No. 14445 

IN THE SUP- COUIZT OF THE STATE OF MOJXENA 

IN THE MATTEROF THE RECOUNT OF THE JUNE 6, 1978, 

RAVAUI COUNTY PRDW?Y -ION, 

BOB THQFT, 

Petitioner. 

No. 14455 

IN THE MATIER OF THE FEOUNT OF THE JUNE 6, 1978, 

RAVUI COUNTY P- EXJiC?ION, 

FRITZ TOSSBERG, 

Petitioner. 

ORIGINAL PIIOCEEDrnS: 

Counsel of Record: 

For Petitioners: 

Harrison, Loadorf & Poston, Helena, Wntana 

James T. Harrison, Jr. argued (Thoft) Helena, Fkmkana 

William Leaphark, Jr . argued, (Tossberg) Helena, lbntana 

James Ibbinson argued, Hamilton, Montana 

For Respondents : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mike math argued, Assistant Attorney General, Helena, Montana 

Phyllis Baden argued, Hamilton, Montana 

Sutm-iitted: August 23, 1978 

Decided: SEP 6 - la - 

Filed: SEF I: - 197' 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

On August 10, 1978, the Fourth Judicial District Court, 

Ravalli County, ordered a new primary election be held 

September 12, 1978, for candidates of all political parties 

in Senatorial District No. 46 and Representative District: 

Nos. 91 and 92. Bob Thoft, Republican candidate for Representative in District No. 92, subsequently petitioned this 

Court to issue a Writ of Mandamus or other appropriate writ 

ordering the Republican primary election of June 6, 1978 for 

Representative District No. 92, be certified as final and valid. 

Fritz Tossberg, Democratic candidate for Senate in District No- 46, 

petitioned this Court to issue a similar writ ordering that 

no new primary election shall be held in Senate District No. 

46 or Representative District Nos. 91 and 92 and that all 

nominations for the legislature be declared vacant--to be 

filled by appointment through party caucuses. 

This opinion follows the separate orders handed down 

by this Court August 28, 1978, denying the petitions. 

In the primary election of June 6, 1978, voters in Ravalli 

County, Montana, were each provided with four paper ballots: 

the Democratic party primary ballot, the Republican party 

primary ballot, the nonpartisan judicial ballot and the soil 

conservation district ballot. The ballots were uniform in size 

and color. Each voter, after signing the pollbook, was handed 

the four ballots with instructions to vote either the democratic 

or republican party primary ballot and both of the other ballots. 

The unused party primary ballot was to be discarded in a 

blank ballot box. 

The results of the June 6 primary were certified to 

the Secretary of State with respect to Senate District No. 

46 and Representative District Nos. 91 and 92, as follows: 
"N" means nominated 

Democratic Republican 

SENATE DISTRICT NO. 46 

Russell J. Bergren N - Elmer D. Severson 

Ravalli 1,596 Ravalli 1,937 

N - Fritz Tossberg 

Ravalli 1,597 

HOUSE DISTRICT NO. 91 

Robert G. Edmonds 

Ravalli 392 

N - Ken Robbins 

Ravalli 

N - Dennis H. Day 

Ravalli 

Mrs. Roy Cranmore 

Ravalli 438 

N - John W. Robinson 

1,133 Ravalli 452 

HOUSE DISTRICT NO. 92 

Philip L. Baden 

Ravalli 679 

Steven E. McCarter N - Bob Thoft 

Ravalli 596 Ravalli 694 

Candidate Russell J. Bergren made a timely request for 

a recount, and on June 27, 1978, the Ravalli County Recount 

Board convened to recount the ballots cast in Senate District 

No. 46. Counting the votes according to precinct, the Board 

determined in 11 of the 20 precincts the number of ballots 

cast were in excess of the signatures appearing in the precinct pollbooks. A total of 47 excess ballots were counted 

over the number of signatures in the pollbooks. Thirty-four 

of these extra ballots were cast in Representative District 

No. 91 and 13 extra ballots were cast in Representative 

District No. 92. 

