Marsh v. Overland

NO. 95-117
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

GAYLEN MARSH,
Petitioner and Appellant,
v.
MIKE OVERLAND,
Respondent and Respondent.

APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Sheridan,
The Honorable John C. McKeon, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Matthew W. Knierim, Laura Christoffersen;
Christoffersen & Knierim, Glasgow, Montana
For Respondent:
Jeffrey M. Hindoien; Swift & Hindoien, Helena,
Montana

Submitted on Briefs: June 1, 1995
Decided: November 2, 1995
Justice Karla M. Gray delivered the Opinion of the Court.

Gaylen Marsh (Marsh) appeals the decision of the Fifteenth
Judicial District Court, Sheridan County, affirming the Sheridan
County Recount Board's (Recount Board) Certificate of Recount which
declared Mike Overland the winner of the 1994 Sheridan County
Sheriff's election. We affirm.
Marsh raises the following issues on appeal:
1. Did the District Court err in concluding that the surname
"Marsh" alone on a write-in ballot was insufficient to determine
the intent of the voter as required by § 13-15-202(3), MCA?
2. Did the District Court err in concluding that the Recount
Board had jurisdiction to disallow votes cast with only the surname
"Marsh"?
3. Did the election judges' failure to properly identify
rejected ballots compromise the validity of the entire election?
4. Did the District Court abuse its discretion in awarding
attorney's fees to Mike Overland?

Three candidates sought the office of Sheridan County Sheriff
in the election held on November 8, 1994. Mike Overland (Overland)
and Paul George (George) ran as the Republican and Democrat
candidates, respectively. Marsh, who had lost to George in the
Democrat primary, initiated a vigorous write-in campaign. He filed
a timely declaration of intent to run as a write-in candidate and
publicized his candidacy through the local media, as well as with

2
private posters and mailings. The majority of Marsh's advertising
used his full name, "Gaylen Marsh." He also sent potential voters
"Gaylen Marsh" stickers which could be placed in the write-in
portion of Sheridan County's paper ballots.
Following the election, Sheridan County election officials
announced that Marsh had won the election. The initial election
results indicated that Marsh received 909 votes, Overland received
902 votes and George received 664 votes. Overland petitioned for
a recount pursuant to § 13-16-201(l), MCA.
The Sheridan County Recount Board recounted the votes in the
sheriff's election under instruction from the Sheridan County
Election Administrator to disallow any ballots which did not
specify "Gaylen" or "G." Marsh. Pursuant to this instruction, the
Recount Board did not count the following votes:
12 ballots "Marsh"
1 ballot "Mr. Marsh"
1 ballot "David Marsh"
1 ballot "Dave Marsh"
1 ballot "Gilbert Marsh"
1 ballot "Lloyd Marsh"
1 ballot Misspelled or illegible
22 ballots No "X1' marked in the box preceding the
name "Gaylen Marsh"
With the above-listed votes disallowed, the recount showed 903
votes for Overland, 897 votes for Marsh and 664 votes for George.
As a result, election officials declared Overland the winner of the
election for Sheridan County Sheriff.
Marsh filed this four-count action against Overland and the
Recount Board captioned "PETITION for WRIT of PROHIBITION, WRIT of
MANDAMUS, for JUDICIAL REVIEW and CONTESTING ELECTION." District

3
Court Judge M. James Sorte issued alternative writs of prohibition
and mandamus, but later quashed the alternative writs and dismissed
the Recount Board as a party. Marsh subsequently moved to
substitute Judge Sorte and District Court Judge John C. McKeon
assumed jurisdiction.
Following dismissal of an additional count of Marsh's
complaint on motion of both parties, the only claim before the
court was a 5 13-36-101, MCA, election contest. Marsh petitioned
the court to set aside Overland's election pursuant to § 13-36-
102(2), MCA, and to issue a certificate of election in his favor
pursuant to 5 13-16-418, MCA. He argued that the votes for "Marsh"
sufficiently demonstrated the voters' intent to vote for him and,
therefore, that the twelve "Marsh" votes must be added to his
total.
After a hearing held pursuant to §§ 13-36-206 and 13-36-207,
MCA, the District Court issued its findings of fact, conclusions of
law, and order affirming the Recount Board's decision. The court
concluded that the Recount Board properly excluded the "Marsh"
votes from Marsh's total and directed that a certificate of
election be issued declaring Overland elected as Sheridan County
Sheriff. The court also determined that Overland was entitled to
costs and attorney's fees under 5 13-36-205, MCA. Marsh appeals.
Issue 1
Did the District Court err in concluding that the
surname "Marsh" alone on a write-in ballot was
insufficient to determine the intent of the voter as
required by § 13-15-202, MCA?

