Delaware Recount Laws

This information was initially released on October 21, 2010.

Voting System Used: 

DREs without VVPAT For more details, visit Verified Voting.

 

Counting Method: 

Electronic review only No statutory guidance provided for counting method Delaware uses only direct-recording electronic machines (DREs) without a voter-verified paper audit trail (VVPAT), with the exception of absentee and provisional ballots, meaning that only an electronic review of the initial returns is possible for most votes. Delaware's recount laws, however, specifically address absentee ballots, though the Delaware Code does not indicate whether they are to be recounted by hand or retabulated by machine. See the Delaware Code, Title 15, Chapter 15, Section 5702, “Duties of the court,” Subsection (b)(1): http://delcode.delaware.gov/title15/c057/index.shtml#5702. The Director of Elections reports, however, that these ballots have been recounted by hand in past elections. Statutory guidance for counting these ballots during the initial canvass can be found in Chapter 49, Subchapter III, "Conduct of Elections: Counting Votes and Post-Election Regulations": http://delcode.delaware.gov/title15/c049/sc03/index.shtml.

Initiating Mechanism: 

Candidate-initiated Close vote margin Court-ordered Court-Ordered Recounts: Recounts in Delaware are conducted under the authority of the Superior Court of each county, to which all related election materials, including voting machine tapes and tally records, are submitted at the end of each election. The Court is required to inspect these documents, and “if fraud, mistake or omission is apparent on the face of such documents,” to order a recount. They may also order a recount if a “complaint under oath of fraud” is brought before the Court. See Chapter 57, Section 5702, Subsections (a) and (b). Timing: The Court is required to order the delivery of election material from an election district by 12:00 p.m. on the second day after a general election. However, there are no instructions providing precise times by which the recounting of votes by the Court must either begin or be finished. See Section 5702, Subsection (a).

Close Vote Margin: 

Less than or equal to .5% Vote count difference (not percentage-based) A close vote margin in Delaware initiates a recount only of absentee and provisional ballots. The margin that will initiate a recount varies by office and not all offices are eligible for automatic recounts. For the offices of “State Senator, State Representative or county office,” absentee and provisional ballots are to be recounted if the difference between the apparent winning candidate and the next leading candidate is “less than 1,000 votes or one half of 1 percent of all votes cast for the 2 candidates, whichever is less.” See Section 5702, Subsection (e). For municipal offices, ballots are to be recounted if the difference between the apparent winning candidate and the next leading candidate is “1/2 of 1% or less than the total votes cast for the office,” or in the case of offices where more than one candidate is elected, “if the difference between the last candidate elected and the next closest candidate is 1/2 of 1% or less than the total votes cast for the office.” See Chapter 75, Section 7558, “Election results; recounts; contests,” Subsections (c) and (d): http://delcode.delaware.gov/title15/c075/sc04/index.shtml. It is worth noting that the close vote margin for municipal elections is calculated differently than those for state and county elections. For state and county elections, the difference between the apparent winning candidate and the next leading candidate is divided by the votes cast only for those two candidates, while for municipal elections, the difference is divided by the total votes cast for the office. Timing: We found no mention of precise times by which the recount must either begin or be finished.

Candidate-Initiated Options: 

Close vote margin required Specific ballot category Specific offices only Only candidates for statewide office in a general election may petition the Court for a recount, and only if the difference separating them and the apparent winning candidate is “less than 1,000 votes or less than one half of one percent of all votes cast for the two candidates,” whichever is less. This is the same vote margin as that which automatically initiates a recount for State Representative and State Senator. As with recounts initiated only by the close vote margin, candidate-initiated recounts include only paper absentee and provisional ballots. See Section 5702, Subsection (c). Timing: The recount request must be made before the board of canvass for the election adjourns.

Cost for Candidate-Initiated Recounts: 

Paid entirely by state or county Section 5702, Subsection (c), specifies that recounts initiated by candidates are to be “conducted by the Court at state expense.”

Challengers and Observers: 

No statutory guidance for recount observers No statutory guidance for recount challengers While candidates and “any duly accredited challenger” are allowed to observe the initial count immediately after the polls close, there is no mention made of either observers or challengers being permitted at a recount. See Section 4977, “Persons authorized to be present during the count and tabulation”: http://delcode.delaware.gov/title15/c049/sc03/index.shtml#4977. We found no statute requiring that the recount be conducted publicly. If you know of relevant laws or rules for this state regarding any of these issues, please email info@ceimn.org.

Rules for Determining Voter Intent: 

Statutory guidance provided The law requires the voter to make a "distinct mark" and places responsibility for determining if a voter's intention can or cannot be discerned at the discretion of election officials. No further definition is given for what constitutes a “distinct mark.” See Chapter 49, Section 4972, "Rules regarding what constitutes a legal vote": http://delcode.delaware.gov/title15/c049/sc03/index.shtml#4972.

Audit Laws: 

State has audit laws The Delaware legislature has recently approved new bills containing audit procedures for municipal elections. Look for an update here soon with more information.

Additional Resources: 
Delaware Election Code
Delaware Elections Board