§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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 he or she may have, which citation shall be delivered to the sheriff or, if the sheriff be a party to the contest, to the coroner of the county, and be served by the sheriff or county coroner 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.;