4
 We review a district court's conclusions of law to determine
if they are correct. Boreen v. Christensen (1994), 267 Mont. 405,
408, 884 P.2d 761, 762.
While the specific issue now before us regarding voters'
intent in marking write-in ballots is one of first impression in
Montana, both statute and case law on the subject of determining
voters' intent require that ballots be disallowed unless the
electors' intent can be established with reasonable certainty.
Section 13-15-202(3), MCA, 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.
This Court has consistently disallowed ballots when the voters'
intent does not plainly appear. See Rennie v. Nistler (1987), 226
Mont. 412, 735 P.2d 1124; Peterson v. Billings (1939), 109 Mont.
390, 96 P.2d 922. We recently summarized the rationale underlying
our consistent rejection of ballots where the voters' intent is not
clear:
"[T]he 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. [Citation omitted.]
Spaeth v. Kendall (1990), 245 Mont. 352, 354-55, 801 P.2d 591, 593.
On the facts presently before us, the "Marsh1 votes cannot be
credited to Marsh without speculating about the voters' intent.
There are twenty-eight registered voters in Sheridan County with

5
the surname "Marsh." Four of these individuals--David, Gilbert,
Lloyd and appellant Gaylen Marsh--each received at least one write-
in vote in the sheriff's election. Moreover, at least four voters
clearly cast ballots for a Marsh other than Gaylen: Gilbert and
Lloyd Marsh each received one vote and David Marsh received two.
While Gaylen Marsh received almost 900 votes, it cannot be
determined without speculation that the "Marsh" votes were intended
for Gaylen and not for Gilbert, Lloyd or David or, indeed, for one
of the approximately two dozen other registered voters in Sheridan
County surnamed Marsh.
Marsh argues that, because he was the only write-in candidate
who filed a declaration of intent as required by § 13-10-211, MCA,
and campaigned for the office, he was the only eligible write-in
candidate; thus, he contends that the "Marsh" votes must have been
intended for him. While it is true that Marsh was the only
official write-in candidate for sheriff under 5 13-10-211, MCA,
nothing in that statute mandates that "Marsh" votes be counted for
him. The effect of write-in votes for persons who have not filed
a declaration of intent is controlled by 5 13-15-202(l) (b), MCA,
which provides that "judges may not count or record write-in votes
for candidates who have not filed a declaration of intent as
provided in 13-10-211 . . . .I'
In addition, Marsh's argument ignores the undisputed fact that
voters wrote in the names of Marshes other than Gaylen. Under the
facts before us, it is entirely conceivable that some of the
"Marsh" ballots were intended for Gilbert, Lloyd or David Marsh.

6
 Moreover, the fact that Marsh was the only write-in candidate
eligible to be elected does not defeat the voting public's right to
vote for whomever they wish. U.S. Const. amend. XV, 5 1;
Awareness Group v. School District No. 4 (1990), 243 Mont. 469,
474, 795 P.2d 447, 450 (citing Wesberry v. Sanders (19641, 376 U.S.

1, 84 S.Ct. 526, 11 L.Ed.2d 481). Gilbert, Lloyd and David Marsh
were not eligible to be elected sheriff because they failed to file
a declaration of intent with election officials. However, their
ineligibility for office does not restrict the voting public's
right to vote for the person of their choice.
Marsh urges this Court to adopt the so-called "substantial
compliance" test utilized by several jurisdictions in interpreting
a voter's intent. In Meyer v. Lamm (Cola. 1993), 846 P.2d 862, for
example, the Colorado Supreme Court allowed votes for "Lamm," "Miss
Lamm," "Ms. Lamm" and "Mrs. Lamm" to be counted in favor of write-
in candidate Peggy Lamm, while rejecting ballots containing an
incorrect first name or initial. Lamm 846 P.2d at 877-78.
-I The
Colorado court reasoned:
The evidence adduced at the hearing indicated that Peggy
Lamm was the only person in District 13 that had
campaigned as a write-in candidate for representative.
She was the only person who had filed the requisite
affidavit of intent to run and was thus the only person
other than Drew Clark eligible to be elected to the
office. There was evidence that Lamm's campaign was
extensive and vigorous and that she had obtained the
editorial endorsement of a number of newspapers in the
metropolitan area. Given these facts, as well as the
absence of any official instructions to voters that a
valid write-in vote must contain more than a last name,
we find that the intention of these voters to vote for
Peggy Lamm can be ascertained with the requisite
certainty.

7
Lamm, 846 P.2d at 077.
While Lamm is factually similar to the present case, we
disagree with the result reached by the Colorado court. We fail to
see how votes for "Lamm" can reflect the "requisite certainty" of
intent in light of votes cast in the same election for "Nancy
Lamm," as an example, which the court correctly rejected as
insufficiently demonstrating the voters' intent to vote for Peggy
Lamm. In our view, the voters' intent under such a factual
scenario cannot be determined without the speculation prohibited by
Spaeth. See Soaeth, 801 P.Zd at 593.
Marsh also relies on Devine v. Wonderlich (Iowa 1978), 268
N.W.2d 620, in which the Iowa Supreme Court concluded that ballots
containing only the candidate's surname sufficiently conveyed the
voters' intent. The court stated:
In view of Devine's active candidacy, the publicity and
advertising which accompanied it, and the unlikelihood of
his beinq confused with the few other persons havinq the
same surname, none of whom were shown to be politically
active, the use of his surname alone was sufficient to
indicate a vote for him.
Devine, 268 N.W.2d at 627 (emphasis added). While the Devine court
found it unlikely that votes cast for "Devine" were intended for
any of the other ten Devines residing in the county, we cannot
properly make such an assumption under the facts of this case.
Here, while the record does not reflect that Gilbert, David and
Lloyd Marsh were politically active and it is clear that none of
them filed a declaration of intent, they each received write-in
votes. Under such circumstances, we cannot state without

8
speculation or conjecture that the "Marsh" ballots were intended
for Gaylen Marsh and not Gilbert, David or Lloyd.
We hold that the District Court did not err in concluding that

the surname "Marsh" alone on a write-in ballot was insufficient to
determine the intent of the voters under 5 13-15-202, MCA.
Issue 2
Did the District Court err in concluding that the
Recount Board had jurisdiction to disallow votes cast
with only the surname "Marsh"?
Marsh argues that election judges are vested with sole
responsibility for rejecting invalid or irregular ballots and that
a recount board is limited to simply "recounting" those ballots
that the election judges have determined to be valid. On this
basis, Marsh insists that the Recount Board exceeded its
jurisdiction by redetermining which ballots to count and which
ballots to void and that the District Court erred in concluding
otherwise. Overland contends that Marsh's approach fails to
consider other relevant statutes and fails to look at the statutes
as a whole.
Statutes do not exist in a vacuum. They must be read in
relationship to one another to effectuate the intent of the
statutes as a whole. See Swan Corp. v. Mont. Dep't of Revenue

(IgEE), 232 Mont. 210, 214, 755 P.2d 1388, 1390; (citing State v.
Meader (1979), 184 Mont. 32, 36-37, 601 P.2d 386, 388-89). In
Howell v. State (1994), 263 Mont. 275, 868 P.2d 568, we stated that
"it is our duty to interpret individual sections of an act in such

