of canvass knew that

bribery, violence, or lawlessness had occurred, the board of canvass had no authority to

address it.

       The McCoy court refused to issue a writ of certiorari to compel the board of

canvass to exercise a power it did not possess. The McCoy decision held instead that the

relators‘ remedy was in the courts:

       Finally, it should be remembered that the decision of the board of canvass
       neither gives nor defeats the actual title to the office. Its certificate of the
       result of the whole election merely furnishes prima facie evidence of the
       candidate‘s election. If he fails to obtain this, owing to the failure of
       mandamus or other proceeding, he yet has his resort to the court or
       appropriate tribunal which finally determines, not merely prima facie, but
       conclusively, his actual de jure title, wherein the legality and validity of the
       election and the real merits of the case can alone be investigated and
       decided. So that a temporary detriment only, and not an irremediable one, is
       really done him.



                                             17
Id. at 87.

              2.     Wolcott

       In 1951, Delaware‘s highest court—then the Delaware Supreme Court—re-

affirmed the teachings of McCoy. See State ex rel Mitchell v. Wolcott, 83 A.2d 762 (Del.

1951). The electoral framework had changed in the interim. The McCoy case was decided

in January of 1897. Later that year, the Delaware Constitution of 1897 became effective.

Under Article V, Section 6, the Superior Court for the county in which the election took

place replaced the board of canvass as the vote-counting and result-certifying body for

general elections. See Del. Const. art. V, § 6. At the time of the Wolcott decision, the first

paragraph of Article V, Section 6 stated:

       The presiding election officer of each hundred or election district, on the
       day next after the general election, shall deliver one of the certificates of the
       election, made and certified as required by law, together with the ballot box
       or ballot boxes, containing the ballots, and other papers required by law to
       be placed therein, to the Prothonotary of the Superior Court of the county,
       who shall at twelve o‘clock noon on the second day after the election
       present the same to the said court, and the election officer or officers having
       charge of any other certificate or certificates of the election shall at the
       same time present the same to the said court, and the said court shall at the
       same time convene for the performance of the duties hereby imposed upon
       it; and thereupon the said court, with the aid of such of its officers and such
       sworn assistance as it shall appoint, shall publicly ascertain the state of the
       election throughout the county, by calculating the aggregate amount of all
       the votes for each office that shall be given in all the hundreds and election
       districts of the county for every person voted for such office.

Del. Const. art. V, § 6 (amended 1999). The provision further stated that ―[a]fter the state

of the elections shall have been ascertained as aforesaid, the said court shall make

certificates thereof, under the seal of said court . . . and transmit, deliver and lodge the

same as required by this Constitution or by law . . . .‖ Id. Notably, although Article V,


                                              18
Section 6 gave the task to the Superior Court, the basic charge was the same as in McCoy:

to ―ascertain the state of the election throughout the county‖ and certify the result.

          Article V, Section 6 did add some language not found in the statute governing the

board of canvass in McCoy. In 1951, paragraphs two and three of Article V, Section 6

stated:

          In case the certificates of election of any hundred or election district shall
          not be produced, or in case the certificates produced do not agree, or in case
          of complaint under oath of fraud or mistake in any such certificate, or in
          case fraud or mistake is apparent on the face of any such certificate, the
          court shall have power to issue summary process against the election
          officers or any other persons to bring them forthwith into court with the
          election papers in their possession or control, and to open the ballot boxes
          and take therefrom any paper contained therein, and to make a recount of
          the ballots contained therein, and to make a recount of the ballots contained
          therein, and to correct any fraud or mistake in any certificate or paper
          relating to such election.

          The said court shall have all the other jurisdiction and powers now vested
          by law in the boards of canvass, and such other powers as shall be provided
          by law.

Id. at 765-66.

          In Wolcott, the petition identified a clear statutory violation. By law, polling places

were required to close at 6:00 p.m. Despite this prohibition, one of the judges of election

allowed 284 people to vote after that hour. The Delaware Supreme Court regarded it as

―beyond question‖ that this act violated the election laws. 83 A.2d at 764. Nevertheless,

relying on McCoy, the Delaware Supreme Court held that the Superior Court, sitting as a

board of canvass, did not have authority to consider the violation. Id. at 766, 768.

