Montana Attorney General Opinion 15-618

Opinion No. 618 Elections-Ballot, AITangement of -Independent Candidates. HELD: An independent candidate for office is entitled, if it be possible. to have his name appear on the hallot horizontally in line with the names of party candidates seeking the same of- fice he is seeking. October 3, 1934. Your request for our opinion is as follows: "Section 681 of the Revised Codes of Montana provides for the form and arrangements of the names of the candidates upon the ballot, showing by the sample ballot gh'en that the names of the candidates of the various pa rties shall be placed in vertical columns with the opposite candidates' names opposite each other horizon- tally. "It seems as if local prejudice or convenience of the publisher of the ballots may set the provisions of the law pertaining to such matters aside as shown by a sample ballot of the 1932 general election submitted here- with .. My opinion at the time of the printing of said ballot was and still is that it was not in legal form. There will he a number of independent can- (Hdates again this year and I am of the opinion that they are entitled to ha ve their respective names directly opposite those of their respective op- ponents for the same offices. May I ha ye your opinion 1" Sect~on 681, Revised Codes, 1921, provides: "681. Ballots prepared under the provisions of this chapter must be white in color and of a good quality of l)aper, and the names must be printed thereon in black ink. The bal- lots used in anyone county lllUSt be uniform in size, and every ballot must contain the names of every candidate whose nomination for any special of- fice specified in the ballot lIas been certified or filed according to the pro- yisions of law, and no other names. The list of candidates of the several parties shall be placed in separate colulllns of the ballot, in such order as the authorities chal'ged with the printing of the ballots shall decide. As near as possible the ballot shall be in the following form: 424 OPIXIONS o:B' THE ATTORNEY GENERAL DEMOCRATIC REPUBLICAN LABOR PARTY For Governor: For Governor: For Governor: 0 .J oseph K. Toole 0 John E. Richards 0 Fred Whiteside 0 0 0 For Lieut. Governor: For Lieut. Governor: For Lieut. Governor: 0 Frank C. Higgins 0 Alex C. Botkin 0 0 0 0 For Sec. of State For Sec. of State For Sec. of State 0 Geo. M. Hays 0 Louis Rotwitt 0 W. R. Allen 0 0 and continuing in like manner as to all candidates to b~ ,'oted for at such election." "683. Below the names of candi- dates for each office there must. be left a blank space large enough to contain as many written names of candidates as there are persons to be elected. There must be a margin on each side of at least half an inch in width, and a reasonahle space between the names printed thereon. so that the yoter may clearly indicate, in the way hereinafter provided, the candi- date or candidates for whom he wishes to cast his ballot." It would seem from the diagram in Section 681 and the language of Sec- tion 683 that where one political part~· has not and another political party has a candidate for a particular office, it was the intention of the legislature that the space underneath the desig- nation of such office in the column of the political party without a candi- date should equal the space underneath the designation of such office in the column of the political party with a candidate, and that the designations of the office next succeeding it on the ballot should be in line clear across the ballot. The legislative intent, once ascertained, must be given effect when- ever possible. (Conley v. Conley, 92 Mont. 425; 59 C. J. 948.) Moreover, statutory provisions relating to the ar- rangement of the tickets on the ballot are mandatory (State v. Marshall County, 78 N. E. 1016; 20 C. J. 143) and must. be substantially complied 0 with. (State ex reI. Hay v. Alderson, 4!) i\font. 387; 60 C. J. 977_) \Ve know of no sound reason why the form of the ballot prescribed for part~' candidates should not apply also to an independent candidate so far as the position of his name in the hori- zontal rather than the columnar sense is concerned. In other words, if it be pOSSible, his name should appear on the ballot in line with the name of party candidates seeking the same office as he is. That some time or another so many independent candidates may com- pete for the same office as to make the ballot cumbersome does not militate particularly against this view. \Ve do not wish to be understood as implying that a departure from the law on the part of a county clerk in preparing the official ballot may im- peril the right of a person to an office for which he receives the highest num- ber of votes at the general election. Such departure must be corrected, if a t all, before the election is held. (State ex reI. Brooks v. l!'ransham, 19 Mont. 273; Atkinson v. Roosevelt County, 71 i\font. 165; 20 C .. J. 152, See, also, Chi- cago, etc. R H. Co. v. Fallon County, 95 Mont. 568, and Tipton v_ Mitchell, 97 Mont. 420, 35 Pac. (2d) 110.)