August 15, 1985

Mr. Roger A. Schiager 
Office of City Attorney 
610 Security Building 
101 South Main 
Sioux Falls, South Dakota 57102

OFFICIAL OPINION NO. 85-32

Municipal election

Dear Mr. Schiager:

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

FACTS: 

At an election for a change of government in Sioux Falls, the electorate voted in favor of changing from a three-commission form of government to a five-commission form of government.  Sioux Falls does not have a city manager form of government.

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

QUESTION: 

How must the upcoming election for the four commissioner positions be structured?

As you correctly noted, pursuant to SDCL 9-11-9, an entirely new board must be elected.  Candidates may run specifically for the Office of Mayor and as specified in SDCL 9-9-1, must run at large for the four commission positions.

SDCL 9-13-26 does require that in municipalities of the first and second classes a candidate must receive a majority of votes cast in order to be elected.  If no candidate receives a majority, as is likely given the present set of facts, a secondary election will be necessary.

SDCL 9-13-27 provides as follows: 

In municipalities of the first and second classes, if no candidate receives a majority of the votes cast, a secondary election shall be held two weeks from the date of the first 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.  Such secondary election shall be held at the same polling places, be conducted, returned, and canvassed, and the result declared and entered upon the journal of the city in the same manner as the first election.  The person receiving the highest number of votes at such secondary election shall be elected.

It thus appears that, pursuant to SDCL 9-13-26, only the candidate receiving a majority of all votes cast will be elected. Given that there are four vacancies to be filled at the upcoming election, this is not likely to occur.  It will be necessary to conduct a secondary election.  While SDCL 9-13-27 only provides that the top two candidates shall run in the secondary election, the general thrust of this statute is that the top two candidates for each available position stand for the secondary election.  Thus the secondary election would include the top eight candidates.

SDCL 9-13-27 does not require a majority vote to elect a candidate running in a secondary election; all that is required to be elected at this stage is the highest number of votes.  Thus it appears that the four commission  positions will have to be elected in a two-stage proceeding.  The purpose of the first election, held pursuant to SDCL 9-13-26, will be to narrow the field of candidates to the top eight.  The secondary election will then determine, by the number of votes, which candidates will be elected.

If a candidate does receive a majority of the votes at the first election, a secondary election will still be necessary to determine the outcome of the three remaining positions.  In that case, the secondary election will only include the top six candidates for the three remaining positions. Obviously, the State would be well served if this rather ambiguous set of statutes were clarified by legislative enactment.

Respectfully submitted,

Mark V. Meierhenry
Attorney General