9
a manner as to ensure coordination with the other sections of the
act." Howell, 868 P.2d at 574 (citation omitted).
Section 13-15-202, MCA, generally provides that the election
judges shall count the votes cast for each candidate. As discussed
above, § 13-15-202(3), MCA, allows the election judges to count
only those ballots which clearly convey the voters' intent.
Implicit in the term "count" is that only those ballots which
satisfy the statutory intent requirement may be counted.
Sections 13-16-101 through 13-16-507, MCA, set forth the
procedures for the appointment of a recount board and for recounts
of various types. Section 13-16-412, MCA, authorizes a recount
board to count votes cast for the candidates involved in the
recount, while § 13-16-415, MCA, requires a recount board to verify
the results:
After a recount is completed, tally sheets shall be
compared and the correctness of all reoorts of votes cast
ascertained. The totals for each candidate or on each
issue shall be compiled and checked for accuracy.
[Emphasis added.]
When Overland petitioned for a recount, the Recount Board was
required by § 13-16-412, MCA, to count the votes cast for the
candidates for sheriff. It was further required, under § 13-16-
415, MCA, to ascertain the correctness of all reports of votes
cast. Reading these statutes together, we conclude that the
Recount Board could fulfill its statutory duties only by
determining whether or not certain votes could be counted pursuant
to the strictures contained in 5 13-15-202, MCA.

10
 We hold that the District Court did not err in concluding that
the Recount Board had jurisdiction to disallow votes cast with only
the surname "Marsh."
Issue 3
Did the election judges' failure to properly
identify rejected ballots compromise the validity of the
entire election?
Marsh argues that the election judges failed to mark the
ballots they rejected as required by 5 13-15-203, MCA. He claims
that this failure to properly mark the rejected ballots compromised
the validity of the entire election process.
Marsh did not name the election judges as party defendants in
this action; nor did he raise this issue in his complaint. He also

did not present this argument during the hearing and did not move

to amend his pleadings to conform to any evidence presented, as
authorized by Rule 15(b), M.R.Civ.P. Marsh raised this issue for
the first time in his post-hearing memorandum, and the District
Court did not address the issue in its findings and conclusions.
We will not address issues which were not properly raised
before the district court. Lane v. Smith (1992), 255 Mont. 218,
221, 841 P.2d 1143, 1145. We conclude that Marsh failed to timely

raise the issue of the election judges' failure to mark rejected
ballots as required by 5 13-15-203, MCA, before the District Court
and, therefore, we decline to address it.
Issue 4
Did the District Court abuse its discretion in
awarding attorney's fees to Overland?
 In Montana, litigants generally are not entitled to an award
of attorney's fees absent a specific contractual or statutory
provision. Howell, 868 P.2d at 574. Section 13-36-205, MCA,
authorizes an award of attorney's fees to the prevailing party in
a contested election proceeding:
In any contest, the prevailing party may recover his
costs, disbursements, and reasonable attorney's fees.
costs, disbursements, and attorney's fees in all such
cases shall be in the discretion of the court.
Because a fee award under § 13-36-205, MCA, is discretionary, we
review the District Court's award of attorney's fees to Overland
for abuse of discretion. Gandy v. Eschler (1993), 261 Mont. 355,
361, 862 P.2d 1116, 1120.
Marsh asserts that either he or Overland probably would have
initiated the election contest proceeding after the recount,
regardless of the results of the recount. He further contends that
the inevitable legal action would have resulted from the acts of
the election judges or Recount Board rather than from any fault of
either himself or Overland. Under these circumstances, he argues
that the District Court abused its discretion in awarding
attorney's fees to Overland rather than leaving each party
responsible for the attorney's fees he incurred.
Overland is the prevailing party in an election contest
proceeding. Section 13-36-205, MCA, authorizes an award of
attorney's fees in such a situation and the District Court acted
pursuant to the statute in making the award. The court, in its
discretion, could have accepted Marsh's arguments; it did not

