STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 15, 1972

Miss Alma Larson
Secretary of State
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 72-49

Ballot positions for two or more sets of independent candidates for presidential electors.

Dear Ms. Larson:

You have asked by opinion on the following situation:

I have been notified that nominating petitions for independent candidates for presidential electors will be filed with this office showing their collective choice for President and Vice President of the United States.

Inasmuch as the names of presidential electors already filed by the Socialist Workers Party will be placed upon the general election ballot as independent candidates, what form should be used in preparing the election ballot should they file?

SDCL 12-16-9 gives a form for a general election ballot, but the form only shows a situation where one set of independent candidates for presidential electors is to appear on the ballot. There seems to be no example provided by law for the placing of two or more independent candidates for this position.

SDCL 12-16-7 does state partially as follows:

In the independent column if there is more than one candidate for a single office, the ballot shall so state, as for instance, "for United States Senator, one to be elected."

In 1931-32 AGR 406 my predecessor was faced with the identical subject matter presented here. In interpreting Section 7241 Revised Code of 1919, he stated:

It is my opinion that two sets of presidential electors ... should be printed in the column headed independent candidates, one set under the other in the same column, but each set preceded by a distinguishing sub-head indicating the candidates for President, and Vice-President for whom the separate sets of presidential electors are presumed to vote.

Section 7241 Revised Code of 1919 was substantially amended by Ch. 160 Laws 1925, and these amendments have been substantially carried through to our present Code. They can be found either in whole or in part in SDCL 12-16-1, 12-16-2, 12-16-3, 12-16-4, 12-16-8, and 12-16-9. The latter is the ballot form and it has been further amended.

At 1967-68 AGR 437 on p. 441 another of my predecessors cited 1931-32 AGR 406 for use in the 1968 general election. Accordingly, I affirm 1931-32 AGR 406 and it is my opinion that it is controlling in this situation. The two sets of presidential electors shall both be placed in the column for independent candidates with distinguishing sub-heads indicating the candidates for President and Vice-President for whom each set of electors is pledged to vote.

It is further my opinion that SDCL 12-16-8 controls as to which set of electors shall be first. The Secretary of State will have to have a drawing to determine which set is to appear first. Notice must be given to the candidates or their representatives, if possible, since they have a right to have a representative at the drawing.

It should further be pointed out that no square or circle shall be placed at the top of the independent column. This is prohibited by SDCL 12-16-4. Finally, it is my opinion that the candidates in the independent column should be placed opposite those in the party columns. This appears to be the intent of the Legislature when it enacted the ballot form as found at SDCL 12-16-9. It is my opinion that to allow the independent column not to correspond with the political party column can and will lead to confusion at the polls. The purpose of the election laws is to permit an expression of will by the electors, and the law should be liberally construed to this end. The ballot should be formed so that the elector can intelligently express his desire. 1937-38 AGR 267.

Attached to this opinion you will find a ballot sample for the top three offices to be elected at the general election. This sample is given to you as an example of the holding in this opinion. It is my opinion that the ballot should be substantially in the form of the attached sample.

DEMOCRAT PARTY    REPUBLICAN PARTY   INDEPENDENT CANDIDATES       
(PRESIDENTIAL ELECTORS, ONLY ONE GROUP TO BE ELECTED)         

            
Doe & Roe Electors       Doe & Roe Electors       Doe & Roe Electors       
John Doe                              John Doe                                John Doe         
Frederick                              Frederick                                Frederick         
John Doe                               John Doe                                John Doe       
Brookings                              Brookings                              Brookings       
John Doe                               John Doe                                John Doe       
Mitchell                                 Mitchell                                 Mitchell         
John Doe                               John Doe                                John Doe       
Platte                                     Platte                                      Platte       

Doe & Roe Electors       
John Doe         
Frederick         
John Doe       
Brookings       
John Doe       
Mitchell         
John Doe       
Platte                                    

For United States Senator 
John Doe                           John Doe                                John Doe       
Yankton                             Yankton                                 Yankton         

For Representative             For Representative               For Representative in Congress                          in Congress                            in Congress
First District                         First District                           First District       

 John Doe                       John Doe                          John Doe         
Sioux Falls                     Sioux Falls                        Sioux Falls         

Respectfully submitted,

Gordon Mydland
Attorney General