Chapter 59

§ 5901 Notice of intention to contest; specifications. Any person intending to contest the election or the eligibility of any one returned by the board of canvass as a member of either branch of the General Assembly from any of the counties of this State shall at least 20 days before the meeting of the General Assembly give written notice of such intention to the person whose seat that person intends to contest, and within 10 days after the notice shall deliver to the person a written specification of the several grounds upon which that person intends to contest the election or the eligibility of such person. If 1 of such grounds shall be that illegal votes were given at such election for the person so returned, then such specification shall particularly set forth the name of each alleged illegal voter, with the several objections to the legality of that voter’s vote. Code 1852, §  427; Code 1915, §  1893; Code 1935, §  2011; 15 Del. C. 1953, §  5901; 70 Del. Laws, c. 186, §  1 ; § 5902 Counter specifications. The person returned by the board of canvass as having been elected shall, within 15 days after receiving the notice specified in § 5901 of this title, deliver to the person contesting the elected person’s seat a like specification of objections to the right of the contestant to such seat. Code 1852, §  428; Code 1915, §  1894; Code 1935, §  2012; 15 Del. C. 1953, §  5902; 70 Del. Laws, c. 186, §  1 ; § 5903 Verification of specifications. Every specification shall be verified by affidavit of the party delivering the same, stating that the party verily believes that the grounds of objection set forth are substantially true, and that the voters specified as illegal voters were not entitled by law to vote at the election in question. Code 1852, §  429; Code 1915, §  1895; Code 1935, §  2013; 15 Del. C. 1953, §  5903; 70 Del. Laws, c. 186, §  1 ; § 5904 Delivery of notice and specification to presiding officer of Senate or House. Copies of the notice and specifications verified as provided in § 5903 of this title shall be delivered to the Speaker or President, as the case may be, of the house having cognizance of the matter. The contestant shall deliver the contestant’s own notice and specifications with the contestant’s petition on the first day of the session, and the sitting member shall deliver a copy of the sitting member’s specifications to the Speaker or President when the sitting member delivers them to the contestant. Code 1852, §  430; Code 1915, §  1896; Code 1935, §  2014; 15 Del. C. 1953, §  5904; 70 Del. Laws, c. 186, §  1 ; § 5905 Inquiry restricted to grounds specified. In the trial of the case of a contested election, the parties shall be restricted to the grounds of objection in the specifications set forth and shall not examine into the illegality of any votes other than those specified as illegal nor impeach such votes for any causes other than those specified. Code 1852, §  431; Code 1915, §  1897; Code 1935, §  2015; 15 Del. C. 1953, §  5905; § 5906 Costs when sitting member unseated. If the house having cognizance of the matter determines that the sitting member is not entitled to that sitting member’s own seat, it may order that the costs incurred by such contested election be paid by the State. Code 1852, §  432; Code 1915, §  1898; Code 1935, §  2016; 15 Del. C. 1953, §  5906; 51 Del. Laws, c. 149, §  7 ; 70 Del. Laws, c. 186, §  1 ; § 5907 Costs when sitting member is not unseated. The house in determining against the claim of the contestant may also decide that the proceeding on the contestant’s part is frivolous and vexatious and may order that the contestant shall pay all the costs of the contested election, but without such order the contestant shall not be liable to costs and the same shall be paid by the State. Code 1852, §  433; Code 1915, §  1899; Code 1935, §  2017; 15 Del. C. 1953, §  5907; 70 Del. Laws, c. 186, §  1 ; § 5908 Execution when costs are to be paid by contestant. Any order for the payment of costs by the contestant shall be enforced by a writ issued by the Speaker or President, as the case may be, of the house in which such election was contested to the Sheriff of Kent County, directing the Sheriff of Kent County to levy and make the amount thereof of the goods and chattels, lands and tenements of the petitioner, under which writ the Sheriff shall sell the same, or such part thereof as may be necessary to satisfy the writ, upon 15 days’ notice posted as required in cases of sale on execution process, and shall pay over the amount by the Sheriff of Kent County received upon the writ to the State Treasurer for the purpose of reimbursing to the Treasury the sums drawn therefrom to pay the costs of the contested election. Code 1852, §  434; Code 1915, §  