concurring specially.
I concur in the opinion written by Justice Sand.
This is the first time we have been asked to construe the provisions of Chapter 16.1-16, N.D.C.C., entitled “Contest of Elections,” as enacted in 1981. Although some of the provisions of that chapter are similar to previous statutory provisions, now repealed, the statutory scheme does appear to be somewhat different.
The statute clearly provides for recounts in Section 16.1-16-01, and these provisions include recounts in legislative and other elective offices as well as in elections on measures submitted to the voters. The ac*583tions with which we are concerned do not involve an election recount. Sections 16.1-16-02 through 16.1-16-09 involve a contest of election in district court by a defeated candidate or ten qualified electors contesting the nomination or election of any person or the approval or rejection of any question or proposition submitted to a vote of the electorate. In this instance twelve electors filed a petition which challenged the election in the precinct, not necessarily the election of Hamerlik to office, although the practical result was that only Hamerlik’s election could be affected by the vote in that precinct. Finally, Sections 16.1-16-10 through 16.1-16-17 provide for a legislative contest of election. They require that any person intending to contest the election of a member of the Legislative Assembly shall proceed as therein specified and the contest is to be heard and decided by the Legislative Assembly, not the courts.
Although the practical effect of the election contest involved in the cases before us may indicate that the statutes providing for a legislative contest of election should have been followed rather than the statutes applying to elective offices generally, I agree with Justice Sand that the legal posture of the instant cases indicates the election contest was a challenge to the entire election in the precinct rather than specifically to Hamerlik’s right to hold a legislative office. Justice Sand has so characterized the contest and I agree with his conclusion that such action does not limit the twelve petitioners to the legislative contest of election provisions. If, however, the contest of election had been directed only at Hamerlik, I believe the statutory scheme presented in Chapter 16.1-16, which is consistent with Article IV, Section 26, North Dakota Constitution, would require that the challengers pursue their contest in the manner specified for legislative contests rather than in district court.
Although our decision herein may appear to be inconsistent with previous decisions in which we have upheld the voiding of certain election ballots, there is, as Justice Sand has noted, a significant difference between voiding a ballot which does not contain the official initials or stamp pursuant to statute as compared with the situation where the improper ballot label was used so that the intention of the voters could not be determined but the voters involved can be identified without disclosing for whom they voted. That difference is, of course, that “to protect his right to vote the elector should observe the stamping and initialing of the ballot.” Sec. 16.1-13-22, N.D.C.C. No such similar statutory right is given to the elector voting in a precinct using an electronic voting system whereby the elector may check the other poll booths in the precinct to determine that the ballot labels used in the various booths in the precinct are identical to the one being used in the booth in which the elector is to cast his ballot.
Although it would be ideal if we could require all of the 526 voters to cast their ballots for the person for whom they voted on November 2, 1982, that is not possible because we cannot compel an elector to disclose how he voted. I believe the procedure specified by Judge Bakken, as modified by the opinion written for the Court by Justice Sand, is the best procedure available to correct the disenfranchisement of the 526 voters in Winship precinct.