House Bill No. 440
Introduced By _______________________________________________________________________________
A Bill for an Act entitled: "An Act allowing electors to vote for "none of the above candidates" in federal, state, county, school district, and municipal partisan and nonpartisan primary and general elections; providing exceptions; amending sections 13-10-209, 13-12-203, 13-12-205, 13-12-208, 13-12-209, 13-13-117, 13-14-115, 13-14-116, 13-15-101, 13-15-202, 13-15-404, 13-15-501, 13-15-506, 20-3-304, 20-3-306, 20-15-220, 20-20-415, 20-20-416, and 76-15-303, MCA; and providing an immediate effective date."
Be it enacted by the Legislature of the State of Montana:
NEW SECTION. Section 1. Short title. [Sections 1 through 3] may be cited as "The "None of the Above Candidates" Election Act".
NEW SECTION. Section 2. "None of the above candidates" ballot choice for primary and general elections -- purpose and intent. The purpose of the "none of the above candidates" choice in elections is to provide voters the opportunity to vote for none of the candidates running for municipal, school district, county, state, or federal public office and to require that votes for "none of the above candidates" be reported in the official canvass. The legislature understands that because the United States and Montana constitutions specify certain requirements for candidacy for public offices, the "none of the above candidates" category cannot lawfully be elected to office. It is the intent of the legislature that the purpose of the category "none of the above candidates" is to provide the opportunity for a protest vote by the electors against all of the individuals running for election or to indicate that the electors voting for that category are without sufficient information to vote for any of the named candidates. The legislature intends that the actual election, or nomination in the case of a primary election, of a candidate be in accordance with Article IV, section 5, of the Montana constitution, which provides that the person receiving the largest number of votes is the person elected.
NEW SECTION. Section 3. General provisions. (1) The provisions of [sections 1 through 3] apply to the election of candidates for municipal, school district, county, state, and federal offices in any primary or general election.
(2) Ballots for municipal, school district, county, state, and federal elections must include a "none of the above candidates" choice for each office listed on the ballot. However, this requirement does not apply to a ballot cast in an election for an unopposed incumbent judge, for which the form of the ballot is provided in 13-14-212, or in an election for the president of the United States, for which the form of the ballot is provided in 13-10-403.
(3) Votes for the category "none of the above candidates" must be counted and reported in the official canvass in a manner consistent with the provisions of chapter 15.
(4) The actual election, or nomination in the case of a primary election, of a candidate is in accordance with Article IV, section 5, of the Montana constitution, which provides that the person receiving the largest number of votes is the person elected.
Section 4. Section 13-10-209, MCA, is amended to read:
"13-10-209. Arrangement of ballots. (1) (a) Ballots for a primary election shall must be arranged and printed in the same
manner and number as provided in chapter 12 for general election ballots and must include a "none of the above
candidates" ballot choice, as provided in [sections 1 through 3], except there shall must be separate ballots for each political
party entitled to participate. The name of the political party shall must be printed at the top of the separate ballot for that
party and need not be printed opposite each candidate's name.
(b) Nonpartisan offices and ballot issues may be printed on separate ballots or may appear on the same ballot as partisan offices if:
(i) each section is clearly identified as separate; and
(ii) such the nonpartisan offices and ballot issues appear on each party's ballot.
(2) It is not necessary to print a primary ballot for a political party which that does not have candidates for more than half
of the offices on the ballot in even-year elections if no more than one candidate files for nomination by that party for any of
the offices on the ballot. The secretary of state shall certify that no a primary election is not necessary for that party if such
that is the case and shall certify or instruct the election administrator to certify the names of the candidates for that party for
the general election ballot only.
(3) The separate ballots for each party shall must be the same size and color. The stubs of each set of party ballots shall
must bear the same number. If printed as a separate ballot, the nonpartisan ballot shall must be a different size or color than
the party ballots, but the stubs shall must be numbered in the same order as the party ballots.
(4) If a ballot issue is to be voted on at a primary election, it may be placed on the nonpartisan ballot or a separate ballot. A
separate ballot may be a different size and color than the other ballots in the election, but the stubs shall must be numbered
in the same order.
(5) Each elector shall receive a set of party ballots and a nonpartisan and a ballot issue ballot if such those ballots are
printed."
Section 5. Section 13-12-203, MCA, is amended to read:
"13-12-203. Printing of candidate's name and party designation on ballot. (1) Except as provided in 13-10-209 and
13-10-303, in partisan elections, candidates' names shall must be printed under the title of the office sought, with the name
of the party, in not more than three words, or "Independent" printed opposite the name.