1900; Code 1935, §  2018; 15 Del. C. 1953, §  5908; 70 Del. Laws, c. 186, §  1 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 5921 Notice of contest; specification. Any person intending to contest the election of any one declared by the Governor to have been chosen an elector of President and Vice President of the United States, shall, within 10 days after such declaration by proclamation of the Governor, give written notice of such intention to the person whose election the contesting person intends to contest and also to the Governor, and within 5 days after the delivery of such notice, shall deliver to the person whose election the contesting person contests and to the Governor written specification of the grounds upon which the contesting person intends to contest the election of the person so declared to have been elected. If 1 of the grounds shall be that illegal votes were given at such election for the person declared to have been elected then such specification shall particularly set forth the name of each alleged illegal voter, with the several objections to the legality of that voter’s vote, and shall also distinctly set forth and state the election district at which the alleged illegal vote was cast. 18 Del. Laws, c. 22, §  1 ; Code 1915, §  1869; Code 1935, §  1988; 15 Del. C. 1953, §  5921; 70 Del. Laws, c. 186, §  1 ; 82 Del. Laws, c. 141, § 13 ; § 5922 Specification in answer. The person declared to have been elected and who has received notice of contest shall, within 10 days after receiving specification of the grounds of contest, deliver to the person so contesting the elected person’s election, and to the Governor, a like specification of objections to the right of the contestant to be declared an elector, and in such specification may also state any other ground upon which the elected person rests the validity of the elected person’s election. 18 Del. Laws, c. 22, §  2 ; Code 1915, §  1870; Code 1935, §  1989; 15 Del. C. 1953, §  5922; 70 Del. Laws, c. 186, §  1 ; § 5923 Verification of specifications. Every specification shall be verified by the affidavit of the party delivering the same, stating that the party verily believes that the grounds of objection set forth are substantially true, and that the voters specified as illegal voters were not entitled by law to vote at the election in question. 18 Del. Laws, c. 22, §  3 ; Code 1915, §  1871; Code 1935, §  1990; 15 Del. C. 1953, §  5923; 70 Del. Laws, c. 186, §  1 ; § 5924 Delivery of documents to special board of canvass. The notice and specification which have been delivered to the Governor shall be delivered by the Governor to the special board of canvass provided for in § 5927 of this title, together with the certificates of the votes given for each person voted for for elector as returned to the Governor by the respective boards of canvass under Chapter 57 of this title on the first day of the assembling of the special board of canvass. 18 Del. Laws, c. 22, §  4 ; Code 1915, §  1872; Code 1935, §  1991; 15 Del. C. 1953, §  5924; 70 Del. Laws, c. 186, §  1 ; § 5925 Inquiry restricted to grounds of objection in specifications. In the trial of the case of a contested election, the parties shall be restricted to the grounds of objection in the specifications set forth and to the statement of the other grounds upon which the person declared to have been elected rests the validity of that person’s election and shall not examine into the illegality of any other vote than those specified as illegal nor impeach such votes for any causes other than those so specified. 18 Del. Laws, c. 22, §  5 ; Code 1915, §  1873; Code 1935, §  1992; 15 Del. C. 1953, §  5925; 70 Del. Laws, c. 186, §  1 ; § 5926 Subpoenas for witnesses. Where any contestant or person who has been declared elected and whose election is contested is desirous of obtaining testimony respecting a contested election, such person may apply to the Prothonotary of the Superior Court in Kent County, for a subpoena or subpoenas for summoning such witnesses as the contestant or person who has been declared elected may wish to appear before the special board of canvass at such time as shall be in the subpoenas designated. Such subpoena shall be directed to the sheriff of the county in which the witness or witnesses reside, and shall be served in the same manner as subpoenas for witnesses in civil cases are served. The sheriff to whom a subpoena may be directed shall make return of that sheriff’s service thereon to the special board of canvass on the first day of its meeting to hear the contest. 