STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 4, 1968

Alma Larson
Secretary of State
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 68-24

County Central Committees filling vacancies; holdover members right of such persons to vote in meeting of such County Central Committee

Dear Miss Larson:

Since the issuance on May 17, 1968 of my official opinion to you relative to the County Central Committee of the several political parties, certain questions of general interest have been submitted in regard to the functions of such committee. I am submitting in this opinion my answer to these questions. This opinion should be considered as a continuation of that opinion of May 17, 1968 above referred to.

The questions submitted are:

"1. In the absence of a candidate for precinct committeeman or committeewoman, does the incumbent in such office remain as such precinct committeeman or committeewoman?

"2. In case of the death, restriction or other disqualification of a precinct committeeman or comitteewoman, who fills such vacancy?

"3. In voting to fill vacancies in either a county or district office, are 'holdover' or 'selected' members of the County Central Committee eligible to participate in such vote?"

INTRODUCTION

In my previous opinion I perhaps did not stress the obvious fact that the precinct committeemen and committeewomen who constitute the County Central Committee are the delegated representatives of the members of a particular political party and, as such, represent all the members of such political party in solving the problems facing the county or the district during a political year.

In 1929-30 AGR 170, my predecessor held that for a person to legally hold the position of precinct committeeman or committeewoman, he must be a member of the political party for which he is selected and also a resident of the particular precinct he is to represent. Failing to have either such qualifications, even though elected, no certificate of nomination should be issued, as such person is ineligible for such position. I approve of this decision.

Likewise, SDC 16.0248 requires that the provisions of SDC 16.02 must be liberally construed so that the real will of the electors is not defeated by a mere technicality.

QUESTION 1

The statute itself answers this question. A part of SDC 1960 Supp. 16.0212 provides:

"The person receiving the highest number of votes of his party shall be declared elected precinct committeeman and committeewoman, respectively, of said party, and shall hold such position for two years, or until his or her successor is elected."

In view of this statutory language, this office has consistently held that when there is no candidate for such position, the incumbent remains in office until his successor is elected. 1939-40 AGR 643 and 1951-52 AGR 419. I approve of these opinions.

Question No.1 is answered YES.

QUESTION 2

The statute itself provides the exclusive method of filling vacancies in the position of county central committeeman. (SDC 16.0241, as last amended by Ch. 107 of the Session Laws of 1963, providing that the County Central Committee shall have power to fill vacancies in its membership.) As the County Central Committee consists exclusively of precinct committeemen and women, it logically follows that it is the remaining members of such County Central Committee who fill vacancies in the office of precinct committeeman and committeewoman caused by death, resignation or other disability.

I have been advised in some instances such positions have been filled by appointment by the County Chairman. Such appointment, not being authorized by law, at best can result in only a de facto rather than a de jure office holder. To legalize such appointment, the then existing County Central Committee should appoint the same or another person to be a member of the County Central Committee representing a particular election precinct.

QUESTION 3

An examination of the statutes and the Opll1lOnS of my predecessors, reported in 1927-28 AGR 302, 1930-32 AGR 190 and 1933-34 AGR 311 make it apparent that at any official meeting of the County Central Committee, either for county affairs or in connection with other county central committees, acting for a district, that the statutes do not require all eligible members to be present, but only a majority of the members need be present to constitute a quorum. Once a quorum is convened then the majority of the members must prevail in either appointing persons to fill vacancies or in other matters to come before such committee.

Likewise, as stated, the individual precinct committeeman and committeewoman represents the eligible voters of his political party residing in a particular voting precinct. Such official has but one vote (see SDC 16.0243, as amended by Chapter 77, Session Laws of 1968) which he must cast in person and may not cast by proxy.

I appreciate that SDC 16.0241, as amended by Chapter 107 of the Session Laws of 1963 provides that:

"Precinct committeemen and precinct committeewomen of each political party, elected at the primary election, shall constitute the county central committee of their respective political parties."

However, in my opinion, reported in 1963-64 AGR 379-and in recognition of SDC 16.0248-I stated:

"Therefore, it is my conclusion that the precinct committeemen and precinct committeewomen elected at the last primary election, and the vacancies filled by them constitute the County Central Committee."

I have ruled that such members of the County Central Committee who have been selected to fill a vacancy are proper members of such County Central Committee. It must logically follow that these persons may participate in the official actions of such committee, and may vote.

Does the same rule apply to incumbents who are "holding over," and while presumably elected at a primary election, were not so elected at the last primary election? It is my opinion that it does. A ruling contrary thereto would in effect be saying that certain electors were not permitted to be represented in county or district political affairs.

Likewise, if holding that those appointed to fill vacancies may vote is correct, when such are appointed, not by the electors of a particular precinct, but by representatives of the county at large, it must logically follow that the "holdover" members of such County Central Committee likewise have a right to participate and vote in such political matters and affairs properly coming before the County Central Committee.

My answer to Question No.3 is YES.

Respectfully submitted,

Frank L. Farrar
Attorney General