STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

May 9, 1968

John Keller
State’s Attorney, Brule County
Chamberlain, South Dakota 57325

OFFICIAL OPINION NO. 67-68 pg. 475

Elections. Absentee voting is permitted at Secondary Municipal Election SDC 45.1322, as last amended by Ch. 270 of the Session Laws of 1963.

An inquiry of state-wide importance has been forwarded to me from your County and I am taking the liberty of addressing this opinion to you.

The question propounded is:

"Do the provisions for absentee voting apply to a secondary election in municipalities, as provided by SDC 45.1322, as last amended by Chapter 279 of the Session Laws of 1963?"

SDC 45.1322, as so amended, provides that if no candidate for municipal office at a regular or special election. receives a majority of all votes cast, on the following Tuesday (if voting machines are used, such election is held the second Tuesday following such election) there shall be a secondary election between the two candidates receiving the highest number of votes at the regular or special election. Such statute also provides:

"Such secondary election shall be held at the same polling places, with the same judges and clerks, be conducted, returned and canvassed, ...in the same manner as the first election."

This office, in pursuance to SDC 16.0606, as last amended by Chapter 59 of the Session Laws of 1964, and the provisions of SDC 1960 Supp. 16.0610 through 16.0614 and 16.0616, has heretofore held that because a regular or special municipal election is an election where registration is required, and such is held in pursuance to the Australian Ballot Law, that absentee voting at such regular or special elections is permitted. See 1945-46 AGR 61 and 1947-48 AGR 59.

As stated, SDC 45.1322, as amended, provided such secondary election is conducted in the same manner as the first election.

While I appreciate the difficulties attendant to the printing of ballots for such secondary election (as such cannot be printed until the results of the first election are known) and the short time between such secondary and original election (one to two weeks, depending upon the voting procedure used) it is my conclusion that the question propounded must be answered YES, absentee voting is permitted at such secondary elections.