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Writing to the Montana Secretary of State

Since the county election administrator informed us that she considers the matter “closed”, the question becomes who is the next level up the bureaucratic ladder.

Greetings Secretary of State Jacobsen;

I believe (strongly) that I have found a single word in the Montana Election Judge Handbook 2020 that allows appointed local election administrators to ignore a portion of state election law.  Since you ran with the slogan “Establishment Politicians Won’t Stop Me  You’ve seen it over and over  Entrenched politicians trying to limit your choices and control elections  Not on my watch” I am optimistic that you will view my take on the law no differently than my college friend and your predecessor Bob Brown did.

On page 99, the handbook states: “Write-in votes for candidates who have not filed a declaration of intent as a write-in may be counted for a position, if the following conditions `are met: 
no candidate’s name appears on the ballot for that position; and
no other candidate has filed a write-in declaration of intent by the applicable deadline.

I strongly encourage you to change the word may to shall.  During the last primary in Lincoln County, our Election Administrator, Paula Buff, assumed the power to ignore these components of the Montana Codes:

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 . . .

(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.

An election was held.  So that I could test how the law was being followed, my daughter and I asked a few friends to write us in.  I was written in for county administrator, and Samantha on the democratic ticket for county superintendent of schools.  (This was a test, but each of us was willing to serve in the event of election.  Both of us met the qualifications for the positions.)  No other candidate had filed a declaration or petition to the best of my knowledge.

Paula’s reply was:

“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.”

Paula’s interpretation removes SubSection 7’s exemptions from filing a declaration out of the law entirely.  That is not allowed under the rules of statutory interpretation.  I hold that, in the cases where subsection 7 applies, any voter can write-in an eligible citizen’s name and that does constitute a nomination.  Paula’s interpretation makes sense only if she, as an appointed bureaucrat, is empowered to ignore the law as written.

It took until July 26 for Paula to respond to my repeated requests for write-in vote numbers by party in the primary election, when she finally admitted, “We were not required to count write-ins for all positions, however because we were conducting a hand-count I did instruct the counting board to count all write-ins. They were not separated according to party ballot when being counted.”  In short, the Lincoln County primary election results were delayed because of her blunder in getting the ballots printed in a size that the machinery could handle, the county went to the extra expense of a hand count, and the parties were ignored as they counted ballots.  Essentially, we had a party-free primary election .

Should you need copies of our exchange as I asked her for information, finally invoking the Freedom of Information Act and the Montana Constitution, I can share – but it was just a hoop one has to jump through when a junior bureaucrat errs and is unwilling to admit the error.

My greatest motivator here is that I have a great distaste for choiceless elections with a single candidate.  There were no Lincoln County Democrat candidates . . . and while I may generally vote republican, I prefer to have a choice.  Our election administrator, because the election judge handbook uses the word “may” has assumed the power to mandate a general election where candidates run without opponents.  I think this is likely the case in other Montana counties.  Please let me know if I have not made the case for replacing “may” with “shall” strong enough to convince you.  Your campaign homepage has given me hope that you will look at the arguments fairly.

Thanks,

Michael McCurry
Trego, MT 

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