Rick Jore’s Montana Nightmare: CP Candidate’s Victory Stolen, Bank Account Attacked, Property Ownership Jeopardized
We were looking forward to Election Day, November 2, 2004. Two months of steady campaigning by going door to door, attending forums, designing newspaper and radio ads, letter writing and stuffing envelops had come to a close and it was a welcome relief. Little did we know that we wouldn’t know the results of the election for two additional months and that the uncertainty, frustration, and stress would only increase rather than end.
The last results from the elections office late on election night indicated that I was tied with the Democrat at 1,555 votes with the Republican tally at 1,106. When an absentee ballot that had been placed with the provisionals was counted, I was ahead by one vote. During the day after the election, my phone began to ring off the hook. I came home from the elections office to numerous phone messages from Republican leaders offering whatever help I needed. I was somewhat intrigued by this. It wasn’t until I returned a call to the prospective Republican Speaker of the House that I learned the balance of the House sat at 50 Republicans, 49 Democrats and myself.
The provisional ballots had not yet been counted as there is a twenty-four hour period allowed for voters who had voted on these ballots to “validate” their ballots with the elections office. A total of seven provisional ballots ended up being validated in HD 12. When these seven ballots were tallied on the Monday following the election, the vote was 1,559 for me, 1,557 for the Democrat and 1,107 for the Republican.
One provisional ballot did not mark any candidate in HD12.Montana law requires a hand recount in close elections if requested by a candidate. Once the Secretary of State canvassed the entire statewide election results, a recount was scheduled. It took place November 29 and 30.
I learned that hand recounts are a very tedious process. The recount board (all elected officials consisting of two Republicans and one Democrat), myself, the Democrat’s husband/lawyer, and several others looking on, reviewed each of the over 4,200 ballots for HD12. The hand recount took two full days and ultimately the vote ended up a tie; 1,559 votes for each of us. Two votes were counted for the Democrat that had not been tallied on election night because they were double marked ballots. The hand recount revealed that seven “double marked” ballots had been counted for me and a total of four had been counted for the Democrat. There were other double marked ballots that were declared “overvotes” because the intent of the voter could not be determined. An “overvote” is not counted for any candidate.
I had never pondered the notion of so-called “double marked” ballots but before this saga would end, I would know more about them than I’d ever care to know. The recount exposed several dozen of these marks on ballots in several races and ballot issues. A double marked ballot is where the voter fills in an oval on a paper ballot and then changes their mind or for some reason decides that they do not want to mark that oval. Typically the voter will cross out, try to erase or write a word or mark that indicates they do not want that vote to count and then fills in another oval.
Pencils in the voting booth do not have erasers.Ideally, voters would simply get a new ballot rather than try to correct their vote but because that doesn’t happen in every case, the law in Montana requires that “each questionable vote on a paper ballot … must be counted if the voter’s intent can be clearly determined and agreed upon by a majority of judges on the counting board …” (MCA 13-15-206) This same law requires the Secretary of State to develop rules for election officials and recount boards to use in determining voter intent on double marked ballots. (These election laws have been implemented in most states since the Bush vs. Gore controversy in Florida during the 2000 election and the federal Help America Vote Act (HAVA). In the end, these “double marked” ballots became the justification for the Democrats to challenge the election.
Having seen every ballot cast in HD 12 and having considered the wording of the law and the rules established by the Secretary of State, I was completely satisfied with the vote count. I believe it was precise. Every decision by the recount board on contested ballots was unanimous, save one. On that ballot, about a third of the oval was filled in for the Republican while the oval for me was entirely filled in. One member of the board voted to count that vote for me while the other two said it was an overvote. In the end, with the two ballots added for the Democrat, the hand count was exactly what the machine count was. The tie vote and the fact that the balance of power in the Montana House was at stake, led to some legal wrangling by the Democrats.