18 Del. Laws, c. 22, §  6 ; Code 1915, §  1874; Code 1935, §  1993; 15 Del. C. 1953, §  5926; 70 Del. Laws, c. 186, §  1 ; § 5927 Superior Court for Kent County declared a special board of canvass to hear contest. The Superior Court for Kent County is continued and declared to be a special board of canvass to hear and determine all contests of elections of electors of President and Vice President with power to regulate and determine the mode of procedure, and all other matters pertaining thereto as may be necessary in carrying out the provision of this subchapter and the Act of Congress fixing the day of the meeting of electors. The Governor whenever a notice of contest is served upon the Governor shall immediately make proclamation convening such Superior Court in special session at the Courthouse in Dover on a day to be by the Governor named, which shall not be later than December 20, next succeeding the day of the election in the year in which the election was held. 18 Del. Laws, c. 22, §  7 ; Code 1915, §  1875; Code 1935, §  1994; 15 Del. C. 1953, §  5927; 70 Del. Laws, c. 186, §  1 ; 82 Del. Laws, c. 141, § 14 ; § 5928 Certification by Superior Court. The Superior Court, after hearing any contest of election of an elector or electors, shall make out and certify under the seal of the Court the ascertainment of the vote of the State for electors, and also certify the names of the persons chosen as electors, and cause such ascertainment and certificate, together with all the papers and certificates filed in the case, to be delivered to the Governor on or before January 1 next succeeding the day of the election at which electors were chosen. 18 Del. Laws, c. 22, §  8 ; Code 1915, §  1876; Code 1935, §  1995; 15 Del. C. 1953, §  5928; 82 Del. Laws, c. 141, § 12 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 5941 Who may contest; causes. Any person claiming to be elected to an office to be exercised in and for any county, district or hundred may contest the right of any person declared to be duly elected to such office for any of the following causes: (1) For malconduct on the part of the election officers or clerks holding the election, or any one of them; (2) When the person whose right to the office is contested was not at the time of the election eligible to such office; (3) When the person whose right is contested has given to any elector or inspector, judge or clerk of election, any bribe or reward or shall have offered any bribe or reward for the purpose of procuring his or her election; (4) On account of illegal votes. 17 Del. Laws, c. 33, §  1 ; Code 1915, §  1901; Code 1935, §  2019; 15 Del. C. 1953, §  5941; 70 Del. Laws, c. 186, §  1 ; § 5942 Irregularities not invalidating election. No inequality or improper conduct in the proceedings of the election officers or clerks or any one of them, shall be construed to amount to such malconduct as to annul or set aside any election unless the inequality or improper conduct shall have been such as to procure the person whose right to 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. 17 Del. Laws, c. 33, §  2 ; Code 1915, §  1902; Code 1935, §  2020; 15 Del. C. 1953, §  5942; 70 Del. Laws, c. 186, §  1 ; § 5943 Requirements to set aside election because of illegal voting. Nothing in this chapter shall be so construed as to authorize an election to be set aside or annulled on account of illegal votes unless it shall appear that an amount of illegal votes has been given to the person whose right to the office is contested which, if taken from the person, would reduce the number of the person’s legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to such other person. 17 Del. Laws, c. 33, §  4 ; Code 1915, §  1903; Code 1935, §  2021; 15 Del. C. 1953, §  5943; 70 Del. Laws, c. 186, §  1 ; § 5944 Circumstances under which contestant need not claim to have been elected. When an election is contested because of alleged malconduct of the election officers holding the election or because the person whose right to office is contested was not eligible for such office, a proceeding may be instituted under this chapter against such person by the person who received the next highest number of votes for the office at the election under which such ineligible person was declared elected, notwithstanding the person so contesting the election does not claim to have been elected. 