No. 91-296 INTHE SUPREME COURT OF THE STATE OF MONTANA

DONALD E. DRUMMOND, ELIZABETH J. DRUMMQND, J. GILBERT EVANS, DENNIS L. LaFEVER, JACQUELINE R. LaFEVER, PHILLIP E. MASON, CAROLYN J. TICBENOR, DARYL 

### L. TICHENOR, MARCELLA J. CAMPBELL,KENNETH 

### K. CAMPBELL, NELS P. SALMONSEN, and RUTH M. SALMONSEN, Plaintiffs and Appellants,-vsTOWN OF VIRGINIA CITY,MADISON COUNTY, MONTANA, a body politic and corporate, MICHAEL J. MAJERUS, its Mayor, MELINDA J. TICHENOR,GERALD F. FOX, KATHLEEN D. KINNEY,AND DONALD D. WILLIAMS,members of the 

### Town Council, PATRICIA PEDULA, 

### Town ClerkTreasurer, LOREN TUCKER, TownAttorney and DOROTHY C. BROWN, Election Administrator, Town of Virginia city, and all duly qualified electors of the 

### Town of Virginia City, Madison 

### County, Montana, Defendants 

### and Respondents.

APPEAL FROM: District

### Court of 

### the Fifth Judicial District, In and for the County of 

### T ad is on, The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD: For Appellant: SamuelM. Warren;Worden, Thane & Maines, Missoula, Montana For Respondent: Loren Tucker,cityAttorney,virginia City,Montan?

\ \ Submitted on Briefs: February 13, 1T

# %Justice Terry 

### N. Trieweiler delivered the opinion of the Court. This is an appeal from an order of the District Court of the Fifth Judicial District, Madison County, dismissing plaintiffs' petition to invalidate a municipal mail ballot election. The issueon appeal iswhether theDistrict Court erred in its determination that Virginia City complied with all statutory election procedures. We affirm the District Court. Prior to December 4, 1990, the Town of Virginia City decided, through its City Council, to submit to the voters a resort tax proposal pursuant to 5 7-6-4461, 

### efseq., MCA. The council voted to conduct the electionbymail ballot asprovided for in 5 13-19-101, MCA. On December 4, 1990, the Election Administrator of Madison County submitted a written plan for a mail ballot election to the Secretary of State, pursuant to 5 13-19-205, MCA. The plan was approved, and the election was scheduled for February 5, 1991. Notice of the election and the date of closing of registrationwas published, and registrationwas closed onJanuary 7, 1991. Ballots

wereprinted andmailed to theregistered voters. The electionwas held as scheduled, and the proposed tax ordinance was approved by

a margin of 53 to 47. The results were certified the following day. On April 9, 1991, 63 days later, plaintiffs filed a petition to invalidate the mail ballot election. They alleged that the electionwas prematurely held, that a number ofvoters had notmet the residency requirements outlined in the local ordinances of

### Virginia City,and that the return of ballotsby persons other than the actual electors violated 13-19-106(4), 13-19-306, -307, and -308,MCA (1989). 

### A hearing was held on April 23, 1991. The matter was orally argued and briefed, and onMay 7, 

### 1991, the District Court entered it Findingsof Fact,Opinion,and anOrder dismissing thepetition. Plaintiffs appeal the District Court Order. Plaintiffs allege that the court erred in upholding the election due to "the Election Administrator's non-compliance with the personal delivery requirements of the Mail Ballot Election statutes." Plaintiffs state that the requirements of 

### 9s 13-19-106(4) and 13-19-306 through -308, MCA, were not met. Section 13-19-106,MCA (1989),provides the general requirements for a mail ballot election. It reads in part: (1) Official ballots must beprepared and all other initial procedures followed as otherwise provided by law. (2) 

### An official ballot must be mailed to every qualified electorofthepolitical subdivisionconducting the election. (3) 

### The elector shall mark the ballot at home and place it in a secrecy envelope. (4) 

### The elector shall then place the secrecy envelope containing his ballot in a returnperification envelope and shall return it by mailing it or delivering it in person to 