In cases of tie votes for the legislature, Montana law establishes that the sitting Governor appoint one of the candidates. Rather than let this statutorily established process play out, the Democrats filed a restraining order in District Court in Helena against the Secretary of State and the Governor, preventing them from certifying the election results and making an appointment. (Their assumption was that the governor would appoint me rather than the Democrat since the balance of power in the House was at stake.
Indeed, with the Democrats taking both the Senate and the Governors office, the balance of the entire government of Montana was at stake.) Simultaneously, they filed an action with the Montana Supreme Court asking them to rule on the seven double marked ballots that they were contesting. Quite frankly, we were astounded by their disrespect or ignorance of the rule of law regarding the proper procedure in this case. The Supreme Court and the District Court ruled against them, requiring that they follow the law and file their complaint in Lake Count District Court.
With the rulings by the Supreme Court and the Helena District Court going against the Democrats, the processes reverted back to the statutorily established procedures. This required the Governor to make an appointment before the Lake County District Court could hear the case. On Wednesday, December 15 I received a call from Governor Judy Martz informing me that she had appointed me to fill the seat.
Since the Democrat is not an actual elector in HD 12 (she lives outside the District) and Montana law requires that anyone challenging an election must be an elector in that particular election, the Democrats recruited a tribal woman, Anita Big Springs to file the suit. One very frustrating aspect of this whole situation is that the suit had to be filed against me. I didn’t count the ballots, I had no authority to rule on the ballots, but I’m the one that got sued. I received a call from the executive director of the Montana Republican party the day after the election recommending a specific attorney and indicating they would be willing to foot the bill since the Republicans had as much or more at stake as myself. With this backing, I decided to go ahead and retain this attorney. These were two firsts for me; the first time I was ever sued and the first time I’ve ever had to hire a lawyer.
We ended up having only a few days to prepare for the District Court hearing. It was a three hour hearing that took place on December 17 and the judged issued a ruling the same day.
The District Court Judge ruled entirely in my favor, siding with the Resolution Board and the Recount Board in stating that not only were the laws and rules followed precisely, but that “common sense” prevailed. However, the Democrats immediately appealed to the Supreme Court.
Montana’s Supreme Court is notoriously leftwing. I recently learned that it has overruled District Court rulings more often than almost any other state Supreme Court. In retrospect, I think the Helena lawyer that represented the Democrat knew all along that he could count on the Supremes to rule in his favor. This lawyer is a partner in the same law office in Helena as Terry Treweiller, a former Supreme Court Justice himself who is probably as far left as they come.
I received the news that the Supreme Court had overturned the District Court on December 28 from a reporter with the New York Times. The brief “order” by the Supreme Court stated “we hold that one or more of the ballots at issue are invalid.” It also said that “a full written and published opinion to follow at a later date.” The bottom line at this time is we don’t know what ballot or ballots are invalid or for what reason. The order also declared Windham the winner since only one of the ballots being invalidated would break the tie.
To include all the intriguing details of this story would make it too lengthy. Certainly, the disappointment we feel is countered by the voluminous media coverage and publicity received for the Constitution Party in Montana. We have been receiving support, encouragement, and requests for information from all around the State (see editorials below, please). Locally, it appears the disgust with the Supreme Court has inspired many to speak out. Additionally, the forthcoming full opinion from the Supreme Court is much anticipated across the state and is expected to be heavily scrutinized, as it could impact future elections. For my part, I am anxious to see exactly how the Supreme Court intends to justify this order with their written opinion. The opinion must explain how the elections office, the recount board, and the District Judge violated the law and it appears to me that they will be exposing themselves to much critique.
Editorial in the “Missoulian,” September 25, 2005.We chatted with a prominent western Montana Republican the other day about the plight of Rick Jore, the former GOP lawmaker from Lake County who ran for the Legislature as the Constitution Party candidate last November, almost won the election but - once the Democrats and courts finished with him - wound up losing his bank account and possibly his property.
