August 17, 1982

Ms. Donna McCrea 
Brown County State's Attorney 
Brown County Courthouse 
Aberdeen, South Dakota 57401

Official Opinion No. 82-42

Election Day Polling Place

Dear Ms. McCrea:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

For many years, under previous administrations, persons seeking elected positions have displayed campaign materials, for the purpose of soliciting votes, in the Brown County Courthouse and within one hundred feet from entrances leading into it.  These materials were removed when absentee balloting began. 

Aberdeen City Precinct number four is housed within the same building as the County Auditor's Office.  This precinct is used on the day of election only. 

In the June, 1982 Primary Election, 190 persons cast ballots at the Auditor's Office.  Only 13 out of 37 precincts in Brown County cast a larger number in this same election.

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

QUESTION: 

Is the Brown County Auditor's Office a 'Polling Place' as defined by SDCL 12-18-3?

SDCL 12-18-3 provides: 

Except for sample ballots and materials and supplies necessary for the conduct of the election, no person shall in any polling place or within or on any building in which a polling place is located or within one hundred feet  from any entrance leading into a polling place, maintain an office or communications center or public address system or display campaign posters, signs or other campaign materials or by any like means solicit any votes for or against any person or political party or position on a question submitted.  A violation of this section is a Class 2 misdemeanor.

In view of the foregoing statute, it is my opinion that the answer to your general question is NO, for the following reasons: 

1.  I believe § 12-18-3 is meant to refer only to polling places on election day, not to pre-election day absentee voting. 

2.  There is no language in the South Dakota Code on absentee voting which indicates that election day procedures apply. 

3.  SDCL 12-14-1, reading as follows: 

12-14-1.  The board of county commissioners shall by resolution provide for election precincts throughout its county and shall designate polling places within such precincts.  The board shall establish new election precincts when required by the provisions of this chapter or §  2-2-12, and may by resolution change the boundaries of election precincts already established.  The precincts and polling places shall be the same for all elections except where election by ward or a boundary other than a precinct is required for the purposes of a local election and would be inconsistent therewith.  In such event, the governing board may establish its precincts  for the purposes of its elections.  The county auditor shall keep separate lists of voters living within the boundaries of the municipality and outside the boundaries for the purpose of municipal and school elections. 

provides that the county commissions will formally establish polling places, and it is my belief that most counties, in which the county courthouse is not an election day polling place, have not so provided.

Having ruled that a county courthouse is not generally a polling place within the meaning of § 12-18-3, I am obliged to state that the Brown County Courthouse is an election day polling place, per your stated facts, and § 12-18-3 is applicable on election day.

Respectfully submitted,

Mark V. Meierhenry
Attorney General