STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
April 25, 1972
Richard Kolker
State's Attorney, Brown County
Aberdeen, South Dakota 57041
OFFICIAL OPINION NO. 72-19
Elections, Absentee voters. Effect of Sec. 5 of H.B. 517, 1972 Legislative Session (Ch. 90 session Laws of 1972) on absentee voting.
Dear Mr. Kolker:
You have requested my opinion to answer certain questions relative to absentee votings that arise from the provisions of House Bill No. 517, adopted as an emergency measure by the 1972 legislative assembly. It is assumed, for the purpose of this opinion, that such enactment of 1972 is indeed a true emergency measure, and its provisions are applicable to the primary elections of 1972.
It is necessary, in order to set forth the problem presented, that the statutes involved must be set forth in this opinion, either verbatim or in substance.
It is agreed that electors may vote absentee at certain elections, including the primary and general elections. SDCL 12-19-1, as amended bt Section 1 of said H.B. No. 517, provides the registered voter may apply to the county or city auditor, or clerk of the .. town or township for official ballots to vote absentee. Upon such application, the official ballots are "to be sent to him in a sealed envelope at any place he may designate, by regular mail or otherwise, or the same may be delivered to him personally in the auditor's or clerk's office."
SDCL 12-19-7, as amended by Sec. 2 of H.B. No. 517, provides:
12-19-7. Such elector shall, not earlier than the fifteenth day preceding such election, before the county or city auditor, town or township clerk, or other officer having an official seal and authorized by law to administer oaths, privately mark such ballot as he shall desire to vote the same and shall properly fold and enclose such ballot in the return envelope provided therefor and addressed to the auditor or clerk having charge of the election.
SDCL 12-19-4 (as last amended in 1971) provides:
The return envelope for the absent voter's ballot shall have printed on the reverse thereof an affidavit substantially in the form required by SDCL 12-19-27.
The aforementioned portion of SDCL 12-19-27 provides the following form to be printed upon the reverse side of the following "certificate."
(7) The return envelope shall have printed, on the reverse thereof, the following certificate:
OFFICIAL RETURN ENVELOPE FOR SERVICE BALLOT
From _____________, state of _______________, county of ________________ I, say that I am a qualified and registered elector in precinct _______ , county of____________, State of South Dakota, that I am not registered in any other precinct; that my residence and post-office address is__________ , and that I herein enclose my ballot.
_____________________________
Signature of voter
I, ________________________ hereby certify that _________________ privately marked the within ballot, in my presence and when no other person was present, and, without revealing to me or anyone the contents thereof, he folded and enclosed said ballot in the official return envelope provided therefor and sealed the same.
________________________________
Signature of official making certificate
________________________________
Typed or printed name of official making certificate
________________________________
Title or rank, service number, and organization
of certifying official.
Dated this _______day of_______ ,19 ______.
I am satisfied that the "affidavit" referred to in SDCL 12-19-4, as amended, refers to this certificate. Section 5 of H.B. No. 517 of the 1972 legislative assembly added a new provision to the election laws of South Dakota, reading as follows:
No person who is a candidate for any elective office, except for political party offices described in 12-5-2, at the election for which the ballot or ballots are to be voted shall be a witness or be in the presence of the absent voter at the time such ballot or ballots are marked, nor shall such candidate execute the certificate on the official return envelope.
With this basic state in mind, you have propounded the following questions:
1. Does Sec. 5 of House Bill No. 517 prohibit the absentee ballot from being executed in the office and presence of the county auditor?
2. Does such Sec. 5 prohibit the absentee ballots from being executed in the office and presence of the deputy auditor or their clerks?
3. Does such Sec. 5 prohibit any holder or seeker of political office from delivering absentee ballots and being present while the same is being voted?
In order to intelligently answer Question 1 and 2, it must be assumed that the county auditor is a candidate for political office at the election for which such absentee ballots are requested.
Before approaching the questions presented, it is well to remember that it is a rule of statutory construction that it is the intent of the Legislature that governs such statute and not the literal meaning of the words employed.
LAWRENCE COUNTY v. MEADE COUNTY, 6 S.D. 428, 62 N.W. 131; BROOKINGS COUNTY v. MURPHY, 23 S.D. 311,121 N.W. 793; WOOD v. WAGGONER, 67 S.D. 365,293 N.W. 188; REED v. JERAULD COUNTY, 70 S.D. 298, 17 N.W. 2d 269.
It should also be remembered as our court stated in SIMONS v. KIDD, 73 S.D. 280, 41 N .W. 2d 840, that when statutes all deal with the same subject matter, they must be construed, when at all possible, so that each separate statute is operative, and a construction should not be adopted to the end that one statute will nullify another. This rule applies even when statutes are seemingly in conflict. JACOB v. CLARKSON, 60 S.D. 401,244 N.W. 535; BROOKINGS COUNTY v. SAYRE, 53 S.D. 350, 220 N.W. 918.
It is my opinion that the legislative intent of Sec. 5 of House Bill No. 417 was to make it apparent that no seeker of political office should act as the "presiding officer" over the absentee vote at such election. With this fundamental legislative purpose in mind, the answers to your questions seem clear.
QUESTION 1. This statute does not prohibit an absentee voter from exercising his vote in the office of the county auditor or any public office holder seeking a return to public office at such election. SDCL 12-19-7, as amended by Sec. 2 of House Bill No. 517, makes it clear that no person, office holder or not, should be present with the registered voter when he is exercising his franchise to vote, as such ballot of the absentee voter, just as a voter at the polls, must be marked in private. However, in regard to the "certificate" or "affidavit" on the return envelope, this may be exercised by those officers set forth within SDCL 12-19-7, except in view of Section 5 of House Bill No. 517, this officer cannot be any person seeking an elective office, except for political party officers.
A county auditor running for public office in such election should not approach such absentee voter, and should not act in the capacity of "certifying officer."
QUESTION 2. SDCL 18-3-1 provides seven (7) different categories of persons who are authorized by South Dakota law to administer oaths in this state.
Among the persons who may administer oaths are "notaries public" who may administer oath within the state, and clerks of court, the county auditor, the county treasurer, the register of deeds, and the deputy of each, within the county. You will notice that "clerks" in a county auditor or other county office cannot administer such oaths.
I am of the opinion so long as the deputy county auditor is not, himself, a candidate for public office at such election, that he may act as the certifying officer for such absentee voter, and that such proceedings may be had within the county auditor's office. Help, of course, could be requested of any other listed county officer, or the deputy thereof, in voting absentee voters at the courthouse. Such could be done at the auditor's office, or elsewhere, just so long as the absentee voter is afforded the opportunity of making his ballot in private.
QUESTION 3. Section 5 is not concerned with the method of delivery of absentee ballots. The ballots are to be delivered to the absentee voter in a sealed envelope, "by regular mail or otherwise," (SDCL 12-19-1, as amended by Section 1 of H.B. No. 517).
As such absentee ballots must, insofar as delivery is concerned, be sealed from the eyes of the "prying public," there could be no wrong in any seeker of public office from delivering such ballot in its sealed envelope to the absentee voter. However, prudence, it appears to me, would direct any office holder from so acting, unless he, of course, is a United States mail carrier, who in his official duties was required to deliver such mail. Section 5, of course, as I have said, disqualifies the office seeker from acting as certifying officer to such absentee vote.
A present incumbent to public office who is not seeking re-election, or another public office on such election, is in nowise prohibited from delivering absentee ballots, or, if he be otherwise qualified from acting as certifying officer for such absentee elector.
Respectfully submitted,
Gordon Mydland
Attorney General
