When does a South Dakota felon get the right to vote back: at release from prison, at the end of the original court sentence, or at parole completion? Does a suspended imposition of sentence count as a conviction that takes away voting rights? What does a former inmate actually have to do to register again?

Plain-English summary

In February 2005, Representative Pat Haley asked AG Larry Long three questions that come up constantly in legal aid offices, prison reentry programs, and county auditor's offices: when does a felon regain the right to vote, how does a suspended imposition or suspended execution of sentence affect that right, and what does the person actually have to do to register again.

The AG answered each carefully.

On the basic question, voting rights returned when the sentence was discharged, not when the prisoner was released. The South Dakota Constitution and SDCL 23A-27-35 suspended the right to vote during the term of penitentiary imprisonment. SDCL 24-5-2 then restored "the full rights of a citizen" upon discharge from the sentence. Discharge happened at the end of the court's sentence minus applicable SDCL 24-5-1 good time. The Department of Corrections issued a certificate at that point. Importantly, parole release was not discharge. A parolee was still serving the sentence and still ineligible to vote. SDCL 24-5-2 even spelled this out: if an inmate was on parole when the discharge date arrived, the Secretary of Corrections issued the same certificate at that later moment.

On suspended imposition of sentence (SIS), the answer was different. SIS is a constitutional, statutorily authorized form of judicial clemency under S.D. Const. art. V, sec. 5 and SDCL 23A-27-13. A person could only receive an SIS once for a felony. When a court entered an SIS, the court withheld entry of the judgment of conviction. If the person completed the conditions, the criminal matter ended with a dismissal and discharge under SDCL 23A-27-14. There was no conviction. So there was no felony for purposes of SDCL 23A-27-35, and the voting right was never lost. The opinion was specific: an SIS recipient could vote even if part of the SIS conditions included serving time in jail or the penitentiary. Prior AG opinion 93-14 had reached the same conclusion.

On suspended execution of sentence (SES), the analysis flipped. Under SDCL 23A-27-18, an SES involved entry of a judgment of conviction followed by suspension of part or all of the actual sentence. The person was convicted of a felony. SDCL 12-4-18 directed removal from the voter rolls for any voter who received a felony sentence to the state penitentiary "including a suspended execution of sentence." That removal happened even if the person never actually served penitentiary time, even if the court allowed the person to serve in the county jail under SDCL 23A-27-18.1. The original penitentiary sentence imposed controlled.

On restoration of registration, the opinion described a straightforward process. The Secretary of State's statewide registration file held the discharge information. A felon whose sentence had been discharged could go to any voter registration location to register. The county auditor under SDCL 12-4-5.3 would review the application. If there was a discrepancy, the felon could present either the Department of Corrections discharge certificate (for actual incarceration cases) or the trial court's order of discharge (for SES cases with no incarceration).

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. South Dakota has amended SDCL 23A-27-35 and related restoration statutes since 2005, and the Secretary of State has updated voter registration procedures, so the specific process described may not match current practice.

What the opinion meant at the time

For people leaving the South Dakota State Penitentiary, the opinion drew a hard line: release was not enough. The voting right came back only on full discharge. A person paroled in year X with a sentence due to discharge in year X+3 had to wait until year X+3.

For people who had received a suspended imposition of sentence, the opinion was a major clarification. Voting rights were never lost. Even people who had served jail time as a condition of SIS could vote.

For people who had received a suspended execution of sentence (often confused with SIS), the opinion was the opposite. They were convicted felons in the eyes of the voting statutes, and their voting rights were suspended until SDCL 23A-27-35 restored them at the termination of the original sentence.

For county auditors processing voter registrations, the opinion outlined a clean procedure: trust the statewide registration file; if a discrepancy appeared, ask for the discharge certificate or the court's order of discharge.

For criminal defense attorneys negotiating plea deals, the opinion underscored the meaningful collateral consequence difference between SIS and SES. Two pleas that looked roughly equivalent in time-served terms could have very different voting-rights consequences. SIS preserved the right; SES did not.

For voter registration drives and reentry program volunteers, the opinion gave a clear sequence to communicate: full sentence discharge first; then registration at any auditor's office; then certificate from DOC or order from the court if questions came up.

Common questions

Q: Does parole count as part of the sentence for voting-rights purposes?
A: Yes. Parole release does not equal discharge. A parolee is still serving the sentence and still ineligible to vote until the discharge date arrives.

Q: What is the difference between SIS and SES in plain language?
A: SIS (suspended imposition of sentence) means the court does not enter a judgment of conviction at all. If the person complies with conditions, the case is dismissed and there was never a felony conviction on the record. SES (suspended execution of sentence) means the court does enter the conviction and impose the sentence, but suspends serving part or all of it. The person is a convicted felon under SES; not under SIS.

