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Legislation Document
SPONSOR:
Sen. Buckson & Sen. Cruce & Rep. Bolden & Rep. Michael Smith
Sens. Pettyjohn, Wilson; Rep. Morrison
DELAWARE STATE SENATE
153rd GENERAL ASSEMBLY
SENATE BILL NO. 329
AN ACT TO AMEND TITLE 15 OF THE DELAWARE CODE RELATING TO ELECTION RESULTS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend § 101, Title 15 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and redesignating accordingly:
§ 101. Definitions.
As used in
For purposes of
this title:
(28) “Tabulation” means to count votes and includes all of the following:
a. Counting all ballots or votes.
b. Recording the numbers of votes cast by ballots.
c. Confirming the count of ballots or votes.
Section 2. Amend Chapter 57, Title 15 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and redesignating accordingly:
§ 5701. Superior Court as board of canvass; convening and composition of Court.
(a)
(1)a.
The Superior Court
(Court)
shall convene in each county on the second day after the general election at 10 a.m., for the performance of the
Court’s
duties
imposed upon it by
under
§ 6 of article V of the
Delaware
Constitution
of this State
and
by
under
this chapter.
Thereupon the Court,
b. The Court may perform the duties under this chapter
with the aid of
such of it’s
the
Court’s
officers and
such
sworn assistants as
it shall appoint,
appointed.
(2) The Court
shall publicly
ascertain the state
certify the results
of the election
throughout the county and in the respective election districts by calculating the aggregate amount of all the votes for each office that shall have been given in all of the election districts of the county for every person voted for such office.
for the county after tabulating all votes cast in each election district, for each individual, for each office on the ballot,
using the material provided by the Department under paragraph (a)(3) of this section.
(3)
For this purpose, the Court shall
utilize the voting machine recording tapes, voting machine certificates, absentee vote tally sheets and write-in vote tally sheets for each election district provided by the Prothonotary and the Department, whose
The Department shall provide the Court with all of the following for each election district in the
county for the election:
a.
The report of the votes cast on each voting device used at a polling place.
b. The voting device certificates for each polling place.
c. Absentee vote reports.
d. Write-in vote reports.
e. Absentee ballots.
f. Early voting ballots.
g. Provisional ballots.
(4) The Department’s
representatives shall sit as observers and assistants to the Court during
said calculation
the tabulation
of the
vote.
vote under this section.
(b) For the purposes of this chapter,
the Superior Court shall consist in
(1) The “Superior Court” means as follows:
a. In
New Castle
County of
County,
the President Judge and the Resident
Judge; in
Judge.
b. In
Kent
County of
County,
the Resident Judge and a Judge designated by the President
Judge; and in
Judge.
c. In
Sussex
County of
County,
the Resident Judge and a Judge designated by the President Judge.
For the purpose of this chapter, the
(2)a. The
Superior Court in each county, as
so constituted,
defined under paragraph (b)(1) of this section,
shall be
a board of canvass
the “board of canvass”
for the respective counties of this State.
b. If a senatorial or representative district for the General Assembly is located in 2 or more counties, the Superior Court shall tabulate the votes cast under § 5715 of this title.
§ 5702. Duties of Court.
(a)
Whenever the voting machine recording tapes, voting machine certificates, absentee vote tally sheets, write-in vote tally sheets and absentee ballot box
If any of the material under § 5701(a)(3) of this title
for any election district
are
have
not
been
produced when the Court convenes
under § 5701(a)(1)a. of this title
or
whenever
if
any voting
machine
device
is not available by 12:00 noon, the Court may issue summary process against the election officers of
such
that
election
district
district,
or any other
persons
persons,
to bring
such
the
documents or objects forthwith into the Court or to make them available for inspection by the Court.
(b) Whenever the documents produced do not agree or there is a complaint under oath of fraud or mistake in any
such
document, or if fraud,
mistake
mistake,
or omission is apparent on the face of
such
a
document, the Court
shall:
shall do all of the following:
(1)
Open and examine the necessary
voting machines and/or absentee ballot boxes;
Examine any ballots as necessary.
(2)
Make a recount of
Recount
the votes contained
therein;
in the voting material examined.
(3) Correct any fraud,
mistake
mistake,
or omission in any document or paper relating to the election.
