STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
November 15, 1971
Miss Alma Larson
Secretary of State
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 71-56
Eligibility of college students to vote in college towns
Dear Miss Larson:
You have asked my opinion on the following questions:
Over the years many county auditors have inquired whether or not college students are entitled to vote in counties where they are attending college. With the ratification of the 26th Amendment to the Constitution of the United States, this problem will be faced by the counties with colleges in ever increasing numbers.
QUESTION 1. Are college students entitled to vote in the counties where they are attending college if they did not originate from that county?
QUESTION 2. What procedures are available and should be followed to determine the eligibility for voting?
QUESTION 1 - College student voting has been complicated by the adoption of the 26th Amendment to the Constitution of the United States. Section 1 of said Amendment provides:
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.
This Amendment absolutely guarantees to 18 year olds, or older, the right to vote, but in no manner directs the place of voting. It is settled law, which has not been affected by the 26th Amendment that a person can have only one voting residence at any particular time, and until a new voting residence is established, he retains his original voting residence. This fundamental principle of our election law must be considered in determining a voting residency of any elector whether he be a college student or not.
In the past it had been determined that students in South Dakota had to vote where their parents resided. Such rule was stated by my predecessor in an official opinion issued on April 1, 1948. He stated that it was presumed that college students could not register to vote in the county where they were attending school, but that they could overcome the presumption that they were domiciled at their parents' residence. Some of the elements that could be considered in determining voting residency were-whether the stud en t was free from parental control, whether he regarded the college town as his home, and where would he go when ill. He also stated that if the student returned to the parental roof during vacations, the presumption against residency obtained. The Attorney General did not elaborate further.
This office has ruled that bodily presence was necessary to establish residence in a case involving Bureau of Reclamation personnel who had been transferred to South Dakota. This opinion, dated September 28, 1948, related obviously to transitory personnel and their dependents, but did not elaborate further.
Another prior opinion ruled that a person may not vote in any other precinct than that precinct in which he resides. That opinion was dated October 6, 1944. Another of my predecessors ruled unconstitutional Ch. 223, Session Laws of 1921, which provided as follows:
Any elector who moves from an election precinct where he is registered to any other precinct in the state within thirty days prior to any election, may retain his right to vote in the election precinct from which he moved.
In that opinion, dated April 20, 1922, my predecessor held that you could only vote in that precinct in which you resided. He stated that the Legislature could not make additions to qualifications prescribed by the State Constitution. This opinion of the Attorney General was affirmed in the official opinion of April 9, 1940. This statute was later repealed by the Legislature, but its principle became a part of Section 1, Article VII of the South Dakota Constitution in 1958.
Other opinions of the Attorney General may be found in 1963-64 AGR 370; 1963-64 AGR 380,1949-50 AGR 83,1943-44 AGR 139.
These opinions correctly stated the law; however, recent decisions of the United States Supreme Court, new federal enactments and the 26th Amendment to the Constitution of the United States have modified the law to a certain extent.
In the past, some students have been denied the right to vote in the college towns because of their status. Separate qualifications and requirements were required of students that were not required of any other person who wished to register and vote in the college towns. However, this procedure was condemned by the United States Supreme Court in the case of Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L Ed 2d 709 (1965). In that case, the court held that no test can be given to one segment of the population that is not given to all other segments. To require students to answer questions or meet qualifications required only of them, because of their status as students, would violate the equal protection clause of the 14th Amendment to the Constitution of the United States.
Congress has enacted this rationale into law in the 1964 Voting Rights Act. The language may be found at 42 U.S.C. 1971(a) (2) (A):
(2) No person acting under color of law shall-
(A) in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individuals within the same county, parish, or similar political subdivision who have been found by state officials to be qualified to vote;
In other words, no county auditor, city auditor or other registrar in South Dakota may use separate qualifications for students that are not used for every other person in the community. If no questions were asked of others, then no questions may be asked of the students. The same criteria must be used.
Laws denying persons the right to vote, based upon status, have been roughly handled by the Supreme Court. Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L Ed 675 (1965). Kramer v. Union Free School District, 395 U.S. 621,89 S.Ct. 1886, 23 L Ed 2d 583, Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L Ed 2d 169 (1966), and Cipriano v. Houma, 395 U.S. 701, 89 S.Ct. 189723 L ED 2d 647 (1969).
