                                       No. 14445

                IN THE   SP
                         U-         COUIZT OF THE S A E O MOJXENA
                                                   T T F



IN THE MATTEROF THE RECOUNT O THE JUNE 6 , 1978,
                                F
R A V A U I COUNTY PRDW?Y -ION,

BOB THQFT,
               Petitioner.

                                           No. 14455

IN THE MATIER OF THE FEOUNT O THE JUNE 6, 1978,
                             F
R A V U I COUNTY P
                 -            EXJiC?ION,

FRITZ TOSSBERG,
            Petitioner.



ORIGINAL PIIOCEEDrnS:

Counsel of Record:

         For Petitioners:

             Harrison, Loadorf & Poston, H e l e n a , Wntana
             J m s T. Harrison, Jr. argued (Thoft) Helena, Fkmkana
              a e
                                       .
             William Leaphark, Jr argued, (Tossberg) Helena, lbntana
             James Ibbinson argued, Hamilton, Montana

         For Respondents :

             Hon. Mike Greely, Attorney General, H e l e n a , Montana
             Mike m a t h argued, Assistant Attorney General, Helena, Montana
             Phyllis Baden argued, Hamilton, Montana




                                                                          -
                                                 Sutm-iitted:    August 23, 1978

                                                   Decided:     SEP 6 -   l
                                                                          a
Filed:    SEF I: - 197'
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     On August 10, 1978, the Fourth Judicial District Court,
Ravalli County, ordered a new primary election be held
September 12, 1978, for candidates of all political parties
in Senatorial District No. 46 and Representative District:
Nos. 91 and 92.     Bob Thoft, Republican candidate for Repre-
sentative in District No. 92, subsequently petitioned this
Court to issue a Writ of Mandamus or other appropriate writ
ordering the Republican primary election of June 6, 1978 for
Representative District No. 92, be certified as final and valid.
Fritz Tossberg, Democratic candidate for Senate in District No- 46,
petitioned this Court to issue a similar writ ordering that
no new primary election shall be held in Senate District No.
46 or Representative District    Nos. 91 and 92 and that all
nominations for the legislature be declared vacant--to be
filled by appointment through party caucuses.
     This opinion follows the separate orders handed down
by this Court August 28, 1978, denying the petitions.
     In the primary election of June 6, 1978, voters in Ravalli
County, Montana, were each provided with four paper ballots:
the Democratic party primary ballot, the Republican party
primary ballot, the nonpartisan judicial ballot and the soil
conservation district ballot.    The ballots were uniform in size
and color.   Each voter, after signing the pollbook, was handed
the four ballots with instructions to vote either the democratic
or republican party primary ballot and both of the other ballots.
The unused party primary ballot was to be discarded in a
blank ballot box.
     The results of the June 6 primary were certified to
the Secretary of State with respect to Senate District No.
46 and Representative District Nos. 91 and 92, as follows:
                        "N" means nominated
               Democratic                     Republican
                      SENATE DISTRICT NO. 46
      Russell J. Bergren                  N - Elmer D. Severson
       Ravalli                1,596            Ravalli    1,937
N -   Fritz Tossberg
       Ravalli                1,597
                       HOUSE DISTRICT NO. 91
      Robert G. Edmonds                           Mrs. Roy Cranmore
       Ravalli                  392                Ravalli      438
N -   Ken Robbins                        N - John W. Robinson
       Ravalli                1,133           Ravalli      452
                       HOUSE DISTRICT NO. 92
N -   Dennis H. Day                               Philip L. Baden
       Ravalli                                     Ravalli      679
      Steven E. McCarter                 N    -   Bob Thoft
       Ravalli                  596                Ravalli          694
      Candidate Russell J. Bergren made a timely request for
a recount, and on June 27, 1978, the Ravalli County Recount
Board convened to recount the ballots cast in Senate District
No. 46.   Counting the votes according to precinct, the Board
determined in 11 of the 20 precincts the number of ballots