12
choose to do so. We conclude that the District Court did not abuse
its discretion in awarding attorney's fees to Overland.
Overland points out that he has incurred additional costs and
attorney's fees in defending against Marsh's appeal and requests
that we award him fees and costs on appeal. Overland's attorney's
fees on appeal were incurred during his ongoing defense against
Marsh's election contest. Under the facts and circumstances of
this case, awarding attorney's fees on appeal furthers the purpose
of 5 13-36-205, MCA, and is consistent with the discretionary award
by the District Court. See Bozeman Daily Chronicle v. City of
Bozeman (1993), 260 Mont. 218, 232, 859 P.2d 435, 444. Therefore,
we conclude that Overland is entitled to an award of costs and
reasonable attorney's fees for this appeal.
Affirmed and remanded for determination of the amount of
attorney's fees and costs to be awarded.

We concur:

Justices
13
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
Gaylen Marsh waged a write-in campaign for sheriff of Sheridan
County and won. Mike Overland lost. Election judges in Sheridan
County who were responsible for determining the voters' intent, and
who were in the best position to do so, agreed that Gaylen Marsh
won. Now this Court, far removed from the politics of Sheridan
County and totally unfamiliar with the persons involved, has set
aside Gaylen Marsh's election, disenfranchised hundreds of Sheridan
County voters who chose him as their sheriff, struck a blow against
democracy, and once again has elevated form over substance.
Any analysis of the issues raised by this appeal should have
started out with the following consideration:
Because an election contest involves the right of
qualified voters to have their ballots counted for the
candidate of their choice, the right of franchise is at
stake. The right to vote is a fundamental political
right. It is essential to representative government.
Wesberryv.Sanders, 376 U.S. 1, 17-18, 84 S.Ct. 526, 535, 11
L.Ed.2d 481, 492 (1964) ("No right is more precious in a
free country than that of having a voice in the election
of those who make laws under which, as good citizens, we
must live."). Any alleged infringement of the right to
vote must be carefully and meticulously scrutinized.
Reynoldsv.Sims, 377 U.S. 533, 561-562, 84 S.Ct. 1362, 1381,
12 L.Ed.2d 506, 527 (1964).
Devinev. Wonderlich (Iowa 19781, 268 N.W.2d 620, 623.

The Montana statute which controls the outcome in this case
recognizes the danger of infringing on the precious right to vote
when it provides in part that: "If part of a ballot is sufficiently

14
plain to determine the elector's intention, the election judges
shall count that part." Section 13-15-202(3), MCA.
In an early application and analysis of nearly identical
statutory language, this Court held that that language requires
liberal application toward the end of counting votes, rather than
rejecting them. In Petersonv.Billings (1939), 109 Mont. 390, 96 P.2d

922, we held that:
"It is a general rule that election laws must be
liberally construed. This court, in Stackpole v. Hallahan,
16 Mont. 40, 40 Pac. 80 [28 L. R. A. 5021, on page 57,
16 Mont., and page 85, 40 Pac. announces that 'in the
construction of election laws the whole tendency of
American authority is towards liberality, to the end of
sustaining the honest choice of the electors.' The
reason for this rule is 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."
(Dickermanv. Gelsthorpe, 19 Mont. 249, 47 Pac. 999, 1001.)

"But if, from the marking of the ballot and
substantial compliance with the law, the intent and
choice of the voter clearly appear, then his ballot
should be counted, unless the statute expressly or by
clear inference forbids it; otherwise the true spirit of
the election law might be violated by subordinating the
essence to a mere element of detail, and substance might
be sacrificed to form. The elective franchise is not
conferred upon the citizen by the legislature, or by
virtue of legislative enactments. The right to vote is
a constitutional right, and is one of the bulwarks of our
form of government and system of civil liberty." (Id.,
20 C. J. 154, 18 Am. Jur. 302, and many cases therein
cited.) This is particularly true where there is a
statutory provision similar to our section 777. [Now
§ 13-15-202(3), MCA.1
Peterson, 96 P.2d at 924-25.