17 Del. Laws, c. 33, §  5 ; Code 1915, §  1904; Code 1935, §  2022; 15 Del. C. 1953, §  5944; § 5945 Statement of contestant; contents. When any person authorized to do so under this chapter desires to contest the right of any person declared duly elected to such office, that contesting person shall, within 20 days after the result of the election shall have been officially ascertained by the board of canvass, or officers legally authorized to ascertain the same, and at least 60 days before the first day of the term of court at which the contest shall be tried or called for trial, file with the Prothonotary in the county in which the contest is made a full, particular and explicit statement setting forth fully and specifically the names of any and all election officers upon the malconduct of whom the contesting persons will rely and respecting which the contesting person intends to procure evidence, and setting forth the election districts of such election officers and the particular malconduct of each, respectively, the names and residences of the witnesses and the substance of their testimony, by whom the contesting person expects to prove such malconduct. If such contest is based upon ineligibility of a person to hold the office, the statement shall specifically, fully and explicitly state the grounds and causes of the ineligibility of the person whose right to the office is contested. When such contest is based on alleged bribe or reward or the offer of a bribe or reward, the statement shall explicitly, fully and clearly state the name of any elector, election officer or other person to whom any bribe or reward shall have been offered and the time, place and amount of such bribe or reward and the name and residence of the witnesses by whom the contestant expects to prove the offering of any bribe or reward, with a brief statement of their testimony. When the contest shall be on the ground of illegal votes, the statement shall specifically, fully and explicitly set forth the names, residences and respective causes of disqualification of each person alleged to have illegally voted, the polls at which such illegal vote has been received, the names of the election officers favoring the acceptance of such vote, whether such vote was challenged by the duly accredited challenger of the party of which the contestant was the candidate, and whether all the judges or inspectors present at such polls concurred in accepting and receiving such vote. If it appears that all of such judges or inspectors concurred in accepting or receiving such vote or that the right of the voters, respectively, to deposit such votes was not at the time challenged by the duly accredited challenger of the party of which the contestant was a candidate, the legality or illegality of such vote shall not be brought into question in any such contest. The statement shall further set forth the names and residences of the witnesses who shall be produced on behalf of the contestant to prove such illegal votes and the substance of the testimony to be given by each. 17 Del. Laws, c. 33, §  6 ; 19 Del. Laws, c. 572, §  1 ; Code 1915, §  1905; Code 1935, §  2023; 15 Del. C. 1953, §  5945; 70 Del. Laws, c. 186, §  1 ; § 5946 Verification of contestant’s statement. The statement shall be verified by the oath of the contestant that the matters therein set forth are, so far as they relate to the contestant’s own act and deed, true and that what relates to the act and deed of any other person the contestant believes to be true. 17 Del. Laws, c. 33, §  6 ; 19 Del. Laws, c. 572, §  1 ; Code 1915, §  1905; Code 1935, §  2023; 15 Del. C. 1953, §  5946; 70 Del. Laws, c. 186, §  1 ; § 5947 Security for costs. Any person contesting any election under this subchapter shall be required to give security for costs in such amount and manner as the court shall order. Such security, however, shall in no case be enforced unless judgment for costs be rendered against the contestant. 17 Del. Laws, c. 33, §  17 ; Code 1915, §  1914; Code 1935, §  2032; 15 Del. C. 1953, §  5947; § 5948 Citation; service and return. Before the statement is filed, the prothonotary shall docket the case in the appearance docket and immediately issue a citation for the person whose right to the office is contested to appear on the first day of the second term of the Superior Court to make such defense as that person may have, which citation shall be delivered to the sheriff or, if the sheriff be a party to the contest, to a local law-enforcement officer, and be served by the sheriff or law-enforcement officer upon the party defendant in person or, if the party defendant cannot be found, by leaving a copy thereof at the house where the party defendant last resided at least 5 days before the day to which such citation is returnable. The original citation shall be returned to the prothonotary on or before the first day of the next term of Court after it is issued, and the manner of service shall be endorsed thereon and signed by the officer serving the same. 17 Del. Laws, c. 33, §  9 ; 19 Del. Laws, c. 572, §  2 ; Code 1915, §  1906; Code 1935, §  2024; 15 Del. C. 1953, §  5948; 70 Del. Laws, c. 186, §  1 ; 84 Del. Laws, c. 42, § 1 ; 84 Del. Laws, c. 117, § 13 ; § 5949 Dismissal of proceedings. The Court may dismiss the proceedings if the statement of the cause or causes of contest do not conform to the requirements set forth in this subchapter or for want of prosecution. 