Big Spring v. Jore

• Citation: 326 Mont. 256,2005 MT 64,109 P.3d 219
• Decision Date: 18 March 2005
• Docket Number: No. 04-851.,04-851.
• Parties: Anita BIG SPRING, Contestant and Appellant, v. Rick JORE, Contestee and Respondent.
• Court: Montana Supreme Court

109 P.3d 219

2005 MT 64

326 Mont. 256

Anita BIG SPRING, Contestant and Appellant, v. Rick JORE, Contestee and Respondent.

No. 04-851.

Supreme Court of Montana.

Submitted on Briefs December 28, 2004.

Decided March 18, 2005.

For Appellant: Peter M. Meloy & Jennifer Hendricks, Meloy Trieweiler, Helena, Montana. For Respondent: Duncan Scott, Scott & Kalvig, Kalispell, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Anita Big Spring appeals a decision of the District Court for the Twentieth Judicial District, Lake County, finding that seven contested ballots in the race for House District 12 are valid. We reverse and remand for further proceedings consistent with this Opinion.

¶ 2 We address the following issue on appeal: Whether the District Court erred in counting seven overvoted ballots as votes for Contestee-Appellee Rick Jore.

Factual and Procedural Background

¶ 3 On November 2, 2004, Lake County held an election to select a representative for House District 12. The candidates listed by name on the ballot were Jeanne Windham, the nominee of the Democratic Party; Rick Jore, the nominee of the Constitution Party; and Jack Cross, the nominee of the Republican Party. Anita Big Spring is an elector entitled to vote in the election for House District 12, a responsibility which she duly exercised.

¶ 4 Lake County used an AIS 315 scanning machine to count the number of votes cast for each candidate. This machine is designed so that it will not count ballots in which the voter has made a mark in more than one designated voting area for the same contest. Any ballot on which there is more than one mark for the same contest is rejected by the machine as an "overvote." That ballot is then examined separately by an election official.

¶ 5 With respect to the votes cast for the three candidates for House District 12, seven ballots had marks in the designated area for more than one candidate. On five of the seven ballots, the ovals for both Jore and Cross were filled in, however, the oval for Cross was also marked with an X. On the sixth ballot, both the ovals for Jore and Cross were filled in, but the area next to Cross's name was also marked with a squiggly line. On the seventh ballot, both the ovals for Jore and Cross were filled in, but the area next to Cross's name was marked with an additional line extending towards and under his name and with what appear to be the letters "NRA" or "NLA" written in. These seven ballots were read as "overvotes" and rejected by the AIS 315 scanning machine.

¶ 6 An election official examined these seven ballots after they were rejected by the scanning machine. That official then affixed a white label over each mark for Cross and fed the ballots back through the machine with the result that the votes were counted for Jore. At the conclusion of the initial count, Jore was determined to be the winner by only two votes, hence, Windham requested a recount. During the course of this recount, Windham became aware of the seven ballots at issue here. At the conclusion of the recount, which included the seven previously mentioned ballots, the Recount Board determined that the election was a tie between Windham and Jore.

¶ 7 Windham filed suit in the First Judicial District Court (Jeanne Windham v. Judy Martz and Bob Brown, Cause No. ADV 04-896). On November 30, 2004, the District Court entered an ex parte temporary restraining order enjoining the defendants from certifying the election results of House District 12 or appointing a candidate. At a hearing on December 9, 2004, the court denied Windham's request for relief and allowed the temporary restraining order to expire on its own terms the following day.

¶ 8 On December 6, 2004, Windham filed an Application for Writ of Mandamus or Declaratory Relief with this Court asking that we assume original jurisdiction over this matter. We denied the application on December 9, 2004, holding that a writ of mandamus was not the correct remedy in this matter. The following day, Big Spring filed a petition in the Twentieth Judicial District Court to contest the certification of the race for House District 12 as a tie. That court ordered that Big Spring's petition be held in abeyance until such time as the election was certified and Governor Martz nominated an individual to fill the seat in House District 12. ¶ 9 The State Board of Canvassers certified the election as a tie on December 13, 2004, and, pursuant to § 13-16-503, MCA, the Secretary of State certified the result to Governor Martz. On December 15, 2004, Governor Martz appointed Jore to represent House District 12.

