March 10, 1976
Mrs. Ruth Humphries
Brown County Auditor
Brown County Courthouse
Aberdeen, South Dakota 57401
OFFICIAL OPINION NO. 76-29
Nominating petitions of independent candidates
Dear Mrs. Humphries:
You have requested an official opinion from this office relating to independent candidates, as there seems to be some confusion about them concerning the first day a person may sign his petition and when they must be filed.
Your attention is directed to SDCL 12-7-1 which specifically sets a time for such petitions to be filed. The provisions of Section 12-7-1 require that independent candidate petitions for a county office must be filed with the county auditor not less than sixty days before the day fixed for such election. This statute applies to the time of filing of such petitions, not the time to commence the circulation thereof.
By the provisions of SDCL 12-6-8, political candidates running for election in the primary elections have a definite limitation as to the time to commence circulating their petitions. As one of my predecessors said in answer to a similar question in 1968, "In the absence of any legislative directions, it is my opinion that fair play and equity requires that such independent candidate petitions should not begin to circulate prior to the time that such political candidates' petitions may circulate." 1967-68 AGR p. 441. The earliest possible date a political party candidate could circulate petitions in 1976 was February 2, 1976. I find the statement of my predecessor to be still valid and while the statutes are silent as to when an independent candidate can begin to circulate petitions, it is my opinion that they should not be circulated prior to the date allowed political party candidates. Nor can I find anything that says that independent candidates cannot circulate their petitions prior to the primary election.
Therefore it is my opinion that independent candidates can circulate their petitions prior to the primary election.
You have also asked the following questions, which pertain to the signing of petitions of either political or independent candidates:
I would like to give you an example and also ask you a question. In the Primary Election I have two vacancies on the County Commission Board. I have four people running on the Republican ticket for these two vacancies. A, B, C & D. I signed the petitions of A & D and Mr. X, comes out after the primary and I feel he would make a better candidate for commissioner. May I also sign the petition for Mr. X as an Independent Candidate? Or if B & C won in the Primary Election and I had not signed their petitions but had signed A & D's petitions, may I also sign the petition for Mr. X as an Independent Candidate?
The answer to both of the above questions is found in § 12-6-8 which provides in part as follows:
. . . . The provisions of this section shall not prohibit a person registered with party affiliation from signing either a petition nominating an independent or a nonpolitical candidate for office if he has not previously signed a petition for that office to be filled.
This provision allows a person registered with a political party to sign a petition nominating an independent or nonpolitical candidate as long as that person has not already signed a petition for a political candidate seeking the same office.
The other provisions of §12-6-8 provide that a person can only sign petitions for a political candidate of a party for which he is a member, for candidates which he is entitled to vote and for as many candidates required to be nominated for the same office. This means that: (1) you could sign the petition of two political candidates of the party for which you are a member because in your factual situation two are to be nominated; or (2) you could sign a political candidate's petition of the same party for which you are a member and an independent candidate's petition; or (3) you could sign two independent candidates' petition.
The answer to both of your above questions is, therefore, NO. Once you have signed two petitions, because you have two candidates to nominate, you have signed the maximum number of petitions for this particular office.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:RVJ:dk
