March 31, 1988

Mr. Myron C. Lindquist 
Meade County Deputy State's Attorney 
1425 Sherman Street 
Sturgis, South Dakota 57785

Official Opinion No. 88-09

Voter registration in nursing homes

Dear Mr. Lindquist:

You have requested an official opinion from this Office in regard to the following factual situation:

FACTS: 

The Meade County Auditor has been declining to allow individuals living in nursing homes in Meade County to register to vote unless they were previously Meade County residents.  The actions of the Meade County Auditor are based on the provisions of SDCL 28-13-14.  That statute contains an internal reference to--but also appears to conflict with--another statute in the same chapter, SDCL 28-13-3.  The latter statute more directly deals with a certain category of residency, although SDCL 12-1-4 is the statute that deals directly with residency for purposes of voter registration.

Based on the above facts, you have asked the following question:

QUESTION: 

May a county auditor properly refuse to allow an occupant of a nursing home to register to vote if the individual has not previously been a resident of that county?

Voting, as a right, carries a superior status in our system of government, and any interference with that right must be closely scrutinized.  The United States Supreme Court has summarized the special nature of the right to vote from a legal perspective: 

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.  Other rights, even the most basic, are illusory if the right to vote is undermined.  Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right. 

Wesberry v. Sanders, 376 U.S. 1, 17-18, 84 S.Ct. 526, 535, 11 L.Ed.2d 481, 492 (1964).  Thus, the actions of the county auditor must be given close, legal scrutiny.  Any adverse interference with a citizen's suffrage cannot be tolerated.

South Dakota's primary statute dealing with voting residence is SDCL 12-1-4.  The statute reads as follows: 

For the purposes of this title, 'residence' shall be the place in which a person has fixed his habitation and to which, whenever he is absent, he has the intention of returning. 

A person who has left his home and gone into another state or territory or county of this state for a temporary purpose only shall not be considered to have lost his residence. 

A person shall be considered to have gained a residence in any county or city of this state in which he actually lives, providing such person has no present intention to remove himself therefrom. 

If a person moves to another state, or to any of the other territories,  with the intention of making it his permanent home, he shall be considered to have lost his residence in this state.  (Emphasis added.) 

The third paragraph of the statute deals directly with the instant situation.  Applying the clear legislative meaning of that sentence, any individual who moves into a particular county with intent to remain there shall gain his or her voting residence there.  The individual's intent is the key factor. (Though dealing with differing situations, the other provisions of the statute also turn heavily on intent.)

An individual's residence, as based on where he actually lives and/or intends to live, is the subject of state and federal case law.  In re Mortensen, Brule County v. Pennington County, 2 N.W.2d 679 (S.D. 1942) involved a woman who was removed from one county to another for medical care.  The court noted, "Her removal was at the instigation of someone other than herself and about which she apparently had no concern."  Id. at 680.  Having noted the woman's lack of intention regarding her new location, the court said that, "... a legal settlement is either acquired or lost by some voluntary act of the person concerned."  Id. at 680.  The woman's legal residence remained at the original location because she showed no intent to move and because the decision was made by someone other than herself.

Three years later, this state's highest court reviewed another situation of a family's move in search of medical care for one of its members.  Looking to the  case law of other states, the Supreme Court stated, "A residence is established by personal presence in a fixed and permanent abode, with the intent of remaining there."  Appeal of Lawrence County In Re Forman, 21 N.W.2d 57, 58 (S.D. 1945).  Again, intent was the key factor.

The Lawrence County case was recently noted by the United States Supreme Court in Martinez v. Bynum, 461 U.S. 321, 103 S.Ct. 1838, 75 L.Ed.2d 879 (1983).  That particular case deals with residency for school purposes.  The Supreme Court said, "But at the very least, a school district generally would be justified in requiring school-age children or their parents to satisfy the traditional, basic residence criteria--i.e., to live in the district with a bona fide intention of remaining there--...."  Id. at 889.  In citing the South Dakota case, the nation's highest court again found intent to be a primary determinant.

The statutes utilized by the county auditor deal with residency for purposes of county poor relief.  The provisions of that chapter may not be used to overcome United States case law interpreting the United States Constitution or state case law.  Further, as a general proposition of law, a statute that deals directly with a certain issue, as SDCL 12-1-4 deals with elections (specifically, registration), will overcome other statutes covering differing areas of law.  In this case, as regards voter registration, the provisions of SDCL ch. 12-1 prevail over the provisions of SDCL ch. 28-13.  It is worth  noting, however, that SDCL 28-13-3 appears to agree completely with SDCL 12-1-4, as well as federal and state case law.  Also, an in-depth analysis of SDCL 28-13-14 and its relationship with SDCL 28-13-3 reveals no actual inconsistency.  But that is not the issue in this opinion regarding denial of registration to vote.

In summary, the answer to your question is that the Meade County Auditor may not refuse to allow a former nonresident of Meade County to register to vote if the individual has voluntarily moved to a fixed location in Meade County and has an intent to remain there.

Respectfully submitted,

Roger A. Tellinghuisen
Attorney General