44.3.2402    DETERMINING A VALID VOTE IN MANUALLY COUNTING AND RECOUNTING PAPER BALLOTS

(1) Before being counted, each questionable vote on a paper ballot set aside under 13-15-206, MCA, must be reviewed by the designated board. The board shall evaluate each questionable vote according to the rules below:

(a) If a majority of the designated board members agree that under the rules the voter's intent can be clearly determined, the vote is valid and must be counted according to the voter's intent.

(b) If a majority of the designated board members do not agree that the voter's intent can be clearly determined under the rules, the vote is not valid and may not be counted.

(2) The following general rules shall apply in a count or recount of paper ballots:

(a) more than one designated voting area has been marked and at least one mark has been erased, but residue is or is not left. The election officials shall cause a vote to be counted for the designated voting area that has been marked;

(b) one designated voting area is marked and at least one other designated voting area is marked with a heavy mark and no erasure has been attempted. The election officials shall cause this to be designated as an overvote;

(c) the designated voting area has been marked for one candidate or ballot issue choice and a partially completed mark is made in at least one other designated voting area. The mark may or may not have some erasure, although for the purpose of this rule erasure is not required. If an erasure is present and it is not sufficient to make the intent of the elector clear, the election officials shall cause this to be designated as an overvote. If no erasure attempt is made, the election officials shall cause this to be designated as an overvote;

(d) the designated voting area has been marked for one candidate or ballot issue choice and a hesitation mark is present within at least one other designated voting area. The election officials shall cause a vote to be counted for the designated voting area that has been marked;

(e) the designated voting area has not been marked according to instructions, but the designated voting area, candidate, or ballot issue choice is circled, underlined, checked, or otherwise clearly marked. The election officials shall cause a vote to be counted for the marked choice;

(f) the designated voting area has not been marked according to instructions, but there is a connective line or arrow between the candidate or ballot issue choice and the designated voting area to indicate the vote. The election officials shall cause a vote to be counted for the marked designated voting area;

(g) more than one designated voting area has been marked, but no clear mark is used to indicate the intended candidate or ballot issue choice. This includes, but is not necessarily limited to, instances in which more than the allowable choices are marked, and an "X" has been marked in either or both of the designated voting areas. The election officials shall cause this to be designated as an overvote;

(h) more than one designated voting area has been marked, but a clear word, mark, or statement is used to indicate the intended vote. The election officials shall cause a vote to be counted for the designated voting area indicated as the intended vote;

(i) a word or statement has been used to indicate the intended vote instead of marking the designated voting area according to instructions. The election officials shall cause a vote to be counted for the designated voting area indicated as the intended vote;

(j) all of the designated voting areas are crossed out. The election officials shall cause this to be designated as an undervote;

(k) a mark is made outside the designated voting area but close enough to the designated voting area to determine voter intent, and the designated voting area is not marked. The election officials shall cause a vote to be counted for the designated voting area determined as the intended vote;

(l) a ballot is marked with different colors or types of marking instruments. The election officials shall cause votes to be counted as marked by the voter unless it is determined that the ballot is otherwise not valid.

History: 13-15-206, MCA; IMP, 13-15-206, MCA; NEW, 2004 MAR p. 93, Eff. 1/16/04; AMD, 2006 MAR p. 2671, Eff. 10/27/06; AMD, 2010 MAR p. 1545, Eff. 6/25/10; AMD, 2012 MAR p. 760, Eff. 4/13/12.