April 19, 1977

Mr. Russell C. Molstad 
City Attorney 
1147 Sherman - Municipal Building 
Sturgis, South Dakota 57785

Official Opinion No. 77-32

Municipal elections

Dear Mr. Molstad:

You have requested an official opinion based upon the following factual situation:

FACTS: 

At the recent municipal election held on April 12, 1977, in Sturgis, South Dakota, three persons were competing for the position of alderman for the second ward.  None of the persons received a majority of all the votes cast as required by SDCL 9-13-26.  The electors cast 177 votes for the leading candidate and the other two candidates received 122 votes each.
    
SDCL 9-13-27, as amended, provides that in cities of the first class such as Sturgis, if no candidate shall receive a majority of the votes cast, there shall be held upon the fourth Tuesday of April a secondary election. At such secondary election the only persons voted for shall be the two candidates receiving the highest number of votes at the first election.  The statute then provides that the person receiving the highest number of votes at such secondary election shall be declared elected.

QUESTION: 

In view of the fact that two of the contestants each received the same number of votes, and thus not leaving two candidates with the highest number of votes, but three candidates in number, should all three candidates be voted on at the secondary election?

Assuming that the official canvass held on April 15, 1977, did not change the vote totals above referred to, it is my opinion that all three candidates be placed on the ballot for the secondary election.

It is only logical to interpret SDCL 9-13-27 in such a way that when there are three candidates receiving the highest number of votes at the first election, all three candidates must have their names on the ballot for the secondary election.  In your factual situation the first candidate received 177 votes and the second and third candidates received 122 votes apiece.

Therefore the answer to your question is yes and I agree with your conclusion.  In addition, I do point out the final sentence of SDCL 9-13-27:
    
The person receiving the highest number of votes at such secondary election shall be declared elected.

This final sentence found in SDCL 9-13-27 only requires a plurality and thus the secondary election will determine the winner.

Respectfully submitted,

William J. Janklow
Attorney General

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