While counting the ballots cast in the 8th precinct, 

the Recount Board also discovered some of the ballots did not 

have the official ballot stamp endorsed on the back. For 

purposes of authenticity, each ballot is required by statute 

(Section 23-3603(2), R.C.M. 1947) to have the "official ballot" 

stamp on the back. The Recount Board members discussed the 

matter and decided thenceforward to note on the record the 
ballots for each candidate without the official ballot stamp, 

as they were found. Beginning with the 8th precinct, such 

notations were made in the Recount Board's minutes. The minutes 

reveal that in 10 of the remaining 13 precincts 48 of the 

ballots were not validated with the official ballot stamp. 

No determination was made concerning the number, if any, of 

unstamped ballots cast and counted in the first 7 precincts. 

Upon completion of the recount, it was determined Bergren had 

won, 1,601 to 1,598. 

Philip Baden, candidate for Representative, District No. 

92, filed an application for recount on June 23, 1978. Mrs. 

Roy Cranmore, candidate for Representative, District No. 91, 

filed an application for recount on June 28, 1978. 

On June 29, 1978, the Ravalli County Attorney petitioned 

the District Court for a declaratory judgment on the rights, 

duties and obligations of the Ravalli County Recount Board, 

the Secretary of State, the Ravalli County Clerk and Recorder, 

and all the candidates involved in the matter. The District 

Court gave notice to all candidates named on the ballots and 

ordered all interested parties to appear and present evidence. 

On August 10, 1978, the Court entered its findings of fact, 

conclusions of law and order. 

In part, the District Court found there was no evidence 

of fraud or intentional wrongdoing on the part of any election 

official or elector, but rather the excessive number of 

ballots resulted from electors voting on both the republican 

and democratic party primary ballots. This error was not 

detected by election officials because of the identical size 

and color of all four ballots. The District Court also concluded 

that certain ballots failed to contain the official ballot 

stamp due to technical irregularities and they should be counted 

in order to express the will of the majority of the legal voters. 

-4- 
The District Court found the will of the majority of 

the legal voters of the political parties would be best 

served by a new primary election for both Republican and 

Democratic candidates in Senate District No. 46 and Representative District Nos. 91 and 92. A new primary election 

was ordered to be held on Tuesday, September 12, 1978. 

On August 17, 1978, Bob Thoft, candidate for Representative, 

District No. 92, petitioned this Court to issue a writ of 

mandamus or other appropriate writ ordering that no new 

primary election be held for the Republican primary in 

District No. 92. Thoft contends a new election is unnecessary 

in his case because only 13 extra ballots were cast in 

District No. 92 and he won by a 15-vote margin, thereby 

making it mathematically certain that he won the nomination 

without the benefit of the extra votes. 

On August 23, 1978, Fritz Tossberg, candidate for the 

Senate, District No. 46, petitioned this Court for a Writ of 

mandamus or Other appropriate writ ordering that no new 

election be held in any of the races and directing all nominations be declared vacant, to be filled by appointment through 

party caucuses. Tossberg contends the District Court should 

have directed the respective parties to select new candidates 

according to party custom because the statutory violations 

occurred during a primary, rather than general, election. 

Considering Thoft's petition, we look first to the controlling statute. Section 23-4002, R.C.M. 1947, provides in 

part: 

" (3) They [the election judges] shall count 

the ballots to ensure that the number of 

ballots corresponds with the number of names 

on the pollbooks. 

"(4) A ballot which is not endorsed by the 

official stamp is void and shall not be 

counted. 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. 

"(6) If the ballots exceed the number of 

names on the pollbooks they shall be placed 

in the box, and one (1) of the election 

judges shall publicly draw from the box and 

destroy unopened ballots equal to the excess. 

The election judges shall record in the pollbooks the number of ballots destroyed." 

Despite the fact the election judges in Ravalli County 

did not proceed according to the statute, Thoft argues the 

outcome of the election would have been the same had they 

followed the statutory procedure. 