(d)
(1)
The
Department shall provide the
Court
shall also receive from the Department
with
a report of the number of absentee ballots delivered to each election
district, from which it
district.
(2) The Court
shall determine and make certain that all
these
of the
ballots
in the report received under paragraph (d)(1) of this section
are recorded on the absentee vote
tally sheets
report
for each election district receiving absentee ballots, either in the total number of ballots counted or in the number of ballots rejected.
§ 5703. Vote required for election.
In all elections, unless it
be
is
otherwise expressly provided, a plurality or the highest number of votes
shall
make a choice, except where this principle is defeated by 2 or more
persons having
individuals receiving
the same and the highest number of votes for the same office.
§ 5704. Votes for President and
Vice-President
Vice President
as votes for their electors.
The Court shall calculate the votes given for the candidates for President and
Vice-President
Vice President
of a political party as votes
given
cast
for each and all the electors of President and
Vice-President
Vice President
of
such
that
party, the names of whom are on file with the State Election Commissioner and as certified to the Court by the State Election Commissioner, and the Court shall make its certificates
accordingly
accordingly,
in the form and manner provided
by §§ 5705-5707
under § 5706 and § 5707
of this title.
§ 5705. Certificates of the results of the election; number required.
(a)
After the state of the election has been ascertained by calculating the votes, the Court shall make, under the seal of the Court, the certificates of the results of the election as provided in this section and §§ 5706 and 5707 of this title.
(b) The number of such certificates to be prepared by the Court for each office shall be as follows:
Electors for President and Vice-President of the United States, 3;
Governor, 4;
Lieutenant Governor, 4;
Senator in the Senate of the United States, 2;
Representative in the House of Representatives of the United States, 2;
Attorney General, 4;
Insurance Commissioner, 4;
State Treasurer, 4;
Auditor of Accounts, 4;
Senator to the General Assembly, 2 for each Senator;
Representative to the General Assembly, 2 for each Representative;
Clerk of the Peace, 2;
Register of Wills, 2;
Recorder, 2;
Levy Court Commissioner, 1 for each Commissioner;
Receiver of Taxes and County Treasurer, 1;
Sheriff, 2;
County Executive of New Castle County, 1;
County Council member of New Castle County, 1 for each Council member;
County Council member of Sussex County, 1 for each Council member.
[Repealed.]
§ 5706. Form of certificates.
(a) The certificates of the Court of the results of the election in its county
may
must
be according to the following
form or be substantially similar to the following
form:
The State of Delaware, ________________________________ County, ss.
Be it Remembered, that at the general election held on the Tuesday next after the first Monday in November, in the year
of our Lord Two Thousand and
________________ for ________________________________ County, according to the Constitution and laws of the State of Delaware (here insert,
to wit: If the certificate be of an election of electors of President and Vice President, of Governor and Lieutenant Governor, of Senator in the Senate of the United States, of Representative in Congress, of Attorney General, of Insurance Commissioner, of State Treasurer, of Auditor of Accounts, the number in words at length of votes given for each person voted for, for such respective offices; if the certificate be of an election of Senator or Representative in the General Assembly, or, of clerk of the peace, of register of wills, of recorder, of Levy Court Commissioner or Commissioners, of receiver of taxes and county treasurer, of sheriff, of county executive, of county council member,
the
information required under subsection (b) of this section for each office and the
names of the
persons
individuals
elected), which is manifest by
calculating and ascertaining the aggregate amount
tabulating
of all votes
given
cast
for each
person
individual
voted for in all the election districts of the
county, according to the provisions made by law in this behalf.
county.
In testimony, whereof, we ________________________________ and ________________________________ constituting the Superior Court for ________________________________ ________________________________ County, who have met and
ascertained the state
certified the results
of the election throughout
the said County,
this county,
as the law requires, have hereunto set our hands and caused the seal of the said Superior Court to be hereunto affixed at the
Court House in said County,
courthouse in this county,
on this ________ day of November,
A. D.
________
.
(b) The manner of making the insertion
may be
under subsection (a) of this section is
as follows:
In case of Electors
(1) If the certificate is of electors
of President and Vice
President
President, the number of votes cast for each Elector, as follows:
________ votes
were given
cast
for ________________________________ for
Elector
Elector.
