Big Confusion in Big Sky Country

October 17, 2024

Confusion leads to accusations of wrongdoing as mistakes on overseas ballots in Montana make for a tense start to the 2024 election season. 

By Rex Fields 

September 24, 2024 – On September 20, 2024, news outlets in Montana reported that presidential candidate Kamala Harris’ name had been left off the ballot on online ballots used by voters overseas. The online system was temporarily taken down as election officials troubleshot the issue. The issue was corrected, and the electronic absentee ballot system was put back up with Harris’s name later that day. However, the news spread rapidly, leading some to surmise that Republican Christi Jacobsen intentionally left Harris off the ballot.  In an election cycle where emotions are running high and goodwill is running low, an examination of election laws and how these irregularities are typically handled may serve to soothe some tempers. 

Election Irregularities in Montana

According to both Federal and Montana election law, those eligible for an overseas absentee ballot are transmitted ballots and ballot materials at least forty-five days before a general election. September 20, 2024, marked the forty-five-day limit, and Secretary Jacobsen transmitted electronic absentee ballots to overseas voters. Yet, the ballots initially made available to overseas voters did not include Kamala Harris’s name as a presidential candidate. This raised many important questions, but none more pertinent than what, if any, the impact this mistake will have on Montana’s fair and free elections. Fortunately, dealing with these mistakes in election administration, often called election irregularities, has a strong foundation in common law, statute, and constitutional law. 

Montana Election Law: Materially Affecting the Result

The purpose of an election is to discern the will of the people. Moreover, so long as the will of the people can be fairly and freely determined, mistakes in the election process will not disturb the election results. As early as 1907, the Montana Supreme Court recognized “that an election is not to be set aside for a mere . . . irregularity which cannot be said . . .  to have affected the result of the election.” In fact, the principle that an irregularity must materially affect the outcome of the election was codified into Montana law.  So, when does a mistake by an election office materially affect the result? A more modern case from Montana unearths some answers.

Indeed, in Baker v. Bink, the losing candidate challenged the election result after losing by sixty votes, alleging that election officials erroneously distributed and tabulated absentee ballots. The court found that mistakes in distributing absentee ballots impacted less than sixty ballots and, therefore, did not affect the election result. The court held that “honest mistakes of public officials should not be permitted to disenfranchise duly qualified electors.” This case stands for the principle that mistakes that do not outnumber the margin of victory will not void an election result. 

Applying this principle to current overseas ballots issues shows that in order to impact the Montana general election, the number of overseas voters unable to cast their ballot due to the misprint would need to be larger than the margin of victory of the winning candidate. Since no ballots were impacted by this mistake before it was fixed, it will not affect the outcome of the election. 

Remedying Mistakes Before an Election: Mandatory vs. Directory Provisions

Another essential principle is the difference between mandatory and directory laws. If an election official fails to adhere to a mandatory law, the election results are immediately called into question. Yet, if an official fails to adhere to a directory law, the results will only be vitiated if a plaintiff can show the outcome has been affected. In Montana, all election laws are mandatory before an election. This is because failure to adhere to laws can be remedied before an election. Only after elections, when remedies aren’t available, will courts need to determine when to disenfranchise voters and overturn elections.

Simply put, Secretary Jacobson quickly remedied this mistake. Currently, it looks like none of the potential voters were impacted by being deprived of a ballot with all qualified voters on it. Therefore, all mandatory election laws have been complied with. 

Conclusion

The sanctity and security of our electoral system are in the front minds of every voter in each party. This has led honest mistakes to quickly turn into accusations of wrongdoing, pushing each other further into our politically affiliated corners. The reality is that humans run elections and are prone to human error. Yet, there is no evidence of malice or intent, and this mistake will not affect the result in Montana for two reasons. First, the number of impacted ballots will necessarily be less than the margin of victory in Montana because no ballots were impacted. And second, the remedy allows for compliance with all mandatory laws, making it even less likely that voters will be impacted by this mistake at all. This gives us at least two reasons to breathe a sigh of relief. This means we can trust that the results of the Montana election are fair and free. Also, we know that courts are well-equipped with doctrinal principles that they have relied on to deal with election irregularities for well over one hundred years.