Judge orders redo of Fort Shaw Irrigation District’s 2023 election

Posted on October 14, 2024 by Jenn Rowell

A district court judge has ordered Cascade County and the Fort Shaw Irrigation District to redo the May 2023 election.

Judge David Grubich ordered a redo of the election for districts 2 and 4, which he wrote that the district “concedes…were flawed and agree the appropriate remedy is to have a special election.”

The district 5 election was flawed, but the issue is moot because it was a one-year term which was on the May 2024 election.

Terry Thompson, county election administrator, told The Electric that she has set the special election for Feb. 25, 2025 and that the Fort Shaw district will pay the election cost since it was also at fault for the election flaws.

In his order, Grubich wrote that he was voiding the results of those two seats in the Fort Shaw election and that “regarding ballot irregularities involving Cascade County and Sandra Merchant, those issues have been mooted by
ordering special elections.”

Grubich’s order closes a lawsuit filed against the county, Fort Shaw Irrigation District and Merchant, county clerk and recorder, that was filed in late May 2023 over issues in the May 2, 2023 election that also prompted complaints from Great Falls Public Schools, Sun River Valley School District, the West Great Falls Flood Control and Drainage District and promoted the Great Falls Public Library board to seek court action for an election monitor for their levy election that was in June 2023.

Steve Potts filed suit on behalf of Elliot Merja, Riley Denning, and Timothy and Laurie Miller.

Potts wrote that he had contacted counsel for the district, who opposed the motion; and counsel for Cascade County and Sandra Merchant, who didn’t take a position “with respect to whether a new election should be conducted. However, they oppose any suggestion that Cascade County should be responsible for the costs of such re-election,” according to the filed motion.

Court documents allege further errors with a 2023 special election; ask court to order redo

In the original complaint, Merja, Denning and the Millers allege that the county, Merchant and two special districts violated multiple provisions of state law.

Merja and Denning are voters in Fort Shaw. The Millers are voters in the flood district.

The flood district portion of the lawsuit was dismissed earlier this year.

County board certifies May 2 special district elections

In the case of the Fort Shaw Irrigation District, Merja and Denning own irrigable land within the district and were candidates for the district’s board on the May 2 ballot.

They allege that Merchant, the county and the district violated state law by incorrectly instructing voters and not sending ballot to all eligible voters.

Potts filed a motion March 6 requesting summary judgment in their case against the district and Cascade County over 2023 election errors, arguing that the mistakes were in the Fort Shaw election in part due to former county employees.

The canvass board in May 2023 included County Commissioners Jim Larson and Rae Grulkowski and Clerk of Court Tina Henry.

During the county canvass of the May 2, 2023 election, two people, including Merja, said Grulkowski should recuse herself from the canvass since she was working in the election office leading up to the election.

Carey Ann Haight, deputy county attorney, said that she didn’t think Grulkowski needed to recuse herself since the canvass board’s role is narrow and ministerial in reviewing the results as presented by Merchant.

Potts sent a letter to county commissioners that May asking them not to certify the results and to redo the election.

“This election has been so misdone it is amazing,” Merja said. “This election was run as such a farce that it should not stand.”

Haight said the canvass board has limited jurisdiction and can’t determine the legality of elections.

In their suit, Merja and Denning argued that the Fort Shaw Irrigation District refused to accept valid change documents regarding qualified voters and/or designated agents at least 14 days prior to the election; failed to notify the election office within four days of receiving those documents and failing to provide necessary information regarding those changes so the election office could administer the proper ballots.

In the suit, Merja and Denning allege that Merchant and the county violated state law by mailing ballots on April 20-21; not providing signature and secrecy envelopes.

In their brief submitted March 6, they argue that Lynn DeRoche, former county elections employee, provided incorrect information to Merchant and Charla Merja, clerk of the Fort Shaw Irrigation District.

They argue that state law changed in 2019 to eliminate the requirement that those who co-own property in the district must designate the person who will vote on behalf of those acres.

They argue that DeRoche provided a sample letter from previous elections that included language indicating those designations were required.

The district sent letters with that requirement.

The current law requires that if there’s a change in the designated agent, a new signed document must be presented to the district and “the list of designated agents compiled under this section must be maintained and certified by the irrigation district to ensure that only one vote is cast on behalf of each acre or fraction of an acre.”

Merja and Denning had designations on file previously so shouldn’t have required new forms, according to the lawsuit.

In his brief, Potts wrote that the district never produced the list of designated agents required by law in 2021 “so it is safe to assume it had not maintained such a list.”

Merja and Denning both indicated in their court filings that they had voter designations on file from before the 2019 law change, but did not indicate if they had noticed or raised the issue of the the incorrect language in the letter sent by the district for the 2021 election.

In his order, Grubich wrote that both parties asked the court to resolve their dispute over the interpretation of state law.

The court found that the Fort Shaw Irrigation District failed to maintain a list of voters as required under state law.

He wrote that “to prevent future confusion and dispute among the parties, the court will interpret” the section of law that states, “prior to voting, the agent of a corporation, a single owner or the co-owners, the co-owner designated for the purpose of voting, or the purchaser of land under contract of sale shall file with the secretary a written document indicating the agent’s authority, executed and signed by the proper officers of the corporation, by the single owner or co-owners, or by the owner of land under contract of sale, and upon filing, the agent or co-owner or purchaser is an elector within the meaning of this part.”

Grubich wrote that the court’s interpretation of the statute is that “in order to be an elector, the co-owners must initially file a document indicating their authority as co-owners to vote. If the co-owners have already filed one, then there is no need to file a new document of authority each election unless there is a change in how the co-owners decide to vote, i.e., if they decide to designate one co-owner to vote or decide to undo such a designation” and that “the district must maintain the list of voters and provide notice to the voters at the time of notice of an election that if there is a change in designated agent – whether it is an agent of a corporation, a change in how co-owners want to vote their shares, or a purchaser of land under sale of contract – the voter(s) will need to provide a new signed document indicating the authority to vote.”

For background information on this lawsuit and elections in Cascade County, see our previous coverage:

County settles for $52K over claim of discrimination in hiring election administrator

County preparing for November election, concern over write-in candidate stickers

One GFPS board seat, Fort Shaw Irrigation District on May 7 ballot; petition to restore election duties to clerk’s office fails

County opts to move print shop from clerk to commission office, following elections split

County chooses Thompson as new election administrator

Montana Secretary of State weighs in on Cascade County election administrator hiring process

County officials discussing elections operations after removing duties from clerk’s office

County Commission votes to strip election duties from clerk and recorder’s office

Briggs proposes removing election duties from county clerk’s office

Library lawsuit closed, election invoice not yet received

Library election lawsuit hearing moved up to May 18