April 16, 1986

The Honorable Alice Kundert 
Secretary of State 
State Capitol 
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 86-13

Age of Candidate

Dear Miss Kundert:

You have asked for an official opinion from this office based upon the following factual situation:

FACTS: 

On April 7, 1986, this office received a telephone call from Wesley D. Bingham stating that questions had been raised locally regarding his eligibility to be a candidate for state representative, District 6, in the Republican primary.  Mr. Bingham stated that he would not be 25 years of age until January 24, 1987. 

Mr. Bingham's nominating petitions were received in this office on March 13, 1986, and contained sufficient signatures to certify his name on the primary ballot according to standard procedures.  At the time his petitions were received, we accepted his sworn declaration of candidacy.

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

QUESTION: 

Because Mr. Bingham will not be 25 years of age on January 5, 1987, when the newly elected legislators are required to take office, nor by January 13, 1987, which is the regularly scheduled opening day of the legislative session, is he entitled to be on the primary election ballot?

In answer to your question, let me first say that it is the South Dakota House of Representatives which has the constitutional power to judge the  'qualifications of its own members.'  Art. III, §  9 of the South Dakota Constitution.  Therefore, my answer is tempered by the knowledge that only the South Dakota House of Representatives has the power to decide this issue.

My opinion, however, is that Candidate Bingham's name should remain on the election ballot in view of SDCL §  3-1-2, reading as follows: 

Except as otherwise expressly provided, all state, district and county officers shall qualify and enter upon the duties of their office on the first Monday of January succeeding their election or within twenty days thereafter.  (Emphasis added.)

Since the first Monday in January in 1987 is January 5, a candidate who is 25 years of age by January 25, 1987, is qualified to serve in the South Dakota legislature (Art. III, §  3 of the South Dakota Constitution) and may take the oath of office.

As to whether the voters of House District #6 are well served by the election of a legislative candidate who cannot legally participate in the legislative process until some ten days following the convening of the legislative session, is a political question to be answered by the voters of House District #6.  It is not a legal impediment to Candidate Binghan's right to run for legislative office.  The risk that the seat would be declared vacant upon the opening of the legislature and a different person be appointed also exists.  I, however, reiterate my opinion that Candidate Bingham's name may remain on the election  ballot.

Respectfully submitted,

Mark V. Meierhenry
Attorney General