________ votes were given for ________________________________ for Elector and so on, naming each person voted for.
In case of Governor
(2) If the certificate is of an election of Governor, Lieutenant Governor, Senator in the Senate of the United States, Representative in Congress, Attorney General, Insurance Commissioner, State Treasurer, or Auditor of Accounts, the number of votes cast for each individual voted, for each office, as follows:
________ votes were given for ________________________________ for
Governor
(office)
________ votes were given for ________________________________ for Governor and so on, naming each person voted for.
In case of Lieutenant Governor
________ votes were given for ________________________________ for Lieutenant Governor
________ votes were given for ________________________________ for Lieutenant Governor and so on, naming each person voted for.
In case of Senator in the Senate of the United States
________ votes were given for ________________________________ for United States Senator
________ votes were given for ________________________________ for United States Senator and so on, naming each person voted for.
In case of Representative to Congress
________ votes were given for ________________________________ for Representative to Congress
________ votes were given for ________________________________ for Representative to Congress and so on, naming each person voted for.
In case of Attorney General
________ votes were given for ________________________________ for Attorney General
________ votes were given for ________________________________ for Attorney General and so on, naming each person voted for.
In case of Insurance Commissioner
________ votes were given for ________________________________ for Insurance Commissioner
________ votes were given for ________________________________ for Insurance Commissioner and so on, naming each person voted for.
In case of State Treasurer
________ votes were given for ________________________________ for State Treasurer
________ votes were given for ________________________________ for State Treasurer and so on, naming each person voted for.
In case of Auditor of Accounts
________ votes were given for ________________________________ for Auditor of Accounts
________ votes were given for ________________________________ for Auditor of Accounts and so on, naming each person voted for.
In case of
(3) If the certificate is of an election of
Senators to
the
General
Assembly
Assembly, the name of each individual elected to the Senate, as follows:
________ was duly elected Senator for the ________________________________ Senatorial District for
said
______________________________
County in the General
Assembly, (and so on, giving certificates for each Senator elected in the respective senatorial districts of the county) and was duly elected Senator for the ________________________________ Senatorial District for said
______________________________
County in lieu of ________________________________ late Senator for said Senatorial District of said County in the General
Assembly (and so on, giving certificates for each Senator elected in lieu of any other Senator for any senatorial district for said county in the General Assembly).
Assembly.
In case of
(4) If the certificate is of an election of
Representatives to General
Assembly, the name of each individual elected to the House of Representatives, as follows:
________________________________ was duly elected Representative for the ________________________________ Representative District for
said
______________________________
County in the General
Assembly (and so on, giving certificates for each Representative elected in the respective representative districts of the County).
Assembly.
In case
(5)a. If the certificate is of an election
of
Clerk of the Peace
a clerk of the peace, register of wills, recorder, county executive, county council member, Levy Court Commissioner, or sheriff, the name of individual elected to each office on the ballot for that election.
b. The certificate of an election of a county council member or Levy Court Commissioner must include the district for the individual elected to each office.
________________________________ was duly elected Register of Wills for ________________________________ County.
In case of Recorder
________________________________ was duly elected Recorder for ________________________________ County.
In case of the County Executive for New Castle County
________________________________ was duly elected County Executive for New Castle County.
In case of County Council member for New Castle County
________________________________ was duly elected County Council member for the ________________________________ Councilmemberic District in New Castle County; and so on, giving a certificate for each Council member elected in each Councilmemberic District in New Castle County.
In case of County Councilmembers for Sussex County
________________________________ was duly elected Council member for the ________________________________ Councilmemberic District in Sussex County; and so on, giving a certificate for each Council member elected in each Councilmemberic District in Sussex County.
In case of Levy Court Commissioners for Kent County
________________________________ was duly elected Levy Court Commissioner for ________________________________ District in said County (and so on, giving a certificate for each Levy Court Commissioner elected in each District in said County).
In case of Receiver of Taxes and County Treasurer
________________________________ was duly elected Receiver of Taxes and County Treasurer for ________________________________ County.
In case of Sheriff
________________________________ was duly elected Sheriff for ________________________________ County.
§ 5707. Enclosing certificates in envelopes.