Headline: Don’t idly accept election injustice
Summary: Political establishment won’t stand up for Rick Jore. Will you?
“He’s getting what he deserved for bolting the (Republican) Party,” the politician said, at least half-kidding.
There’s no kidding around among Democrats with whom we’ve discussed the injustice visited upon Jore. They’re as stern and determined as an old-school packer disciplining a recalcitrant mule. Democrats righteously point out that Jore’s attorney refused the Democrats’ suggestion at the outset of the dispute that neither side seek to recover legal fees from the other. Besides, he’s a constitutional zealot who goes around quoting James Madison and opposing big government and nannyism. Democrats pretty much agree with our friend the Republican comedian: Jore’s getting what’s coming to him.
What’s coming to him is the shaft. Most politicians understand and acknowledge that. It’s just that they’re glad about it.
As we’ve chronicled in this space (Missoulian editorials Sept. 9, June 19 and May 5) the Montana Supreme Court ordered Jore to pay the legal expenses Democrats incurred unseating him from the House District 12 seat. Lake County officials declared the Nov. 2 election a tie between Jore and Democrat Jeanne Windham. The governor broke the tie by awarding the seat to Jore. Democrats went to court to challenge several questionable ballots that county officials had credited to Jore - ballots marked for Jore but also marked next to the name of a third candidate, the Republican who finished a distant third. A state District Court judge declined to overrule election officials and decide the election outcome herself. The judge ordered the Democratic operative who’d sued Jore to pay his legal expenses. That’s only fair because the Democrat was the one who sued and lost.
Jore didn’t sue anybody. On appeal, the Supreme Court decided county officials had erred in guessing the intent of the voters who cast the confusing ballots, saying the improperly marked ballots should have been discarded. All of this is debatable but reasonable. What’s outrageous is what happened next. The court not only reversed the ruling, but it also reversed the awarding of legal fees. Turnabout isn’t fair play in this instance because, again, Jore sued no one.
Nevertheless, in addition to losing the election, Jore suddenly found himself saddled with over $15,000 in legal fees. That’s in addition to some $28,000 in fees for his own attorney, paid by Constitution Party supporters and Republicans, who’d initially supported Jore in court because the outcome determined control of the House of Representatives. The GOP seemed to lose much of its interest about the time they lost hope of retaining control of the House. Now, as we recently reported, the Lake County sheriff has seized all the money in Jore’s checking account to pay the lawyer. On Monday, District Court Judge Kim Christopher declined to bar the sheriff from seizing or placing liens on Jore’s property to settle the debt to the Democrats’ lawyer.
In the background is this: Neither Democrats nor Republicans want to see Jore’s name on a ballot again. Republicans regard him as a turncoat for switching to the Constitution Party - the worst kind of traitor: one who has the ability to win elections. Democrats suspect Windham’s victory was a fluke - Jore and the Republican candidate combined greatly out-polled the Democrat. They’d much rather run their candidate against someone other than Jore next election. And they dislike his zealous pursuit of constitutional principles even more than the Republicans do.
Aligned with the Constitution Party, Jore is on his own in a state where every other office-holder is a Democrat or Republican. Nobody with any clout is standing up for him.
You could, however. The people of Lake County could call, write and visit their clerk and recorder and county commissioners and insist they take responsibility for the ballot-counting errors that led to this whole fiasco. They could also ask Rep. Windham, who said earlier this year, “a candidate should not be punished for running for office,” if there’s any action associated with those words. Democrats, still giddy about reclaiming state government after nearly 20 years in the minority, can’t hold one more fundraiser to pay the lawyer who helped make their victory complete? People all over Montana ought to be raising hell with legislators, the secretary of state and governor over this mockery of democracy. Surely there’s someone in office who’s bright and brave enough to solve this problem fairly.