" . . . It is a rule of well-nigh uniform 

recognition that, after an election has been 

held, a party will not be permitted to challenge 

it unless he can show that a different result 

would have been reached but for the conditions 

of which he complains." Martin v. State Highway 

Commission et a1 (1939), 107 f'lont. 603, 615, 88 

P.2d 41. 

We agree with petitioner Thoft that discarding the 13 

extra ballots cast in Representative District No. 92 will 

not change the outcome of the election in his race. However, 

since the unstamped ballots were also counted, his mathematical 

certainty may depend on such void ballots. Section 23-4002, 

R.C.M. 1947, is unambiguous on this point. A ballot which 

is not endorsed with the official stamp is void and shall 

not be counted. Thoft's total vote may include some of the 48 

unstamped ballots found in precincts 8 through 20 and may also 

include unstamped ballots in precincts 1 through 7. Consequently 

in view of the unstamped ballots, it cannot be said with 

mathematical certainty that Bob Thoft received his party's 

nomination for Representative in District No. 92. There is 

no way of telling at this point which candidates should have 

had ballots thrown out by virtue of the lack of a stamp. We find 
therefore, that a new primary election should be held in 

Representative District No. 92, according to the District Court's 

order. 

Petitioner Tossberg does not question the District 

Court's conclusion that the primary election of June 6, 

1978, in Senate District No. 46 was fatally flawed by irregular 

voting practices. Tossberg contends Montana's election laws 

require the District Court , under these circumstances, 

declare the nominations vacant and direct the parties to 

fill the vacancies by appointment. We do not agree. 

Section 23-4763, R.C.M. 1947, provides: 

"Grounds for contest of nomination or office. 

An elector of the state or of any political 

or municipal division thereof may contest the 

right of any person to any nomination or 

office for which the elector has the right 

to vote, for any of the following causes: 

"(1) on the ground of a deliberate, serious, 

and material violation of any provision of 

the law relating to nominations or elections; 

" (2) whenever the person whose right is contested was not, at the time of the election, 

eligible to such office; 

"(3) on account of illegal votes or an 

erroneous or fraudulent count or canvass of 

votes. " 

A petition to contest the Democratic party nomination 

in Senate District No. 46 was filed by Tossberg in District 

Court on June 30, 1978. Assuming section 23-4763(3) applies 

in this case, Tossberg relies on section 23-4767, R.C.M. 

1947, for his conclusion that the District Court was required 

to turn the nominations over to the political parties. However, 

section 23-4767, provides in part: 

" . . . If judgment of ouster against a 

defendant [person erroneously nominated 

or elected] is rendered, the nomination 

or office shall be by the judgment declared 

vacant, except as provided in 23-4762, and 
shall thereupon be filled Q -- a new election 

or by appointment as may be provided by law 

regarding vacancies in such nomination or 

office. " (Emphasis added. ) 

Without a doubt, an alternative available to the District 

Court is to order a new election. 

Section 23-47-107, R.C.M. 1947, is not more specific, 

as Tossberg argues: 

"Voiding election. (1) If a court of competent 

jurisdiction finds that the violation of any 

provision of Title 23 or Title 37, by any 

candidate or political committee probably 

affected the outcome of any election, the 

result of that election may be held void 

and a special election held within 60 days 

of that finding. If the violation occurred 

during a primary election, the court may direct 

the appropriate political party to select a 

new candidate according to the provisions of 

state law and the custom of the party. Except 

as provided in subsection (2), an action to void 

an election shall be commenced within 1 year of 

the date of the election in question." 

Obviously, the quoted statute is limited to violations 

by any candidate or political committee, whereas the facts 

before us involve violations by election officials. In any 

case, the statute permits the court to direct the appropriate 

political party to select a new candidate if the violation 

occurs during a primary election. It is not required to do 

SO. 

The petitions are denied and a new primary election 

will be held in Ravalli County on September 12, 1978, in 

accordance with the order of the District Court, which we 

a££ irm. 
We Concur: 

Chief Justice 

Mr. Justice John Conway Harrison and Mr. Justice Daniel 

J. Shea did not participate in this cause.