Gunn v. McKenna Recount: GOP files in Court to fight for Justice

PETITION CONTESTING ELECTION AND FOR WRIT OF CERTIORARI Petitioner La Mar Gunn hereby challenges the Kent County Board of Canvass recount and election certification declaring Respondent Betty Lou McKenna by two votes after the Kent County Department of Elections had declared Petitioner the winner by two votes on election night, and, in support thereof states as follows: PARTIES AND JURISDICTION 1. Petitioner La Mar Gunn is the Republican candidate for the Kent County Recorder of Deeds in the 2014 general election. Petitioner Delaware Republican Party is a political party under Delaware law. 2. Respondent Betty Lou McKenna is the Democratic Candidate for the Kent County Recorder of Deeds. The Delaware Democratic Party is a political party 3. Respondent Kent County Board of Canvass is the body charged with certifying the election results. 4. This Court has jurisdiction pursuant to Title 10, Chapter 59 of the Delaware Code and pursuant to general common law under which this Court may review the actions of administrative bodies and tribunals for which no direct appeal is provided. SUBSTANTIVE ALLEGATIONS 5. On election night, November 5, 2014, the Kent County Department of Elections (the “Department”) declared Gunn the winner over McKenna by two votes, 19,247 to 19,245. Gunn’s vote total consisted of 18,558 “machine” votes (that is, votes cast on voting machines the day of the election by voters coming to the polls) and 689 absentee votes. McKenna’s vote total consisted of 18,445 machine votes and 800 absentee votes. Respondent subsequent learned from the Department that 60 absentee ballots did not indicate a vote for Gunn or McKenna. 6. Absentee votes in Delaware are cast on special forms which are read by special scanners owned by the Department of Elections. The forms are coded by polling place. Thus, while all the absentee ballots for Kent County are counted in one central location, the special coding allows the absentee votes for candidates to be reported by polling place. In this way, candidates and the public know both the total machine votes and the absentee votes cast for each candidate by polling place (a polling place is sometimes referred to as an “election district”). 7. On Thursday, November 6, the Kent County Board of Canvass met to review the vote totals and certify the election results for Kent County. 8. In connection with the Gunn/McKenna race, the Board ultimately conducted three hand recounts of the absentee ballots (machine results cannot be recounted). 9. Following the first recount, Gunn’s lead increased from 2 to 3 votes. 10. Following the second recount, Gunn’s lead increased from 3 to 7 votes. 11. Following the third recount, McKenna had a two vote lead. With the third recount, the Board’s hand count indicated 3 additional absentee votes for McKenna. For Gunn, the Board showed a 1 absentee vote loss for Gunn in three election districts, but a 1 absentee vote gain in two election districts, for a net loss to Gunn of 1 absentee vote. As a result of these changes, McKenna had a two vote lead as compared to election night when she trailed by two votes. 12. No two recounts produced the same result. 13. It is unclear how Gunn could have “lost” any absentee votes. In theory, if the Department of Elections’ computer scanners record a vote for a candidate from an absentee ballot, then that vote should be a valid vote. There may be situations where a ballot is not completely marked in such a way as to be read by the scanner, but the intent of the voter is still discernible, in which case the absentee vote total may increase. However, the absentee vote total for a candidate should not decrease if the ballots are reviewed and counted properly. Thus, it is unclear how Gunn could have “lost” any absentee votes – yet the Board of Canvass recorded three election districts where Gunn’s absentee vote total when down by one vote. 14. Following the third recount, the attorney for Gunn suggested to the Board that all of the absentee ballots be returned to the Department of Elections, so that all the ballots could be re-scanned and counted. Then, only those ballots showing no vote need be examined by hand. The Board of Canvass initially agreed with this approach but then abruptly changed its mind and certified the third recount (i.e., the only recount where Gunn had fewer total votes). 15. As a result of the Board’s abrupt decision, the true winner of the Kent County Recorder of Deeds’ race remains in doubt and the likelihood of error remains high as evidenced by (i) the final certified vote tally showing fewer votes for Gunn than the tally from election night, and (ii) the differing and inconsistent vote tallies during the course of the hand recount on November 6. Count I – Election Contest Pursuant to Title 15, Chapter 59 of the Delaware Code 16. Petitioners incorporate all of the foregoing paragraphs as if fully set forth here. 17. In accordance with the Delaware Code, Title 15, Section 5945, Petitioners hereby state that the hand recounts of the absentee ballots as conducted on November 6, 2014 were improperly performed in that no two recounts reached the same result and the hand recounts actually resulted in a lower vote total for Mr. Gunn. Such irregularities are such as to affect the outcome of the election. Indeed, the final hand recount of absentee ballots produced a different result from that found by the Department of Elections and earlier hand recounts. Petitioners request that the Court use its powers under Title 15, Section 5953 to cause all of the absentee ballots to be re-examined and that all ballots first be scanned by the Department of Elections’ computer scanners and that any ballots for which no vote is registered by the scanners then be examined by hand. 18. To the extent necessary to support the case, Petitioners will present the testimony of the following individuals: a. Mr. La Mar Gunn, ________________________________ (address) b. Connie Malmberg, Esquire, _________________________________ c. Linda Robertson, _________________________________. Petitioners reserve the right to present other evidence and the testimony of other individuals who may also have information or knowledge relevant in this matter. WHEREFORE, Petitioners respectfully request that this Court exercise its authority under Title 15, Section 5953 and cause the absentee ballots to be examined so that all doubts as to the proper vote totals for Kent County Recorder of Deeds can be laid to rest and the general public and the candidates can have full confidence in the result. Respectfully submitted, SAUL EWING LLP ________________________________ Richard A. Forsten, Esquire (# 2543) 222 Delaware Avenue, Suite 1200 P.O. Box 1266 Wilmington, DE 19899 Telephone: (302) 421-6800 Facsimile: (302) 421-5861 Attorneys for Petitioner La Mar Gunn and the Delaware Republican Party November 12, 2014

