November 16, 1982

The Honorable Alice Kundert 
Secretary of State 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 82-61

Absentee Ballots

Dear Miss Kundert:

You have requested an official opinion from this office based on the following factual situation:

FACTS: 

The business manager of the Bon Homme School District is preparing for a special election to be held December 7.  This election is being held pursuant to a Judgment entered in the First Judicial Circuit on October 13, 1982, by Judge E. W. Hertz. 

The question has arisen as to when a voter may request an absentee ballot by authorized messenger.  SDCL 12-19-2.1 reads 'During the seven days . . .' for a person to apply in person for an absentee ballot.  The second paragraph of SDCL 12-19-2.1 refers to getting a ballot by authorized messenger, but does not specifically state whether it has to be within the seven days mentioned in the preceding paragraph.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  May an authorized messenger pick up an absentee ballot for a voter from the person in charge of the election prior to 'seven days prior to' the election? 

2.  May the voter sign and date the request for an absentee ballot by authorized messenger prior to seven days prior to the election?  This  question is asked in the event the answer to Question #1 is No. 

3.  Does the 3:00 p.m. deadline for receipt of application for absentee ballots on election day also apply to requests brought in by an authorized messenger?

SDCL § 12-19-2.1 provides: 

During the seven days prior to any election, a voter may apply in person to the person in charge of the election for an absentee ballot during regular office hours up to three o'clock p.m. of the day of the election. 

In the event of sickness or confinement, the qualified voter may apply in writing for and obtain an absentee ballot by authorized messenger so designated over the signature of the voter.  The person in charge of the election is authorized to deliver to such authorized messenger a ballot to be delivered to the qualified voter.

IN RE QUESTION NO. 1:

In my opinion, the answer to your first question is NO.  SDCL § 12-19-2.1 expressly states '[d]uring the seven days prior to any election' as a condition precedent to application of the statute. And although one might argue that the failure to repeat the condition in paragraph 2 of §  12-19-2.1 is meaningful, it is my opinion that the condition is meant to apply to all of §  12-19-2.1.  This position is further supported by the fact that the immediately preceding statute--SDCL § 12-19-2--applies to 'any time not less than seven days prior to an election.'  Thus, § 12-19-2, and not §  12-19-2.1, establishes the procedure to be followed to obtain an absentee ballot during the time period contained in your question.

IN RE QUESTION NO. 2:

In my opinion, the answer to your second question is YES.  SDCL § 12-19-2.1 provides that a voter 'may apply in writing for' an absentee ballot by authorized messenger.  The operative word is 'apply.'  Application in the present circumstances requires two steps:  (1) a signed request by the absentee voter and (2) delivery of the signed request to the person in charge of the election. Since the application is not complete unless the request is delivered, the time of delivery of the request to the person in charge of the election is the effective time of application. Therefore, it is my opinion that the time when the request is signed by the absentee voter may occur prior to seven days before the election so long as delivery of the request falls within that time.

IN RE QUESTION NO. 3:

In my opinion, the answer to your third question is YES.  As with Question No. 1, it is my opinion that the 3:00 p.m. condition stated in paragraph 1 of §  12-19-2.1 is intended to apply to paragraph 2 of §  12- 19-2.1 as well.

Respectfully submitted,

Mark V. Meierhenry
Attorney General