Posted: April 16, 2015
THE LONGEST COUNT
By Celia Cohen
The last election is still not over in Delaware. There are five votes yet to be counted.
They belong to people who wear black robes and constitute the state Supreme Court.
They are being asked at this late date to sort out the 2014 race for the Kent County recorder of deeds between Betty Lou McKenna, the Democrat who was up for re-election, and La Mar Gunn, the Republican candidate, for a four-year term.
Recorder of deeds. It sounds like maybe the assistant to Santa Claus or perhaps the Girl Scouts, someone noting for the record whose deeds have been good and whose have not, but it is much more mundane than that, simply the county official who keeps the property records.
It has been a long and winding election that finally landed Wednesday for oral argument in the Supreme Court, sitting in its tidy doll-house of a courthouse on The Green in Dover.
The flags out front were at half-staff, observing the 150th anniversary of the death of Abraham Lincoln, and whatever and whenever the court eventually rules, it is an infinitely better way to decide who the officeholder should be than the way John Wilkes Booth did.
Five months ago on Election Night, it appeared that Gunn was the winner by two votes, an outcome so close that it triggered a recount before the Kent County Board of Canvass, a panel of two Superior Court judges charged with certifying the election returns. Both sides girded for it by lawyering up.
The recount did not go smoothly. The voting machine tallies were not disputed, but there were questions about some absentee ballots, which voters fill out on paper by hand. McKenna was declared the winner by two votes.
Gunn went to the Superior Court to ask for another count. It was granted by Judge Rob Young, who supervised it himself.
Incredibly it was a tie. McKenna had 19,248 votes, and so did Gunn.
State law kicked in. A tie means the office is declared vacant, to be filled by the governor, and naturally Jack Markell, being a Democrat, appointed McKenna, although there was a catch. As an appointee, McKenna could serve only until the next election in 2016, so she essentially had what should have been a four-year term cut in half.
It still was not over. Gunn thought one absentee ballot credited to McKenna should have been thrown out to give him a one-vote win. He appealed to the Supreme Court.
Gunn was represented by Julianne Murray of MurrayPhillips and McKenna by John Paradee of Baird Mandalas Brockstedt.
The proceeding did not appear to go well for Gunn, not with the court wondering if the case should ever have gotten this far.
"Before we get to hanging chad or the equivalent, don't we have to get to the question of jurisdiction?" said Leo Strine Jr., the chief justice.
The solution Gunn proposed never even came up. He wanted the court to order a special election, because all of the vote counts never added up the same way twice.
As Gunn put it in a brief interview afterwards, "I think lawyers make it more complicated than it is. It's one-plus-one at the end of the day."
The court clearly had its doubts about the case. It was troubled that the work of two Superior Court judges -- Bill Witham and Vivian Medinilla, sitting as the Board of Canvass -- then went before Young, another Superior Court judge, because judges should not be judging their colleagues.
"Didn't the Superior Court here kind of get out of its lane?" Strine said.
The very makeup of the Supreme Court appeared to telegraph its misgivings.
Three members of the court -- Strine along with Randy Holland and Karen Valihura -- were there, but the rest of the bench was filled out with judges brought up from other courts to sit for Jim Vaughn Jr., a justice recently ascended from Superior Court president judge, whose absence was not explained, and C.J. Seitz, such a new justice he only took his oath in a private ceremony the day before.
The replacements were John Noble, a vice chancellor from the Court of Chancery, and Bill Walls, a judge from the Family Court, and their courts of origin were deliberate. It kept yet another Superior Court judge from hearing a case involving a Superior Court judge hearing a case involving two Superior Court judges.
"We could not fill it out with a judge of the Superior Court," Strine said.
The court was left to muse about the situation if it were to accept the Superior Court recount that ended in a tie or dial back to the Board of Canvass recount that McKenna won by two votes.
As Holland said to Paradee, the lawyer for McKenna, "The consequences for your client, though, if you prevail in the appeal from the single Superior Court judge, your client has a two-year term, and if we conclude there was no standing to go before a single judge and your client wins by two votes, your client has a four-year term."
McKenna had her own strong sense what the decision should be, as she explained in a short interview afterwards.
"When I filed, I had to pay for a four-year term," McKenna said.
Candidates' filing fees, which are set by the parties, generally amount to 1 percent of the salary for the entire term, in this case $1,217 on an annual paycheck for the recorder of deeds of $30, 417.
This election has been all about which vote count is right. How ironic if the Supreme Court, deciding it has no jurisdiction, basically throws its own vote count out.