          To distinguish McCoy, the relators argued that although the first paragraph of

Article V, Section 6 provided the Superior Court (qua board of canvass) with the same


                                                19
duties as in McCoy, paragraphs two and three gave the court additional powers that

enabled it to consider the election law violation. Id. at 765-66. The relators pointed to the

power ―to correct any fraud or mistake in any certificate,‖ arguing that this language gave

the court the power to correct any fraud in the election that could lead to an incorrect

vote. Id. at 766.

       The Delaware Supreme Court agreed that Superior Court (qua board of canvass)

had quasi-judicial powers to correct fraud in any certificate or ballot, but the Delaware

Supreme Court held that correcting fraud apparent on the face of the certificate or ballot

was the extent of that power. The Delaware Supreme Court held that the additional two

paragraphs in Article V, Section 6 did not give the Superior Court authority to address

election law violations. The Wolcott decision explained that the Delaware Constitution

would have needed to grant the Superior Court (qua board of canvass) that authority

explicitly, and the language of Article V, Section 6 was not specific enough. The relators

had not alleged ―any fraud or mistake in the certificate,‖ and the Superior Court (qua

board of canvass) had no ―power to enter upon an inquiry into misconduct of the election

officers‖ and was ―therefore under no legal duty to act upon a petition alleging such

misconduct.‖ Id. at 766 n.1, 768.

       Once again, as in McCoy, the Delaware Supreme Court pointed to a plenary action

as the appropriate means for relief.

       [T]he certificates of election issued by the [Superior Court as board of
       canvass] upon the completion of the count are only prima facie title to
       office. . . . A defeated candidate claiming, among other things, malconduct
       of the election officers or the reception of illegal votes is afforded a remedy
       in the Superior Court as such. . . . If relators‘ contention is accepted, the


                                             20
       issue of the election officers‘ misconduct is first tried before the [Superior
       Court as board of canvass], and the losing candidate may then re-try it
       before the Superior Court, the first decision not being res judicata. Such an
       anomalous result is to be shunned.

Id. at 767 (citations omitted).

              3.      Seitz

       Finally, in State ex rel. Tarburton v. Seitz, 168 A.2d 110 (Del. 1961), the Delaware

Supreme Court reaffirmed its rulings in McCoy and Wolcott. The petitioner in Seitz

challenged a decision by the Superior Court (qua board of canvass) to certify the results

of a general election because of alleged violations of 15 Del. C. §§ 5501-17, a statute that

regulated the use of absentee ballots. The petitioner argued that the Superior Court‘s

power as a board of canvass to review ballots and compel the production of election

papers gave it the authority to investigate and rule on the use of absentee ballots. The

petitioner contended that the Superior Court (qua board of canvass) should have

subpoenaed officials from the Department of Elections and conducted a hearing

regarding the use of absentee ballots. Id. at 113.

       The Delaware Supreme Court rejected this argument, holding yet again that the

Superior Court when acting as the board of canvass was a ministerial body that could

exercise jurisdiction to conduct the type of hearing that the petitioner requested. The

hearing would have resembled a trial, and a ministerial body did not have the power to

hold a trial. The Delaware Supreme Court declined to rely on the Superior Court‘s

authority to examine ballots and certificates for fraud as a basis to ―stretch[] the

jurisdiction of the Board of Canvass‖ to encompass a merits hearing. Id. at 295.



                                             21
       Summing up its reasoning, the Delaware Supreme Court explained that the

Superior Court qua board of canvass was not the proper body to address the petitioner‘s

claims: ―Petitioner has mistaken his remedy. He is seeking to give the Board of Canvass

power to try a contested election proceeding. Such a remedy is available under 15 Del. C.

§§ 5941–5955, but not before the Board of Canvass.‖ Id. at 294. As the Delaware

Supreme Court had explained in McCoy and Wolcott, the proper forum for challenging

the election was a judicial proceeding. Id.; see Williams v. Sterling Oil of Okla., Inc., 273

A.2d 264, 265 (Del. 1971) (holding that a set of inspectors of election exceeded their

power by considering evidence of voter intent when counting votes).

B.     The Statutory Scheme For The Special Election

       At the time of the Special Election, the law governing the canvassing of votes for

general elections had not changed materially since Wolcott. The Superior Court continued

to sit as the board of canvass, and that body still had to ―publicly ascertain the state of the

election throughout the county,‖ ―make certificates thereof,‖ and ―transmit, deliver and

lodge‖ them with the sheriff of the county. Del. Const. art. V, § 6. The regime for school

tax referenda differed.

       The Superior Court only acts as the board of canvass for general elections, a term

that ―does not include school or municipal elections.‖ Abrahams v. Super. Court, 131

A.2d 662, 667 (Del. 1957). For school tax referenda, Title 14 governs. Until 2003, it

provided for the school board calling the referendum to appoint election officers who

would canvass the vote. 71 Del. Laws ch. 180, § 1906, amended by 74 Del. Laws ch. 122

(2003). The election officers appointed by the school board were required to ―meet after


                                              22
the close [of the referendum] to ascertain the result and certify the same to the

Commissioner of Elections . . . who shall, on the third day after the election, declare the

result of such election . . . .‖ Id. at § 1909. The statute at the time provided that ten or

more voters could petition for a recount. Id. at 1910.

       The General Assembly amended Title 14 in 2003 to change the procedures for

―canvassing and certifying public school elections.‖ Del. S.B. 107 syn., 142nd Gen.

Assem. (2003). The amendment assigned to the Department of Elections the functions

previously carried out by the election officers appointed by the school board. At the time

of the Special Election, Section 1083 of Title 14, titled ―Counting ballots; tie vote;

certification of election,‖ stated:

       (a) The Department of Elections conducting an election in accordance with
       this title shall compile and announce the unofficial results as soon as
       possible after the close of the election. No later than 15 days following the
       close of a public school election, the Department of Elections conducting
       the election shall canvass the vote and certify the results of the election . . . .

       (d) Certification requirements.—

               (1) In the case of an election pursuant to Chapter . . . 19 of this title,
               the Department of Elections that conducted the election shall present
               certification of the results to the superintendent of the respective
               school district no later than the 16 days following the day of the
               election. . . .

       (e) Within 96 hours following the certification of a public school election,
       25 or more persons who voted in the aforesaid public school election may
       petition the Department of Elections that conducted the election for a
       recompilation of the results, if the difference . . . in an election conducted in
       accordance with Chapter 19 . . .of this title was less than 10 votes or one-
       half of one percent of the total vote whichever is larger. . . . The
       Department of Elections that conducted the elections shall: . . .

               (2) Examine the absentee vote tally sheets and determine if errors
               were made in reporting the absentee vote. The department shall then

                                               23
              correct any errors in the reporting of the absentee votes.

              (3) Count or cause to be counted all absentee ballots that were cast in
              the election and correct any errors in the tally that had been reported.

14 Del. C. § 1083 (2014), amended by 79 Del. Laws ch. 275 (2015).

       Title 14 granted the Department of Elections the same powers, functions, and

duties as the provisions considered by the Delaware Supreme Court in McCoy, Wolcott,

and Seitz. As under the regimes considered in those decisions, Title 14 obligated the

Department of Elections to certify the results of the vote, then ―present [the] certification

of the results to the superintendent.‖ 14 Del. C. § 1083(d)(1). The boards of canvass in

McCoy and Wolcott similarly were required to certify the results of the election and

―deliver and lodge‖ the certifications with the appropriate government authority. Del. C.

1852, § 24; Del. Const. art. V, § 6 (amended 1999). Those functions did not include the

ability to inquire into electoral misconduct. Also as in McCoy and Wolcott, Title 14

granted the Department of Elections the power to appoint an ―inspector‖ and ―judges‖ of

the election. Both McCoy and Wolcott held that these terms did not confer judicial or

quasi-judicial authority. 83 A.2d at 371, 373. Title 14 also directed the Department of

Elections to ―compile‖ the votes. 14 Del. C. § 1083(a). The boards of canvass at issue in

McCoy and Wolcott had the same authority, which did not give them the ability to inquire

into legal violations. The Department of Elections also could ―correct any errors in the

reporting‖ or ―tally‖ of votes. 14 Del. C. § 1083(e)(2)-(3). So could the Wolcott board of

canvass, but the Delaware Supreme Court held that the statutory language identified the

full extent of the board‘s power. The ability to correct documentary errors did not amount



                                             24
to the authority to inquire into legal violations during the conduct of the election.

       Title 14 did grant the Department of Elections the power ―to enforce‖ certain

election laws, a power that was not at issue in McCoy, Wolcott, and Seitz . Under Title 14,

the Department of Elections had the duty to take ―steps necessary to maintain order

within the polling place as well as enforce‖ a statutory prohibition on electioneering. Id.

at 1088(b). These are executive functions that the Department had a duty to exercise

during the conduct of the Special Election. See Chabal v. Reagan, 841 F.2d 1216, 1222

(3d Cir. 1988) (explaining that when marshals enforce federal laws, they perform

executive functions); Pottock v. Mellott, 22 A.2d 843, 848 (Del. 1941) (contrasting tax

enforcement actions from tax proceedings and finding only the latter was quasi-judicial

because they ―the characteristics of a judgment‖). This authority did not extend to

holding hearings after the fact to determine whether the law had been violated.

       The Department of Elections also has various executive powers under Title 15.

Those powers do not apply to this case, because they do not relate to the Department‘s

authority to certify the results of a school tax referendum. Instead, Title 15 addresses the

Department‘s general duties across all elections. Those duties apply in elections where

the results are reviewed by the Superior Court sitting as a board of canvass, and the

Delaware Supreme Court held in Wolcott and Seitz that in those settings, a plaintiff must

seek a remedy for electoral misconduct in the courts. If the duties of the Department

under Title 15 included investigating and ruling on electoral misconduct, then decisions

like Wolcott and Seitz would have sent the petitioners to the Department of Elections for

their remedy. The fact that Wolcott and Seitz held that the petitioners‘ remedy lay in the


                                             25
courts shows that Title 15 as it existed at the time of those decisions and the Special

Election did not give the Department authority to investigate and rule on electoral law

violations.

C.     Other Statutory Indications

       Other aspects of Delaware‘s election laws reinforce the conclusion that the

Department of Elections did not have the ability to conduct an inquiry into electoral law

violations under the scheme in existence at the time of the Special Election. In contrast to

the regime for school elections, if a ―municipality‘s Board of Elections‖ receives a

complaint about pre-election illegality or misconduct, it must meet within ten days, issue

a written decision within twenty-four hours of that meeting, and then ―order[] lawful

action necessary to correct such legal error.‖ 15 Del. C. § 7552. The statutory scheme for

municipal elections includes a path for citizens to challenge a vote that the municipality‘s

board of elections certified. 14 Del. C. § 1083(e).

       After the events giving rise to this case the General Assembly amended

Delaware‘s election laws effective July 1, 2015. 79 Del. Laws ch. 275 (2015) (codified at

15 Del. C. §§ 101-7710). Among other things, the amendments merged the three county

departments of election into a single statewide department headed by a single board. 15

Del. C. §§ 101(2), 203. They also gave the State Election Commissioner broad

investigatory and fact-finding powers, including the ability to issue subpoenas. Id. at §

302A. The amendments appear to have been intended, at least in part, to provide the

Department of Elections with powers it did not have under the law as it existed at the

time of the Special Election.


                                             26
                              III.       CONCLUSION

       The Board of Elections‘ motion to dismiss is granted. Under the statutory scheme

in effect at the time of the Special Election, the Board of Elections lacked authority to

investigate and rule on violations of the electoral laws.




                                             27