(2) In nonpartisan elections, the candidates' names shall must be printed under the title of the office sought, with no
description or designation printed with the name unless partisan and nonpartisan offices appear on the same ballot. In such
a that case, the names of nonpartisan candidates shall must have printed with them the words "Nominated without party
designation".
(3) The election administrator shall ensure that:
(a) every ballot in primary and general elections, including special elections, that lists the name or names of the candidate or candidates for a municipal, county, state, or federal public office, except ballots for incumbent judges who are unopposed, includes a ballot choice of "none of the above candidates", which must appear on the ballot directly below the names of the candidates for a particular office; and
(b) every sample ballot or other instruction to voters prepared or approved by the election administrator or the secretary of state clearly explains that the voter may mark a choice for the category "none of the above candidates" only if the voter has not voted for any candidate for the office."
Section 6. Section 13-12-205, MCA, is amended to read:
"13-12-205. Arrangement of names -- rotation on ballot. (1) The candidates' names shall must be arranged
alphabetically on the ballot according to surnames under the title of the respective offices.
(2) (a) Except as provided in subsection (3), if two or more individuals are candidates for nomination or election to the
same office, the election administrator shall divide the ballot forms into sets equal in number to the greatest number of
candidates for any office. The candidates for nomination to an office by each political party shall must be considered
separately in determining the number of sets necessary for a primary election.
(b) The election administrator shall begin with a form arranged alphabetically and rotate the names so that each candidate's
name will be at the top of the list for each office on substantially an equal number of ballots. If it is not numerically
possible to place each candidate's name at the top of the list, the names shall must be rotated in groups so that each
candidate's name is as near the top of the list as possible on substantially an equal number of ballots.
(c) If the county contains more than one legislative district, the election administrator may rotate each candidate's name so that it will be at or near the top of the list for each office on substantially an equal number of ballots in each house district.
(d) For purposes of rotation, the offices of president and vice president and of governor and lieutenant governor shall must
be considered as a group.
(e) No more than one of the sets may be used in printing the ballot for use in any one precinct, and all ballots furnished for use in any precinct must be identical.
(3) In a precinct where voting devices are used, the election administrator need not rotate candidates' names as provided in
subsection (2) on paper ballots required under 13-17-305;. however However, if more than 5% of the electors voting in the
precinct in the last preceding general election voted using paper ballots, the election administrator shall rotate candidates'
names on the paper ballots. If the candidates' names are not rotated, the election administrator shall determine by lot the
arrangement of the names on the paper ballot.
(4) Language allowing an elector to cast a ballot for "none of the above candidates" in accordance with [sections 1 through 3] must appear at the bottom of each group of names of candidates for each office, and that designation is not required to be rotated."
Section 7. Section 13-12-208, MCA, is amended to read:
"13-12-208. Provision for write-in votes. Below the list of names of candidates and the "none of the above candidates" ballot choice for each office, there must be as many blank spaces for write-in voting as there are officers to be elected."
Section 8. Section 13-12-209, MCA, is amended to read:
"13-12-209. Paper ballots -- stub size -- content. (1) Paper ballots shall must be printed on the same sheet with a stub,
separated by perforation.
(2) The stub shall must extend the entire width of the ballot and have instructions printed on it.
(3) Upon the face of the stub shall must be printed the following:
This ballot should be marked with an "x" in the square before the name of each individual or candidate for whom the
elector intends to vote or in the square before "none of the above candidates" if the elector does not vote for any of the
candidates listed for an office. The elector may write in or affix a preprinted label in the blank spaces or over any other
name, the name of an individual for whom he the elector wishes to vote and vote by marking an "x" in the square before the
name. If a ballot contains a constitutional amendment or other issue to be submitted to a vote of the people, it is voted on
by marking an "x" in the square before the amendment or issue.
(4) On the stub shall must be printed or stamped the consecutive number of the ballot, beginning with number 1 and
increasing in regular numerical order to the total number of ballots required for the precinct."
Section 9. Section 13-13-117, MCA, is amended to read:
"13-13-117. Method of voting. (1) On receipt of his a ballot, the elector must shall immediately retire to one of the
booths and prepare his the ballot.
(2) He The elector shall prepare his the ballot by marking an "x" in the square before the name of the individual or
individuals for whom he the elector intends to vote, or the elector may mark an "x" before "none of the above candidates" if
the elector does not vote for any candidate for an office.
