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Edward B. Foley
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Montana: Recount and Contest Laws

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November 8, 2006

It is looking as if a recount may occur in Montana’s U.S. Senate race, as well as Virginia’s.

Section 13-16-201 of the Montana’s Code provides for a state-funded administrative recount in an election for a “congressional” or “state” office, when the margin of victory is “not exceeding ¼ of 1% of the total votes cast for all candidates for the same position,” and “the defeated candidate, within 5 days after the official canvas, files with the election administrator a verified petition stating that the candidate believes that a recount will change the result” and thus should occur.

Section 13-16-211 provides for an administrative recount at the candidate’s expense if the margin of victory is between ¼ and ½ of one percent and the candidate files within the same 5-day deadline.

In addition, under section 13-16-301, “[w]ithin 5 days after the canvass of election returns, an unsuccessful candidate for any public office at an election may apply to the district court of the county were the election was held for an order directing the county recount board to make a recount of the votes cast in any or all of the precincts.” In a statewide race, the relevant district court is “the county where the candidate resides.” This section further specifies: “If the judge finds there is probable cause to believe that the votes cast for the applicant . . . were not correctly counted, he shall order the appropriate county recount board to assemble within 5 days after the order is issued at a time and placed fixed by the order.” According to section 13-16-307, the expense of a court-ordered recount is paid for by the candidate if the recount is unsuccessful, but not if it shows the candidate to have been the rightful winner.

In addition to these recount procedures, Montana law has a separate provision for a judicial contest of the election results. This provision, section 13-36-101, states that a qualified voter may contest the election “on the ground of a deliberate, serious, and material violation of any provision of the law relating to nominations or elections” or “on account of illegal votes or an erroneous or fraudulent count or canvass of votes.” This provision was recently the subject of a Montana Supreme Court decision in Big Spring v. Jore, 326 Mont. 256, 109 P.3d 219 (2005), a case involving a contested state legislative race. In that case, with one justice dissenting, the state’s supreme court reversed a trial court’s decision that left the victory with the declared winner. Thus, the decision had the effect of overturning the result of the election.

The state supreme court’s ruling in Jore hinged on five optical scan ballots where ovals had been filled in for two candidates but an additional X had been placed in the oval next to the candidate named Cross. The state supreme court ruled: “None of the five ballots containing an X in the oval before Cross’s name satisfied the objective standards for clearly determining voter intent on overvoted ballots . . . [and thus] we hold that these five ballots should have been declared invalid and not counted.” (109 P.2d at 226.) The state supreme court viewed its decision as consistent with the U.S. Supreme Court’s decision in Bush v. Gore, 531 U.S. 98 (2000). The dissenting justice, however, saw the court’s decision as inconsistent with Bush v. Gore.

As of now, it is unclear whether there will emerge any factual basis for a contest of this election, either comparable to the overvote issue in Jore or otherwise. Montana continues to use optical scan ballots in 40 counties as well as hand-counted paper ballots in 16 other counties, according to the Secretary of State’s website. At this moment, one Montana newspaper is reporting that Democratic challenger Jon Tester leads Republican incumbent Conrad Burns by a 1735-vote margin, 194914 to 193179. A third candidate has 10,166. With these numbers totaling 398,259, and apparently accounting for all but one precinct, the 1735-vote represents 0.4356% of the vote. As of this moment, however, it is also unclear how many provisional and perhaps absentee ballots remain to be counted.

UPDATE: The same newspaper is now reporting that Tester lead Burns by a 1729-vote margin, 195,235 to 193,506. The third candidate, Jones, now has 10188. With a new total of 398,929, the 1729-vote margin translates to 0.4334%.

SECOND UPDATE: The latest numbers now have Tester leading Burns by a 3128-vote margin, 198,032 to 194,904. Jones, the third candidate, has 10,303. Tester’s lead, in percentage terms, is now 0.78%, out of a total of 403,239 counted.