STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 13, 1972

Miss Alma Larson
Secretary of State
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 72-48

Should unopposed candidates for political office be listed as candidates on the general election ballots? Effect SDCL 12-16-1.1.

Dear Ms. Larson:

You have requested my opinion on the following matter:

This office is in the process of preparing certifications to the county auditors for nominees whose names will appear on the general election ballot.

SDCL 12-16-1.1 (originating in Sec. 1, Ch. 82 of the Session Laws of 1971) provides:

Any candidate who has been duly nominated to an elective office, political or nonpolitical, having no opposing candidate at the general election shall automatically be elected, and the county auditor or the 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.

In view of this statute, I am submitting the following questions, which should be of assistance to both the secretary of state and the several county auditors in the preparation of the official ballots for the 1972 general election.

QUESTION NO 1-Does the Secretary of State certify to the proper county auditors the names of candidates for political office having no opposition in the general election?

QUESTION NO.2-If the Secretary of State does certify the names of candidates having no opposition in the general election to the proper county auditors, do the names of such certified candidates, together with the local county candidates having no opposition appear on the ballots used in such county for the 1972 General Election?

Before considering your specific questions, certain elementary propositions must be noted.

By virtue of certain constitutional provisions, certain persons holding public positions must: be elected to such office. Thus Sec. 3, of Article IV of the South Dakota Constitution provides:

The governor and lieutenant governor shall be elected by the qualified electors of the state at the time and place of choosing members of the legislature ...

Section 12 of Article IV requires the qualified electors of the state "to choose" a state auditor, a state treasurer, a commissioner of school and public lands, and an attorney general. At the same time, on a nonpolitical ballot the superintendent of public instruction shall also be "elected" to office.

I could go through the entire Constitution, section by section, and point out that members of the Legislature, county officials, the judiciary, are required by the Constitution to be elected to such office. However, this would be repetitious, and not particularly useful.

After the adoption of our Constitution, and by virtue of Chapter 139 of the Session Laws of 1907, the "Richards" Primary Law provided for primary elections to select candidates of the various recognized political parties for nomination to office. It was by virtue of the primary laws that the members of each political party, selected by secret: ballots, some of its candidates to be elected to political office at the general election. Prior to that time the candidates for public office were selected by methods other than the vote of the members of each political party. It should be added that even at this date all of the candidates of a political party for election at the general election are not selected by the popular vote of the entire membership of a political party.

I have mentioned these historical facts to emphasize that which is so apparent, but often forgotten, that the primary election of itself is not an election whereby any person is elected to any public office. Rather it is a procedure whereby the members of a particular recognized political party select the candidates of such party to become candidates in an election for public office. However, this selection for or nomination to become a candidate for public political office is not, and cannot, be considered an election to public office .

The Legislature, by its adoption of SDCL 12-20-9 (enacted by Ch. 97 of the Laws of 1959), recognized this distinction between nomination of a candidate for public office, by means of the primary election, and election to public office at the general election, in requiring that in the canvass of votes in each election precinct in the case a candidate for public office were unopposed, only a single vote need be canvassed, and when so canvassed, such unopposed candidate for public office had been "elected" to such office in such election precinct.

It is a basic premise in the term of "election to public office" that the candidate for any designated public office who receives a plurality of votes cast at the same election within the area for which he is a political candidate determines who is "elected" to such political office. When a candidate running unopposed at the election held to "elect" a person to hold such public office receives but one vote for such office, he has received the requisite plurality of votes to be declared "elected" to that office.

However, the mere fact that a candidate for public office, political or nonpolitical, has received the requisite number of votes to be declared a candidate for a particular public office, political or nonpolitical, is not evidence that such candidate was elected at a proper election to be declared to be such political officer.

The provisions of SDCL 12-16-1.1 cannot apply to the election of a constitutional public officer in South Dakota. Its provisions ignore the requirements of our Constitution that constitutional public officers must be elected to such position to be' entitled to assume such public office. There are, of course, certain public officers who hold office by virtue of the fact that such office was created by the Legislature. These are statutory, as distinguished from constitutional offices. As the Legislature created such office, it is within its discretion to determine the method by which such public office is filled. Many of such statutory offices are filled by methods other than election. As to these offices, there is nothing invalid in the Legislature providing that the holders of such office are invested with such office by means other than an election by the electorate. The provisions of SDCL 12-16-1.1 do apply to them.

With this discussion of the basic general problem presented, the answers to your questions are clear.

QUESTION 1.-The Secretary of State should certify to the several affected county auditors the names of candidates having no opposition for the general election of 1972.

QUESTION 2.-Upon receipt of the names of the certified candidates from the Secretary of State, the county auditor must place such certified names, together with all "constitutional" officers, political or nonpolitical, whether opposed or unopposed, on the general election ballot for 1972.

However, in the canvass, usually referred to as the counting of the votes, it is permissible, pursuant to SDCL 12-20-9, to merely count one vote for the unopposed candidate.

Respectfully submitted,

Gordon Mydland
Attorney General