August 19, 1985

Ms. Donna Thoms 
Minnehaha County Auditor 
Minnehaha County Courthouse 
Sioux Falls, South Dakota 57102

OFFICIAL OPINION NO. 85-34

Hospital employees "confined" during election

Dear Ms. Thoms:

You have asked this office to provide you with an official opinion on the following questions:

QUESTIONS: 

1.  Are hospital employees who are assigned to critical care units of hospitals (such as intensive care, cardiac care, neo-natal care, etc.) 'confined' within the meaning of that statute so that they can be allowed to vote absentee at their place of employment on election day when (1) their assigned 12-hour work shift prevents them from voting before or after work, and (2) allowing them to leave the hospital to vote during the day is disruptive to work schedules and could cause less-than-adequate care to be provided? 

2.  If in your judgment the answer to 1 is no, such employees are not  'confined' within the meaning of SDCL 21-19-2.1, then is an employer who prohibits such employees from leaving the place of work to vote on election day, (thereby requiring the employees to either (a) vote absentee prior to election day or (b) not vote at all) subject to criminal prosecution pursuant to SDCL 12-3-5?

IN RE QUESTION NO. 1:

SDCL § 12-19-2.1 provides: 

At anytime prior to an election, a voter may apply in person to the person  in charge of the election for an absentee ballot during regular office hours up to 3:00 p.m. of the day of the election. 

In the event of sickness or confinement, a qualified voter may apply in writing for and obtain an absentee ballot by authorized messenger so designated over the signature of the voter.  The person in charge of the election may deliver to the authorized messenger a ballot to be delivered to the qualified voter.  An application for a ballot by authorized messenger must be received by the person in charge of the election before 3:00 p.m. on the day of the election.

In view of the foregoing statute, it is my opinion that the answer to your first question is NO.

IN RE QUESTION NO. 2:

SDCL § 12-3-5 provides: 

Any person entitled to vote at any election held within this state, including a primary election, shall, on the day of such election, be entitled to absent himself from any service or employment in which he is then engaged or employed for a period of two consecutive hours between the time of opening and the time of closing the polls; provided such person does not have a period of two consecutive hours during the time the polls are open during  which he is not required to be present at his work or place of employment. Such voter is not, because of so absenting himself, liable to any penalty, nor may any deduction be made on account of such absence from his usual salary or wages.  The employer may specify the hours during which such employee may absent himself as aforesaid. 

An employer who refuses an employee the privilege conferred by this section or who subjects an employee to a penalty or reduction of wages because of the exercise of such privilege or who directly or indirectly violates this section is guilty of a Class 2 misdemeanor.

The answer to your second question is YES.

Respectfully submitted,

Mark V. Meierhenry
Attorney General