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 theThirteenthJudicial 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 resultsof theprimary election fortheDemocratic 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 thenight of theelection,the election judgesexcluded 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 thepetition for judicial review of petitioner, Gary L. Spaeth, in each of these proceedings is dismissed; 2. ThatTony Kendall isherebydeclarednominated 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. ThisCourtconsideredtherecord onappeal 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 forcontestant Spaeth,thereby giving him a one-votemargin of victory in the June 5, 1990primary 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: 

## COUNTYATTORNEY VOTE

## FORONE

..............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 thename of each individual or candidate for whom the elector intends to vote. The elector may write in oraffixapreprinted label intheblank spacesprovided, orwrite-in thename of the individual forwhomhewishes tovote, andvoteby filling in the ovalbefore thename.

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 themanner 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 theuncontested Democraticprimary candidate for the Second Congressional District Representative. The elector's choicewas 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 markingsshow 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 "theparamount and ultimate object of all election lawsunder
our system of government is toobtain an honest and fair expression from the voters upon all questions submitted to them." When such expressioncannot begleaned without speculation,however,thevote is to be voided, to insure a standard of objectivity 

### in our election process. We affirm the District Court. n 

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