We have never varied in our decisions from the guidance set
forth in Peterson. The quoted language has been cited with approval

15
as recently as 1987 in Renniev.Nistler (1987), 226 Mont. 412, 414-15,

735 P.2d 1124, 1126.
With the rule in mind that ballots must be counted if the
voter's intent can be determined, our statutes establish
qualifications for election judges which should assist them in
making those determinations. Election judges must be registered
voters of the county and the precinct in which they serve, but may
not be a candidate or related to a candidate. Section 13-4-107,
MCA. The Secretary of State prepares instructional materials for
election judges and holds workshops every two years to instruct
administrators and their staffs on the use of the materials.
Before each election, all election judges who do not possess a
current certificate of instruction must be instructed by the
election administrator. Only after completing a training session,
are judges certified. Section 13-4-203, MCA.
The requirement that election judges be residents of the
precinct in which they serve furthers the objective that they be
familiar with local candidates and their campaigns, the names and
identities of persons in their community, and the political issues
with which the elections they judge are concerned. All of these
sources of information make them better able to perform the duty
with which they are charged by 5 13-15-202(3), MCA, which is to
determine the "elector's intention" when a question is raised.
With this statutory and decisional background, it is helpful
to examine the relevant facts in this case. Gaylen Marsh resided
in Plentywood, in Sheridan County. Prior to the 1994 election, he

16
had worked in the Sheridan County Sheriff's Office as a deputy, and

in the City of Westby as a police officer. He was an unsuccessful
candidate for sheriff of Sheridan County in 1986 and 1990. In
1994, he was an unsuccessful candidate for the democratic
nomination for sheriff. Following his unsuccessful primary
campaign, he made a decision to run as a write-in candidate.
So that write-in votes for him could be counted, Marsh filed
a declaration of intent to run as a write-in candidate. He was the
only person who did so. He also nominated a treasurer for his
campaign. He advertised in newspapers and on the radio; he
displayed sign boards and posters; he mailed campaign literature to
the voters of Sheridan County; and he traveled throughout the
County to meet and campaign among its voters, occasionally going
door-to-door. He had two types of posters, but the larger and more
frequently used posters simply said "Marsh for Sheriff."
There are other Marshes in Sheridan County. All of them are
related to Gaylen. However, none of them campaigned for the office
of sheriff in the 1994 election. In fact none of them have ever
sought political office, been politically active, or been involved
in law enforcement in any capacity.
The election judges in Sheridan County were presumably
familiar, in a general sense, with this background when they
evaluated ballots in the 1994 sheriff's election.
It was not necessary for this Court to break new ground in
order to affirm the will of the voters in Sheridan County. Other
state courts have considered challenges to ballots for write-in

17
candidates under nearly identical circumstances. In Devine, the

plaintiff was a write-in candidate for county board supervisor who
lost the election by 50 votes after the district court rejected
ballots which included only his surname or his surname and the
first initial of his given name. On appeal to the Iowa Supreme
Court, that court first noted that its rule by which the validity
of ballots are judged, is similar to our statutory rule. Ballots
in that state are valid when they include sufficient information to
indicate the person for whom the voter intended to cast his or her
ballot. That court held that the following circumstances are to be
considered in arriving at that determination:
As these cases hold, the issue is to be decided in light
of all facts of a general public nature surrounding the
election which the voter may be presumed to know and in
view of which he may be presumed to have exercised his
franchise. Among the circumstances bearing on the
determination of voter intent are whether the write-in
candidacy was well publicized and whether other
candidates and other residents of the locality involved
had the same or similar surname.
In this case, Devine's candidacy was well publicized
and advertised. Because of this and because of his prior
candidacy for the same office, his name was familiar to
many voters in this rural, lightly-populated county. Ten
other residents of the county bore the same surname, but
all were relatives of Devine and none was a candidate for
this or any other office. . .
. . In view of Devine's active candidacy, the
publicity and advertising which accompanied it, and the
unlikelihood of his being confused with the few other
persons having the same surname, none of whom were shown
to be politically active, the use of his surname alone
was sufficient to indicate a vote for him.
Devine , 268 N.W.2d at 627.