(a)
The Court shall enclose and seal up each certificate separately in an envelope, with an endorsement
thereon
describing the certificate enclosed.
Upon the paper
(b) In the endorsement on an envelope
enclosing the certificates of the election of Senator or Representative in the General
Assembly
Assembly, the Court shall include
the name of the
person chosen shall be endorsed.
individual elected.
§ 5708. Tie vote; certificate.
If, by reason of an equal number of votes having been cast for 2 or more
persons
individuals
for
the office of Senator or Representative in the General Assembly, clerk of the peace, register of wills, recorder, levy court commissioner, receiver of taxes and county treasurer, sheriff, county executive or county council member,
an office,
it appears to the Court that a vacancy will occur in
the
that
office,
the Court shall create
a certificate of
such fact shall thereupon be made under the hands of the Court, and
this fact,
under its seal,
which certificate shall be transmitted by the Court to the Governor, and such certificate shall be delivered as provided in
and deliver this certificate to the Governor under
§ 5709 of this title.
§ 5709. Disposition of certificates by the Court.
(a) The Court shall, within 3 days after making the certificates of the result of the
election for electors of President and Vice-President, either personally or by a person deputed by it for that purpose:
election, transmit, deliver, and lodge 1 certificate of the result of the election with the State Election Commissioner and as follows:
(1)
Transmit, deliver and lodge the certificates of the result of the election for
For
electors of President and
Vice-President, 1
Vice President,
to the Governor,
another to
the Secretary of State, and
the other to
the Prothonotary of the
county; and
county.
(2)
Transmit, deliver and lodge the certificates of the result of the election for Governor, according to the directions of the Constitution in that behalf; and
(3) Transmit, deliver and lodge 1 of the certificates of the result of the election for
a. For Governor or
Lieutenant
Governor
Governor,
to the President of the Senate, or in case of a vacancy in the office of President of the Senate, or the President of the Senate’s absence from
the
this
State, to the Secretary of
State, who
State.
1. The Secretary of State
shall keep the
same
certificate
until a President of the Senate
shall be chosen, to whom they shall be immediately transmitted after
is chosen or returns to this State.
2. After
the President of the Senate’s
election, who
election or return to this State, the Secretary of State shall immediately transmit the certificate to the President of the Senate who
shall open and publish the
same
certificate
in the presence of the members of both Houses of the General
Assembly, duplicates of which certificate
Assembly.
b. The Court
of which certificate
shall
also be
immediately
lodged
lodge a copy of the certificate
with the Prothonotary of each
county; and
county when the certificate is delivered under paragraph (2)a. of this section.
(4) Transmit, deliver and lodge 1 of each of the certificates of the result of the election for Senator, or Senators,
from the State
(3) For Senator
in the Senate of the United States, to the Governor, and
lodge the other of such certificates in
the office of the clerk of the peace of the
county; and
county.
(5) Transmit, deliver and lodge 1 of each certificate of the result of the election for Representative, or Representatives,
(4) For Representative
in the House of Representatives of the United States, to the Governor, and
lodge the other certificate in
the office of the clerk of the peace of the
county; and
county.
(6) Transmit, deliver and lodge 1 certificate of the result of the election for
(5) For
Attorney General,
for
Insurance Commissioner,
for
State
Treasurer and for
Treasurer, or
Auditor of
Accounts
Accounts,
to the Governor and
the other certificate in
the office of the Prothonotary of the
county; and
county.
(7) Transmit and deliver 1 certificate of the result of the election of Senator and 1 certificate of the election of
(6) For Senator or
Representative in the General Assembly,
in
to
the office of the Prothonotary for Kent
County, and further shall deliver, on
the first day of the meeting of the General Assembly after the election, the other certificate of the election of Senator to the Senate, and the other certificate of the election of Representatives to the House of Representatives; and
County.
(8) Transmit and deliver 1 certificate of the election of the
(7)a. For
clerk of the peace,
of
register of wills,
of
recorder,
and of
or
sheriff, to the
Governor, and the other certificate to
Governor.
b. For the register of wills, recorder, or sheriff, to
the clerk of the peace
and the sheriff
of the
county, except the 1 for
county.
c. For
clerk of the peace,
which shall be delivered
to the
Prothonotary; and
Prothonotary and the sheriff for the county.