cast were in excess of the signatures appearing in the pre-
cinct pollbooks.     A total of 47 excess ballots were counted
over the number of signatures in the pollbooks.        Thirty-four
of these extra ballots were cast in Representative District
No. 91 and 13 extra ballots were cast in Representative
District No. 92.
      While counting the ballots cast in the 8th precinct,
the Recount Board also discovered some of the ballots did not
have the official ballot stamp endorsed on the back.          For
purposes of authenticity, each ballot is required by statute
(Section 23-3603(2), R.C.M. 1947) to have the "official ballot"
stamp on the back.     The Recount Board members discussed the
matter and decided thenceforward to note on the record the
ballots for each candidate without the official ballot stamp,
as they were found.    Beginning with the 8th precinct, such
notations were made in the Recount Board's minutes.   The minutes
reveal that in 10 of the remaining 13 precincts 48 of the
ballots were not validated with the official ballot stamp.
No determination was made concerning the number, if any, of
unstamped ballots cast and counted in the first 7 precincts.
Upon completion of the recount, it was determined Bergren had
won, 1,601 to 1,598.
     Philip Baden, candidate for Representative, District No.
92, filed an application for recount on June 23, 1978.    Mrs.
Roy Cranmore, candidate for Representative, District No. 91,
filed an application for recount on June 28, 1978.
     On June 29, 1978, the Ravalli County Attorney petitioned
the District Court for a declaratory judgment on the rights,
duties and obligations of the Ravalli County Recount Board,
the Secretary of State, the Ravalli County Clerk and Recorder,
and all the candidates involved in the matter.   The District
Court gave notice to all candidates named on the ballots and
ordered all interested parties to appear and present evidence.
On August 10, 1978, the Court entered its findings of fact,
conclusions of law and order.
     In part, the District Court found there was no evidence
of fraud or intentional wrongdoing on the part of any election
official or elector, but rather the excessive number of
ballots resulted from electors voting on both the republican
and democratic party primary ballots.   This error was not
detected by election officials because of the identical size
and color of all four ballots.   The District Court also concluded
that certain ballots failed to contain the official ballot
stamp due to technical irregularities and they should be counted
in order to express the will of the majority of the legal voters.
                          -4-
        The District Court found the will of the majority of
the legal voters of the political parties would be best
served by a new primary election for both Republican and
Democratic candidates in Senate District No. 46 and Repre-
sentative District     Nos. 91 and 92.   A new primary election
was ordered to be held on Tuesday, September 12, 1978.
        On August 17, 1978, Bob Thoft, candidate for Representative,
District No. 92, petitioned this Court to issue a writ of
mandamus or other appropriate writ ordering that no new
primary election be held for the Republican primary in
District No. 92.     Thoft contends a new election is unnecessary
in his case because only 13 extra ballots were cast in
District No. 92 and he won by a 15-vote margin, thereby
making it mathematically certain that he won the nomination
without the benefit of the extra votes.
        On August 23, 1978, Fritz Tossberg, candidate for the
Senate, District No. 46, petitioned this Court for a Writ of
mandamus or Other appropriate writ ordering that no new
election be held in any of the races and directing all nomina-
tions be declared vacant, to be filled by appointment through
party caucuses.     Tossberg contends the District Court should
have directed the respective parties to select new candidates
according to party custom because the statutory violations
occurred during a primary, rather than general, election.
        Considering Thoft's petition, we look first to the con-
trolling statute.     Section 23-4002, R.C.M.   1947, provides in
part:
        " ( 3 ) They [the election judges] shall count
        the ballots to ensure that the number of
        ballots corresponds with the number of names
        on the pollbooks.
        "(4) A ballot which is not endorsed by the
        official stamp is void and shall not be
        counted. 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.


