                              No.   91-296
          I N THE SUPREME COURT OF    THE STATE OF MONTANA




DONALD E. DRUMMOND, ELIZABETH J. DRUMMQND,
J. GILBERT EVANS, DENNIS L. LaFEVER,
JACQUELINE R. LaFEVER, PHILLIP E. MASON,
CAROLYN J. TICBENOR, DARYL L. TICHENOR,
MARCELLA J. CAMPBELL, KENNETH K. CAMPBELL,
NELS P. SALMONSEN, and RUTH M. SALMONSEN,
                            Plaintiffs and Appellants,
          -vs-
TOWN OF VIRGINIA CITY, MADISON COUNTY, MONTANA,
a body politic and corporate, MICHAEL J. MAJERUS,
its Mayor, MELINDA J. TICHENOR, GERALD F. FOX,
KATHLEEN D. KINNEY, AND DONALD D. WILLIAMS, members
of the Town Council, PATRICIA PEDULA, Town Clerk-
Treasurer, LOREN TUCKER, Town Attorney and DOROTHY C.
BROWN, Election Administrator, Town of Virginia city,
and all duly qualified electors of the Town of Virginia
City, Madison County, Montana,
                            Defendants and Respondents.



APPEAL FROM:     D i s t r i c t Court of the Fifth Judicial District,
                 In and for the County of T ad is on,
                 The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:
          For Appellant:
                 Samuel M. Warren; Worden, Thane    &   Maines, Missoula,
                 Montana
          For Respondent:
                 Loren Tucker, city Attorney, virginia City, Montan?


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                             Submitted on Briefs:       February 13, 1T
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Justice Terry N. Trieweiler delivered the opinion of the Court.
       This is an appeal from an order of the District Court of the
Fifth Judicial District, Madison County, dismissing plaintiffs'
petition to invalidate a municipal mail ballot election.
       The issue on appeal is whether the District Court erred in its
determination that Virginia City complied with all statutory
election procedures.    We affirm the District Court.
       Prior to December 4, 1990, the Town of Virginia City decided,
through its City Council, to submit to the voters a resort tax
proposal pursuant to 5 7-6-4461, efseq., MCA.    The council voted to

conduct the election by mail ballot as provided for in 5 13-19-101,
MCA.    On December 4, 1990, the Election Administrator of Madison
County submitted a written plan for a mail ballot election to the
Secretary of State, pursuant to 5 13-19-205, MCA.        The plan was
approved, and the election was scheduled for February 5, 1991.
Notice of the election and the date of closing of registration was
published, and registration was closed on January 7, 1991.    Ballots
were printed and mailed to the registered voters. The election was
held as scheduled, and the proposed tax ordinance was approved by
a margin of 53 to 47.     The results were certified the following
day.
       On April 9, 1991, 63 days later, plaintiffs filed a petition
to invalidate the mail ballot election.         They alleged that the
election was prematurely held, that a number of voters had not met
the residency requirements outlined in the local ordinances of
Virginia City, and that the return of ballots by persons other than
the actual electors violated        13-19-106(4),   13-19-306, -307,
and -308, MCA (1989).
     A hearing was held on April 23, 1991.      The matter was orally
argued and briefed, and on May 7, 1991, the District Court entered
it Findings of Fact, Opinion, and an Order dismissing the petition.
Plaintiffs appeal the District Court Order.
     Plaintiffs allege that the court erred in upholding the
election due to "the Election Administrator's non-compliance with
the personal delivery requirements of the Mail Ballot Election
statutes."   Plaintiffs    state     that   the     requirements   of
9s 13-19-106(4) and 13-19-306 through -308, MCA, were not met.
Section 13-19-106, MCA (1989), provides the general requirements
for a mail ballot election.   It reads in part:

          (1) Official ballots must be prepared and all other
     initial procedures followed as otherwise provided by
     law.
          (2) An official ballot must be mailed to every
     qualified elector ofthe political subdivision conducting
     the election.
          (3) The elector shall mark the ballot at home and
     place it in a secrecy envelope.
          (4) The elector shall then place the secrecy
     envelope containing his ballot in a returnperification
     envelope and shall return it by mailing it or delivering
     it in person to a place of deposit designated by the
     election administrator so that it is received prior to a
     specified time on election day.
     Plaintiffs contend    that    subsection   (4) of   the   statute
requiring that the elector return the ballot by mail or in person
is mandatory.      The term Itinpersontg used in several sections of
                                        is
the chapter.
     The record discloses that 19 of the ballots tallied by the
election administrator (including ballots by two of the plaintiffs)
were delivered by persons other than the elector.                  The Madison
County Voter Official Register shows that 17 of the ballots were
delivered by family members of the elector.             The two remaining
ballots     were    delivered   by   an     employee    of     the    Election
Administrator's office for persons who were disabled and unable to
do so themselves.
     Plaintiffs state that the language of the mail ballot election
statutes mandates personal delivery if mail return is not used, and
that these provisions exist to prevent voter fraud or other
election abuses.      Plaintiffs contend that any deviation from this
requirement invalidates the election.
     We agree with plaintiffsv contention that the provisions of
Montana's    mail ballot election chapter are designed to curb
election abuses.      However, we do not agree that a rigid adherence
to the statutory provisions is essential to sustain an election
result.
     In this case, no evidence has been adduced that any voter
fraud occurred.       The election administrator testified that she
complied with the elector verification procedures of 5 13-19-310,
MCA, and the valid ballot requirements of 5 13-19-311, MCA.                She
testified    that    all   ballots   were   sealed     in    the   appropriate
envelopes, with the voter affidavit signature on each return/
verification envelope, and that each signature corresponded with
that on the voter registration card.
     This Court stated in Tlzompson v Clzapiit (1922), 64 Mont . 376, 209
                                    .

P. 1060, that    If   [tlhe departure from the law in matters which the
~egislature has         not   declared   of   vital   importance   must   be
substantial in order to vitiate the ballots.ff (Quoting Boyd v. Mills

(1894), 53 Kan. 594, 37 P. 16.)
     In W i l h v. Mouton (Cal. 1986) , 722 P.2d 187, the California court

was faced with a similar question. The statute directed the voter
to return the ballot by mail or in person.              Forty-six absentee
ballots were delivered by parties other than the elector.                 The
court refused to invalidate the election, stating:
     We do not agree, however, that the votersf and deputy
     county clerksf inadvertent violation of this provision
     requires that we disenfranchise the voter in the face of
     a trial court finding that there was no fraud or
     tampering with the challenged ballots. As we said above,
     the trial court found that in each case the third party
     delivered the ballot at the voter's request and after the
     voter had signed and sealed the envelope and that there
     was no tampering.
W i k s , 722 P.2d at 195.    In W i k , when a designee was told he would

not be allowed to deliver the ballots, he simply walked outside and
deposited the ballots in a mailbox, meeting the letter of the law
for election integrity.          The court noted that the case was Ifa
perfect illustration of the injustice in nullifying votes because
on noncompliance with technical and sometimes ambiguous rulesu
governing the balloting process.   Wilks, 722 P.2d at 195, n.9.

     Plaintiffs had the burden of proving a substantive defect in
the election by clear and convincing evidence.   Absent any hint of
fraud, the fact that ballots were delivered by family members does
not constitute a substantial deviation from the guidelines set
forth in the chapter.
     Plaintiffs also contend that the ~istrict Court erred in
upholding the election results where a number of voters failed to
qualify as electors under applicable ordinances.      Specifically,
plaintiffs state that $ 1.04.030 of the Virginia City Ordinance
                      !

Book disqualified a number of nonresident voters.      The statute
provides that I1[t]he term 'residentq shall mean any person who has
resided within the town of Virginia City for at least thirty (30)
days prior to the election."
     plaintiffs interpret this statute to mean that an individual
must reside within the city in the month prior to the election.
A sounder interpretation is that an individual must reside within
the city for a minimum of 30 days in order to establish residency.
Plaintiffs' interpretation is burdensome and would effectively
disenfranchise many voters in a town that is comprised in great
part of seasonal residents. Section 13-1-112, MCA, gives further
guidance.   It states in part:
     For registration or voting, the residence of any
     individual shall be determined by the following rules as
     far as they are applicable:
          (1) The residence of an individual is where his
     habitation is fixed and to which, whenever he is absent,
     he has the intention of returning.


          (4) An individual does not lose his residence if he
     goes into another state or other district of this state
     for temporary purposes with the intention of returning
     unless he exercises the election franchise in the other
     state or district.


          (8) A change of residence can be made only by the
     act of removal joined with intent to remain in another
     place.
     No evidence was offered by the plaintiffs that any elector
exercising their voting right had voted elsewhere or did not intend
to return to Virginia City.      Further, plaintiffs failed to timely
challenge any    elector's right to vote,         as provided   for   in

§   13-13-301 or 13-2-404, MCA, or challenge the registration of any
elector, as provided in 5        13-2-403, MCA.    The District Court
properly disallowed plaintiffs' challenge which came some 60 days
after the election, and failed to show that any elector was not a
resident, as determined by   §   13-1-112, MCA. Accordingly, we affirm
the District Court.
We concur:
