No. 91-296 

IN THE 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, Town Attorney 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: 

Samuel M. Warren; Worden, Thane & Maines, Missoula, 

Montana 

For Respondent : 

Loren Tucker, city Attorney, virginia City, Montan? 

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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 issue on appeal is whether the District 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 election by mail ballot as provided 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 registration was 

published, and registration was closed on January 7, 1991. Ballots 

were printed and mailed to the registered voters. The election was 

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 

election was prematurely held, that a number of voters had not met 

the residency requirements outlined in the local ordinances of 
Virginia City, and that the return of ballots by 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 on May 7, 1991, the District Court entered 

it Findings of Fact, Opinion, and an Order dismissing the petition. 

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 be prepared and all other 

initial procedures followed as otherwise provided by 

law. 

(2) An official ballot must be mailed to every 

qualified elector ofthe political subdivision conducting 

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 person 
is 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 ballots by two of the plaintiffs) 

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 language of the mail ballot election 

statutes mandates personal delivery if mail return is not 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 verification procedures 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. 

This Court stated in Tlzompson v. Clzapiit (1922) , 64 Mont . 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 (Quoting Boyd v. Mills 

(1894), 53 Kan. 594, 37 P. 16.) 

In Wilh v. Mouton (Cal. 1986) , 722 P. 2d 187, the California court 

was faced with a similar question. The statute directed the voter 

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 that we disenfranchise the voter in the face of 

a trial court finding that there was no fraud or 

tampering with the challenged ballots. As we said above, 

the trial court found that in each case the third party 

delivered the ballot at the voter's request and 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 designee was told he would 

not be allowed to deliver the ballots, he simply walked outside and 

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 because 
on 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 that ballots were delivered by family members does 

not constitute a substantial deviation from the guidelines set 

forth in the chapter. 

Plaintiffs also contend that the ~istrict Court 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]he term 'residentq shall mean any person 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 30 days 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 shall be determined by the following rules as 

far as they are applicable: 
(1) The residence of an individual is where his 

habitation is fixed and to which, whenever he is absent, 

he has the intention of returning. 

(4) An individual does not lose his residence if he 

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 their voting right had voted elsewhere or did 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, or challenge the registration 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, as determined by § 13-1-112, MCA. Accordingly, we affirm 

the District Court. 
We concur: