Delaware Recount Laws

This information was updated Oct. 12, 2016 using the Delaware Code (DE Code) including all acts effective as of September 15, 2016.

Voting System Used: 

DREs without VVPAT

For more details, visit Verified Voting.

Counting Method: 

Electronic review only
No statutory guidance provided for counting method

In polling places, Delaware uses direct-recording electronic machines (DREs) without a voter-verified paper audit trail (VVPAT).  For absentee ballots, Delaware uses paper ballots. For the initial canvass, these paper ballots are in some circumstances are counted by hand and in others tabulated by optical scan voting equipment.  Counting procedures for absentee ballots in most municipalities are specified in 15 DE Code § 7578.  

In 2014, over 95% of voters in Delaware cast their ballots on DREs which only allow for an electronic review of those votes. Delaware's recount laws specifically address the recounting of absentee ballots but do not address whether these ballots are to be recounted by hand or retabulated by machine. 15 DE Code § 3172, § 5702 and § 7558. However, a Delaware election official confirmed that in practice, absentee ballots are recounted by hand.

Initiating Mechanism: 

Court-ordered
Close-vote margin
Candidate-initiated
Voter-initiated

Court-Ordered Recounts:
Nonmunicipal, general election 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 general election. 15 DE Code § 5701.

The Court is required to inspect these documents, and if “the documents produced do not agree or there is a complaint under oath of fraud or mistake in any such document, or if fraud, mistake or omission is apparent on the face of such document, the Court shall: (1) Open and examine the necessary voting machines and/or absentee ballot boxes; (2) Make a recount of the votes contained therein; (3) Correct any fraud, mistake or omission in any document or paper relating to the election.” 15 DE Code § 5702(b).

Timing: No timing for the beginning or end of the recount is specified. The delivery of election materials to the court is specified in 15 DE Code § 5701 and § 5702.  

Close Vote Margin: 

Less than or equal to 0.5%
Vote count difference (not percentage-based)

The requirements for a close-vote-margin recount vary by office and type of election.

For statewide offices in a general election: 
“Any candidate for statewide office in a general election may apply to the Court for a recount of all the ballots cast and recorded for such office if the number of votes separating such candidate and the closest opposing candidate is less than 1,000 votes or less than one half of one percent of all votes cast for the two candidates, whichever amount is less. Such recount shall thereupon be conducted by the Court at state expense.” 15 DE Code § 5702(c).

For State Senator, State Representatives or county offices in general elections:
“In the event that the number of votes separating a candidate and the closest opposing candidate in an election for State Senator, State Representative or county office is less than 1,000 votes or 1/2 of 1 percent of all votes cast for the 2 candidates, whichever is less, the Court shall recount the absentee ballots cast in that election at State expense.” 15 DE Code § 5702(e).

For primary elections: 
“In the event that the number of votes separating a candidate and the closest opposing candidate in a primary election is less than 1,000 (in the case of a statewide contest) votes or 1/2 of 1 percent (in the case of any contest) of all votes cast for the 2 candidates, whichever is less; the Department shall recount the absentee ballots cast in that election at State expense as part of the canvass of the vote.” 15 DE Code § 3172(e).

For municipal elections:
"The municipal Board of Elections shall recount the absentee ballots if the difference between the top 2 candidates is 1/2 of 1% or less than the total votes cast for the office. Where electors vote for more than 1 candidate for an office, the municipal Board of Elections shall recount absentee ballots 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." 15 DE Code § 7558(c).  Municipal elections in the City of Wilmington, are conducted in conformity with most of the recount provisions governing general elections. 15 DE Code § 7521

For ballot measures and school board elections:
“Within 96 hours following the certification of a public school election, 25 or more persons who voted in the aforesaid public school election may petition the Department of Elections that conducted the election for a recompilation of the results, if the difference in the election of a school board member or in an election conducted in accordance with Chapter 19, 20 or 21 [regarding school tax levies and school bonds] of this title was less than 10 votes or 1/2 of 1 percent of the total vote whichever is larger.” “The Department of Elections that conducted the elections shall: (1) Examine the voting machine tape from each voting machine used in the election and determine if the results were properly reported. The department shall then correct any results that were incorrectly reported. (2) Examine the absentee vote tally sheets and determine if errors were made in reporting the absentee vote. The department shall then correct any errors in the reporting of the absentee votes. (3) Count or cause to be counted all absentee ballots that were cast in the election and correct any errors in the tally that had been reported.” 14 DE Code § 1083(e)

Timing: For court ordered recounts for candidates for statewide office, see 15 DE Code § 5702(c). For primary election recounts, see 15 DE Code § 3172(e). For ballot measures and school board elections, see 14 DE Code § 1083(e)

Candidate-Initiated Options: 

Close vote margin required
Specific ballot category
Specific offices only

Any candidate for statewide office in a general election may petition the Court and receive a recount if the difference separating that candidate and the closest opposing 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.” 15 DE Code § 5702(c).

Timing: 15 DE Code § 5702(c).   

Voter-Initiated Options: 

Close vote margin required
Voters may request recounts for offices
Voters may request recounts for initiatives/questions

When a close-vote margin exists, voters may petition for recounts on school board races and on ballot measures relating to public school elections such as tax levies and bond issues. See the entry for ballot measures and school board elections under close-vote-margin recounts above.

Timing: 14 DE Code § 1083(e).

Cost for Candidate-Initiated Recounts: 

Paid entirely by state or county

Recounts initiated by candidates for statewide office are to be “conducted by the Court at state expense.” 15 DE Code § 5702(c).

Cost for Voter-Initiated Recounts: 

No statutory guidance

The statute authorizing voters to initiate public school election recounts instructs the department of elections to count all absentee ballots that were cast in the election and correct any errors. There is no mention of any costs to the voters for these recounts. 14 DE Code § 1083(e).

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 indication in statutes that  either observers or challengers are permitted at a recount.  However, the court ordered recounts conducted under 15 DE Code § 5702(b)(2) are authorized by the Delaware Constitution, Article V, Section 6, which gives the Court the power to conduct a recount and also states that the Court “shall publicly [emphasis added] ascertain the state of the election throughout the county.”  In addition, a Delaware election official confirmed that in practice recounts are open to the public and challengers are permitted. 

Rules for Determining Voter Intent: 

Statutory guidance provided

Rules for determining voter intent are found in 15 DE Code § 4972 and 14 DE Code § 1080.

Audit Laws: 

State does not have audit laws

While Delaware has a municipal statute that refers to an "audit," this state law pertains to the number of voters who participated in the election. It is a reconciliation of the voter logs, and not an audit of votes cast. 15 DE Code § 7558(f)

The Delaware Administrative Code requires an audit of the absentee ballots in one county in the state, New Castle County.  15 Del. Admin. C. § 200-10.3 to 10.4.  However, a Delaware election official confirmed that the practice is to implement this administrative code requirement in all counties of the state, and that the audit does involve the hand counting of the absentee ballots from 3% of the election districts.