Court explains HD 12 decision
The Montana Supreme Court on March 21 issued a 31-page ruling that explained the justices' 6-1 vote that declared invalid at least one of seven contested ballots to give Democrat Jean Windham the victory of Constitutionalist Rick Jore of Ronan in the House District 12 race.
The suit had been brought by Anita Big Spring against Jore on behalf of Windham's candidacy.
Basically, the court ruled that the intent of double-marked ballots could not be assumed by election officials. Ballots marked for Jore and for Republican Jack Cross, were declared overvotes by the justices and should not have been counted.
Justice James Nelson wrote, "In truth, determining voter intent from ballots as mismarked as the ones at issue here turns the process of interpretation into little more than a guessing game."
The lone dissenter, Justice Jim Rice, said, "By reversing the credible actions of local officials and the application of the law's uniform standards for determining voter intent, the court today has disenfranchised voters and abandoned the constitutional principles required" under the 2000 U.S. Supreme Court ruling that settled the disputed Florida presidential election.
In its initial order handed down before the Legislature convened, the Court did not state why it reached its conclusion, but that a "full written and published opinion" would be issued later. That was not an unusual move for Supreme Court justices to make in a case where the time element was critical.
After three recounts by the Lake County canvassing board, Windham and Jore were still tied, 1,559 to 1,559. Following the State canvassing board's certification of the recount results, then-Governor Judy Martz appointed Jore as the House District 12 representative.
The Lake County District Court Judge Kim Christopher upheld the findings of the canvassing board and Big Spring appealed to the State Supreme Court the same day.
The Supreme Court's decision, in effect, turned control of the State House of Representatives over to the Democrats because it caused the House to be divided half and half between Democrats and Republicans. However, because the governor is a Democrat, he appointed the Speaker of the House, which put the Democrats in control.
Seven ballots had been challenged and the Court considered five that had been double-marked. Ovals marked next to Cross' and Jore's names were filled in, but an "x" was drawn through the filled oval next to Cross' name.
The court said that administrative regulations regarding election ballots required that such double-marked ballots to be counted for either candidates and local elections officials were wrong for not following that requirement. Judge Christopher was also wrong to uphold their actions, the justices said.
Rice contended that the court was wrong not to defer to the discretion of local election officials in judging the validity of the ballots as is required by election laws enacted by the 2003 Legislature.
"Whether we deem the change good or evil, the reality is that new standards have been placed in the law which now require an assessment of ballots which have confusing or contradictory indications." Rice said.