17 Del. Laws, c. 33, §  10 ; 19 Del. Laws, c. 572, §  3 ; Code 1915, §  1907; Code 1935, §  2025; 15 Del. C. 1953, §  5949; § 5950 Trial. If proceedings are not dismissed, the case shall proceed upon its merits and be tried and determined by the Court by the rules of law and evidence governing the determination of questions of law and facts in the Superior Court, so far as the same are applicable. 17 Del. Laws, c. 33, §  10 ; 19 Del. Laws, c. 572, §  3 ; Code 1915, §  1907; Code 1935, §  2025; 15 Del. C. 1953, §  5950; § 5951 Trial by Court; by jury. All cases of contest under this subchapter shall be fully heard and determined by the Court, without the aid or intervention of a jury, unless 1 or both of the parties to the contest shall claim a trial by jury, and the Court shall, in its judgment, determine that it is a case which, under the Constitution and laws of this State, the party or parties are entitled to a trial by jury. In such case a jury shall be empanelled and the cause proceed according to the rules and practice of the Court in jury trials. 17 Del. Laws, c. 33, §  12 ; Code 1915, §  1909; Code 1935, §  2027; 15 Del. C. 1953, §  5951; § 5952 Proof and evidence limited by statement. At the trial of any contest under this subchapter the contestant shall be limited in that contestant’s proof and in the admission of evidence to the witnesses named in the statement, and the witnesses shall be limited in their testimony to the facts set forth in the statement with respect to which it shall be stated that they will be expected to testify. 17 Del. Laws, c. 33, §  6 ; 19 Del. Laws, c. 572, §  1 ; Code 1915, §  1905; Code 1935, §  2023; 15 Del. C. 1953, §  5952; 70 Del. Laws, c. 186, §  1 ; § 5953 Examination of ballots by Court. In the trial of any contested election under this subchapter, the Court may make an examination of the ballots given in such election, except that wherever the ballot boxes, ballots, poll lists, tally sheets or other books or records pertaining to any election, excepting the certificate of election of the officer against whom the contest may be made, duly signed by the Court constituting the board of canvass and under the seal of court, and delivered according to law, shall have come in any way, legally or illegally, into the possession, care or custody of any person, officially or otherwise, who shall have been a candidate and voted for upon the same official ballot as a candidate of the same political party as the contestant, no such ballot boxes, poll lists, tally sheets or other books or records pertaining to the said election, excepting the certificate of election, shall be offered in evidence in any contest begun or prosecuted under the provisions hereof, and the Court may make and enforce by attachment all necessary orders to obtain possession of the same. 17 Del. Laws, c. 33, §  13 ; 19 Del. Laws, c. 572, §  4 ; Code 1915, §  1910; Code 1935, §  2028; 15 Del. C. 1953, §  5953; § 5954 Judgment. (a) After hearing the allegations and proofs in the cause the Court shall render judgment (in accordance with the verdict of the jury, if a jury shall have tried the cause) either confirming or annulling such election altogether. (b) If it appear by the judgment of the Court or the verdict of the jury (if there be a jury) that any other person than the one whose election is contested received the highest number of legal votes, judgment shall be rendered declaring such person duly elected. (c) When the person whose election is contested is proved to be ineligible to the office, judgment shall be rendered declaring the election void and the office vacant, and such proceedings shall then be had as in vacancies happening from any other cause. When it shall appear that 2 persons have received an equal number of legal votes for the same office, the provisions of law for the settlement of such cases shall prevail, if there be any such provision; if there be none, then the office shall be adjudged and declared vacant, and such proceedings shall then be had as in vacancies happening from any other cause. 17 Del. Laws, c. 33, §§  13-15 ; 19 Del. Laws, c. 572, §  4 ; Code 1915, §§  1910-1912; Code 1935, §§  2028-2030; 15 Del. C. 1953, §  5954; § 5955 Costs. (a) Costs in all cases under this subchapter shall be awarded against the unsuccessful party to the contest. (b) Charges for costs shall be as near as possible to the charges for similar services in other cases tried in the Superior Court. (c) Execution may issue to collect costs. 17 Del. Laws, c. 33, §§  11, 16 ; Code 1915, §§  1908, 1913; Code 1935, §§  2026, 2031; 15 Del. C. 1953, §  5955; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } }