Can Paula Omit Section 7?

I’ve inadvertently ran across a spot where Montana Counties – at least Lincoln County,  and I believe others – are systematically violating election law.

When Lincoln County mailed out primary ballots, the Democrat ballot had no one running within Lincoln county, showing only 3 candidates for US House – the closest Dem candidate was in Polson.  The Republican ballot had a single race for Libby commissioner, a candidate for county school superintendent who had bailed out too late to get off the ballot, and no candidate for county administrator.

My daughter meets all the requirements for superintendent, so she and I came up with the amusing idea of running a miniature, stealth write-in campaign for the jobs – based on MCA 13-10-211-7 – which pretty much mandates that write-in votes are accepted without filing under the conditions I highlighted in my message to the election administration (after the election was occurring):

“Greetings Paula – under 13-10-211 7

(7) Except as provided in 13-38-201(4)(b), the requirements in subsection (1) do not apply if:
(a) an election is held;|
(b) a person’s name is written in on the ballot;|
(c) the person is qualified for and seeks election to the office for which the person’s name was written in; and
(d) no other candidate has filed a declaration or petition for nomination or a declaration of intent.

I anticipate ballots will appear with write-in votes for Michael McCurry (or Mike McCurry) for county administrator, on both Republican and Democrat primary ballots.  I am qualified for and seeking election to that office.  No candidate is listed on either party’s ballot.

Additionally, we anticipate ballots will appear for Samantha McCurry (or Sam McCurry) for county superintendent of schools.  Sam holds a current certificate issued by the superintendent of public instruction, and has taught for 4 ½ years (Geraldine 2, Trego 1, and is halfway through her second year at Chrysalis.  No candidate is listed on the Democrat ballot.  She is a qualified elector.  Upon your request, she can send a copy of her resume and her certificate.  She is seeking election to that office.

Thank you for your attention.  Should you need more information, do not hesitate to contact us.

Michael McCurry                    Samantha McCurry
Trego, MT                               Trego, MT”

Now Paula tested the ballots in the machines just before the election, when she discovered the bloody things wouldn’t work.  (The TVNews article credits the printer with causing the problem – the buck stops in Coeur d’Alene apparently.   Zinke couldn’t be announced as the winner until late Thursday)  When Lincoln County’s count was complete, and did not include Sam and I, I sent another message to Paula – our exchange follows:

Greetings Paula – just to add to your plate (relax, you’re not the only one to make it onto AP and the NY Times.  I’ve been there, and can even look at my celebrity with amusement now).  Anyway, the bottom of the secretary of state’s page says to contact you for a report on all the write-in votes.  I’ve sent this as an addition to my first message – and think that MCA 44.3.2403, which ends with:

“3) Consistent with 13-10-211, MCA, votes for undeclared write-in candidates may be counted if:
(a) an election is held;
(b) a person’s name is written in on the ballot;
(c) the person is qualified for and seeks election to the office for which the person’s name was written in; and
(d) no other candidate has filed a declaration or petition for nomination or a declaration of intent.”

shows how our candidacies need to be handled.  Could you respond by the end of Friday’s work day?

Mike McCurry
Sam McCurry

Paula’s reply:

On Fri, Jun 10, 2022 at 12:11 PM Paula Buff <pbuff@libby.org> wrote:

Hi Michael.

We likely won’t have the write-in name information available for a few days.

I will send you the info once we have it available.Also, just so you are aware, because neither of you were a declared write-in or candidate for either of these positions you cannot be “elected” to those positions. The write in counts are just a count – not a nomination if that makes sense.

Because these positions are essentially still open, they will be filled by appointment by the County Commissioners and in conjunction with the rules / recommendation by the Republican Central Committee, specifically for the Superintendent of Schools.

Thanks.

Paula Buff
Lincoln County Election Administrator|
512 California Ave.
Libby, MT 59923
P: 406-283-2302

My response to Paula:

Subject: Re: Write In Candidates under 13-10-211-7
To: Paula Buff <pbuff@libby.org>

Paula – It is good to hear from you – however my reading of the laws do not match your conclusion:

From Title 13. Elections.  Chapter 10. Primary Elections and Nominations Part 2. Preprimary Procedures: “13-10-211: Declaration of intent for write-in candidates (1) Except as provided in subsection (7), a person seeking to become a write-in candidate for an office in any election shall file a declaration of intent.”

Subsection (7): “(7) Except as provided in 13-38-201 (4)(b), the requirements in subsection (1) do not apply if:
1. an election is held;
2. a person’s name is written in on the ballot;
3. the person is qualified for and seeks election to the office for which the persons name was written in; and
4. no other candidate has filed a declaration or petition for nomination or a declaration of intent.”

