Posted: Dec. 19, 2012
By Celia Cohen
Not just candidates were tested during the campaign season. So was Delaware's election law, and in a couple of cases, it turned into a law of unintended consequences.
In one situation, it had the Democrats and the Republicans arguing over how to fill in a blank on the ballot, until the only way to settle it was to go all the way to the Supreme Court.
In another weird situation, the law let two candidates run for two different offices. Since they were Libertarians, hardly anybody noticed, though.
At least there were no more instances of candidates running on the tickets of two parties, as there were in recent elections.
It was called "fusion," and it led to such oddities as the 2010 ballot listing Terry Spence, a past Republican speaker, as a candidate for both the Republican Party and the Working Families Party, a minor party with labor union backing.
Not that it mattered. Even with two ballot lines, Spence lost.
"Fusion" finally went the way of the Whigs. It seemed just a little too cute, and the major parties were fed up with it. Legislation getting rid of "fusion" was one of the first bills introduced in the last legislative session and easily approved, so candidates are restricted to filing only with the party where they are registered.
Just like the constitutional principle of one-person-one-vote, the state election law now has the principle of one-candidate-one-party.
Even with "fusion" gone, the 2012 election was colored by anomalies through the sudden loss of a candidate for one office as well as two candidates running for dual offices.
Elaine Manlove, the state elections commissioner, has set up a meeting with the county election officials in January to come up with some fixes, but John Daniello, the Democratic state chair, is thinking about more than that.
"It's about time we all got together and looked at the law from one end to the other. We've tweaked it, but for every tweak, for every action, there's a reaction," Daniello said.
The biggest legal controversy of the election season was the dispute over substituting a candidate for Eric Bodenweiser, who won a Republican primary for state senator in Sussex County, only to withdraw his candidacy in mid-October as he was about to be indicted on child sex crime charges.
It left the Republicans with a huge hole on the ballot in a race that was supposed to be a shoo-in for them and the Democrats with a walk-on candidate who surprisingly looked like she was going to be a state senator.
The Republicans still had Brian Pettyjohn, a past mayor of Georgetown, as a write-in candidate, but they wanted him officially added to the ballot. When they were turned down by election officials, they hurriedly went to court.
In a whirlwind of legal proceedings amid the real stormy lashings of Sandy, the Court of Chancery and the Supreme Court decided Pettyjohn ought to be elevated to full candidacy in the race, which he won easily.
It all had to happen so fast, the Supreme Court did not have time to deliver an opinion detailing its reasoning. It has yet to do so.
Richard Forsten, co-counsel for Pettyjohn and the Republican Party, is content to let the Supreme Court be the last word, whatever it says, because he thinks the election law simply cannot be written or amended to anticipate every strange twist.
"You leave it to the election department, the courts and common sense," Forsten said.
Manlove, the elections commissioner, would prefer to rework the law, however. She wants to clarify the circumstances allowing parties to replace a candidate who has withdrawn, lest it turn into a loophole for shuffling around candidates for political advantage.
"I worry about it becoming a gaming of the system," Manlove said.
In the other glaring oddity of the campaign season, there were dual candidacies.
What happened was the Libertarians fielded Margaret McKeown for both lieutenant governor and state representative and David Eisenhour for both insurance commissioner and Sussex County clerk of the peace.
Neither of them got more than 3 percent of the vote for any office, but still. The reason they were allowed to do it was there was no way under the law to stop them.
"There was nothing that said they couldn't," Manlove said.
So look for another principle to become law. Not just one-person-one-vote and one-candidate-one-party, but also one-candidate-one-office.