April 17, 1975
Mrs. Lorna B. Herseth
Secretary of State
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-72
Initiative petitions
Dear Mrs. Herseth:
You have requested an opinion from this office as to what the basis is for determining the number of petitioners required to sign petitions invoking the initiative pursuant to Article III, section 1 of the State Constitution. Your second question asks what percent of this basis is required to sign petitions invoking the initiative.
Article III, section 1 of the State Constitution reserves in the people the right to propose measures, which the Legislature must enact and submit to the people of the state for their approval or rejection. The constitution contains a provision that says that the Legislature cannot require more than five percentum of the qualified electors to sign petitions to invoke the initiative.
To execute the initiative provisions of our Constitution the Legislature has adopted chapter 2-1.
The provisions of chapter 2-1 set forth the procedures that must be followed in order to invoke the initiative.
SDCL 2-1-1 provides in part as follows:
All measures proposed to the Legislature under the initiative shall be presented by petition, which petition shall be signed by not less than five percent of the qualified electors of the state, . . .
The Legislature apparently realized the difficulty of determining the number of qualified electors in the state and therefore passed SDCL 2-1-5.
SDCL 2-1-5 provides as follows:
The total number of votes cast for Governor at the last preceding general election, shall, for the purposes of this chapter, be the basis for determining the number of petitioners required.
Therefore, the answer to your first question is found in SDCL 2-1-5; by using the basis provided for in SDCL 2-1-5, the number of signatures will always be less than the limit set by the Constitution. As you have pointed out a "qualified elector" is a person that qualifies to register, whether or not he is registered; while a "voter" is one who is a qualified elector and has registered to vote. Therefore, only registered voters were allowed to vote in the last gubernatorial election thus excluding qualified electors who did not register to vote.
The total vote cast for governor in the last preceding general election was 278,228. Therefore, pursuant to SDCL 2-1-5, 278,228 would be the basis you inquire of.
Your second question asks what percent of the basis must sign petitions to invoke the initiative. SDCL 2-1-1, see above, provides that five percent of the qualified electors of the state must sign the petition. Remember that SDCL 2-1-5 has set forth the basis. Therefore, five percent of the total votes cast for governor in the last preceding general election is 278,228 x .05 = 13,911.40. Therefore, petitions to invoke the initiative must therefore bear 13,912 or more correct signatures. I might point out that the same would be true of a referendum petition.
You state that the above code provisions appear in conflict with the provisions found at SDCL 12-13-6.
SDCL 12-13-6 provides as follows:
In the publication of initiated measures, and in official ballots upon which the same are submitted, initiated measures shall be preceded by the following statement:
INITIATED MEASURES
The following measures have not been passed by the Legislature, and the Legislature is neither recommending nor condemning the same. They have been placed upon the ballot by initiative petitions containing five percent of the voters, filed in accordance with the Constitution, and these proposed measures will not become laws unless endorsed by the people.
The written material following the colon is only the mandatory statement that must precede an initiated measure on the ballot. It is not a further or different requirement to be met to invoke the initiative. Besides, the language in SDCL 12-13-6 providing that the initiated measure was placed on the ballot by petitions containing five percent of the voters is really what SDCL 2-1-5 established as a basis and the percentage of that basis required by SDCL 2-1-1.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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