Top court hears Kent County Recorder of Deeds appeal

DOVER — The general election was 163 days ago, and yet an issue from one race remains unresolved as a candidate continues his appeal.

Republican La Mar Gunn has lost to, defeated and tied Democrat Betty Lou McKenna in the Kent County Recorder of Deeds race as different vote tabulations yielded differing results.

Kent County Recorder of Deeds candidate La Mar Gunn, seen arriving at the Delaware Supreme Court Wednesday morning, said he wants to see a special election held for a final, absolute determination on who won the office in last November’s disputed outcome.  (Delaware State News photo by Dave Chambers)

Kent County Recorder of Deeds candidate La Mar Gunn, seen arriving at the Delaware Supreme Court Wednesday morning, said he wants to see a special election held for a final, absolute determination on who won the office in last November’s disputed outcome. (Delaware State News photo by Dave Chambers)

On Wednesday, lawyers for the two argued in front of the Supreme Court, the final step before the process at long last comes to an end that both candidates eagerly are awaiting.

Mr. Gunn was judged to have won over the incumbent Ms. McKenna by two votes on election day, but an automatic recount in front of the board of canvass eventually reversed that on Nov. 6.

The first two recounts had Mr. Gunn winning but by different totals, while the third gave Ms. Mc­Kenna the victory.

That count was certified, making her the official winner.

Mr. Gunn appealed, and in December, in front of a Superior Court judge and the candidates’ lawyers, absentee ballots were tabulated by election workers. With Judge Robert Young ruling on several disputed ballots, the two hopefuls were found to have tied, with each garnering 19,248.

By law, the seat was declared vacant, and Gov. Jack Markell was able to appoint the officeholder. He chose Ms. McKenna, a fellow Democrat. Because she was appointed, she serves a two-year term rather than the usual four years. She began the duties of the officeholder in January.

Unsatisfied, Mr. Gunn continued his appeal, requesting the Supreme Court review the case.

He hopes for a special election.

While the court did not rule Wednesday, and may not do so for several weeks, the justices appeared skeptical of arguments put forth by Mr. Gunn’s lawyer.

Questions came early and often, with Chief Justice Leo Strine wondering if the Supreme Court even had jurisdiction to rule on the case. Frequently cited by both the justices and lawyers was section 5941 of title 15 of the state code, which says an election can be contested if there is “malconduct on the part of the election officers or clerks holding the election.”

Several justices questioned the interpretation by Mr. Gunn’s team — an interpretation Judge Young agreed with in hearing the appeal and ordering a fourth recount — that malconduct did not have to be malicious. Rather, attorney

Kent County Recorder of Deeds Betty Lou McKenna, left, walks into Delaware Supreme Court on The Green Wednesday with Deputy Recorder of Deeds Holly Malone. Ms. McKenna was appointed to the office by Gov. Jack Markell after a final vote recount ended in a tie. (Delaware State News photo by Dave Chambers)

Kent County Recorder of Deeds Betty Lou McKenna, left, walks into Delaware Supreme Court on The Green Wednesday with Deputy Recorder of Deeds Holly Malone. Ms. McKenna was appointed to the office by Gov. Jack Markell after a final vote recount ended in a tie. (Delaware State News photo by Dave Chambers)

Julianne Murray argued, it could include simple mistakes by the board of canvass. As evidence mistakes were made, she noted the three counts on Nov. 6 all resulted in different vote totals for the candidates.

“Deficient is the word I think is most appropriate,” she said.

Even the recount in front of Judge Young had a different outcome than the others. Counts should have been held

until a result was repeated, she said.

Representing Ms. McKenna, John Paradee sought to reject arguments put forth by the opposing side.

Mr. Gunn’s attorneys did not previously dwell on the inconsistency of the counts, he said, and the claims at Superior

Court had revolved around a few disputed ballots.

The Superior Court shouldn’t have even accepted the challenge, Mr. Paradee said.

Chief Justice Strine seemed to agree, noting an appeal should not move beyond the board of canvass unless an individual alleges illegal acts like bribery. That, not simple mistakes, constitutes malconduct, he said.

Although Mr. Paradee admitted the third recount on Nov. 6, which first made his client the winner, was later proven inaccurate, the tie still made the Democrat de facto victorious.

Should the Supreme Court side with Ms. McKenna, the next question is simply for how long she will hold the office.

While Justice Randy Holland noted that overturning the Superior Court’s ruling, thus making the final recount from Nov. 6 the official result, would give Ms. McKenna a full term, Mr. Paradee said he was hesitant to accept a result later found to be incorrect.

Afterward, Mr. Gunn said he felt hopeful and was eager to get answers.

“The higher up you go, the more complicated you seem to get when at the end of the day it’s one plus one,” he said, calling the disputed results unfair to Kent County residents.

He believes a special election is the only fair way to resolve the issue.

“Any recount at this point would be an exercise in futility as the integrity of the ballots has been compromised,” he said. “It’s an uncontroverted fact that storage of the ballots violates several Delaware laws.”

Justices noted during the hearing even if they did believe a recount should be held, the absentee votes have not been stored in a manner where they cannot be altered.

Ms. McKenna said she was satisfied and believes the court will rule in her favor.

“I intend to stay in the position until they kick me out,” she said.

Reach staff writer Matt Bittle at mbittle@newszap.com

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