(3) If the ballot contains a ballot issue, he the elector shall mark an "x" in the applicable square indicating his a vote either
for or against the issue.
(4) The elector may write the name of an individual for whom he the elector wishes to vote in the blank space or affix a
preprinted label in the blank space and may vote for that individual by marking an "x" before the name. When the ballot is
marked in this manner, it must be counted the same as though the name were printed upon the ballot and marked by the
elector, except as provided in 13-15-202.
(5) An elector voting a ballot that will be counted by an optical scan ballot tabulating device shall mark his the ballot in the
manner prescribed on his the ballot. However, his the ballot must may not be invalidated if he the elector marks the voting
positions with an "x".
(6) After preparing his the ballot, the elector must shall fold it so that the face of the ballot will be concealed and the
official stamp may be seen and hand it to the election judges.
(7) The judge receiving the ballots shall remove the stubs in sight of the elector and deposit each ballot in the ballot box
and each stub in a box for detached stubs. The judge must shall place the ballots in the ballot box immediately without
opening or examining them.
(8) No An individual except other than an election judge may not put a ballot, any paper resembling a ballot, or anything
other than a ballot in a ballot box.
(9) Any elector who spoils his a ballot may, on returning the spoiled ballot, receive another in place of it."
Section 10. Section 13-14-115, MCA, is amended to read:
"13-14-115. Preparation and distribution of nonpartisan primary ballots -- determination on conducting a
primary. (1) The election administrators shall arrange, prepare, and distribute primary ballots for nonpartisan offices,
designated "nonpartisan primary ballots". The ballots must be arranged as other primary ballots, must include a "none of
the above candidates" ballot choice for each office, as provided in [sections 1 through 3], and must be without political
designation.
(2) The number of nonpartisan primary ballots and sample ballots furnished must be the same as other primary ballots.
(3) (a) The election administrator of a political subdivision may determine that a primary need not be held if:
(i) the number of candidates for an office exceeds three times the number to be elected to that office in no more than one-half of the offices on the ballot; and
(ii) the number of candidates in excess of three times the number to be elected is not more than one for any office on the ballot.
(b) If the election administrator determines that a primary election need not be held pursuant to subsection (3)(a), the
administrator shall give notice to the governing body that no a primary election will not be held.
(4) The governing body may require that a primary election be held if it passes a resolution not more than 10 days after the close of filing by candidates for election, stating that a primary election must be held."
Section 11. Section 13-14-116, MCA, is amended to read:
"13-14-116. Counting and canvassing of nonpartisan ballots. (1) After closing the polls, the election officers shall separately count, canvass, record, and certify nonpartisan ballots, showing the number of votes cast for each person and for the category "none of the above candidates", except as provided in 13-15-202.
(2) Nonpartisan ballots, stubs, and unused ballots must be disposed of in the same manner as other ballots, stubs, and unused ballots. Returns must be made as provided by law."
Section 12. Section 13-15-101, MCA, is amended to read:
"13-15-101. Votes to be publicly counted upon closing of polls. (1) When the polls are closed, the election judges shall
immediately count the votes. The count shall must be public and continue without adjournment until completed and the
result is publicly declared.
(2) Immediately after all the ballots are counted by precinct, the election judges shall copy the total votes cast for each candidate, for the category "none of the above candidates", and for and against each proposition on the return forms furnished by the election administrator.
(3) The election judges shall immediately post one of the return forms at the place of counting and return a copy to the
election administrator. Both forms shall must be signed by all the election judges completing the count."
Section 13. Section 13-15-202, MCA, is amended to read:
"13-15-202. Counting votes cast -- pollbook. (1) (a) When the procedures required by 13-15-201 are completed, the election judges shall count and determine the votes cast for each individual or for the category "none of the above candidates", except as provided in subsection (1)(b).
(b) The judges may not count or record write-in votes for candidates who have not filed a declaration of intent as provided in 13-10-211, except for write-in votes cast:
(i) for the office of precinct committeeman or committeewoman in a primary election;
(ii) for an office for which no candidate has filed a declaration or petition for nomination or a declaration of intent; or
(iii) on a federal write-in absentee ballot as provided in 13-13-273.
(2) In counting, the ballots shall must be opened singly by one of the election judges and the contents read aloud to the
other judges.
(3) A ballot or part of a ballot is void and may not be counted if the elector's choice cannot be determined. If part of a ballot is sufficiently plain to determine the elector's intention, the election judges shall count that part. Except as provided in 13-10-211(4), a write-in vote may be counted only if the write-in vote identifies an individual by any of the designations filed pursuant to 13-10-211(1)(a).
(4) As the ballots are read, two judges must shall write on a tally sheet the name of every individual and the office voted
for and keep tallies of the number of votes for each individual and for the category "none of the above candidates", except
as provided in subsection (1)(b).
(5) The tally sheets shall must be compared and their correctness ascertained, and the judges shall immediately write in the
pollbook:
(a) the names of all individuals who received votes, including as a name the category "none of the above candidates";
(b) the offices for which they received votes;
(c) total votes received by each individual and by the category "none of the above candidates" as shown by the tally sheets.
(6) In making the count in precincts where voting machines are used, the votes cast by absentee ballot shall must be added
to the votes cast on the voting machines.
(7) A ballot or vote rejected by the election judges may not be included in the count."
Section 14. Section 13-15-404, MCA, is amended to read:
"13-15-404. Information to be entered on record. (1) The secretary of the board shall prepare and file in the official
records of his the office a report of the canvass which that lists:
(a) the total number of electors voting in each precinct, district, or portion of a district in the county and the total in the county;
(b) the name of each individual, including as a name the category "none of the above candidates", receiving votes and the office for which the votes were received;
(c) the number and title of each ballot issue;
(d) the votes by precinct, district, or portion of a district within the county for each individual, for the category "none of the above candidates", and for and against each ballot issue;
(e) the total votes in the county for each individual, for the category "none of the above candidates", and for and against each ballot issue; and
(f) for municipal elections, the total number of electors voting in each municipality and the votes by municipality for each individual, for the category "none of the above candidates", and for and against each ballot issue.
(2) Write-in votes for an individual shall must be entered in the report in the same place as the votes for other individuals
for the same office but shall must be identified as write-in votes."
Section 15. Section 13-15-501, MCA, is amended to read:
"13-15-501. Certification of canvass to state canvassers. (1) The board of county canvassers shall certify the vote for
each individual, including the category "none of the above candidates", as provided in [sections 1 through 3], for whom
votes were cast for the offices of president and vice president of the United States, congressional offices, state or district
offices voted for in more than one county, members of the legislature, judges of the district court, and for and against ballot
issues voted on in more than one county to the board of state canvassers. The certification shall must contain all the
information required in 13-15-404 for such the candidates and issues.
(2) The secretary of the board shall send the certification to the secretary of state by certified mail in an envelope marked "election returns"."
Section 16. Section 13-15-506, MCA, is amended to read:
"13-15-506. Report of the canvass. (1) The secretary of the board shall prepare and file in the official records of his the
office a report of the canvass which that lists:
(a) the total number of electors voting in each county and in each legislative house district and the total in the state;
(b) the name of each individual, including as a name the category "none of the above candidates", receiving votes and the office for which the votes were received;
(c) the number and title of each ballot issue; and
(d) the votes by county and legislative house district and the total votes for each individual, for the category "none of the above candidates", and for and against each ballot issue.
(2) Write-in votes for an individual shall must be entered in the report in the same place as votes of other individuals for
the same office but shall must be identified as write-in votes."
Section 17. Section 20-3-304, MCA, is amended to read:
"20-3-304. Annual election. In each district, an election of trustees shall must be conducted annually on the regular
school election day, the first Tuesday of April. Election of trustees shall must comply with the election provisions of Title
13 and this title. In accordance with [sections 1 through 3], each ballot cast in an election of a trustee must contain
language allowing an elector to vote for "none of the above candidates" if the elector does not vote for an individual for
trustee."
Section 18. Section 20-3-306, MCA, is amended to read:
"20-3-306. Conduct of election. (1) The trustees of each district shall call a trustee election on the regular school election day of each school fiscal year under the provisions of 20-20-201, except as provided in 20-3-344. The trustees shall call and conduct the trustee election in the manner prescribed in this title for school elections and Title 13. Any elector qualified to vote under the provisions of 20-20-301 may vote at a trustee election.
(2) The trustee election ballots shall must be substantially in the following form:
OFFICIAL BALLOT SCHOOL TRUSTEE ELECTION
INSTRUCTIONS TO VOTERS: Make an X or similar mark in the vacant square before the name of the candidate for whom you wish to vote. You may vote for the category "none of the above candidates" listed below a term of office only if you do not cast a ballot for a named candidate for that term of office.
Vote for (indicate number to be elected) for a 3-year term:
[] (List the names of the candidates for a 3-year term with a vacant square in front of each name.)
