No. 86-554 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

KEITH C. RENNIE, 

Contestant and Appellant, 

-vsLARRY J. NISTLER, 

Contestee and Respondent. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C.B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Manley & Smith; Brian J. Smith argued, Polson, 

Montana 

For Respondent: 

Larry Nistler argued, Polson, Montana 

Submitted: March 18, 1987 

Decided: April 16, 1987 

111, M 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

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 

County. 

In the general election of November 4, 1986, the office 

of Lake County Attorney was to be filled. The election 

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 

votes. 

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 

provides: 

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 

elected. 

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 

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. (Citing authority.) 

"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 

form.. . ." 

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 

determination. 

We do, however, agree with the District Court that the 

voter's intentions are not clearly and plainly shown on the 

contested ballot. 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. In 5 

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 "xu 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: 

FOR ATTORNEY 

(VOTE FOR ONE) 

[ 1 LARRY J. NISTLER - Republican 

[ ] KEITH C. RENNIE - Democrat 

/ ] (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 

candidate? 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 

national offices. 

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 

name. 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 

initiatives. 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 
an individual, but not as a party candidate. So many 

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 

either party. 

'\ 

Justice k' 

We Concur: t,' 

' Chief Justice 

me 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, 

MCA, discussed in the majority opinion, but also 

5 13-15-202(3), MCA, which is the successor to § 777, 

RCM (1335), upon which the Peterson v. Billings (1939), 109 

Mont. 390, 96 P.2d 922, case was based. Section 

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 

electors. 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 

ballot for this candidate. I do not agree with that 

conclusion. 

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 

District Court. 

Mr. Justice John Conway Harrison joins in the foregoing 

dissent.