STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
March 11, 1968
D. G. Syvertson
State's Attorney, Clark County
Clark, South Dakota
OFFICIAL OPINION NO. 67-68 pg. 452
Reapportionment of county commissioner districts. If one-man one-vote requires a municipal ward to be divided, such is lawful. Mechanics of fixing ejection precincts for primary and general election in such case.
Dear Mr. Syvertson:
You have requested an official opinion relative to this factual situation:
"The Clark County Commissioners, in pursuance to the mandate of SDC 12.0608, as amended by Ch. 22, Laws of 1966, redistricted the county commissioner districts in January. In order to effectuate the one-man one-vote principle, it was necessary to divide Ward Three in the City of Clark so that a portion of such ward is represented by one county commissioner and the balance by another."
The questions you have submitted with such factual situation are these:
"(1) Would this reapportionment be invalid in view of the patent fact that such is violative of SDC 1960 Supp. 16.0801 (3) which requires that each ward in every municipality must be a separate election precinct?
"(2) If .Question No.1 is answered NO, for the purposes of the primary and general election, should such ward be divided into separate election precincts, or should the electors in such ward vote in a single election precinct with the proper ballots (showing the proper county commissioner) being given to the voters?
"(3) If the division of such ward into election precincts is proper, when should such be done, and would it be proper to denominate such election precincts at "First Precinct, Ward Three" and "Second Precinct, Ward Three" to distinguish the territorial boundaries of such commissioner districts?
A careful reading of the 1966 amendment to SDC 12.0608, together with Bailey v. Jones, 81 SD 617, 139 NW 2d 385, leads me to the conclusion that the one-man one-vote principle applies to county commissioner districts and any artificial barrier to accomplishing such rule is unconstitutional. It is axiomatic that wards are necessary for municipal elections and as such have no bearing upon county and statewide elections which are held at the primary and general election. The restrictive portions cf SDC 16.0801, as amended, and especially subsection (3), if such would result in a denial of the one-man one-vote, is an artificial barrier, which in my opinion, our court would hold unconstitutional as it did the artificial barriers in SDC 12.0608, before its amendment in the Bailey case.
Question No.1 should be answered NO. If such reapportionment satisfies the one-man one-vote principle, such reaportionment is valid notwithstanding that it may conflict with portions of SDC 16.0801, as amended.
In answer to Question No.2, it is my opinion that the affected ward in Clark should be divided into two separate voting or election precincts for the primary and general election. The practical difficulties attendant to an election would indicate to authorize all of the electors in such ward to vote at the same election booths would result in chaos and easily could result in electors voting for the wrong Commissioner. The division of such ward into separate election precincts, with separate poling places seems not only proper, but, in order to protect the purity of the election, required.
In answer to Question No.3, I believe your designation of such separate election precincts is possible. You will notice that SDC 16.0801 (as amended) provides that such election precincts shall be provided or adjusted by the County Commissioners, on or before the tenth day of September in each year an election is held. As the primary election will be held prior to September 10, 1968, it is my suggestion the County Commissioners divide such Ward Three into separate election precincts prior to the primary election, June 4, 1968, and at such a time that the County Auditor can furnish the necessary supplies, lists and the like requisite for such election.
Respectfully submitted,
Frank Farrar
Attorney General
