STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 13, 1972

Esther Girard
County Auditor, Clay County
Vermillion, South Dakota 57009

OFFICIAL OPINION NO. 72-50

Legality of durational requirements for voter registration.

Dear Mrs. Girard:

You have requested my opinion on the following factual situation:

Mr. and Mrs. X came to my office in order to register too vote, but they have not met the residency requirements established by the State Constitution of 180 days in the State and 90 days in the county. They have resided in their precinct for at least 30 days.

They moved to South Dakota on June 5, 1972, and they will not have lived within the state for at least 180 days before the next general election although they will have lived in the county for at least 90 days before the next general election.

They have requested to be registered under the general election laws of the state rather than the section of the Code SDCL 12-19A, that allows them to be registered as a "Presidential Voter" which is a person who can vote for President and Vice-President but cannot vote for others due to the fact that they have not met the constitutional residency requirements in South Dakota.

I am therefore requesting an opinion whether or not I should allow them to register and vote for the general election as a "regular voter" or as a "presidential voter" under the terms of SDCL 12-19A.

Ordinarily this office will not issue official opinions directly to county auditors, but since this subject is of such current, statewide interest, particularly to county auditors, we are making an exception in this case. The answer to your question has been drastically affected by the recent decision of the United States Supreme Court in the case of Dunn v. Blumstein, U.S., 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972). This case dealt with the provisions of Tennessee's law which provided for the closing of the registration books 30 days prior to an election, but required durational residency in the state for one year and in the county for three months. The United States Supreme Court in Dunn v. Blumstein, supra, held that the durational resident requirements of the State of Tennessee were in violation of the equal protection clause of the fourteenth amendment to the United States Constitution, as those requirements were not necessary to further a compelling state interest, and thus violated the Fourteenth Amendment provision that no state may" ... deny to any person within its jurisdiction the equal protection of the laws." Because this opinion of the United States Supreme Court is contra to Article VII, Sec. I of the South Dakota Constitution, I will discuss in depth the decision of Dunn v. Blumstein, supra.

The United States Supreme Court stated that due to the fact that the requirements of durational residency deny some citiezns the right to vote and permit others to do so, "the Court must determine whether the exclusions are necessary to promote a compelling state interest." Kramer v. Union Free School District, 395 U.S. 621, 627. This was the test that the Court applied in the Blumstein case. The Court went on to state that such laws divide residents into two classes-old residents and new residents, and completely denying the latter the right to vote. The constitutional question is whether the equal protection clause of the Fourteenth Amendment permits a state to discriminate among its citizens in this manner. "A citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction." However, the Court held that this right is not absolute. The states do have the power to require certain qualifications and regulations, but as a general matter "before that right (to vote) can be restricted, the purpose of the restrictions and the assertedly overriding interests served by it must meet close constitutional scrutiny." Evans v. Cornman, 398 U.S. 419, 422, 26 L. Ed. 2d 370, 374, 90 S. Ct. 1752 (1970). The Court stated that the durational residency requirements also impinged on the right to travel. This was recently clarified in a case involving welfare recipients' rights. Shapiro v. Thompson, 394 U.S. 618, 629, 22 L. Ed. 2d 600. A citizen has the right to travel freely throughout the United States and the freedom to enter and abide in any state. While such travel has been permitted, it has often required the traveler to sacrifice the right to vote. Such laws force a person who wishes to travel and change his residency to choose between the basic right to travel and the basic right to vote.

The Court went on to state that it is not sufficient for the state to merely show that durational residence requirements further a very substantial state interest. The state cannot choose means which will unnecessarily burden or restrict a constitutionally protected activity, "and, if there are other reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a state may not choose the way of greater interference." If it acts at all, it must choose 'less drastic means.''' Shelton v. Tucker, 364 U.S. 479, 488, 5 L. Ed. 2d 231, 237, 81 S. Ct. 247 (1960).

The Court made a distinction between durational residency requirements and bona fide residency requirements. It found that the latter is necessary and proper if appropriately defined and uniformly applied so as to preserve a basic conception of a political community. "But durational residence requirements, representing a separate voting qualification imposed on bona fide residents must be separately tested by the strongest standard." Shapiro v. Thompson, supra, 394 U.S. at 636, 22 L. Ed. 2d at 616.

