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IN THE SUPREME COURT OF THE STATE OF MONTANA
KEITH C. RENNIE,
Contestant and Appellant,
-vsLARRY J. NISTLER,
Contestee and Respondent.
District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C.B. McNeil, Judge presiding.
COUNSEL OF RECORD:
Manley & Smith; Brian J. Smith argued, Polson,
Larry Nistler argued, Polson, Montana
March 1 8 , 1 9 8 7
A p r i l 1 6 , 1987
Mr. Justice John C.
Sheehy delivered the Opinion of the
We affirm in this case the decision of the District
Court, Twentieth Judicial District., Lake County, following a
contest of election that Larry J. Nistler is lawfully
entitled to hold the office of county attorney of Ilake
In the general election of November 4, 1986, the office
of Lake County Attorney was to be filled.
ballots were printed and used with the names of Keith C.
Rennie, as a Democratic candidate, and Larry J. Nistler, as a
Republican candidate for that office.
After the election polls were closed, the election
judges counted the ballots and the Roard of County Canvassers
canvassed the returns and certified that Larry J. Nistler,
the Republican candidate, was the winner by a margin of 8
The Democratic candidate, Keith C. Rennie, asked for a
recount pursuant to 5 13-16-201, MCA. Following the recount,
the recount judges determined that the election for county
attorney of Lake County had resulted in a tie vote.
The Roard of County Commissioners of Lake County,
pursuant to 5 13-16-506, MCA, appointed Larry J. Nistler to
the office of Lake County Attorney.
Keith C. Rennie appeals from the District Court order
affirming the recount board.
He claims that the report of
the recount board that the election had resulted in a tie
vote was erroneous for the reason that the election judges,
the recount judges, and the recount board have failed to
count a ballot (admitted in evidence as contestant's exhibit
no. 1) as a vote for Keith C. Rennie; that the addition of
The guiding principle on the acceptance or rejection of
ballots in elections is found in
13-15-102, MCA, which
No declaration of an election result, commission,
or certificate shall be withheld because of a
defect or informality in the returns of any
election if it can be determined with reasonable
certainty the office intended and the person
We determine that a "defect in the returns" would occur
if an illegal ballot was accepted by the election judges or a
legal ballot rejected.
Section 13-15-102, MCA, is the statutory embodiment of
what this Court said in Peterson v. Billings (19391, 109
Mont. 390, 394-95, 96 P.2d 922, 924:
"This court, in Stackpole v. Helahan, 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
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.
"But if, from the marking of the ballot in
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 may be sacrificed to
As a prelude to our discussion, we meet first the
contention of Nistler, who appeared pro se, and who contended
in briefs and in oral argument before this Court that we were
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." In this case, however, the findings of the
District Court are based solely on that court's examination
of the photocopy of the contested ballot, the same photocopy
that is now before us. The District Court also heard oral
testimony, but the oral testimony was not helpful with
respect to the problems presented by the contested ballot,
but rather established for the record that this ballot was in
fact rejected by the election judges, the board of
canvassers, and the recount board.
In the situation before
us, we are free to make our own examination of the entire
case, and to make a determination in accordance with our
findings. Steadman v. Halland (1982), 197 Mont. 45, 51, 641
P.2d 448, 452; Reid v. Park County (Mont. 1981), 627 P.2d
1210, 1214, 38 St.Rep. 631, 635. Moreover, by statute, we
are required in equity cases to review all questions of fact
arising upon the evidence presented in the record, whether
specifications of error are made or not and to determine the
same as well as questions of law. Section 3-2-204(5), MCA.
We are not, thereby, "putting ourselves in the election
booth" anymore than did the District Court in making its
We do, however, agree with the District Court that the
voter's intentions are not clearly and plainly shown on the
In the general election of November 4,
1986, there were in Lake County 14 national, state and county
offices for which candidates were to be elected.
In 13 of
the 14 races, the voter of the contested ballot wrote in the
same name of a candidate who also appeared as a party
candidate in the printed portion of the ballot for each
office. For each office for which he cast a vote, the voter
did not mark an "x" in the box provided, but choose instead
to make a slash line slanting from right to left downward.
