STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

April 1, 1970

Boyd L. McMurchie
State's Attorney, Lyman County
Kennebec, South Dakota 57544

OFFICIAL OPINION NO. 70-15

Township Elections. Write-in voting permitted, but electors may adopt rules which abolish such write-in votes. SDCL 8-3-16

Dear Mr. McMurchie:

You have requested my official opinion in regard to certain problems arising in the annual township meeting. The factual situation giving rise to such questions is as follows:

"At the annual meeting of X Township, after the appointment of the moderator and a clerk of such meeting, the electors adopted certain rules of procedure regarding the nomination and election of township officers. These regulations provided that each position would be open for the acceptance of nominations to a specific office, and once such nominations were closed, the only candidates to be voted upon were those who were nominated for such specific positions, and that no write-in ballots containing the name of a person other than a nominee would be counted."

The questions submitted with this factual situation are as follows:

"1. Was it proper for the electors at the annual township meeting to restrict balloting to nominated candidates and refuse to accept write-in candidates?

"2. In the absence of such restrictions upon the annual township elections, are write-in candidates permissible in township elections?"

My answer to each of your questions is YES.

The statutes governing townships originated in territorial days, and have remained practically unchanged to this day. SDCL 8-3 sets forth the statutes relative to township meetings and elections. SDCL 8-3-12, 8-3-13 and 8-3-15 require that one supervisor, one clerk, one treasurer, one justice of the peace and one constable be elected at each annual township meeting. These statutes require such election to be conducted by ballot. (All other officers, if not otherwise provided by law, shall be chosen at the annual meeting, either by yeas and nays, or by a division, as the electors may determine.) SDCL 8-3-19 and 8-3-20 sets forth the method of filling such township offices if there is a failure to act at the annual meeting.

SDCL 8-3-16 covers the forms of ballot and the conduct of such township ballot elections. In commenting upon the ballot forms, this office in 1935-36 AGR 206 has stated:

"Even where the election is by ballot at the township election the ballots are not required to be furnished at public expense nor to have the names of candidates printed thereon but the ballot may be either written or printed. The voter may take any suitable piece of paper and write thereon the name of the office and the name of the candidate for whom he votes for that office."

The statutes governing the conduct of such township elections furnishes little guidance into the actual conduct of such election, and permits the electors to set forth their own particular procedure they desire in electing such township officers. This in my opinion is proper.

Thus, in the factual situation you have given, it is my opinion that the electors of X Township had the authority to adopt the rules and regulations limiting the balloting to the nominated candidates. Therefore, as indicated,

I have answered Question No. 1 in the AFFIRMATIVE.

Insofar as Question No. 2 is concerned, this was answered in the AFFIRMATIVE by my predecessor in an opinion reported in 1913-14 AGR 324, as the statutes then existing are comparable to our present statutes, plus the further fact that township elections are not governed by the "Australian Ballot Law." See 1923-24 AGR 161, 1933-34 AGR 310 and 1935-36 AGR 205, and SDCL 12-1-2. This conclusion concerning write-in ballots is proper. A study of Vallier v. Brakke, 7 SD 343, 64 NW 180; Parmley v. Healey, 7 SD 402, 64 NW 186 and Chamberlain v. Wood, 15 SD 216, 88 NW 109, 91 Am. St. Rep. 674, 56 LRA 187 reveals that the limitations on write-in ballots applies only to elections conducted under the Australian Ballot Law.

Question No. 2 must be answered AFFIRMATIVELY.

Respectfully submitted,

Gordon Mydland
Attorney General