Marsh v. Overland, 95-117

Citation905 P.2d 1088,52 St.Rep. 1099,274 Mont. 21
Decision Date02 November 1995
Docket NumberNo. 95-117,95-117
PartiesGaylen MARSH, Petitioner and Appellant, v. Mike OVERLAND, Respondent and Respondent.
CourtMontana Supreme Court

Matthew W. Knierim, Laura Christoffersen; Christoffersen & Knierim, Glasgow, for Appellant.

Jeffrey M. Hindoien; Swift & Hindoien, Helena, for Respondent.

GRAY, Justice.

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 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(1), 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 "X" 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 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 § 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 § 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 § 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?

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 "Marsh" votes cannot be credited to Marsh without speculating about the voters' intent. There are twenty-eight registered voters in Sheridan County with 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 § 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 § 13-15-202(1)(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...."

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.

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, § 1; Awareness Group v. School District No. 4 (1990), 243 Mont. 469, 474, 795 P.2d 447, 450 (citing Wesberry v. Sanders (1964), 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 (Colo.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. 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.

Lamm, 846 P.2d at 877.

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