NO. 90-435
IN THE SUPREME COURT OF THE STATE OF MONTANA
GARY L. SPAETH, Contestant and Appellant,
-vs-
TONY KENDALL, Contestee and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Carbon,
The Honorable Maurice R. Colberg, Jr., Judge
presiding.
COUNSEL OF RECORD:
For Appellant:
John K. Addy, Matovich, Addy & Keller, Billings,
Montana
Gary L. Spaeth, Spaeth Law Firm, Red Lodge, Montana
For Respondent:
Floyd D. Corder, Alexander, Baucus & Linnell, Great
Falls, Montana
Submitted: October 3, 1990
Decided: November 27, 1990
Filed:
4 -
. a J
1
Justice John C. Sheehy delivered the Opinion of the Court.
This cause involves an election contest arising from the
results of the primary election forthe Democratic Party nomination
for Carbon County Attorney. The District Court, Thirteenth
Judicial District, Carbon County held that Anthony W. Kendall was
the properly elected Democratic nominee, and we affirm.
After the canvass of the votes cast at the primary election
June 5, 1990, for the nomination of the Democratic Party candidate
for Carbon County Attorney, a recount was conducted on June 12,
1990, and as a result the election was declared a tie between
appellant Spaeth and respondent Kendall.
On the night of the election, the election judges excluded one
ballot, the exclusion of which is an issue in this appeal; the
official canvass on June 7, 1990, likewise excluded this ballot;
and the recount on June 12, 1990, also excluded this ballot.
On June 12, 1990, with both parties present, Spaeth and
Kendall waived statutory written notice and, pursuant to statute,
a drawing of lots took place, and as the result of such drawing
Kendall prevailed. Thereafter on June 28, 1990, the Carbon County
election administrator issued a certificate of nomination
certifying that Kendall had been nominated as the Democratic
candidate for Carbon County Attorney in the election to be held
November 6, 1990.
Thereafter, Spaeth filed a petition for judicial review with
the District Court.
On July 26, 1990, the District Court issued its judgment and
ordered, adjudged and decreed as follows:
1. That the petition for judicial review of petitioner,
Gary L. Spaeth, in each of these proceedings is
dismissed;
2. That Tony Kendall is hereby declared nominated as the
Democratic candidate for Carbon County Attorney in the
primary election held June 5, 1990;
3. That Tony Kendall is entitled to recover his costs
and disbursements but not entitled to recover attorneys
fees herein.
This Court considered the record on appeal and issued an order
on October 2, 1990, affirming the judgment of the District Court
before we issued a formal opinion due to the rapidly approaching
general election of November 6, 1990.
The issue in this case is whether a ballot should have been
counted for contestant Spaeth, thereby giving him a one-vote margin
of victory in the June 5, 1990 primary election.
We direct attention to the ballot in question, which is
reproduced in part below, as marked by the voter in the County
Attorney race:
COUNTY ATTORNEY
VOTE FOR ONE
..............om 0 . . 0 . . .
The ballots of the Carbon County primary election had the
following legend at the top:
This ballot should be marked by filling in the oval
before the name of each individual or candidate for whom
the elector intends to vote. The elector may write in
or affix a preprinted label in the blank spaces provided,
or write-in the name of the individual for whom he wishes
to vote, and vote by filling in the oval before the name.
TO VOTE YOU MUST BLACKEN THE OVAL (0)COMPLETELY.
Section 13-13-117, MCA, describes the method of voting to be
employed. Subsection (5) states:
An elector voting a ballot that will be counted by an
optical scan ballot tabulating device shall mark his
ballot in the manner prescribed on his ballot.
The method of marking the ballot is clearly explained and
demonstrated on the ballot in question. The voter followed these
instructions appropriately in the only other race in which a vote
was cast, that for the uncontested Democratic primary candidate for
the Second Congressional District Representative. The elector's
choice was clear in that instance, and the District Court properly
concluded it should be counted for that race, relying upon 5 13-
15-202(3), MCA, which states:
A ballot or part of a ballot is void and shall not be
counted if the elector's choice cannot be determined.
If part of a ballot is sufficiently plain to determine
the elector s intention, the election judges shall count
that part.
It cannot be determined from the marked ballot what the
elector's choice might have been in the Democratic County
Attorney's race. As the District Court stated, the ballot Itdoes
not without substantial question and speculation from its markings
show the elector's intent to vote for Spaeth nor does it lead the
mind naturally and without guess to infer the voter's intent."
This Court has consistently rejected ballots or portions of
ballots where the intention of the voter does not plainly appear.
Rennie v. Nistler (1987), 226 Mont. 412, 735 P.2d 1124; Peterson
v. Billings (1939), 109 Mont. 390, 96 P.2d 922. In Dickerman v.
Gelsthorpe (1897), 19 Mont. 249, 47 P. 999, 1001, this Court noted
that "the paramount and ultimate object of all election laws under
our system of government is to obtain an honest and fair expression
from the voters upon all questions submitted to them." When such
expression cannot be gleaned without speculation, however, the vote
is to be voided, to insure a standard of objectivity in our
election process.
We affirm the District Court.
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Chief Justice
Justices