[] None of the above candidates.
Vote for (indicate number to be elected) for a 2-year term:
[] (List the names of the candidates for a 2-year term with a vacant square in front of each name.)
[] None of the above candidates.
Vote for (indicate number to be elected) for a 1-year term:
[] (List the names of the candidates for a 1-year term with a vacant square in front of each name.)
[] None of the above candidates."
Section 19. Section 20-15-220, MCA, is amended to read:
"20-15-220. Trustee election ballot. (1) The trustee election ballot must be substantially in the following form:
Official Ballot Community College Trustee Election Instructions to Voters
Make an "X" or similar mark in the vacant square before the name of the candidate for whom you wish to vote. You may vote for the category "none of the above candidates" listed below a term of office only if you do not cast a ballot for a named candidate for that term of office.
Vote for (indicate number to be elected) for a 3-year term.
[] ................ List the names of the candidates for the 3-year term with a vacant square in front of each name.
[] None of the above candidates.
Vote for (indicate number to be elected) for a 2-year term.
[] ................ List the names of the candidates for the 2-year term with a vacant square in front of each name.
[] None of the above candidates.
Vote for (indicate number to be elected) for a 1-year term.
[] ................ List the names of the candidates for the 1-year term with a vacant square in front of each name.
[] None of the above candidates.
(2) In preparing the ballots, only those portions of the prescribed ballot that are applicable to the election to be conducted need be used. The ballot must also be prepared with blank lines and vacant squares in front of the lines in a sufficient number to allow write-in voting for each trustee position that is subject to election."
Section 20. Section 20-20-415, MCA, is amended to read:
"20-20-415. Trustees to canvass votes. At the first regular or special meeting of the trustees conducted after the receipt of the certified tally sheets of any school election from all the polls of the district, the trustees shall canvass the vote. In an election of trustees, votes cast for the category "none of the above candidates" must be tallied in the same manner as votes for named trustees."
Section 21. Section 20-20-416, MCA, is amended to read:
"20-20-416. Certificate of election. After the canvass of the total votes cast, the trustees shall issue a certificate of
election. In the case of a trustee election, the certificate shall must be issued to the elected trustee and the county
superintendent designating the term of the trustee position to which he the trustee has been elected. In the case of an
election on a proposition, the trustees shall issue a certificate specifying the outcome of the election. The certificate shall
must be issued to the official or public body which that ordered the election within 15 days after the election. When the
election has been ordered by resolution of the trustees, the canvassed results, including the number of votes cast for the
category "none of the above candidates", shall must be published immediately in a newspaper that will give notice to the
largest number of people of the district."
Section 22. Section 76-15-303, MCA, is amended to read:
"76-15-303. General election -- election by acclamation -- appointment. (1) All qualified electors within the district are eligible to vote in the election.
(2) Except as provided in subsection (5), the candidate or, if more than one supervisor position is to be filled by the general election, the candidates who receive the largest number, respectively, of the votes cast in the election are the elected supervisors for the district.
(3) In the general election, the names of the individuals nominated must be printed, as provided under 13-12-205, upon ballots, with a square before each name and a direction to insert an "X" mark in the square before any three names to indicate the elector's preference. However, the language "none of the above candidates" is not required to appear on the ballots.
(4) The election administrator in each county shall prepare suitable nonpartisan ballots or place the names of candidates on the regular general election ballot in the same manner as other nonpartisan candidates for the election of supervisors. The ballots must be delivered to the election judges in those precincts that contain registered electors prior to each general election and each primary election, if necessary. The election judges and other election officials in the precincts shall submit the ballots to qualified electors, conduct the election, and tabulate the results of the election in the manner provided in Title 13.
(5) (a) Except as provided in subsection (5)(b), if the number of candidates nominated is equal to or less than the number of positions to be elected, the election administrator shall give notice that an election will not be held.
(b) The governing body may require that an election be held if, not more than 10 days after the close of filing by candidates, the governing body passes a resolution to hold an election and notifies the election administrator.
(c) If an election is not held, the governing body shall declare elected by acclamation the candidate who filed a nominating petition for the position. If a candidate has not filed a nominating petition for the position, the governing body shall make an appointment to fill the position."
NEW SECTION. Section 23. Codification instruction. [Sections 1 through 3] are intended to be codified as an integral part of Title 13, and the provisions of Title 13 apply to [sections 1 through 3].
NEW SECTION. Section 24. Effective date. [This act] is effective on passage and approval.
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