¶ 10 With the election results certified and an individual appointed by the Governor to fill the seat, the District Court held a hearing on Big Spring's petition on December 17, 2004, at which time evidence was received and arguments presented. That same afternoon, the District Court issued its decision in favor of Jore. The court determined that all seven of the contested ballots were valid and that those electors intended to vote for Jore. In making this determination, the court stated that this Court's precedents prohibiting speculation about voter intent did not apply in this case. Big Spring appeals the District Court's December 17, 2004 Findings of Fact, Conclusions of Law and Order.

Standard of Review

¶ 11 Jore asks this Court to defer to the discretion of the District Court in this case in light of the recent developments in election law and the resulting wholesale changes made to Montana's election code. To support this proposition, Jore cites to a West Virginia case in which the Supreme Court of Appeals of West Virginia deferred to local election officials in their determination of voter intent. In State ex rel. Bowling v. Greenbrier County Comm'n (2002), 212 W.Va. 647, 575 S.E.2d 257, 259, the Court of Appeals stated that

in the absence of evidence of patent error or of fraud, courts should be cautious about "monkeying" with reasoned determinations of designated election officials — particularly when judicial intervention would result in the disenfranchising of voters.

Ironically, two of the contested ballots in Bowling had the ovals for two candidates filled in and a handwritten X placed over one of the ovals just as in the case sub judice. The court in Bowling agreed with the County Commission in that case that the voter's intent for these two ballots could not be clearly ascertained. Bowling, 575 S.E.2d at 262. Accordingly, Bowling supports Big Spring's argument, not Jore's.

¶ 12 We are not persuaded by Jore's argument as nothing in the 2003 changes to Montana's election codes statutorily overruled this Court's precedents. Moreover, the West Virginia statutes relied on in Bowling, are different from Montana's. West Virginia's statutes spell out that the "trial court" in an election contest is the County Commission, while the courts serve in an appellate role. Bowling, 575 S.E.2d at 259. The West Virginia courts have concluded that this scheme requires them to defer to factual findings, a view directly at odds with this Court's holding in Rennie v. Nistler (1987), 226 Mont. 412, 735 P.2d 1124.

¶ 13 In Rennie, the validity of one contested ballot determined the outcome of the election for County Attorney of Lake County. We pointed out in that similar situation that we were "free to make our own examination of the entire case, and to make a determination in accordance with our findings." Rennie, 226 Mont. at 415, 735 P.2d at 1126 (citing Steadman v. Halland (1982), 197 Mont. 45, 51, 641 P.2d 448, 452; Reid v. Park County (1981), 192 Mont. 231, 237, 627 P.2d 1210, 1214). The Respondent in Rennie had argued that this Court is bound to accept the findings of the District Court as a matter of discretion unless that discretion was abused and that to rule otherwise would "put the Supreme Court in the election booth." Rennie, 226 Mont. at 415, 735 P.2d at 1126. We stated then that

we are required [by § 3-2-204(5), MCA] in equity cases to review all questions of fact arising upon the evidence presented in the record, ... and to determine the same as well as questions of law.... We are not, thereby, "putting ourselves in the election booth" anymore than did the District Court in making its determination.

Rennie, 226 Mont. at 415, 735 P.2d at 1126.

¶ 14 Moreover, as the United States Supreme Court recently stated in Bush v. Gore (2000), 531 U.S. 98, 111, 121 S.Ct. 525, 533, 148 L.Ed.2d 388: "When contending parties invoke the process of the courts ..., it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront." We have no less unsought responsibility when contending parties invoke the process of our judicial system in an election contest we are forced to confront.

¶ 15 Consequently, our standard of review in questions of this nature will continue to be de novo. In other words, we will apply the same standard that should have been applied by the District Court — plenary review of the validity of the challenged ballots.

Discussion

¶ 16 Whether the District Court erred in counting seven overvoted ballots as votes for Contestee-Appellee Rick Jore.

¶ 17 Big Spring argues on appeal that because the elector's choice cannot be clearly determined from the face of the seven ballots at issue here, those seven ballots are invalid and the District Court erred in counting those seven votes for Jore. Jore argues, on the other hand, that treating those seven ballots differently than 73 other substantially identical ballots in other races would violate the equal protection guarantees of the Fourteenth Amendment to the United States Constitution and Article II, Section 4 of the Montana Constitution. Jore also argues that it would violate § 13-15-206, MCA, which requires that votes be counted "in a uniform manner."

¶ 18 Many of the statutes and regulations that govern the...