Does an X mark the spot, or does an X mean “no?” The answer to that question may determine who wins Lake County’s House District 12 seat, which will in turn determine the balance of power in the 2005 Legislature. Democrat Jeanne Windham and Constitution Party candidate Rick Jore are currently tied at 1,559 votes apiece after a hand recount. If Windham emerges victorious, the House will be tied 50–50 among Republicans and Democrats and Democratic governor-elect Brian Schweitzer will appoint Dave Wanzenreid (D-Missoula), current House Minority Leader, as Speaker of the House. If Jore gets the nod, Republicans will have a 50–49 edge in the House and will maintain House leadership. Democrats already won a majority in the Montana Senate, making the coming session the first not under complete Republican control in a decade, regardless of the House District 12 outcome.
Normally, tied elections are sent to the governor to break the stalemate. But that process was stopped in its tracks when Windham recently challenged the accuracy of her district’s vote count in Lewis and Clark County District Court. On Tuesday, Nov. 30, District Judge Jeffrey Sherlock responded to Windham’s complaint by issuing a restraining order against Gov. Judy Martz and Secretary of State Bob Brown, disallowing Martz from appointing anyone to the House District 12 seat until the dispute is resolved.
“Plaintiff [Windham] will be irreparably injured with respect to her right to contest…overvotes counted in favor of her electoral opponent if Defendants [Brown and Martz] proceed…to appoint a candidate to the contested House seat,” Sherlock wrote.
An “overvote”—for those who’ve forgotten the hanging and dimpled chads of the 2000 presidential election—is a ballot on which non-incidental markings are made for more than one candidate, and which therefore doesn’t count unless voter intent is obvious.
Helena attorney Mike Meloy submitted a petition to throw out seven contested ballots—and thereby give Windham the crucial House seat—with the Montana Supreme Court on Monday, Dec. 6.
The seven disputed ballots feature marks for both Jore and Republican candidate Jack Cross, who came in third behind the two tied candidates. One featured ovals filled in for both Jore and Cross with what appears to be either an underline under Cross’ name or possibly a stray mark.
How that ballot got counted for Jore, says Meloy, is “very weird.” If that ballot remains in Jore’s column, there remains the question of a ballot featuring a squiggly line and five ballots that featured an X over a filled-in ballot oval for Cross.
Here’s where the conflict emerges: Jore and others, including Montana Republican Party Executive Director Chuck Denowh, argue that the X over (or under) the mark for Cross means, in essence, “I don’t want to vote for him and I do want to vote for Jore.”
“In my opinion, it was quite obvious that each vote was intended to be for Jore,” Denowh says, based on his reading of the ballots.
On the other side, Windham and others, such as Montana Democratic Party Executive Director Brad Martin, say those Xs more likely mean “Here’s who I’m trying to vote for.”
“What’s the first rule of politics?” Martin says. “X marks the spot.”
Further complicating matters is a campaign radio ad for Jack Cross run on Polson-based radio station KERR 750 in the days leading up to the election. The ad used a play on words to emphasize Cross’ name, advising voters to “Cross out the rest and choose the Cross that matters.”
“I think there’s a pretty clear-cut procedure to follow in a contested election that’s close like this,” Denowh says. “They followed that procedure to a tee. The recount board went out of their way to meet Jeanne Windham’s demands. The board declared the election a tie and that should be it.”
In fact, Lake County officials did not follow procedure “to a tee,” as Denowh claims. Lake County election administrator Kathy Newgard selected two members for the resolution board that originally counted the seven contested ballots for Jore: Lisa Kinyon, who Newgard says she was told is a Republican, and Marian Siedentopf, who refers to herself as an Independent.
According to the Secretary of State’s administrative rules for elections, rule 44.3.1771, “The election administrator shall appoint members of opposite parties to serve as judges on the ‘Resolution Board.’”
“Lisa’s a Republican and Marian’s an Independent, so there’s your opposite,” Newgard says.
But as Windham points out, “Independent” is not a political party, so “It would seem to be illegal,” she says.