The State of Tennessee argued that a basic purpose of durational residence requirement was to insure "purity of the ballot box." The Court said that such was a formidable sounding state interest, and that it was of great concern that non-residents would temporarily invade a state or county and allow a candidate to win by fraud. The prevention of such fraud is a legitimate and compelling governmental goal, but it would be impossible to view durational residency requirements as necessary to achieve that state interest. In Tennessee, as in most states, this purpose is served by a system of voter registration. There was no indication in the record that Tennessee routinely went behind the would-be voter's oath to determine his qualifications. "The non-resident who is intent on committing election fraud will as quickly and effectively swear that he has been a resident for the requisite period of time as he would swear that he was simply a resident. Indeed, the durational residency requirement becomes an effective voting obstacle only to residents who tell the truth and have no fraudulent purposes."

The Court stated that waiting periods prior to the closing of all registration cannot be shown to be necessary to verify the claim of bona fide residents. "If the state has itself determined that a three month period is enough time in which to confirm bona fide residence in the state and county, obviously a one year period cannot be justified as necessary to achieve the same purpose." The Court stated that fixing a constitutionally acceptable period is surely a matter of degree. It appeared to the Court that the thirty day period in Tennessee prior to elections was a reasonable time for the state to complete whatever administrative tasks were necessary to prevent fraud. The Legislature of Tennessee had determined this to be true when it enacted the law which closed registration thirty days prior to an election. This was also the apparent judgment of Congress in the context of presidential elections as set forth in the Federal Voting Rights Act of 1970. It was argued by Tennessee that durational residency requirements should be permissible because a person who has satisfied the waiting period required is conclusively presumed to be a bona fide resident while a recent arrival is presumed not to be such. They stated that this would be useful administratively. It was argued that few candidates would be able to induce migration for purpose of voting if fraudulent voters were required to remain in a false locale for the three months or a year in order to vote on election day. The Court cited Carrington v. Rash, 380 U.S. 89, 96, 13 L. Ed. 2d at 680. "States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the state." The Court, in the Blumstein case stated that the state's legitimate purpose is to determine whether certain persons are bona fide residents and the "durational residence requirement creates a classification which may, in a crude way, exclude non-residents from the group. But it also excludes many residents. Given the state's legitimate purpose and the individual interests which are affected, the classification is all to imprecise." The Court stated that it would not be difficult to determine on an individual basis whether a person is in fact a resident. Tennessee has defined a test for bona fide residency and apparently has applied it in various other legal contexts. However, in the case of voting by "new" arrivals, residency is determined conclusively by the mere duration of that residency. "The equal protection clause places a limit on government by classification and that limit has been exceeded here."

The Court felt that Tennessee had at its disposal a variety of criminal laws which were more than adequate to detect and deter whatever fraud might be feared, such as registering, violations at the time of voting, and voter challenges on election day.

Tennessee also tendered that another basic purpose of the durational residence requirement is to further the goal of having "knowledgeable voters." Their argument involved three separate claims.

The first is that such requirement "affords some surety that the voter has in fact, become a member of the community." But, the Court stated that these requirements limit voting, not because the person is not a bona fide resident, but because he is a recent rather than a long-time resident.

A second claim is made that such requirement insures that the voter "has a common interest in all matters pertaining to (the community) government." The Court stated that this presumption of the opportunity to impress upon the persons the local viewpoint has not been accepted by the Court. Not permitting a person to vote because of the way they may vote is constitutionally impermissible.

The third claim made is that a long-time resident is "more likely to exercise his right (to vote) more intelligently." The Court stated that c1urational residence requirements are a crude way to achieve the goal of assuring the knowledgeable exercise of the franchise. It permits the long-time resident to vote even though he may have little or no knowledge and arbitrarily bars from voting the new resident who may be fully informed. Such a conclusive presumption cannot be supported. The State of Tennessee had provided for absentee voting by persons who had not been in the state for a long period of time and who certainly were not knowledgeable of the local problems. Knowledge or competence has never been a legal criterion to vote. "Given modern communications and given a clear indication that campaign spending and voter education occur largely during the month before an election, the state cannot seriously maintain that it is "necessary" to reside for a year in the state and three months in the county in order to be minimally knowledgeable about congressional, state or even purely local elections. There is simply nothing in the record to support the conclusive presumption that residents who have lived in the state for less than a year and their county for less than three months are uninformed about elections. Cf. Shapiro v. Thompson, supra, 394 U.S. at 631, 22 L. Ed. 2d at 613. These durational residence requirements crudely exclude large numbers of fully qualified people. Especially since Tennessee creates a waiting period by closing registration books thirty days before an election, there can be no basis for arguing that any durational residence requirement is also needed to assure knowledgeability."

