On Friday, Dec. 17, Lake County District Court Judge Kim Christopher ruled that double-marked ballots in the tied Montana House District 12 race between Constitution Party candidate Rick Jore and Democrat Jeanne Windham must continue to be counted for Jore, citing the U.S. Supreme Court’s 2000 Bush v. Gore decision.
“All the Montana case law that [Anita] Big Spring [a tribal Get out the Vote organizer who brought the petition on behalf of Windham] cites [was] decided before Bush v. Gore,” Christopher wrote, arguing, as the Supreme Court did in Bush v. Gore, that throwing out the ballots would create a 14th Amendment Equal Protection problem.
The Supreme Court’s Bush v. Gore decision also stated that the court did not wish the decision to be used as precedent. “Our consideration is limited to the present circumstances,” the high court wrote. Christopher did not cite that sentence in her ruling.
Jore’s lawyer, Duncan Scott, submitted 70 ballots containing marks for more than one candidate or initiative position. Scott argued before Christopher that it would be unfair for the court to throw out the seven contested HD-12 ballots, but not these other 70.
None of those 70 ballots contained double markings in the Jore/Windham race, however, and Big Spring’s attorney, Mike Meloy, argued that parties would likely push for throwing out these other incorrectly marked ballots as well if any of the other races or initiatives involved were close enough to require a recount.
“If we needed to challenge those other 70, we would,” Meloy said before Christopher and a packed courtroom. “That’s a red herring,” he said, arguing that Jore’s case was “like arguing you can’t try a criminal defendant because there’s seventy other people out there that committed the same crime that haven’t been caught.”
Christopher ruled that all seven contested ballots featured “a clear mark” for Jore, including a ballot with marks for both Jore and Republican Jack Cross on which Cross’ name was partially underlined next to the initials “NRA.”
“If you’re going to count that ballot, count it for Jack Cross,” Meloy argued, in vain.
Meloy has appealed Christopher’s decision to the Montana Supreme Court, which has agreed to an expedited briefing schedule, presumably to resolve the matter before the Legislature convenes Jan. 3. The winner of House District 12 will determine if the Montana House is controlled by Republicans or Democrats.