STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

August 6, 1968

The Honorable James L. Rothstein
State Representative
Mobridge, South Dakota
The Honorable Thomas Mills
State Representative
Sioux Falls, South Dakota
The Honorable Joseph H. Barnett
State Representative
Aberdeen, South Dakota
The Honorable Donald Osheim
State Representative
Watertown, South Dakota

OFFICIAL OPINION NO. 68-14

Effect of delegates' and alternates' pledge to support preferred presidential candidate. SDC 16.0211 as last amended by Chapter 74, Laws of 1968

Dear Representatives:

You have requested my opinion on the following submitted question:

"Are the Republican delegates and alternates to the National party convention selected at the primary election of June 4, 1968, legally bound by the provisions of SDC 16.0211, as amended by Chapter 74 of the Session Laws of 1968 to the pledge to use their efforts to obtain the nomination of their preference candidate through the third nominating ballot?"

You have pointed out that in my opinion of February 5, 1968, addressed to Honorable Thomas P. Ranney, where I discussed Chapter 74 of the Session Laws of 1968 and ruled that such was not the subject of an emergency as legally defined, and therefore such statute did not become effective on the date it was signed by the Governor, but rather it became effective at the time all enactments of the Legislature, without a specified effective date, became the law of the State.

You will notice, however, that in conformity with State ex rel Richards v. Whisman (1915) 36 SD 260, 154 NW 708, LRA 1917B 1 (writ of error dismissed for want of jurisdiction, 241 US 643, 36 S. Ct. 449, 60 L ed 1218) that I stressed the fact it was the Emergency Clause, not the substantive portion of the Act which was void.

There can be no question that as the Republican National Convention will be held after July 1, 1968, that the provisions of Chapter 74, of the Session Laws of 1968, other than the invalid emergency clause, are the laws of this State.

In Morrow v. Wipf (1908) 22 SD 146, 115 NW 1121 our Court has said:

"Political parties result from the voluntary association of electors. They do not exist by operation of law; and they possess plenary powers as to their own affairs in the absence of legislative regulation." (emphasis added)

This is in accord with the usual rule of law in this country (see Seay v. Latham (Tex Supreme Ct 1944) 182 SW 2d 251, 155 ALR 180).

Our Court in State ex rel Howells v. Metcalf (1904) 18 SD 393, 100 NW 923, 67 LRA 331 stated:

"To what extent, if at all, the rights of organized political parties should be recognized and regulated by law, is a matter of public policy, to be determined by the legislative department; a matter which does not concern this court. Its duty is done when it gives effect to the legislative will as expressed in statutes which do not conflict with any provision of the Federal or State Constitution."

As you may appreciate, the courts are loath to become engaged in the internal conflicts and controversies of political parties. (See 20 ALR 1035 which annotates this question.) It is not surprising that there are few adjudicated cases interpreting statutes, similar to ours, which allow the electors of a political party to instruct the delegates to the National party nominating conventions as to whom they should support as the Presidential candidate of the party.

In McCamant v. Olcott (1916) 80 ORE 246, 156 P 1034, LRA 1916E 706, the court pointed out that while such preferential vote could not nominate a person for President, and was merely advisory, certainly such at least was morally binding upon the delegates elected to attend the National nominating convention as the representatives of the Oregon members of the particular political party. The same conclusion-that the direction of the electors was morally binding upon such delegates-was also reached in the earlier case of State ex rel Nebraska Republican Central Committee v. Wait (1912) 92 Neb 313, 138 NW 159, 43 LRA (NS) 282.

In Ryan v. Holm (1952) 236 Minn. 189, 52 NW 2d 409, the court remarked that under the Minnesota statutes the delegates were bound to support the particular candidate for President and Vice President as directed by the vote of the party electors.

It is my opinion that certainly there is a moral obligation for the delegates to the National Republican Convention of 1968 to obey the direction of the statute in question wherein each of such delegates and alternates pledged:

"That, if elected, I will use my best efforts at the convention to obtain the nomination of the person I have indicated as my preferential choice for President of the United States until a Presidential candidate has received sufficient votes to be declared nominated by such convention, or until such Presidential candidate has received less than thirty-five percent of the votes for nomination on any ballot by such convention, or until the Presidential candidate releases the South Dakota delegation from such pledge, or until three nominating ballots have been taken and completed."

You will notice that the moral obligation gives other alternatives than just the three nominating ballots you have mentioned.

On the other hand, if some or all of the delegates and alternates were to vote for the person ultimately selected as the nominee of the Republican Party for President of the United States, and in violation of the moral obligation imposed by the statutes, and such breach of obligation was not challenged on the floor of the convention, I very much doubt that such would render such nominee ineligible to be considered the party's choice for President of the United States. Regardless of the old or new law, the obligation to support a Presidential nominee on a slate elected in his behalf is a moral obligation only.

Respectfully submitted,

Frank L. Farrar
Attorney General