13-38-201 4(b): “(b) if a part precinct committee election is not held pursuant to subsection (4)(a), the election administrator shall declare elected by acclamation the candidate who filed for the position or who filed a declaration of intent to be a write-in candidate. The election administrator  shall issue a certificate of election to the designated party.”

Since there was a primary election, and since your reply indicates that there were no declared write-in candidates, Subsection 7 of 13-10-211 applies to any undeclared write-in candidates.

Frankly, if write-in votes cannot be counted towards a nomination, then including the write-in sections on the largely blank primary ballot was for no other purpose than to give the voters the illusion of choice in a decision that will be made without their input. An election was held. Please explain your interpretation of state law that allows votes to be ignored.  We have a difference of opinion – and I would like to give you an opportunity to convince me why your interpretation is correct.  Subsection 7 of 13-10-211 seems very clear as I read it, and it does not support your statement “Also, just so you are aware, because neither of you were a declared write-in or candidate for either of these positions you cannot be “elected” to those positions. The write in counts are just a count – not a nomination if that makes sense.

Because these positions are essentially still open, they will be filled by appointment by the County Commissioners and in conjunction with the rules / recommendation by the Republican Central Committee, specifically for the Superintendent of Schools.”

Mike McCurry

At this stage, I’m realizing that this is probably a civil rights matter – so I send the situation off to an attorney friend.  Here’s the response:

“My first and second readings of the relevant statute(s) make me conclude easily that you are correct.  Paula’s interpretation writes SubSection 7’s exemptions from filing a declaration out of the law entirely.  That is not allowed under the rules of statutory interpretation, so no, “it doesn’t make sense!”  In my opinion, Subsection 7 allows anyone to write in a candidate of his or her choice, and it is indeed a nomination.  If not, why is Subsection 7 even there??  There should be several Montana cases from its Supreme Court that explain how statutory interpretation is done there, and how a correct reading takes into account every subsection — which does not mean eliminating it.”

Then sent “Here you go.  No one can omit from a statute what is inserted.  That language is in this case.   http://wcc.dli.mt.gov/sccases/95-106.htm

The case includes this paragraph:

In construing a statute, “the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. The rules of statutory construction require the language of a statute to be construed according to its plain meaning. If the language is clear and unambiguous, no further interpretation is required, and we will resort to legislative history only if legislative intent cannot be determined from the plain wording of the statute. Lovell v. State Comp. Mut. Ins. Fund (1993), 860 P.2d 95, 99. Where the intention of the legislature can be determined from the plain meaning of the words used in a statute, the courts may not go further and apply any other means of interpretation. Tongue River Elec. Coop. v. Mont. Power Co. (1981), 636 P.2d 862, 864.”

The last message was:

“I will try to find a better Montana case that deals with an erroneously ignored part of a statute.  Then, if Paula’s halfway intelligent, she will give it to county counsel for an opinion.  Even if she does don’t hold your breath.” 

I think the entire state has been writing section 7 out for years.

Both the Superintendent of Schools and the county administrator positions met all the requirements of section 7 when Sam and I were written in.  We still have no word back from Paula as to the write-in vote count – Zinke needed two extra long days.  It looks like our results are unreported after 2 long weeks, despite the county hiring a hand count that was finished in two days.

So here we are, two weeks after the election, still not knowing how many votes we got.  We’ve complied perfectly with section 7 . . . and I still don’t know how many votes I got to be the Stupid Party nominee for County Administrator and how many votes I got to be the Evil Party nominee for County Administrator.  I do have Paula’s statement: “Also, just so you are aware, because neither of you were a declared write-in or candidate for either of these positions you cannot be “elected” to those positions. The write in counts are just a count – not a nomination if that makes sense.

Because these positions are essentially still open, they will be filled by appointment by the County Commissioners and in conjunction with the rules / recommendation by the Republican Central Committee, specifically for the Superintendent of Schools.”

I did ask Paula for her explanation:  “Please explain your interpretation of state law that allows votes to be ignored.  We have a difference of opinion – and I would like to give you an opportunity to convince me why your interpretation is correct.” I have received nothing, so I really have no idea why she believes that she can omit section 7.  If she can, I may have to get the question in front of a judge:  Montana Code 1-2-101. Role of the judge — preference to construction giving each provision meaning. In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.”  I’m not a lawyer, nor have I ever played one on TV, but it looks to me like a Judge would have to include section 7, even if Paula doesn’t. 

Now I’ve shared this story with Bob Brown (once Montana’s Secretary of State) and Mike Cuffe (my local state senator).  Bob advised me to play nice and ask Paula and the commissioners to pass this on to the county attorney for an opinion.  I did.  Mike Cuffe told me that Paula is a nice lady and non-partisan – which, since I’m playing nice, I will accept this week.

Next week, we’ll include the rest of the story on Mike and Sam trying to run for office, and why we want to have elections with more than one candidate.