Asked about the legality of her resolution board appointments, Newgard says, “I just know that Marian has worked here for at least 20 years and has been operating the scanner for at least that long, and Lisa’s been here for a long time. They’re both very good at the scanner and it’s quicker to have them do it than to have the ballots running all over to different boards. It just saves time.”
That answer doesn’t seem to appease Windham, however.
“It isn’t enough in Lake County to say, ‘Sorry, we messed up.’ What is it going to take for Lake County officials to understand that it’s not a private club?” she says. While Meloy acknowledges the right of the Lake County recount board (where the ballots were examined and counted after being handed off from the resolution board) to attempt to determine voter intent, he adds, “The law says you have to be able to tell that a voter clearly intended to vote in a particular way before you can count the ballot. It has to be clearly for one candidate. This is ambiguous at best, and if it’s ambiguous, it can’t be counted.”
The Supreme Court, should it decide to hear the case, will likely examine the Secretary of State’s administrative rules for elections in order to determine if such rules were violated in counting the disputed ballots for Jore, as Meloy says he will argue.
According to the rules, ballots on which two “voting areas” are marked are considered overvotes—and therefore invalid—except in cases where “a clear word, mark or statement is used to indicate the correct vote.”
Whether the Xs and lines involved will meet this criteria under judicial scrutiny, as Republican Lake County Commissioner and Recount Board member Dave Stipe contends they will, remains to be seen.
Martin argues that the recount board, composed of two Republicans and a Democrat, picked and chose which administrative rules it wanted to follow in order to obtain what he perceives as a desired Jore-victory outcome.
But the Democratic member of the recount board, Lake County Clerk and Recorder Ruth Hodges, says she has “no reservations” about the board’s decision. “The decisions I made, I don’t care whose name would have been on there, that’s the way I would’ve voted,” Hodges says.
Denowh says Republicans agree that Windham deserves her day in court, but he and Jore question Windham’s motives in having the restraining order filed against Brown and Martz.
“Their right to challenge the ballots still exists,” Jore says, “but that did not require a restraining order on the governor’s office to delay this appointment. For [the Democrats’] own self-interest, they’re simply delaying the process,” and hoping to stall until Jan. 3 when Schweitzer becomes governor, so that he, rather than Martz, can decide any tie.
Even if Windham’s legal challenge is successful and she’s certified the winner, that may not be the last word.
“The Montana Republican Party will likely be involved in litigation over this matter,” states a Montana GOP e-mail briefing from Thursday, Dec. 2. At the same time that Jore and Denowh are claiming Democrats are stalling, Windham and Martin fire back the opposite charge—that Republicans are attempting to hurry past judicial analysis of ballots in order to seal up the appointment before Martz leaves office next month.
“Their game is to try to rush the process so that it would be a harder outcome to overturn, and that’s just wrong,” Martin says, adding that he is confident Windham will be successful in court (as she was in 2002 when her husband, Wilmer Windham, won attorney’s fees due to prior Lake County election errors during Windham’s 36-vote-margin loss in a race for county commissioner). Although just about everyone seems to be assuming that, in the event of a continued tie, Martz would appoint Jore and Schweitzer would appoint Windham, neither Martz nor Schweitzer has made a public comment one way or the other. “Since it’s in the courts right now, it’s inappropriate for us to comment on it,” says Schweitzer spokewoman Sarah Elliot.
Martz spokesman Chuck Butler says reports that Martz would appoint Jore are “truly speculation at this point.”
“The governor won’t make a decision until the Secretary of State convenes the Board of Canvassers, who will certify the results and hand them off to the governor.” The Board of Canvassers, which consists of three Democrats, has stated that it will not certify results until the legal questions surrounding the disputed ballots are resolved.
“Although there are implications for who wins the House, this is more a civics lesson about following the laws and how to count votes,” Windham says. “There are 9,000 people in House District 12. Not all of them voted, but they’re entitled to representation, and we can’t seat a Legislature based on illegal acts out of the elections office.”
“I think the tie is exactly accurate. That’s the only place where Jeanne Windham and I disagree,” Jore says. “Who would’ve thought that you’d have a close race with a so-called third party candidate that winds up being a tie? And to top it off, the whole balance of the House depends on it? This is intrigue on top of intrigue.”