16 February 2022

A rare case in which votes cast illegally
may have changed an election’s outcome

By James Conner

Because so few votes are cast illegally, those votes almost never affect the outcome of an election. But in Dodson, Montana, a community of 125 located along Highway 2 just northeast of the Fort Belknap Reservation, two fraudulent votes may have determined the outcome of a municipal election last November in which the incumbent mayor was re-elected 21–19.

After the election, investigators found that two Dodson elementary school teachers, Grace O. Albia and Jannet Benitez Zeta, both citizens of the Phillipenes, neither a citizen of the United States, had registered to vote, and had voted in the election.

According to a press release from Phillips County deputy county attorney Dan O’Brian, Albia and Zeta have been charged in justice court with “Deceptive Election Practices.” When O'Brian released his statement a week ago, the women did not have an attorney.

Two issues arise from the incident: (1) Did the Albia’s and Zeta’s votes account for the winner’s margin of victory, and if so, what remedies, if any, are available for the loser? (2) Why did the women register to vote despite knowing they were not U.S. citizens?

Was the election won by votes that should not have been cast?

In two of the three cases to consider, the votes cast illegally would not have affected the election’s outcome.

1. Both votes were cast for the winner, accounting for the margin of victory. Subtract those votes and the election is a tie, requiring invoking a tiebreaker to determine the winner.
2. Both votes were cast for the loser. Subtracting those votes would not change the outcome of the election.
3. One vote was cast for the winner, one for the loser. Subtracting those votes would not change the outcome of the election.

Although the allegation of fraud leaves the outcome of the election in doubt, the election has been certified and the winner — who may have won the majority of the legitimate votes — has taken the oath of office. The defeated candidate could decline to challenge the election, but according to news reports he wants a recount or a new election.

A recount would not be able to exclude the two ballots cast illegally, so what the loser really wants is a count of all the ballots cast legally. But because there is no way to separate those ballots from the two illegal ballots, a recount is not a remedy. Whether a court can order a new election is something O'Brian and others doubtless are researching.

There may be another remedy. The election was conducted by secret ballot. Insofar as I know, Albia and Zeta cannot be compelled to disclose the candidates for whom they voted. But they can provide that information voluntarily in a sworn statement.

If both did not vote for the winner, their votes did not affect the outcome of the election.

If their votes did account for the winner’s margin, then the votes cast legitimately would have resulted in a tie. Title 13, Chapter 16, Part 5, of the Montana Codes Annotated mandates how to determine the winner of a tied election. With one exception, ties are not broken by the flip of a fair coin or its functional equivalent. (I believe that Montana should break all ties by flipping a fair coin.)

If the women agreed to provide sworn statements revealing the candidates for whom they voted, and the candidates agreed to accept those statements as the truth, then only a tied vote would force the candidate who lost the certified election to accept or challenge the election.

(My gut tells me the women probably voted for the same candidate.)

Why did two foreign nationals register to vote?

According to news reports, both women are elementary school teachers in the Dodson school system, where the student body is approximately 95 percent Native American. That the women have college degrees, are competent in English, and know their immigration status, are reasonable assumptions. So why did they sign a voter registration form that at its top states clearly that an applicant must be a U.S. citizen to register to vote?

This may not be a straightforward case of voter fraud. There are, it seems to me, at least six possible explanations for the women’s illegal registrations:

1. They signed without reading fully a form filled out by someone else, perhaps someone working for a voter registration drive.
2. Someone hornswoggled them into registering.
3. They were blackmailed into registering.
4. They accepted money to register.
5. They decided to register knowing full well they were committing fraud.
6. They may have had good reason to believe they could register to vote legally and to vote legally.

One possible complication is Dodson’s proximity to the Fort Belknap Reservation. Was voter registration there involved?

Humans are wired to seek closure, and as a survival mechanism, to draw conclusions from an incomplete set of facts. Thus we tend jump to conclusions when we should await more facts.

Investigators may not immediately unearth all the relevant facts. And if they get stonewalled by the women and/or other parties, the whole truth never may be known. Meanwhile, they may be in trouble with immigration authorities, and the Dodson school district may need to hire replacement teachers.