March 31, 1980

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

Official Opinion No. 80-23

Printing of General Election Ballots

Dear Miss Kundert:

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

FACTS: 

The Board of Elections has adopted rules according to the proper procedure which specify that separate ballots shall be printed for each of the following:  constitutional amendments, initiated constitutional amendments, initiated laws, and referred laws (ARSD 5:02:06:02, 02.01, 05, 05.01, 06, 06.01, 07, and 07.01).  In the 1980 general election there will be seven ballot questions--necessitating printing of four separate ballots.   SDCL 12-13-11 provides for all constitutional amendments to be on one ballot and all initiated and referred measures on a ballot separate from constitutional amendments.

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

QUESTIONS: 

1.  Are the Board of Election Rules in violation of statute? 

2.  Shall we direct the county auditors to print the proposed constitutional amendments on one ballot and the initiated measure and referendum on a second ballot?

Although the Supreme Court of the State of South Dakota has said in the case of Thorsness v. Daschle, ________ S.D. ________ 285 N.W.2d 590 (1979) that the  rules of the State Board of Elections do have the force and effect of law and are as binding as statutes, the court does recognize that the authority for this rule-making is delegated by the Legislature.  The case does not stand for the proposition that rules passed by the State Election Board can be contrary to legislative enactment.

SDCL 12-13-11 provides: 

All proposed constitutional amendments to be submitted at an election shall be placed on one ballot and initiated measures or referred laws on one ballot separate from the proposed constitutional amendments.

In my opinion, this statutory language mandates that all proposed constitutional amendments, no matter whether such amendments come by the initiative or legislative route, be submitted on one ballot.  In my view, the State Board of Elections does not have authority to provide for the submission of proposed constitutional amendments on two ballots or three ballots or on any number of ballots other than that specified by the statute.

Consequently, it is my opinion that the county auditors should be directed to follow the provisions of state statute rather than the rules of the State Election Board which would conflict with state statute in this limited area. In this regard I would also point out that there is time for the State Election Board rules to be changed prior to the election which would enable the Board to bring their rules in this limited area into conformity with statutes.

Respectfully submitted,

Mark V. Meierhenry
Attorney General