October 1, 1976
Mrs. Lorna B. Herseth
Secretary of State
State Capitol
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-91
Placing names of unopposed candidates for certain constitutional offices on ballot
Dear Mrs. Herseth:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
Pursuant to SDCL 12-16-1.1, an unopposed candidate for the Supreme Court does not have his name entered on the ballot in his Supreme Court District. Official Opinion No. 72-48 indicated that SDCL 12-16-1.1 was not applicable to the election of constitutional public officers.
Based on the above facts you ask:
QUESTION:
Must the name of an unopposed candidate for the Supreme Court be on the ballot in his respective Supreme Court District, or does SDCL 12-16-1.1 make this unnecessary?
SDCL 12-16-1.1 provides:
Any candidate who has been duly nominated to an elective office, political or non-political, having no opposing candidate at the general election shall automatically be elected and the county auditor or secretary of state, as the case may be, shall, following the official canvass, issue a certificate of election to such candidate and his name shall not be printed on the general election ballot.
Since SDCL 12-16-1.1 was passed by the South Dakota Legislature in 1971, and since Official Opinion No. 72-48 was written in 1972, the citizens of South Dakota have adopted a new constitutional section which has a significant bearing on the question you raise. Article VII, §3 of our Constitution, as approved in 1974, provides:
The legislature shall by law define residence for voting purposes, insure secrecy in voting and provide for the registration of voters, absentee voting, the administration of elections, the nomination of candidates and the voting rights of those serving in the armed forces.
Although I believe there is some argument to be made that "administration" of elections referred to in Article VII, §3 does not cover the objections raised in Official Opinion No. 72-48, I conclude that there is nothing unlawful about the position that SDCL 12-16-1.1 does apply to unopposed constitutional officers who are required to be "elected." I believe the safest position is to include such unopposed constitutional officers on the ballot for the people to cast votes for, but I also believe it is permissible in view of Article VII, § 3 to apply SDCL 12-16-1.1 to unopposed constitutional officers.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:DOC:dh
