STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
August 24, 1972
Helen Daughenbaugh
County Auditor, Pennington County
Rapid City, South Dakota 57701
OFFICIAL OPINION NO. 72-43
Eligibility of persons temporarily displaced by Rapid City flood to vote in their home precincts.
Dear Mrs. Daughenbaugh:
You have requested my opinion based upon the following factual situation:
Because of the unfortunate flood of June 9, 1972, many voters in Rapid City have been forced to move out of the precinct in which they resided prior to the flood. Some have found permanent housing in other precincts. Others are occupying temporary housing furnished through the assistance of HUD.
The question has arisen as to whether these displaced flood survivors will be permitted to vote in their former precinct or whether they will be required to re-register in the precinct in which they now reside. Presumably those voters who have established or intend to establish permanent residence in another precinct will be required to re-register, but many voters have been unable to reach a decision about returning to their former homes or homesites until appropriate action has been taken by the Rapid City Council and the Pennington County Commissioners permitting reconstruction in the flood plain area.
Your opinion regarding the question of re-registration is solicited.
Article VII, Section 1 established the qualifications for voting in South Dakota with the following proviso:
That no elector in the state by reason of having changed his residence from one county or precinct to another shall be deemed to have lost his right to vote at any election in the precinct from which he has removed until he shall have acquired a new voting residence in the county or precinct to which he has removed.
As I stated in Official Opinion No. 71-56, a person can have only one voting residence at any particular time, and until a new voting residence has been established, he retains his original voting residence.
Two requisites are necessary to establish a new voting residence. The first is actual physical presence for the requisite period of time. 1947-48 AGR 388. The second is intent to establish domicile in the new place of residence. 1947-48 AGR 388; Official Opinion 71-56. Domicile in this situation can be translated to mean having no intent: to return to the place of former residence, and the intent to make the present residence their home for the indefinite future. (See Official Opinion 71-56 and authorities cited.) Pfeifer v. Sheehan Saddlery Co., 45 S.D. 528, 189 N.W. 310 (1922).
Therefore, it is my opinion that any person displaced by the flood who is unable to reach a decision until appropriate action has been taken by the Rapid City Council and the Pennington County Commissioners as to whether or not they will return or be able to return to their former homes destroyed by the flood shall be eligible to vote in their former precincts in which they were registered. They should not be required to re-register in their present place of abode unless, of course, as you stated they would have no intention of returning to their former homes.
Respectfully submitted,
Gordon Mydland
Attorney General