2 thoughts on “Gunn v. McKenna Recount: GOP files in Court to fight for Justice”

  1. I don’t know anything about Richard A. Forsten, Esquire, so this is most definitely not a comment on anyone in particular.

    However, the skills involved in drafting a complaint and other pleadings and doing legal research are very different from arguing effectively in court

    So I hope that LaMar Gunn has an attorney who is very effective and experience when it comes to going into Court.

    Note that you can obviously have more than one attorney on a case working together.


    And here is a very important technique that has been proven over time. I don’t know why but too many lawyers take a “Let’s wait and see” attitude combined with “but send me more money.”

    In any controversy, one of the first steps should be to get statements from EVERYBODY you can. Get EVERYONE who knows anything about anything to write a sworn statement (affidavit or declaration)

    You would be absolutely astonished how people will tell you today with great certainty what happened.

    But when they are called into court, usually a year or so later, in this case maybe a month later, their knees will go wobbly, they will forget half of what happened, and they will say about the other half they are really not sure.

    I can’t tell you how often I have gone into court based upon interviews with witnesses before filing the lawsuit, then gone to trial, and I and my client have our mouths hanging open at what those same witnesses say — totally different — from what they eagerly and enthusiastically told us before we filed the lawsuit.

    Most of my clients have not been well-funded enough to make full use of all the techniques to get depositions of everyone, etc.

    Furthermore, Virginia does not allow depositions to be used in as many ways as most states.

    But one of the most important things you can do is “LOCK IN” everyone’s recollection while it is still fresh and BEFORE they get harassed and intimidated and scared off.

  2. So, Richard Forsten, Esq., should be filing a motion TODAY to accelerate the schedule for the case and to accelerate the opportunity to take depositions, because of the nature of an election pending and the importance of seating a properly, duly-elected official in the halls of government, to carry out their duties.

    LaMar Gunn’s lawyer or lawyers should be taken depositions (could be as short as an hour) with every one involved in any way, shape or form, including any news media who was there. (They won’t like that, but too bad. They are witnesses.) He should subpoena the *RAW* video of anyone who filmed any part of these events.

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