Although the voter, for each office open on the ballot,
carefully wrote in the names of the candidates already
appearing on the ballot, his slash line vote appears in the
box opposite his write-in for 7 of the candidates.
other instances, the voter wrote in the full name of one of
the printed candidates but instead of placing his mark in the
boxes opposite his writing, placed his slash line mark in the
boxes opposite the printed name of the persons he had written
in. Yet, in the 7 constitutional amendments, referenda and
initiatives which were also on the ballot, the voter clearly
made a proper " x u reflecting his position for or against the
7 different constitutional and initiative propositions. This
is in contrast to the slash mark that he used to cast his
vote for the state, national and county offices. In the case
of the county attorney, his vote appears thus:
(VOTE FOR ONE)
1 LARRY J. NISTLER - Republican
KEITH C. RENNIE
(Handwritten) Keith C. Renne
The District Court also determined, from the face of the
ballot for county attorney that the name "Renne" as
handwritten, and for which the voter inserted a voting mark
is different from the name of "Rennie," the Democratic
candidate. The principle of idem sonans would indicate that
the individual written in was the same as the Democratic
candidate. However, the question naturally arises, was the
voter of the contested ballot expressing his intention to
vote for Rennie as an individual, but not as a Democratic
We can find no answer in the ballot to this
question, nor in the inconsistent method he used in voting
for other office candidates, sometimes opposite the
handwritten names and sometimes opposite the printed names,
though he had written in names for all county, state and
Section 13-13-117, MCA, provides that a voter shall cast
his ballot by marking an "x" in the square before the name of
the individual for whom he intends to vote. The same statute
also provides that s n elector may write in the name of an
individual for whom he wishes to vote in the blank space and
may vote for that individual by marking an "x" before the
Here, the voter did not cast his vote by marking "x's
before the printed or handwritten name of any candidate
although he voted by "x's" for constitutional amendments and
We would not, however, reject his ballot on
that ground alone in view of S 13-15-102, MCA, aforesaid.
But the question of how his vote should be counted in this
instance is not resolved by any state statute. If we regard
the vote cast by this elector on the contested ballot as a
write-in for the individual named, 5 13-15-404, MCA, requires
that such write-in votes be entered in the report of the
judges in the same place as the votes for other individuals
for the same office but shall be identified as write-in
votes. Thus, if this ballot had been accepted, the election
judges1 report should show that Democratic candidate Rennie
received so many votes as a Democratic candidate, and 1 vote
as a write-in candidate. No state statute tells us that if
the write-in vote is cast for an individual who is the same
as an individual named in the printed ballot for the same
office that we should add the party candidate's vote to the
write-in vote to determine the total. While it is arguable
that the manner of this voter's casting of his ballot for
county attorney indicates his preference for Rennie, it is
equally arguable that Rennie was acceptable to the voter as
questions arise from the contested ballot itself as to the
intentions of the voter, and the confusion that results from
attempting to find a consistency in his method of voting that
it becomes clear that his ballot should be rejected, and was
properly rejected by the election judges, the canvassers and
the recount board.
The voter's intent and choice do not
clearly appear. Peterson, supra.
Accordingly, we affirm the District Court. No costs to
m e Hon. Robert M. Holter,
istrict Judge, Sitting
The Hon. Frank R .
Morrison, Jr .
Mr. Justice Fred J. Weber dissents as follows:
I disagree with the majority conclusion that the voter's
intent and choice do not clearly appear in the ballot in
question in this case.
I conclude that we must consider not only § 13-15-102,
5 13-15-202(3), MCA, which is the successor to § 777,
RCM (1335), upon which the Peterson v. Billings (1939), 109
922, case was based.
390, 96 P.2d
13-15-202 ( 3 ) , MCA, provides:
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 intentions, the election
judges shall count that part.
A ballot is not to be counted if the elector's choice
cannot be determined. That is, a ballot should be counted if
it is sufficiently plain to determine the elector's intentions.
That statute is entirely consistent with Peterson,
which emphasized the prevailing view of authorities toward
liberality in order to sustain the honest choice of the
In essence, if the intent of the voter clearly
appears, his ballot should be counted.
(See quotation from
Peterson in majority opinion.)
The key point of the majority opinion appears to be that
the word "Democrat" was not handwritten by the voter after
the name of Keith C. Renne. That absence appears to raise a
question in the majority's mind sufficient to disqualify the
I do not agree with that
ballot for this candidate.
Our essential test is whether or not the choice of the
elector can be determined and if his intentions are
sufficiently plain from the ballot. Simply stated, it seems
entirely clear to me from the ballot that the elector intended to vote for Mr. Rennie.
I do not find the presence or
absence of party designation significant for this issue. As
an example, if the elector had crossed out all of the party
designations on the ballot but still marked the ballot in the
appropriate squares, I would count those votes.
I conclude that the voter's intention to vote for Mr.
Rennie as county attorney is clear and I would reverse the
Mr. Justice John Conway Harrison joins in the foregoing