October 18, 1985

Ms. Mary G. Keller 
145 3rd Street S.W.
Huron, South Dakota 57350-0097

OFFICIAL OPINION NO. 85-43

Length of time polls must be kept open at township elections

Dear Ms. Keller:

You have requested an opinion from this office in regard to the following factual situation:

FACTS: 

The voters of Clyde Township are interested in replacing one or more members of the Board of Supervisors at their next township election.  In the past, the township meeting has been held at 2:00 p.m. with the polls opening at that time and closing at approximately 4:00 p.m.  This, in effect, disenfranchises many residents and voters because they are employed in the City of Huron and hesitate to request time off from work for these votes.

Based on the above facts, you have asked the following question:

QUESTION: 

Do the voters have any legal basis for a request or demand that the polls for township elections be kept open for a longer period of time; i.e., from 2:00 until 7:00 p.m.?

The statutes governing townships originated in territorial times and have remained practically unchanged to this day.  SDCL 8-3 sets forth the statutes governing township meetings and elections. Section 8-3-14 provides that 'Before the voters proceed to elect any township officer, proclamation shall be made at the opening of the polls by the moderator, and proclamation shall in like manner be made of the adjournment, and of the opening and closing of the polls, until the election ends.'  The statute makes no direct reference  to the specific number of hours the polls must remain open.

As the statutes governing the conduct of township elections furnish little guidance into the actual conduct of said elections, it is my opinion that the electors present at the township meeting could set forth their own particular procedures.  This could be accomplished by electing, pursuant to SDCL 8-3-6, a moderator who would favor keeping the polls open from 2:00 to 7:00 p.m., thus allowing greater access to the polls.

You mention in your factual statement that some workers are reluctant to request time off from work to vote in these township elections.  These individuals should be informed of the provisions of SDCL 12-3-5 which states in pertinent part that employees are not to be penalized for exercising their right to vote. 

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.

Respectfully submitted,

Mark V. Meierhenry
Attorney General