The courts insist they’re merely applying the law as it’s written regarding attorney fees. That’s a compelling argument until you remember these same judges and justices never waiver from striking down laws they find wanting but feel compelled to uphold provisions in the law that so clearly violate a fundamental legal principle - that no man should be punished for the actions of another. Let’s remember that in the next round of judicial elections.
Jore ran for office. He didn’t contest ballots. He didn’t sue anyone. He had absolutely no control over the process that stripped him of the seat he so briefly held. Jore’s assets are on the line and he’s pretty much powerless to protect them. He may stand alone among politicians, but he’s hardly the only one with anything to lose. Ultimately, elections are for the people, not the politicians. A corruption of the process hurts us all. This perverse application of the “loser pays” principle turns us all into losers and we’ll all pay in some fashion - if nothing else, by cashing in a little of our sense of decency, fairness and political idealism. It’s also going to deter potential candidates - especially those who don’t toe the establishment line - from running for office.
But only if the people of Montana stand aside, like their Democratic and Republican leaders, and let injustice prevail.
Editorial in Kalispell’s “The Daily Interlake,” September 14, 2005.Sometimes the legal system produces results that are so wrong-headed and unjust that they demand attention and correction.
Headline: Jore did no wrong; so why should he pay?
That’s the case with the legal bill that’s been thrust upon Rick Jore, a Constitution Party candidate who dared to run for the state Legislature in Lake County last year.
That political race got a lot of attention, of course, because it ended up in court and it ended up deciding the balance of power in the Montana House of Representatives.
What didn’t get a lot of attention were the eye-popping legal bills that Jore received when the case was decided.
First off, the Lake County Sheriff confiscated $543 from Jore’s bank account in Ronan. The bank tapped the last $25 in the account as a fee for the transaction. Then on Aug. 25, District Judge Kim Christopher issued an order directing the sheriff to collect an additional $15,663 to cover various legal bills associated with the 2004 House District 12 election.
One would think that Jore tried to steal the election, through bribery or some other sordid illegal activity, and that he was being forced to pay up for his crime. But that’s not the case. Jore didn’t file any lawsuits. He didn’t cheat. He didn’t hurt anybody. He quite simply did nothing other than run a campaign for public office.
Here’s how it happened: After the November election, it appeared that Jore had tied dead even with Democrat Jeanne Windham. But Windham, with the Democratic Party behind her, filed a lawsuit challenging the validity of several ballots that had been twice marked, for Jore and a third candidate in the race.
Judge Christopher ruled that county election officials had the authority to determine the validity of ballots cast in the election. The election thus appeared to be a tie between Jore and Windham, and that gave outgoing Gov. Judy Martz the prerogative to appoint the winner. She picked Jore.
But the matter was not settled. A voter in the district, Anita Big Spring, filed an appeal on Windham’s behalf with the Montana Supreme Court, which ruled the questionable ballots were invalid. The House seat shifted to Windham, the House makeup was split 50-50 between Democrats and Republicans, and Jore was left with the legal bill, even though he was the innocent victim in all this.
Any competent attorney could make an argument that it was the responsibility of county election workers to have sound judgment and immediately disqualify ambiguously marked ballots rather than trying to divine the intent of voters who cast questionable ballots. That was the ultimate direction from the Supreme Court, after all.
But the court was not asked to parcel out responsibility for the mistake, so it didn’t. But we will.
People of all political stripes should be outraged, and demand that Lake County foot the bill, regardless of any feeble, hand-wringing excuses about everlasting struggles with tight budgets. It was the county that held the election that was found to be faulty. Why it was faulty doesn’t really matter anymore. What matters is the obvious: It wasn’t Jore’s fault.
It would also be worthwhile for state lawmakers to consider legislative remedies to prevent anything like this from happening again. The legal bills leveled at Jore have been misdirected, with the potential of discouraging Montanans from seeking public office in the future. It’s hard enough to get citizens involved; the threat of a foreclosure sale on your house if you lose an election won’t help turn that around.
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