### a place of deposit designated by the election administrator so that it is received prior to a specified time on election day. Plaintiffs contend that subsection (4) of the statute requiring that the elector return the ballot by mail or in personis mandatory. The term Itin persontg is used in several sections of the chapter. The record discloses that 19 of the ballots tallied by the election administrator (including ballotsby two of theplaintiffs) were delivered by persons other than the elector. The Madison County Voter Official Register shows that 17 of the ballots were delivered by family members of the elector. The two remaining ballots were delivered by an employee of the Election Administrator's office for persons who were disabled and unable to do so themselves. Plaintiffs state that the languageof themail ballot election statutesmandates personal delivery ifmail return isnot used,and that these provisions exist to prevent voter fraud or other election abuses. Plaintiffs contend that any deviation from this requirement invalidates the election. We agree with plaintiffsv contention that the provisions of Montana's mail ballot election chapter are designed to curb election abuses. However, we do not agree that a rigid adherence to the statutory provisions is essential to sustain an election result. In this case, no evidence has been adduced that any voter fraud occurred. The election administrator testified that she complied with the elector verificationprocedures of 5 13-19-310, MCA, and the valid ballot requirements of 5 13-19-311, MCA. She testified that all ballots were sealed in the appropriate

### envelopes, with the voter affidavit signature on each return/ verification envelope, and that each signature corresponded with that on the voter registration card. ThisCourt stated in Tlzompson

### v. Clzapiit 

### (1922)

### , 64Mont

## . 376, 209 P. 1060, that If

### [tlhe departure from the law in matters which the ~egislature has not declared of vital importance must be substantial in order to vitiate the ballots.ff (QuotingBoyd

### v.Mills 

### (1894), 53 Kan. 594, 37 P. 

### 16.) InWilh 

### v.Mouton 

### (Cal. 1986)

### ,722 P.2d 187,theCalifornia court

was faced with a similar question. The statutedirected thevoter to return the ballot by mail or in person. Forty-six absentee ballots were delivered by parties other than the elector. The court refused to invalidate the election, stating: 

### We do not agree, however, that the votersf and deputy county clerksf inadvertent violation of this provision requires thatwe disenfranchise the voter in the face of a trial court finding that there was no fraud or tampering with the challengedballots. Aswe said above, the trial court found that in each case the third party delivered theballot at thevoter's requestand after the voter had signed and sealed the envelope and that there was no tampering. Wiks, 

### 722 P.2d at 195. In Wik,

### when a designeewas told he would notbe allowed todelivertheballots,he simply walked outsideand deposited the ballots in a mailbox, meeting the letter of the law for election integrity. The court noted that the case was Ifa perfect illustration of the injustice in nullifying votes becauseon noncompliance with technical and sometimes ambiguous rulesu governing the balloting process. Wilks, 722 P.2d at 195, n.9. Plaintiffs had the burden of proving a substantive defect in the election

### by clear and convincing evidence. Absent any hint of fraud, the fact thatballots were delivered by familymembers does not constitute a substantial deviation from the guidelines set forth in the chapter. Plaintiffs also contend that the ~istrictCourt erred in upholding the election results where a number of voters failed 

### to qualify as electors under applicable ordinances. Specifically, plaintiffs state that !$ 1.04.030 of the Virginia City Ordinance Book disqualified a number of nonresident voters. The statute provides that I1[t]heterm 'residentqshall mean anyperson who has resided within the town of Virginia City for at least thirty (30) days prior to 

### the election." plaintiffs interpret 

### this statute to mean that 

### an individual must reside within the city in the month prior to the election. A sounder interpretation 

### is that an individual must reside within the city for a minimum of 30days 

### in order to establish residency. Plaintiffs' interpretation is burdensome and would effectively disenfranchise many voters in a town that is comprised in great part of seasonal residents. Section 13-1-112, MCA, gives further guidance. It states in part: For registration 

### or voting, the residence of any individual shallbe determined 

### by the following rules as far as they are applicable:(1) The residence of an individual is where his habitation is fixed and towhich,whenever he is absent, he has the intention of returning.

(4) An individualdoesnot losehisresidence ifhe goes into another state or other district of this state for temporary purposes with the intention of returning unless he exercises the election franchise in the other state or district.

(8) A change of residence can be made only by the act of removal joined with intent to remain in another place. No evidence was offered by the plaintiffs that any elector exercising theirvoting righthad voted elsewhere ordid not intend to return to Virginia City. Further,plaintiffs failed to timely challenge any elector's right to vote, as provided for in § 13-13-301 or 13-2-404,MCA, orchallengetheregistration of any elector, as provided in 5 13-2-403, MCA. The District Court properly disallowed plaintiffs' challenge which came some 60 days after the election, and failed to show that any elector was not a resident, asdeterminedby § 13-1-112,MCA. Accordingly,we affirm the District Court.We concur: