Posted: May 14, 2015
THE VOTE THAT WAS NOT THERE
By Celia Cohen
That tie vote in the election for Kent County recorder of deeds? It never happened.
It has gone the way of Bigfoot, the Loch Ness monster and the Cheshire Cat. An illusion that nobody can say was there.
This version of reality comes out of the Delaware Supreme Court, and what are people going to believe, the court or their own lying eyes?
The court ruled Thursday in the case of the mixed-up election in 2014 for the recorder of deeds, the county official in charge of property records, between Betty Lou McKenna, the Democratic officeholder who was running for re-election, and La Mar Gunn, the Republican candidate.
McKenna is the winner.
Never mind this is the fourth time the race has been called, after the outcome previously bounced from Gunn up by two votes on Election Night, to McKenna up by two votes in a recount conducted by the Kent County Board of Canvass, to a tie in a determination by a Superior Court judge after still another recount. Now this.
The tie had looked like a good count, even if it was a little mind-boggling that McKenna and Gunn could both poll 19,248 votes. It was good enough for a state law to kick in, saying a tie goes to the governor to make an appointment, and Jack Markell, being a Democrat, put in McKenna.
The only catch there was the appointment could last for only a two-year term, until the next election in 2016, instead of a four-year term for outright winning the election.
Gunn decided to take a protest to the Supreme Court, and what did that get?
It got a four-year term for McKenna. Maybe Gunn should have left bad enough alone.
The Supreme Court ruled on legal grounds. It was unhappy that the recount from the Board of Canvass, which is a panel consisting of two Superior Court judges (Bill Witham and Vivian Medinilla), was superseded by yet another Superior Court judge (Rob Young.) It was bad form.
"A single judge of the Superior Court had no subject matter jurisdiction to review the actions by two judges of the Superior Court, sitting as the Board of Canvass in Kent County," wrote Randy Holland, the justice who issued the opinion for the Supreme Court.
The state's highest court rolled back events to the Board of Canvass, where the recount had McKenna winning by two votes.
"Everything that happened in front of Judge Young is no more," said John Paradee, the lawyer who represented McKenna.
"She's been awarded the office for four years. It's a little awkward, having gone through the review that never should have happened. My conscience can take solace that Gunn was never going to be announced as the winner."
So there never was a tie, because the tie vote never should have been taken.
It all seems so Galileo-like. When the church made him say the earth stood still and the sun revolved around it, Galileo was supposed to have murmured, "And yet it moves."
The court declared McKenna is the winner. And yet it is a tie.