Audit Law Database – Montana

Audit Laws

State Summary

After unofficial results are available to the public in a federal election and before the official canvass, each Montana county audit committee is required to conduct a “random-sample audit.” Mont. Code Ann. § 13-17-503. The random-sample audit must include at least 10% of the precincts in each county or a minimum of two precincts in each county, whichever is greater. The audit must cover elections for two statewide office races, if any were on the ballot, two federal office races, two legislative office races, and two statewide ballot issues, if statewide ballot issues were on the ballot. Prior to the 2023 legislature’s S.B. 197, only 5% of precincts were required to be audited and the number of races was one for each type of race; in 2023, H.B. 172 also added one countywide race to be audited, if requested by the board of county commissioners. If a discrepancy exists between the machine totals and the manual count totals, the audit results replace the machine totals. Mont. Code Ann. § 17-13-507. However, in most cases an audit cannot expand to a full recount (see Addressing Discrepancies).

Unless otherwise specified, statutory references are to Mont. Code Ann. § 13-17-501 et seq. As of this update, the Montana Code Annotated has not been updated online to reflect the 2023 legislature’s changes. Links to the bills are included for reference.

Voting Systems Used

Montana primarily uses hand marked paper ballots with ballot marking devices for accessibility; most counties tabulate ballots using optical scanners, though some jurisdictions with a small number of registered voters hand count ballots. For the most up to date information please visit Verified Voting’s Verifier.

For an explanation on the types of voting equipment used, click here.

Audit Comprehensiveness

The manual audit includes both regular and absentee ballots, but not ballots that scanners were unable to process (and that were unresolved) due to overvoting, blankness, or conditions that prevented processing. See Mont. Code Ann. §13-17-503.. Counties with unofficial final vote totals for a ballot issue or any race, except precinct committee representative, that indicate a tie vote or vote within specified margins for a recount are exempt from the random-sample audit. Mont. Code Ann. § 13-17-503.

Prior to S.B. 254’s passage, counties that hand count their ballots were exempt from the audit. The secretary of state is required to adopt rules for the process to be used for counties that do not use vote-counting machines. See Mont. Code Ann. § 13-17-503.

Transparency

The random selection is made public, and the audit process itself is open to the public. Mont. Code Ann. §§ 13-17-505 and 506. According to guidance from the Montana Secretary of State, “Observers may not be permitted to touch ballots unless specifically permitted by the election administrator or interfere in any way with the hand count.” Montana Secretary of State, Post Election Audit Guide 6 (Updated June 2022).

Audit Counting Method

The audit is conducted manually. Mont. Code Ann. § 13-17-506.

Type Of Audit Units

Montana uses precincts as audit units. See Mont. Code Ann. § 13-17-503.

Contests & Issues Audited

Audits are conducted after federal elections, but may be requested after non-federal elections. See Mont. Code Ann. § 13-17-503. Audits must include two statewide races, if any were on the ballot, two federal office races, two legislative office races, two statewide ballot issues, if any were on the ballot, plus one countywide race, if requested by the board of county commissioners. Mont. Code Ann. § 13-17-503. The statute explicitly prohibits auditing retention elections for judicial candidates and any race in which a candidate was unopposed.

Addressing Discrepancies

If the audit results show a discrepancy of “more than 0.5% of total ballots cast or five ballots, whichever is greater,” and the discrepancy is determined not to be due to administrative or user error, a minimum of three additional precincts—randomly selected as part of the main draw—in that county must be audited for the office or ballot issue in question. Mont. Code Ann. § 17-13-507; see also Mont. Code Ann. § 13-17-505. The audit cannot be expanded to a full recount, with the exception that, if the county has fewer than three additional precincts to audit, all remaining precincts must be audited. If the discrepancy is determined to be due to the tabulator machine and not human error, the machine involved in the discrepancy may not be used in another election until it has been examined and tested by a computer software expert in consultation with a voting system vendor and approved by the secretary of state. Mont. Code Ann. § 17-13-507.

For recount laws, see Citizens for Election Integrity Minnesota website.

Timeline

The contests and precincts to be audited must be selected between seven and nine days following each federal election. Mont. Code Ann. § 13-17-505. The audit must be completed at least one day before the canvass by the county board of canvassers. Mont. Code Ann. § 13-17-506.

Binding On Official Results

In the event of discrepancies between manual audit counts and machine counts, the audit counts replace the machine counts. Mont. Code Ann. § 17-13-507. In most cases an audit cannot expand to a full hand count (see Addressing Discrepancies).

Oversight & Conduct

The secretary of state oversees the audit. The state board of canvassers selects the races, ballot issue, precincts to be audited, and additional possible precincts to be audited. Mont. Code Ann. § 13-17-505. The audit is conducted by a county audit committee, which is made up of at least three individuals appointed by the county governing body. Mont. Code Ann. § 13-17-504. The county election administrator serves as the secretary to the county audit committee. H.B. 172 requires that the secretary of state adopt rules to implement new provisions, including the process for selecting precincts, races, and ballot issues. Mont. Code Ann. 13-17-503.

Ballot Protection

Election judges must seal voted ballots, including those not counted or allowed, in a labeled container and deliver the container to the election administrator before adjourning. Mont. Code Ann. § 13-15-205. The election administrator then submits the materials to the board of canvassers. See Mont. Code Ann. § 13-15-205; see also Mont. Code Ann. § 13-15-301.