A case illustrative of these opinions is Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L Ed 2d 370 (1970). The Court passed upon whether or not persons living in a federal enclave in Maryland could vote in Maryland elections. The State of Maryland denied them the right to vote since they were not permanent residents and that they were not as interested in the affairs of Maryland as other and more permanent residents. Maryland contended that it could deny the vote to the federal residents to ensure that only those citizens who are primarily or substantially interested in or affected by electoral decisions had a voice in making them. In a unanimous decision, the Supreme Court rejected this contention. The Court found that the federal residents were counted in the census as residing in Mary land. The criminal laws of Maryland could be enforced against them. They were subjected to the taxation laws of Maryland. Their day-to-day affairs within the State of Maryland interested them in the affairs of Maryland, and that they had a stake in the affairs of Maryland equal to the other citizens of Maryland.
Some fear is expressed by college towns in that the students may vote differently than other residents of the towns. However, the United States Supreme Court stated in the case of Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L Ed 2d 24 (1968) that this is not a reasonable criteria. In that case, the State of Ohio attempted to keep George Wallace and the Socialist Labor Party off the Ohio ballot contending that it had the right to maintain the two party system. The court stated:
Competition in ideas and governmental policies is at the core of our electoral process and the First Amendment freedoms. 21 L Ed 2d at 32.
The same rationale was raised by Texas and rejected by the Court in Carrington v. Rash supra. As Mr. Justice Jackson stated in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642. 63 S.Ct. 1178, 87 L Ed 1628 (1943);
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.
The two most recent state cases following the adoption of the 26th Amendment are Jolicoeur v. Mihaly, Cal., 488 P. 2d 1 (1971), and Wilkins v. Bentley, Mich., 189 N.W. 2d 423 (1971). These cases hold that the United States Constitution does not allow states to require students to vote only at their parents' homes, and that they must be allowed to vote where they can establish legal residence for voting.
In conclusion, it is my opinion that students, as well as every other citizen in South Dakota, can establish legal voting residence aside from the place where their parents reside. Every person must be treated the same in South Dakota and no special standards may be imposed upon a student because he is a student. A student who has established a legal voting residence in his college town is to be allowed to register and vote there. He shall not be required to go to his parents' home to vote if he has established legal residence in his college town. On the other hand, a student who does not intend to establish domicile in his college town, cannot vote there, and he must vote at his permanent residence which would usually be his parents' residence.
QUESTION 2 - It is my opinion that the following procedures shall be followed in South Dakota to determine the eligibility of a person to vote.
1. Any person who appears before any person empowered to register voters in South Dakota and who has the constitutional qualifications of a voter, or who will have such qualifications at the next ensuing election, shall be entitled to be registered as a voter in the voting precinct or district in which he resides, SDCL 12-4-1.
2. The applicant shall take the oath prescribed by SDCL 12-4-6.
3. The forms prescribed by SDCL 12-4-8 shall be filled out and signed by the applicant.
4. Upon the filing of the oath and the form, the registrar shall register him as a voter. The registrar has no right to refuse the applicant the right to register if he fulfills the oath and application procedure concerning age and presence in the state of one hundred eighty days, the county ninety days, the precinct thirty days. SDCL 12-4-6 " ... upon being duly sworn, the applicant shall answer such questions as are required, as set forth in §12-4-8 ....”
5. The registration of any voter may be challenged at any time by following the procedure below pursuant to SDCL 12-4-23.
(a) The person challenging must file a written challenge with the county auditor. The challenge shall be specific and it must point out where a deficiency lies.
(b) The county auditor must fix a time and place for hearing and notify all interested parties.
(c) At that time and place, the county auditor shall hear the matter, and he shall file his written decision in his office within three days after the hearing.
(d) The following criteria shall be used to determine eligibility:
(1) citizenship
(2) age
(3) actual continuous residence for the constitutional periods of time.
(4) intent to reside for an indefinite period of time. The intent of the voter can only be attacked by showing acts or declarations inconsistent with his declared intent to reside indefinitely where he is registered. Such acts or statements introduced at the hearing must be relevant to the charges filed by the challenger.
(5) whether insane, or under guardianship by court order, non compos mentis or a felon unrestored to civil rights.
(e) Either the challenger or person challenged may appeal an adverse decision to the circuit court of the county.
(f) The circuit judge must hear and determine the appeal within thirty days from the date of the filing of the appeal.
(g) This challenge procedure shall not be applied to any prospective voter before he registers.
(h) Any false information given by any person under oath subjects him to criminal penalties.
(i) At any challenge hearing before the county auditor, the burden is on the person making the challenge to show that the elector is not qualified.
In conclusion, I can only give a qualified answer to these questions based upon decisions of other jurisdictions. Neither our Supreme Court nor the U.S. Supreme Court has finally decided this question, and a definite answer can only be made by the courts.
Respectfully submitted,
Gordon Mydland
Attorney General
