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. Wesberry v. 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. Reynolds v. Sims, 377 U.S. 533, 561-562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506, 527 (1964).
Devine v. Wonderlich (Iowa 1978), 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 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 Peterson v. Billings (1939), 109 Mont. 390, 96 P.2d 922, we held that:
*32“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. 502], 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.” (Dickerman v. Gelsthorpe [1897], 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.]
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 as recently as 1987 in Rennie v. 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.
*33The 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 § 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 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 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 *34appeal 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.
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.
*35Even more similar and more recent is Meyer v. Lamm (Colo. 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. 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 *36written, to voters in Sheridan 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.
Finally, the majority concludes that “it cannot be determined without speculation that the ‘Marsh’ votes were intended for Gaylen ....” 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.
*37The 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.
(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.
*38Only 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 ...”, 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 qualifications, 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 return to Gaylen Marsh the election that he won at the ballot box but lost in court.