Montana election results: Tester by a whisker...no recount likely.

As I write this at 8:00 am Mountain time on November 8th, Jon Tester leads the U.S. Senate race in Montana by 1,735 votes out of 398,259 votes cast. Since I am an attorney who has practiced law in Montana for over 20 years, I thought I should post my take on this election result, since control of the Senate hangs in the balance.

The only county that has not yet reported is Meagher County. This county is heavily Republican. In the 2006 primary, Repubs garnered about 397 votes, and Dems only 116. This county will likely come in with about a 300-400 vote margin for Burns.

Once Meagher County is counted, Tester will likely only be ahead by about 1,300 to 1,400 votes.

Next, they will need to be a count of any provisional ballots. Then we will need to look again at the margin of difference.

The results may not be close enough for a recount. Montana law on recounts states as follows:
Montana Code Section 13-16-201:
"a candidate ... defeated by a margin not exceeding 1/4 of 1% of the total votes cast for all candidates for the same position, and the defeated candidate, within 5 days after the official canvass, files a petition with the secretary of state as set forth in subsection (1)(a). The secretary of state shall immediately notify by certified mail each election administrator whose county includes any precincts that voted for the office, and a recount must be conducted in those precincts."

With a current margin of 1,735 out of 398,259 votes cast, the margin is 4/10s of 1%...too wide for a recount. If Meagher County reduces the margin to 1,400, that would still be .35 of 1%. The margin between the candidates would need to drop to about 996 votes to trigger a recount.

There are also provisions for a court mandated recount.
13-16-301. "Application and court order for recount. (1) (a) Within 5 days after the canvass of election returns, an unsuccessful candidate for any public office at an election may apply to the district court of the county where the election was held for an order directing the county recount board to make a recount of the votes cast in any or all of the precincts. If the election was held in more than one county, the application shall be made to the district court of the county where the candidate resides....
(2) The application shall specify the grounds for a recount and be verified by the applicant that the matters contained in it are true to the best of the applicant's knowledge, information, and belief.
(3) Within 5 days after filing of the application, the judge shall hear the application and determine its sufficiency.
(4) If the judge finds there is probable cause to believe that the votes cast for the applicant or the ballot issue were not correctly counted, he shall order the appropriate county recount board to assemble within 5 days after the order is issued at a time and place fixed by the order. The board shall meet and recount the ballots as specified in the order."

So in Montana, there should not be a recount UNLESS there is probable cause to believe that the votes cast were not counted correctly.