STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 20, 1970

C.D. Kell
States Attorney, Jones County
Murdo, South Dakota 57599

OFFICIAL OPINION NO. 70-33

When facts show that candidate for political office was not at time of primary election a registered member of any political party, this alone is insufficient to keep his name from being printed on the General Election ballot.

Dear Mr. Kell:

You have requested an official opinion of the following fact situation:

"X" is a registered voter of Jones County, South Dakota, but in such registration as a voter he did not specify as being a member of any political party.

Before the 1970 primary election, a petition was circulated and filed with the county auditor, nominating "X" as a Democrat party candidate for county commissioner. Such nominating petition was accompanied by a declaration of "X" as a candidate for county commissioner. The name of "X", along with others for such office appeared on the Democrat ballot in the 1970 primary election, and "X" was nominated as the Democrat candidate for county commissioner.

Your question:

In view of the patent fact that "X" was not a registered Democrat at the time of his nomination for the Democrat party for public office at the time of the 1970 primary election, is he eligible to run for such office in the 1970 General Election?

I must assume that in pursuance to SDCL 12-8-1 the County Canvassing Board has issued a certificate of nomination to "X" and that such board has further certified that "X's" name appear on the general election ballot. I must further assume that the crux of your question is whether or not in preparing such ballots for the 1970 general election, the county auditor should cause "X's" name to appear on the ballot, under the Democrat party designation as such party's candidate for county commissioner.

As this office has pointed out (see 1929-30 AGR 162) the only purpose of the provisions of our law requiring an elector to register his party affiliation is to prevent any person who has not so registered as a party vote r fro m participating in the primary election. Therefore such registration affects only the tight to vote in the primary.

With the recognition of the purpose of such registration, this office held in 1929-30 AGR 162 and 1931-32 AGR 403, that a person who is registered as a member of a particular political party can be a candidate for public office for another political party. Likewise, in 1931-32 AGR 403 this office was asked if a selected candidate of a political party dies, resigns or is unable to be a candidate in the general election, so that the political party can fill the vacancy in nomination, was the political party limited to selecting a person who was registered as a member of such political party. This office answered the question NO. So long as the person selected possesses the necessary qualification to hold office, if elected, the political party may fill the vacancy on its ticket with a person who was not qualified and did not actually vote in the primary election of such political party.

In an opinion issued in 1933-34 AGR 562, some doubt was expressed as to whether a particular candidate was eligible for the office of county superintendent of schools. In such opinion it was said:

If the candidate referred to in your letter was not nominated in the primary, his name, of course, cannot appear on the official ballot for the general election, and there would be no further need to inquire as to his eligibility if he had not been nominated in the primary. If he has been nominated in the primary then under the provisions of Section 42, Ch. 118 of the Laws of 1929 (the same as SDCL 12-8-1) it becomes the duty of the county canvassing board to issue to him a certificate of nomination and to certify his name as such nominee to be printed upon the official ballot in the succeeding November election and this duty should be performed unless some action is taken to establish the fact of his ineligibility. In other words, it is my opinion that the fact of his nomination, if he has been nominated, would raise a presumption that he possessed the necessary qualifications and unless his want of qualifications should be established in some judicial proceeding or officially admitted by him, I think the county canvassing board and county auditor should have his name placed upon the official ballot for the general election of November.

There seems little doubt that the issuance of such certificate of election, and certification for the November ballot, is a ministerial act. (See State ex rel McNulty v. Glasner, 33 SD 241, 145 NW 547. 1931-32 AGR 375.) Our court, in State ex rel Jacobson v. Morrison, 63 SD 31, 256 NW 150, and State ex rel Bakewell v. Hanson, 67 SD 499, 294 NW 445 has held, in actions involving the sufficiency of nominating petitions at primary elections, brought after the primary was held and a certificate of nomination was issued, that certain matters which might be considered as mandatory prior to the primary election, will be considered as directory after such primary election has been held.

In 1933-34 AGR 296, this office considered the effect of the declaration of the candidate for nomination to party office. It was held that the declaration that the candidate is legally eligible for the office to which he is a candidate, does not refer to his present status at the time he executed such declaration. This talks as of the time when he assumes office, if elected. However, declarations made as to his residence in the precinct and county, and also on the subject of being a qualified elector of such precinct and county refers to his present status at the time of making such declaration.

I must assume, if such is not patently shown by his registration as a voter of Jones County, that "X" is a qualified elector of such county and the voting precinct he claimed, both at the time of the primary and at the time of the general election. His declaration as to these matters cannot be said to be incorrect. Under our laws, "X" could register at this time as a member of the Democratic Party and at least a declaration that he is a member of such party, as of the General Election is correct. (However, as was pointed out in the opinions of 1939-40 AGR 162 and 1931-32 AGR 403, the declaration of the candidate that he is a member of the political party in which he seeks office while such may not make him eligible to vote in such party in the primary election, certainly such is a declaration of his political party affiliation and acts as a change in party affiliation, "X" may have shown a political party affiliation.)

It is my opinion that the showing that "X" was not registered as a member of either party at the 1970 primary election is not a showing of his ineligibility for such public office so that his name be omitted from the 1970 General Election ballot as the Democrat candidate for county commissioner. Only the Judiciary can declare his ineligibility.

Respectfully submitted,

Gordon Mydland
Attorney General