In essence the United States Supreme Court struck down all of Tennessee's durational residency requirements but permitted to stand the I Tennessee waiting period from the time of the closing of registration for all citizens to the date of the election.

The durational residency requirements for voters in South Dakota are set forth in the South Dakota Constitution, Article VII, Section I, as follows, to-wit:

Every person resident in this state, who shall be of the age of twenty-one years and upwards, not otherwise disqualified, belonging to either of the following classes, who shall have resided in the United States five years, in this state one hundred and eighty days, in the county ninety days, and in the election precinct where such person offers his vote thirty days preceding any election, shall be a qualified elector at such election ...

There are no durational residence requirements set forth in South Dakota statutory law for general qualifications of voters (SDCL 12-3-1) though there remain in some local e1ections special qualifications (SDCL 9-13-15). Portions of the law relating to conduct of election, however, do contain references to durational residency requirements, i.e. 12-6-27 and 12-18-11.

I have personally supported duration of residency requirements in the belief that they did help insure "purity of the ballot box" and a more "knowledgeable electorate" but both of these arguments were held invalid in the Blumstein case. While it would be expedient for this office to take the position that Blumstein did not automatically strike down the durational residency requirements in the South Dakota Constitution, and to hold that any change must be made 'either by a constitutional amendment, by the electorate, or by a decision of a court of proper jurisdiction holding that South Dakota's durational residency requirement lacks a compelling state interest in accordance with the holding of the United States Supreme Court; however, it is my opinion that to ignore the ruling would be to disregard reality and we would again be inviting the judiciary to fulfill an obligation which is properly an administrative duty of the State of South Dakota. In this case, that obligation and duty rests solely on the Attorney General. In the absence of a judicial determination by our Court, the Attorney General has the responsibility of rendering his opinion on the law.

I am not unmindful of the many decisions that only a court has the power to declare a state constitutional provision unconstitutional; however, Article VI of the United States Constitution declares without qualification that "This Constitution, and the laws of the United States which shall be made in pursuance thereof, … shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding." When there is a conflict between this supreme law and the Acts of Congress, the Acts of the State Legislature and the Constitutions of the States, the United States Constitution prevails.

It is particularly important that a decision be made at this time in the light of the rapidly approaching general election, and due to the fact that the Legislature will not meet until January of 1973; now therefore,

It is my opinion that the Legislature of the State of South Dakota already has created a waiting period for all electors prior to the dates of election which will meet the close constitutional scrutiny demanded by the Blumstein case. The Court very clearly states that each state shall be permitted to provide an ample period of time to complete whatever administrative tasks are needed to prevent fraud and insure the purity of the ballot box. The Court stated that in Tennessee a thirty day period was satisfactory for that was the number of days the Legislature of Tennessee had determined were necessary between the closing of the registration books and the election. The waiting periods designated by the South Dakota Legislature are set forth in SDCL 12-4-5 and 12-4-5.1. These are fifteen days for registrations taken by the county auditor or his deputies, and twenty days for registration taken by other registration officials.

In my opinion, the effect of the Supreme Court's decision in Blumstein and subsequent cases, beyind any doubt, is to nullify the present South Dakota durational residence requirements and that it requires the various county auditors and other registering officials to register bona fide residents to vote without regard to South Dakota's constitutional requirements that voters have resided in the United States, State of South Dakota, county or precinct for any specific period of time before voting.

It is my opinion that such waiting periods shall prevail until such time that the South Dakota Legislature may provide a different time period within the limitations contained in Blumstein. As the Court stated, the fixing of a constitutionally acceptable period is a matter of degree and may only provide an adequate period of time for the state to complete whatever administrative tasks are necessary to insure purity of the ballot and prevent dual registration and dual voting. To provide any period greater than this, it must be clearly shown that it is necessary to further a compelling state interest.

It is my opinion that SDCL 9-13-15, 8-3-7, 12-6-27 and 12-18-11 must be construed as inconsistent and appropriately adjusted to comply with the Blumstein decision.

Therefore, it is my opinion that you should allow Mr. and Mrs. X and all others who are bona fide residents of Clay County to register as regular voters under the registration laws of the State of South Dakota at any time prior to the close of registration for all electors for a given election.

Respectfully submitted,

Gordon Mydland
Attorney General