(9) Transmit and deliver the certificate of the election of each
(8) For a
Levy Court Commissioner or County Council member,
in New Castle, Kent and Sussex Counties,
to the clerk of the peace
and the sheriff
of the respective
county; and
county.
(10) Deliver the certificate of election of the receiver of taxes and county treasurer to the clerk of the peace of the county; and
[Repealed.]
(11) Send 1 for each of such officers to the sheriff of the county to be by that sheriff delivered to the respective parties certified to have been elected.
[Transferred.]
(b)
The
(1) The first day of the meeting of the General Assembly after the election, the
Prothonotary of Kent County
shall, on any day of the meeting of the General Assembly, deliver, if required,
shall deliver
the certificates of election
of Senators or of Representatives to the order of the House to which it belongs, or to the person named in the endorsement thereon.
received under paragraph (a)(6) of this section as follows:
a. For a Senator, to the Senate.
b. For a Representative, to the House of Representatives.
(2) The sheriff shall deliver each certificate of election received under paragraph (a)(7) or (a)(8) of this section to the individual certified as having been elected.
(c)
In addition to making the disposition of the aforesaid certificates, the Court, within 3 days after making such certificates, shall, either personally or by a person designated by it for that purpose, transmit, deliver and lodge a duly executed copy of each of the aforesaid certificates with the
The
State Election Commissioner
who shall be
is
the master repository of all
such certificates.
certificates under this section.
§ 5710. Certification and proclamation by Governor of results of election of state officers.
(a)
The Governor, after receiving the certificates of the results of the election in each county,
under the seal of the Superior Court,
for the office of Attorney General, Insurance Commissioner, State
Treasurer and
Treasurer, and
Auditor of Accounts,
or any of whom shall have been voted for at the preceding general election, shall, without delay,
shall
examine the returns and declare
the persons elected, and
each individual elected.
(b) The Governor
shall issue certificates of
such
the
election under the Governor’s own hand, and
the same, together
file the Governor’s certificates of the election
with the
aforesaid
certificates of the results of the election
in each county, shall be filed
under subsection (a) of this section
in the office of the Secretary of
State, and the
State.
(c) The
Governor shall by proclamation make public the
state of the vote by causing the same to be published
results of the election by publishing the certificates issued under subsection (b) of this section
in 1 or more of the
public
newspapers
of the respective
published in the
counties of this State, and shall issue commissions to the
persons.
individuals elected to office.
§ 5712. Representative in the Congress of the United States; announcement and certification of election.
(a)
The Governor, after receiving the
certificates, under the seal of the Superior Court,
certificates
of the results of the election in each county for Representative in the Congress of the United States, shall without delay examine
such
these
certificates and declare the
person
individual
elected, and shall issue certificates of
such
the
election, 1 of which the Governor shall transmit to the Secretary of State of the United States, and 1 to the
person
individual
elected, under the Governor’s own hand and the Great Seal of the State.
(b)
The
Governor shall file the
certificates of the result of the election in each county
under subsection (a) of this section
shall be filed
in the office of the Secretary of State.
(c)
The Governor shall by proclamation make public the state of the vote by
causing
publishing
the
same to be published
certificates of the results
in 1 or more of the public newspapers of this State.
SYNOPSIS
This Act updates Chapter 57 of Title 15 to reflect modern voting procedures. These updates are necessary because Chapter 57 of Title 15 provides the requirements under which the Superior Court (Court) performs its duties under § 6 of Article V of the Delaware Constitution to certify the results of each general election. As such, the requirements under this Chapter need to align with all of the current ballots and methods by which votes are cast to ensure that the results of general elections are properly certified and not subject to challenge.
Specifically, this Act does all of the following:
• Aligns terms and definitions with current law and the updates that will be enacted under Senate Bill No. 266 (153rd General Assembly).
• Adds early voting ballots and provisional ballots to the materials that the Department of Elections must provide to the Court.
• Explains that the Court certifies the results of the election by tabulating the votes cast.
• Consolidates the requirements for the contents of certificates of elections and the delivery of those certificates to provide clarity and repeal contradictory and unnecessary provisions.
This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.
Author: Senator Buckson