IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

NADINE FROST, SEAN GOWARD,

and VVILLIAM MCVAY,
C.A. No. K18M-04-003 NEP
Petitioners,
In and for Kent County
v.
ELAINE MANLOVE,
Commissioner of Elections,
Respondent.
OPINION AND ORDER

 

Submitted: August 3, 2018
Decided: August 14, 2018

Before the Court are Respondent Elaine Manlove’s (hereinafter
“Respondent”) motion to dismiss and Petitioners Nadine Frost’s, William McVay’s,
and Sean Goward’s motion for summary judgment (hereinafter “Petitioners”), as
Well as their Written responses and oral arguments presented by all parties at a
hearing held August 3, 2018. For the reasons stated below, Respondent’s motion to
dismiss is GRANTED, and consequently, Petitioners’ motion for summary

judgment is DISMISSED as moot.
I. FACTUAL BACKGROUND
This matter Was initiated by Petitioners’ filing of their pro se complaint on

April 6, 2018, in Which Petitioners sought a Writ of mandamus to compel Respondent

to recognize Petitioner Nadine Frost’s (hereinafter “Ms. Frost”) candidacy for the

Nadine Frost et al v. E/aine Manlove
K18M-04-003 NEP
August 14, 2018

United States Senate, and the Libertarian Party of Delaware’s (hereinafter “LPD”)
status as the “regularly organized and constituted governing authority for the
Libertarian Party” in Delaware. The facts recited below are as alleged in Petitioners’
amended complaint.l

Petitioners allege that Ms. Frost is the duly nominated candidate of the LPD
for the United States Senate, and that her fellow petitioners, William McVay and
Sean Goward, are the duly elected State Chair and State Secretary of the LPD. On
February 12, 2018, Petitioners sought written acknowledgment from the State Board
of Elections of the LPD’s status as the official political party bearing the Libertarian
title in Delaware. Petitioners received no response from the State Board of Elections
or from Respondent.

On March 28, 2018, Ms. Frost delivered a completed certificate of nomination
concerning her candidacy for the United States Senate to Respondent. Despite this,
Respondent failed to list Ms. Frost on a website maintained by Respondent that lists
the other various ballot-qualified candidates up for election in 2018. On April 6,
2018, Petitioners filed this complaint, alleging that they are suffering harm for every
moment Ms. Frost is not listed on Respondent’s website. Petitioners sought a writ of
mandamus to compel Respondent to recognize Ms. Frost’s candidacy in writing, and
on the website, and to acknowledge the LPD as the regularly organized and

constituted governing authority for the Libertarian Party in Delaware.

 

1 Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002) (on a motion to dismiss “all well-

pleaded factual allegations are accepted as true.”).
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K18M-04-003 NEP
August 14, 2018

Respondent’s motion to dismiss argues that Petitioners have failed to plead
facts demonstrating entitlement to a writ of mandamus Specifically, Respondents
argue that (1) Petitioners have failed to plead facts indicating a “clear right” to a
written recognition by Respondent of the LPD’s status as the regularly organized
and constituted governing authority for the Libertarian Party in Delaware; (2)
Petitioners have an adequate remedy at law, namely, the relief offered by 15 Del. C.
§ 3302(b), which determines to which faction the name, title or figure of a political
party properly belongs; and (3) Petitioners William McVay and Sean Goward lack
standing.

Petitioners respond that the clear right to a written recognition of Ms. Frost’s
candidacy and the LPD’s status is provided by 15 Del. C. § 8041(2). They further
assert that the alternative remedy offered by 3302(b) is “irrelevant,” and that
Petitioners William McVay and Sean Goward have standing because any citizen or
taxpayer can bring a mandamus proceeding regardless of that individual’s lack of a

special interest in the result of the proceedings

II. RELEVANT LAW

Upon this Court’s review of a motion to dismiss, “(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

Nadine Frost et al v. Elaine Manlove
K18|V|-04-003 NEP
August 14, 2018

unless the plaintiff would not be entitled to recover under any reasonably
conceivable set of circumstances susceptible of proof.”2

A writ of mandamus is an extraordinary remedy that a Court may issue to
compel an agency to perform a nondiscretionary duty. Before a writ shall issue, the
petitioner must demonstrate that (1) he or she has “a clear right to the performance
of the duty;” and (2) he or she has no adequate remedy at law; and (3) the agency
has “arbitrarily failed or refused to perform that duty.”3

Chapter 80 of Title 15 of the Delaware Code contains various provisions
relating to funds used in Delaware political campaigns 15 Del. C. § 8041(2) requires
that commissioners, “[a]t the request of any person, make a ruling that applies this
chapter to a set of facts specified by the person.”

In contrast, Chapter 33 of Title 15 concerns the nominations of particular
candidates made by political parties, and Section 3302 provides a mechanism by
which the Board of Elections may resolve contests between factions claiming to

represent a political paity. Specifically, Section 3302(b) provides, in pertinent part,

as follows:

In case of a division in any party and claim by 2 or more factions to the
same party name or title, figure or device, if the division occurs at a
state convention or extends throughout this State, the State Board of
Elections shall, within 10 days after any one of them has received the
certificates of the contending factions, assemble in Dover, and
determine to which faction the name, title or figure properly belongs,

 

2 Savor, 812 A.2d at 896-97.
3 Clough v. State, 686 A.2d 158, 159 (Del. 1996); In re Hyson, 649 A.2d 807, 808 (Del. 1994).

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Nadine Frost et al v. Elaine Manlove
K18|V|-04-003 NEP
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giving the preference to the convention held at the time and place
designated in the call of the regularly constituted party authorities; if,
within 5 days after, the other faction presents no other party name or
title, figure or device and certifies the same to the Board, the latter shall
again immediately assemble and select some suitable title, figure or
device for such faction and the name shall be placed above the list of
its candidates on the ballots

III. DISCUSSION

Here, the Court finds that 15 Del. C. § 8041(2) does not clearly entitle
Petitioners to the relief requested. Chapter 80 pertains only to funds used for political
campaigns according to 15 Del. C. § 8001, the purpose of Chapter 80 “is to protect
the public interest by requiring full disclosure of the source of all funds used in
political campaigns, providing reasonable limits on the amounts of contributions and
providing a manner to enforce this law.” While Petitioners claim that the answer to
the question of whether the LPD is the “regularly organized and constituted
governing authority for the ballot qualified Libertarian Party in Delaware” might
have campaign finance implications, such implications are not mentioned in the
amended complaint,

Additionally, the Court finds that Petitioners are not entitled to have the LPD
recognized as the “regularly organized and constituted governing authority for the
ballot qualified Libertarian Party in Delaware,” because such a designation would
necessarily be inaccurate. In the context of Title 15, “regularly organized and

constituted governing authority” refers to a state political party’s state committee or

Nadine Frost et al v. Elaine Manlove
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August 14, 2018

state convention.4 For example, in this case, the facts as pleaded in the amended
complaint would suggest that the LPD is not itself a regularly constituted party
authority_the regularly constituted authorities of the LPD are its executive
committee and convention. Therefore, the Court finds that Respondent’s duty to
provide the written statement requested is at least questionable, if such a duty exists
at all.5 Further, Petitioners failed to present authority demonstrating that Respondent
has any duty to list Ms. Frost as a candidate on the website mentioned. This ground

independently mandates dismissal of the petition. As the Respondent had no duty to

 

4 15 Del. C. § 101(26) defines a “State committee” as a “regularly organized and constituted
statewide governing authority of a political party in this State.” This is not to be confused With a
political party, which is defined under 101(15) as “any political organization which elects a state
committee and officers of a state committee . . . .”). Further, the Court finds instructive the
interpretation of the New York Court of Appeals of a New York state election law with nearly
identical wording. That law provided that “if there is a division within a party, and two or more
factions claim the same device or name, the secretary of state, in a case like this, shall decide such
conflicting claim, ‘ giving preference of device and name to the convention or primary, or
committee thereof, recognized by the regularly constituted party authorities.”’ In re Fairchila', 151
N.Y. 359, 365, 45 N.E. 943, 945 (1897). ln interpreting that law, the New York Court of Appeals
concluded as follows: “That the state committee and state convention of a party are its regularly
constituted authorities there can be no doubt.” A similar conclusion was reached by the Supreme
Court of lndiana, again interpreting a nearly identical statute: “There can be no question under the
facts pleaded that the Republican county central committee of which relator is the chairman was
the regularly constituted authority for the calling of a convention of the Republican Party in
Marshall county [sic].” State ex rel. Garn v. Ba’. of Election Comm'rs of Marshall Cly., 167 Ind.
276, 78 N.E. 1016, 1018 (1906).

5 The Court also notes that 15 Del. C. § 8041(2) does not require the Commissioner to make certain
written statements, only to make rulings on certain sets of facts Therefore, even if the question
presented to Respondent was a proper one, Petitioners did not demonstrate that Respondent was
obligated to rule in their favor, simply that she must make a ruling_be it for or against them. The
amended complaint does allege that the LPD “is the regularly organized and constituted governing
authority” of the party, implying that the requested statement from Respondent would be truthful;
however, this allegation is conclusory and unsupported by any facts Because the amended
complaint contains no facts or argument showing that Respondent had a duty to rule in their favor,
Petitioners have not set forth sufficient allegations showing entitlement to the requested relief.

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Nadine Frost et al v. Elaine Manlove
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perform the requested acts, the Court finds that Respondent has not “arbitrarily failed
or refused to perform” any duty.

The Court also finds that Petitioners have an alternate remedy at law with
regard to preventing the usurpation of the “Libertarian” title by other parties
Petitioners complained at oral argument that unless the LPD is recognized as the
official political party bearing the “Libertarian” title, other unaffiliated factions may
attempt to usurp the “Libertarian” title, thus confusing voters as well as State
Election authorities and resulting in possible loss of votes and delays in the
recognition of the LPD’s nominated candidates The Court finds that such a
possibility was contemplated by the Delaware legislature and that 15 Del. C. § 3302
provides an adequate remedy. Specifically, Section 3302(a) provides that “[t]he
same title, figure or device shall not be used by more than 1 party, and the party first
certifying a name, title, figure or device to the Department shall have prior right to
use the same.” If the LPD was indeed the first to certify that name, it already has
“prior right to use the same,” and has no need to seek the writ of mandamus
petitioned for here. Section 3302(b) provides additional protection if some other
faction attempts to nominate a candidate using the LPD’s name or title. Because
there exists an adequate remedy at law, the Court finds that Petitioners are not
entitled to the relief sought under any reasonably conceivable set of circumstances
susceptible of proof. Finally, because independent grounds for dismissal are
demonstrated, it is unnecessary to reach Respondent’s argument that Petitioners lack

standing.

Nadine Frost et al v. Elaine Manlove
K18M-04-003 NEP
August 14, 2018

IV. CONCLUSION

WHEREFORE, Respondent’s motion to dismiss is GRANTED and Petitioners’

motion for summary judgment is DENIED as moot.

/s/Noel Eason Primos
Noel Eason Primos, Judge

NEP/wj s
Vl`a File & ServeXpress and U.S. Mail
oc: Prothonotary
xc: Nadine Frost
Sean Goward
William McVay
Attorneys of Record

