STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 9, 1971

Alma Larson
Secretary of State
Pierre, South Dakota

OFFICIAL OPINION NO. 71-24

26th Amendment makes 18-21 year olds "regular voters" pursuant to SDCL 12-19A

Dear Ms. Larson:

You have requested my opinion as follows:

The State Legislature enacted Chapter 83 (Senate Bill 13), 1971 Session Laws, codified as SDCL 12-19A, known as the Special Voting Rights Act, which conforms to the federal statute allowing 18-21 year olds to vote as far as presidential and congressional elections are concerned.

The Legislature did not, however, ratify the federal amendment that would allow 18-21 year olds to vote at all levels of government or vote in all elections.

QUESTION 1: In order for 18-21 year olds to vote in all elections, it was necessary that the federal amendment be ratified by 38 states. Since this amendment was ratified by the required 38 states, would South Dakota be affected?

QUESTION 2: If so, does this mean that 18-21 year olds can register and vote in all elections?

QUESTION 3: What procedure should the counties use to allow the 18-21 year olds to register and vote, and are the present procedures adequate?

QUESTION 4: The last session of the Legislature enacted Senate Joint Resolution I, Chapter 1, 1971 Session Laws, proposing a constitutional amendment to our State Constitution lowering the voting age to eighteen. Should this election now be conducted in view of the federal action?

On March 23, 1971, subsequent to the adjournment of the South Dakota Legislature, Congress passed and submitted to the states, pursuant to the Constitution of the United States, Article V, the following proposed constitutional amendment:

SENATE JOINT RESOLUTION 7

Joint Resolution proposing an amendment to the Constitution of the United States relating to voting rights of persons eighteen years of age or older.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein.)

That the following article is proposed as an amendment to the

Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several states within seven years from the date of its submission by the Congress:

SECTION 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any state on account of age.

SECTION 2. The Congress shall have power to enforce this article by appropriate legislation.

On or about June 30, 1971, the Ohio Legislature ratified the proposed amendment and was the 38th state so to ratify. South Dakota has never ratified inasmuch as the Legislature has not been in session since the proposed amendment was submitted to the states by Congress.

QUESTION ONE: It is my opinion that South Dakota is affected by the ratification, and the eighteen year old vote is now the law in South Dakota for all elections. Article VI of the Constitution of the United States of America states in part:

This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made, under the authority of the United States, 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.

This "supremacy clause" suspends all provisions of the Constitution and laws of South Dakota to the contrary.

QUESTION TWO: As stated above, it is my opinion that 18-21 year olds can vote in all national, state and local elections in South Dakota.

QUESTION THREE: It is my opinion that the laws are adequate and the county auditors of the various counties should immediately commence registering eighteen year old people who meet all other qualifications of the South Dakota Constitution for all national, state and local elections to be held in the state.

Pursuant to 42 U.S.C. 1973 bb-1, entitled the Voting Rights Act Amendments of 1970, and subsequent to United States v. Arizona, __ U.S. __ 91 S.Ct. 260 (1970) which declared constitutional the part of the Act dealing with the right of eighteen year olds to vote for national officers, South Dakota enacted Chapter 12-19A of the South Dakota Compiled Laws entitled "Special Voting Rights."

This Act established three classifications of voters: (1) regular, (2) national, and (3) presidential. A regular voter was a person otherwise qualified according to law and twenty-one years and older. A national voter was a person otherwise qualified according to law, over the age of eighteen and not yet twenty-one years of age. A presidential voter pertained to a different qualification that does not concern us here.

The Act limited the franchise of the national voters and provided for separate colors of registration cards and separate colors of ballots for them. A provision was also made for separate voting machines for the national voters.

It is my opinion that the "supremacy clause" as stated in my answer to Question No.1 has suspended that part of SDCL 12-19A and all other related statutes dealing with "national voters." All persons falling in to the previous class of "national voters" have by the 26th Amendment to the Constitution of the United States become "regular voters" under SDCL 12-19A and related statutes and should be allowed to register and vote as such. The provisions relating to "national voters" should be completely disregarded.

It is further my opinion that pursuant to SDCL 12-19A-12 all persons who have registered as "national voters" under the South Dakota Act can be re-registered as "regular voters" and the county auditors are authorized so to do. It will not be necessary for the "national voters" to re-register. As a consequence of the Federal Amendment, only two classifications of voters now exist in South Dakota: "regular voters" and "presidential voters."

QUESTION FOUR: It is my opinion that the election for the proposed amendment will have to be held unless the Legislature repeals Chapter 1, 1971. Session Laws; however, it would be desirable to allow the election to be held so that our State Constitution would conform to the Federal Constitution.

Respectfully submitted,

Gordon Mydland
Attorney General