NO. 90-435 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

GARY L. SPAETH, Contestant and Appellant, 

-vsTONY KENDALL, Contestee and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon, 

The Honorable Maurice R. Colberg, Jr., Judge 

presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John K. Addy, Matovich, Addy & Keller, Billings, 

Montana 

Gary L. Spaeth, Spaeth Law Firm, Red Lodge, Montana 

For Respondent: 

Floyd D. Corder, Alexander, Baucus & Linnell, Great 

Falls, Montana 

Submitted: October 3, 1990 

Decided: November 27, 1990 

Filed: 
4- . a J 1 

Justice John C. Sheehy delivered the Opinion of the Court. 

This cause involves an election contest arising from the 

results of the primary election forthe Democratic Party nomination 

for Carbon County Attorney. The District Court, Thirteenth 

Judicial District, Carbon County held that Anthony W. Kendall was 

the properly elected Democratic nominee, and we affirm. 

After the canvass of the votes cast at the primary election 

June 5, 1990, for the nomination of the Democratic Party candidate 

for Carbon County Attorney, a recount was conducted on June 12, 

1990, and as a result the election was declared a tie between 

appellant Spaeth and respondent Kendall. 

On the night of the election, the election judges excluded one 

ballot, the exclusion of which is an issue in this appeal; the 

official canvass on June 7, 1990, likewise excluded this ballot; 

and the recount on June 12, 1990, also excluded this ballot. 

On June 12, 1990, with both parties present, Spaeth and 

Kendall waived statutory written notice and, pursuant to statute, 

a drawing of lots took place, and as the result of such drawing 

Kendall prevailed. Thereafter on June 28, 1990, the Carbon County 

election administrator issued a certificate of nomination 

certifying that Kendall had been nominated as the Democratic 

candidate for Carbon County Attorney in the election to be held 

November 6, 1990. 

Thereafter, Spaeth filed a petition for judicial review with 

the District Court. 
On July 26, 1990, the District Court issued its judgment and 

ordered, adjudged and decreed as follows: 

1. That the petition for judicial review of petitioner, 

Gary L. Spaeth, in each of these proceedings is 

dismissed; 

2. That Tony Kendall is hereby declared nominated as the 

Democratic candidate for Carbon County Attorney in the 

primary election held June 5, 1990; 

3. That Tony Kendall is entitled to recover his costs 

and disbursements but not entitled to recover attorneys 

fees herein. 

This Court considered the record on appeal and issued an order 

on October 2, 1990, affirming the judgment of the District Court 

before we issued a formal opinion due to the rapidly approaching 

general election of November 6, 1990. 

The issue in this case is whether a ballot should have been 

counted for contestant Spaeth, thereby giving him a one-vote margin 

of victory in the June 5, 1990 primary election. 

We direct attention to the ballot in question, which is 

reproduced in part below, as marked by the voter in the County 

Attorney race: 

COUNTY ATTORNEY 

VOTE FOR ONE 

..............om 0..0... 
The ballots of the Carbon County primary election had the 

following legend at the top: 

This ballot should be marked by filling in the oval 

before the name of each individual or candidate for whom 

the elector intends to vote. The elector may write in 

or affix a preprinted label in the blank spaces provided, 

or write-in the name of the individual for whom he wishes 

to vote, and vote by filling in the oval before the name. 

TO VOTE YOU MUST BLACKEN THE OVAL (0) COMPLETELY. 

Section 13-13-117, MCA, describes the method of voting to be 

employed. Subsection (5) states: 

An elector voting a ballot that will be counted by an 

optical scan ballot tabulating device shall mark his 

ballot in the manner prescribed on his ballot. 

The method of marking the ballot is clearly explained and 

demonstrated on the ballot in question. The voter followed these 

instructions appropriately in the only other race in which a vote 

was cast, that for the uncontested Democratic primary candidate for 

the Second Congressional District Representative. The elector's 

choice was clear in that instance, and the District Court properly 

concluded it should be counted for that race, relying upon 5 13- 

15-202(3), MCA, which states: 

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. 

It cannot be determined from the marked ballot what the 

elector's choice might have been in the Democratic County 

Attorney's race. As the District Court stated, the ballot Itdoes 

not without substantial question and speculation from its markings 
show the elector's intent to vote for Spaeth nor does it lead the 

mind naturally and without guess to infer the voter's intent." 

This Court has consistently rejected ballots or portions of 

ballots where the intention of the voter does not plainly appear. 

Rennie v. Nistler (1987), 226 Mont. 412, 735 P.2d 1124; Peterson 

v. Billings (1939), 109 Mont. 390, 96 P.2d 922. In Dickerman v. 

Gelsthorpe (1897), 19 Mont. 249, 47 P. 999, 1001, this Court noted 

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." When such 

expression cannot be gleaned without speculation, however, the vote 

is to be voided, to insure a standard of objectivity in our 

election process. 

We affirm the District Court. 

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Chief Justice 

Justices 

Justice (1