18
 All of the factors considered significant by the Iowa Supreme
Court are present in this case. Marsh's candidacy was an active
one attended by substantial publicity. Although there were other
residents in Sheridan County with the same surname, all were
relatives, none was a candidate, and none was politically active.
Under these circumstances, it is difficult to conclude at a
distance of several hundred miles that the election judges who were
intimately familiar with the local election were not in a better
position to determine the intention of those voters who wrote in
the name "Marsh" as their choice for Sheridan County Sheriff.
The Iowa Court also listed decisions from California,
Illinois, Kentucky, Michigan, Missouri, New Jersey, New York, and
Rhode Island which support the same conclusion. Devine , 268 N.W.2d

at 627.
Even more similar and more recent is Meyerv.Lamm (Cola. 1993),

846 P.2d 862, which is so casually rejected by the majority. In
Meyer, as in this case, the Boulder County Clerk and Recorder

instructed the recount judges, based on advice from the Secretary
of State, that write-in ballots which contained only Lamm's surname
should not be counted. The district court held that those ballots
should be counted, and the Supreme Court of Colorado affirmed.
Although statutory law in Colorado required that a write-in
candidate's full name be used on the ballot, that court held that
strict compliance with that requirement would unduly infringe upon
the suffrage rights of Colorado voters. Meyer, 846 P.2d at 875.

19
It also held that to give the fullest effect to votes cast, it was
proper to consider extrinsic evidence to determine the voters'
intent. After doing so, it arrived at the following conclusion for
the following reasons:
Under the test of substantial compliance, and
considering the circumstances surrounding the election of
District 13, we agree that write-in votes for "Lamm,"
"Ms. Lamm," "Miss Lamm," or "Mrs. Lamm" should be counted
for Peggy Lamm. The evidence adduced at the hearing
indicated that Peggy Lamm was the only person in
District 13 that had campaigned as a write-in candidate
for representative. She was the only person who had
filed the requisite affidavit of intent to run and was
thus the only person other than Drew Clark eligible to be
elected to the office. There was evidence that Lamm's
campaign was extensive and vigorous and that she had
obtained the editorial endorsement of a number of
newspapers in the metropolitan area. Given these facts,
as well as the absence of any official instructions to
voters that a valid write-in vote must contain more than
a last name, we find that the intention of these voters
to vote for Peggy Lamm can be ascertained with the
requisite certainty.
Our holding is consistent with the case law in other
jurisdictions.
Meyer, 846 P.2d at 877

Other than editorial endorsements, all of the factors
considered significant by the Colorado Supreme Court are present in
this case. Gaylen Marsh was the only person who had campaigned as
a write-in candidate in Sheridan County. He was the only person
who had filed a declaration of intent to run as a write-in
candidate for sheriff. His campaign was extensive and vigorous.
And last but not least significant, there was a total absence of
any instructions, either verbal or written, to voters in Sheridan

20
County which indicated that a write-in vote for Marsh must include
his first name or initial to be counted.
In the face of numerous precedent to the contrary from other
jurisdictions under eerily similar circumstances, the majority has
forged ahead with its commitment to second-guess Sheridan County's
election judges without so much as citing one authority in support
of its conclusion. None of the Montana precedent cited in the
majority opinion addresses facts even remotely similar to the facts
in this case, and of those Montana precedents, only the Peterson

decision cites to the appropriate and controlling statute. To the

extent that the Peterson case established a rule which can be applied

to this case, it requires reversal of the District Court.
The majority concludes that because twenty-eight other
registered voters in Sheridan County have the surname "Marsh," it
is speculative who voters in that county intended to elect when
they placed that name on a ballot for county sheriff. However,
only one of those twenty-eight people named Marsh was a candidate
for county sheriff.
The majority finds it significant that several voters cast a
ballot for a Marsh with a different first name. Obviously, based
on the facts in this case, those voters were mistaken about their
candidate's first name. However, the simple solution to those
mistakes is to disregard those ballots. Marsh does not contend on
appeal that they should be considered.

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 Finally, the majority concludes that "it cannot be determined
without speculation that the 'Marsh' votes were intended for Gaylen
. . II However, common sense suggests otherwise, and so did the

election judges who were in the best position to know.

Because I would reverse the District Court's judgment that the

surname "Marsh" was insufficient to indicate the intent of voters

pursuant to the requirements of § 13-15-202, MCA, it would not

normally be necessary to discuss the second issue addressed in the
majority opinion. However, the majority's rationale for deciding

that issue is so far off-base, that it requires some comment.

The majority has resolved Issue 2 by concluding that the

recount board has authority to evaluate the adequacy of ballots,

rather than simply count them. There is, of course, no statutory

basis for this conclusion, and therefore, the majority rationalizes

that authority which is not provided by any single statute can

somehow be created out of whole cloth by combining several statutes

which individually provide no authority.

The fallacy of the majority's conclusion is best illustrated

by simply setting forth the statute upon which it principally

relies. Section 13-16-412, MCA, provides as follows:

The county recount board in recounting the ballots shall
count, at the same time, the votes cast in the precincts
in which a recount is ordered for the several candidates
in whose behalf a recount is ordered in the following
manner:
(1) The election administrator shall produce,
unopened, each sealed package or envelope received from
the election judges of the precinct or precincts in which
a recount is ordered, containing all ballots voted in the
precinct or precincts.

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 (2) A member of the county recount board shall open
each sealed package or envelope and remove the ballots.
(3) One of the members of the board shall read each
ballot aloud. As the ballots are read, two clerks shall
write the votes cast for each individual in each
precinct, at full length, on previously prepared tally
sheets. The tally sheets shall show the names of the
respective candidates, the office or offices for which a
recount is made, and the number of each election
precinct.

Section 13-16-415, MCA, provides that:

After a recount is completed, tally sheets shall be
compared and the correctness of all reports of votes cast
ascertained. The totals for each candidate or on each
issue shall be compiled and checked for accuracy.

Section 13-16-412, MCA, sets forth only a procedure for

counting ballots. It bestows no authority to evaluate the adequacy

of ballots or reject any ballot included in the sealed envelope

produced by the election administrator.

Section 13-16-415, MCA, authorizes the recount board to

evaluate the correctness of "all reports of votes" and verify the

"totals" for each candidate to determine that those "totals" are

accurate. It makes no mention of any authority to analyze the

validity of any ballot or to reject any ballot.

Furthermore, the recount board is simply composed of three

members of the local governing body, in this case, the county

commissioners. Section 13-16-101, MCA. Unlike election judges,

members of the recount board are not required to live in any

particular part of the county and there are no educational

requirements for recount board members. These qualifications are

unnecessary for a group of people whose only obligation is to count

ballots.

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 Only election judges are given statutory authority to accept

or reject ballots. Section 13-15-202(3), MCA, provides in part

that:

A ballot or part of a ballot is void and may 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.

Section 13-15-203, MCA, instructs election judges on the

procedure to follow for rejected ballots. It requires:
A ballot rejected for illegality shall be marked by the
election judges by writing across the face, "rejected on
the ground of . . .'I, filling the blank with a brief
statement of the reasons for the rejection. The
statement shall be dated and signed by a majority of the
judges.

No similar procedure for documenting their reasons for

rejection of a ballot is provided in the chapter pertaining to

election recounts.

It is obvious from this clear statutory scheme that only

election judges, with their superior familiarity and qualifica-

tions, are authorized by statute to reject and accept ballots. The

majority's conclusion to the contrary is a transparent attempt to
affirm an unauthorized result without any support in the law.

By their decision in this case, the majority thumb their

collective noses at the voters in Sheridan County, strike a blow
against democracy, and demonstrate once again that technicalities

are more important than substance in the rarified atmosphere of the

Supreme Court. For these reasons, I dissent from the majority

opinion. I would reverse the judgment of the District Court and

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return to Gaylen Marsh the election that he won at the ballot box

but lost in court.

us ice
/

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