April 18, 1994

Michael E. Sebastian
Attorney at Law
P.O. Box 167
Kimball, SD 57355

OFFICIAL OPINION NO. 94-03

Withdrawal of school board candidate from ballot

Dear Mr. Sebastian:

You have requested an official opinion from this Office regarding the following factual situation:

FACTS:

A candidate for the school board in Kimball, South Dakota, has indicated that she wishes to withdraw her nominating petition.

Kimball School District has agreed to hold a joint election with Kimball City as authorized in SDCL 13-7-10.1, so the deadline for filing petitions has passed.

SDCL 13-7-7 provides a procedure for a candidate to withdraw from nomination prior to the filing deadline. SDCL 13-7-9.1 authorizes cancellation of an election if a candidate dies or withdraws at any time prior to forty-eight hours preceding the opening of the polls and there is no remaining contest to be decided.

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

QUESTION:

In light of the statutes, is it possible to withdraw from nomination after the filing deadline and, if so, what procedure should be followed?

IN RE QUESTION:

Given the time frame set forth in your fact statement, I presume that the school district and the municipality have agreed to hold a joint election pursuant to the dates set forth in SDCL ch. 9-13 (municipal elections). Since they are holding a joint election pursuant to that chapter, it is my opinion, based on SDCL 9-13-1.1, that the relevant filing deadlines, withdrawal dates and provisions for withdrawal are those contained in SDCL ch. 9-13 and that those contained in SDCL ch. 13-7 have no application.

SDCL ch. 9-13 is clear in its provisions. Any candidate is permitted to withdraw prior to the date set out in SDCL 9-13-7.1, which is the same date as the deadline for filing. SDCL 9-13-7. Please note that the section governing withdrawal (SDCL 9-13-7.1) provides that any candidate may withdraw and that the candidate's name will not be printed on the ballot "if it is withdrawn no later than 5:00 p.m. on the second Friday in March." Thus, SDCL 9-13-7.1 allows withdrawal of the candidate at any time prior to the filing deadline. It does not, even in combination with SDCL 9-13-5 (no contest) and 9-13-5.1 (death or withdrawal), allow actual withdrawal after that date. In the absence of the SDCL 9-13-5.1 exception discussed below, no withdrawal of any kind would be permitted after the filing deadline.

As a practical matter, the business manager and other election officials must prepare ballots and carry out their other functions in an orderly manner after the filing deadline. SDCL <185><185> 9-13-12, 9-13-13, 9-13-23, etc. If candidates were permitted to withdraw after the filing deadline, a certain amount of chaos would be inevitable. By making the filing deadline simultaneous with the withdrawal deadline, the Legislature has made certain that the election officials can be assured that the ballot can be finalized and other procedures carried out without unnecessary and disruptive changes in the ballot.

This leads to an examination of SDCL 9-13-5.1. In my opinion, this statute is a limited exception to the prohibition on withdrawals after the filing date has passed. Under SDCL 9-13-5.1, withdrawal after the filing deadline would be permitted if the withdrawal would cause there to be no contest for placement on the ballot, or cancellation of the election if that single contest constituted the only question to be voted upon.

My staff has taken the liberty of inquiring of the school superintendent whether this, in fact, would be the case. The superintendent has informed us that there are at least three contests on the ballot and that the contemplated withdrawal would not lead to an uncontested election. Under those circumstances, it is my opinion that the candidate involved thus may not withdraw after the filing deadline; her name should remain on the ballot. I emphasize, however, that if the contest had been the only contest or if the withdrawal would result in no election contest whatsoever, the result would be different.

Based on the above analysis, the answer to the first part of your question is, "No." The second portion of your question, therefore, does not require an answer.

MWB:CME:mjj