     "(6) If the ballots exceed the number of
     names on the pollbooks they shall be placed
     in the box, and one (1) of the election
     judges shall publicly draw from the box and
     destroy unopened ballots equal to the excess.
     The election judges shall record in the poll-
     books the number of ballots destroyed."
     Despite the fact the election judges in Ravalli County
did not proceed according to the statute, Thoft argues the
outcome of the election would have been the same had they
followed the statutory procedure.
    "  .. . It is a rule of well-nigh uniform
    recognition that, after an election has been
    held, a party will not be permitted to challenge
    it unless he can show that a different result
    would have been reached but for the conditions
    of which he complains." Martin v. State Highway
    Commission et a1 (1939), 107 f'lont. 603, 615, 88
    P.2d 41.
    We agree with petitioner Thoft that discarding the 13
extra ballots cast in Representative District No. 92 will
not change the outcome of the election in his race.    However,
since the unstamped ballots were also counted, his mathematical
certainty may depend on such void ballots.   Section 23-4002,
R.C.M. 1947, is unambiguous on this point.   A ballot which
is not endorsed with the official stamp is void and shall
not be counted.   Thoft's total vote may include some of the 48
unstamped ballots found in precincts 8 through 20 and may also
include unstamped ballots in precincts 1 through 7.    Consequently
in view of the unstamped ballots, it cannot be said with
mathematical certainty that Bob Thoft received his party's
nomination for Representative in District No. 92.     There is
no way of telling at this point which candidates should have
had ballots thrown out by virtue of the lack of a stamp.    We find
therefore, that a new primary election should be held in
Representative District No. 92, according to the District Court's
order.
     Petitioner Tossberg does not question the District
Court's conclusion that the primary election of June 6,
1978, in Senate District No. 46 was fatally flawed by irregular
voting practices.   Tossberg contends Montana's election laws
require the District Court , under these circumstances,
declare the nominations vacant and direct the parties to
fill the vacancies by appointment.   We do not agree.
     Section 23-4763, R.C.M. 1947, provides:
    "Grounds for contest of nomination or office.
    An elector of the state or of any political
    or municipal division thereof may contest the
    right of any person to any nomination or
    office for which the elector has the right
    to vote, for any of the following causes:
    "(1) on the ground of a deliberate, serious,
    and material violation of any provision of
    the law relating to nominations or elections;
     " (2) whenever the person whose right is con-
    tested was not, at the time of the election,
    eligible to such office;
    "(3) on account of illegal votes or an
    erroneous or fraudulent count or canvass of
    votes. "
    A petition to contest the Democratic party nomination
in Senate District No. 46 was filed by Tossberg in District
Court on June 30, 1978.   Assuming section 23-4763(3) applies
in this case, Tossberg relies on section 23-4767, R.C.M.
1947, for his conclusion that the District Court was required
to turn the nominations over to the political parties.     However,
section 23-4767, provides in part:
    "    ..
          . If judgment of ouster against a
    defendant [person erroneously nominated
    or elected] is rendered, the nomination
    or office shall be by the judgment declared
    vacant, except as provided in 23-4762, and
      shall thereupon be filled Q - -
                                   a new election
      or by appointment as may be provided by law
      regarding vacancies in such nomination or
      office. " (Emphasis added. )
Without a doubt, an alternative available to the District
Court is to order a new election.
      Section 23-47-107, R.C.M.   1947, is not more specific,
as Tossberg argues:
      "Voiding election. (1) If a court of competent
      jurisdiction finds that the violation of any
      provision of Title 23 or Title 37, by any
      candidate or political committee probably
      affected the outcome of any election, the
      result of that election may be held void
      and a special election held within 60 days
      of that finding. If the violation occurred
      during a primary election, the court may direct
      the appropriate political party to select a
      new candidate according to the provisions of
      state law and the custom of the party. Except
      as provided in subsection ( 2 ) , an action to void
      an election shall be commenced within 1 year of
      the date of the election in question."
      Obviously, the quoted statute is limited to violations
by any candidate or political committee, whereas the facts
before us involve violations by election officials.         In any
case, the statute permits the court to direct the appropriate
political party to select a new candidate if the violation
occurs during a primary election.    It is not required to do
SO.

      The petitions are denied and a new primary election
will be held in Ravalli County on September 12, 1978, in
accordance with the order of the District Court, which we
a££irm.
We Concur:




     Chief Justice




Mr. Justice John Conway Harrison and Mr. Justice Daniel
J. Shea did not participate in this cause.
