STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
May 1, 1968
R. James Brennan
State’s Attorney, Pennington County
Rapid City, South Dakota 57701
OFFICIAL OPINION NO. 67-68 pg. 472
Elections. Declaration of candidate on nominating petition.
You have requested my official opinion to interpret SDC 16.0210, as last amended by Chapter 93 of the Session Laws of 1961. This statute, which provides for nominating petitions in order for a political candidate for public office to have his name printed on the official primary ballot, is too long to set forth in full in this opinion. Your inquiry is directed to the meaning of the statement therein:
“The formal declaration of the candidate shall accompany and be a part of the petition.”
Your question is as follows:
“Does the statute, as amended, require such declaration of the candidate to be made and attached to each ‘circulated petition,’ prior to its circulation and signature by qualified members of such political party, or does such require only that such declaration of the candidate be made and attached to the ‘papers’ or ‘petition’ filed with the County Auditor or Secretary of State?”
Our Supreme Court has never directly answered this question. It has held that the primary election laws furnished the exclusive method of nomination party candidates for public office (Healey v. Wipf (1908) 22 SD 343, 117 NW 521). That such declaration is an integral part of a filed petition and a petition filed without such declaration should not be filed. And if filed, such does not constitute a valid filing. (Danforth v. Coyne (1925) 49 SD 153, 207 NW 79). Our Court has further found that except when authorized by statute, only a single candidate for public office can be nominated by a single petition, that is, unless authorized by statute candidates for more than one political office could not be combined in a single petition. (Johnson v. Coyne (1923) 47 SD 138, 196 NW 492.) These decisions although decided under the original “Richards” Primary Election Law, which was drastically amended in 1929, seems applicable to our present primary election law.
These decisions, as well as a careful reading of the statute, contemplate that although several “petitions” might be circulated by different circulators nominating the same person for the same political office, that only a “single” nominating petition, consisting of such component parts, is with the proper filing officer.
The language you have quoted came into our Primary Law by the drastic revision of the Primary Law by Chapter 118 of the Session Laws of 1929. Section 4 of such Act, subject to changes in dates of filing, and the number of signatures required, is identical with the provisions of SDC 16.0210, as amended, to the form of Nominating Petition.
With an appreciation of this history of the statute, its interpretation by the Court, consideration must be given to the opinion of my predecessor in office, dated January 29, 1929, and reported in 1929-30 AGR 152, when he was asked to answer this question:
“Under Chapter 118 of the 1929 Session Laws relating to primary elections, is it required that the nominating petitions provided by Sec. 4 shall be signed by the candidate before they are circulated or will it be sufficient if he signs the declaration before filing the petition with the County Auditor or Secretary of State?”
“The only direct provision in the statute concerning this matter is a part of section four, as follows:
‘The formal declaration of the candidate shall accompany and be part of the petition.’
“It is my opinion that the phrase ‘the petition’ means the completed instrument which is offered for filing with the county auditor or the secretary of state. Necessarily this petition is constructed as the circulation proceeds. Additional signatures and additional sheets may be added to it from time to time as appears from the following quotation from section four:
‘Such petition may be composed of several sheets which shall have identical headings printed at the head thereof…’
“It is plain from this that any number of sheets may be combined to make up a petition; and while the statute required that all of said sheets shall have identical headings there is no requirement that they shall have identical declarations of the candidate.
“It is therefore my opinion that it is not necessary to have a signed declaration accompanying the various sheets which are being circulated and that a candidate may attach one declaration to his petition as finally offered for filing and thereby complete the petition in the manner required by law.”
The conclusion that a candidate files but a single petition was again emphasized in 1930-32 AGR 390.
It is my opinion that my predecessor in office properly interpreted our Primary Law, and I am in agreement with the conclusion that SDC 16.0210, as last amended by Chapter 93 of the Session Laws of 1961, must be interpreted as was the statute in which it originated, Section 4 of Chapter 118 of the Session Laws of 1929, as not requiring to have a signed declaration of the candidate accompanying the various sheets which are being circulated, and which when collected consists of the “petition” filed by such candidate. The law provides that the candidate may attach such declaration to his petition when offered for filing and thereby complete the petition in the manner required by law.