Q: Could a person who served jail time as part of an SIS still vote during that jail time?
A: According to the opinion, yes. Since there was no felony conviction during the SIS period, the SDCL 23A-27-35 suspension of voting rights did not attach. The opinion stated this directly and cited prior AG opinion 93-14 for support.

Q: What if a person was convicted of a felony but only sentenced to county jail, never the state penitentiary?
A: The opinion said that did not affect voting rights, because the SDCL 12-4-18 removal trigger required "a felony sentence to the state penitentiary." A pure county jail sentence on a felony charge was not enough to take away voting rights.

Q: Could an SES recipient who serves the sentence in county jail (under SDCL 23A-27-18.1) vote during that jail time?
A: No. The opinion said the original sentence imposed controlled. If the original sentence was to the state penitentiary (even if the court then allowed actual service in county jail), the voting right was lost. SDCL 12-4-18 specifically captured "suspended execution of sentence" cases.

Q: How long after discharge before the person could vote in an election?
A: Once discharged, the person could go register at any registration location. The opinion did not impose a waiting period beyond what was required for normal registration timing under SDCL chapter 12-4.

Background and statutory framework

South Dakota's felon disenfranchisement framework in 2005 sat at the intersection of constitutional, statutory, and administrative law. The South Dakota Constitution authorized the Legislature to suspend voting rights of convicted felons; the Legislature did so through SDCL 23A-27-35 and SDCL 12-4-18. Restoration happened under SDCL 24-5-2 upon discharge, with the Department of Corrections issuing a certificate.

Three concepts drove the analysis: imprisonment, parole, and discharge. Imprisonment meant actually being held in the state penitentiary. Parole meant supervised release before the end of the sentence. Discharge meant the formal completion of the sentence, taking into account SDCL 24-5-1 good time. The statutory text tied voting rights to discharge, not to imprisonment or parole.

The SIS-versus-SES distinction was the analytically important part of the opinion. The South Dakota Constitution authorized SIS at Article V, Section 5 as a form of judicial clemency. SDCL 23A-27-13 implemented it. SDCL 23A-27-14 governed the dismissal-and-discharge endpoint. The structure deliberately avoided entry of a judgment of conviction: the court "withholds" the judgment conditioned on compliance. If compliance happened, there was never a conviction. Hence no felon-disenfranchisement trigger.

SES under SDCL 23A-27-18 was different. The court entered the judgment of conviction first, then suspended serving the sentence. The person was a convicted felon from day one. SDCL 23A-27-18.1 allowed the trial court to direct that a suspended penitentiary sentence be served in county jail, but as the opinion noted, that did not change the character of the original sentence.

SDCL 12-4-18 was the operational removal statute. It directed election officials to remove from the voter rolls any voter who received "a felony sentence to the adult state penitentiary system" including "a suspended execution of sentence." The "including" clause was specific and made SES cases removable.

Restoration mechanics were spread across SDCL 24-5-2 (discharge certificate from DOC), SDCL 23A-27-35 (restoration following SES at termination of original sentence), SDCL 12-4-5.3 (county auditor review of applications), and the discharge order if available from the trial court. The opinion mapped these for practical use.

The opinion's clear practical insight was that an SIS plea (which a defendant might take on the assumption that it was just a deferred conviction) preserved voting rights in a way that an SES plea did not, even though both involved no immediate prison time. That difference often mattered to defendants who voted regularly and viewed disenfranchisement as a heavy collateral consequence.

Citations and references

Constitutional provisions:
- S.D. Const. art. V § 5 (judicial clemency, basis for SIS)

Statutes:
- SDCL § 24-5-1 (good time)
- SDCL § 24-5-2 (restoration of citizenship)
- SDCL § 23A-27-13 (suspended imposition of sentence)
- SDCL § 23A-27-14 (dismissal and discharge after SIS)
- SDCL § 23A-27-18 (suspended execution of sentence)
- SDCL § 23A-27-18.1 (SES served in county jail)
- SDCL § 23A-27-35 (voting suspension; restoration)
- SDCL § 12-4-18 (removal of felons from voter rolls)
- SDCL § 12-4-5.3 (county auditor review)
- SDCL ch. 24-15 (parole)

Cases: None cited.

Earlier AG opinions referenced:
- AGO 93-14 (suspended imposition does not produce a conviction for voting purposes)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinions.aspx
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2005-01.pdf

Original opinion text

February 7, 2005

The Honorable Pat Haley
State Representative, District 22
766 Utah Avenue NE
Huron, SD 57350

OFFICIAL OPINION NO. 05-01
Voting Eligibility of a Convicted Felon

Dear Representative Haley:

You have requested an opinion from this office regarding the eligibility of a convicted felon to vote. You have asked the following questions:

QUESTIONS:

1. Does SDCL 24-5-2 allow a person convicted of a felony who has served time in and been released from the South Dakota State Penitentiary, to vote?

2. Is a person who received a suspended imposition of sentence or a suspended execution of sentence eligible to vote?

3. How does a person restore voting rights lost due to a felony conviction?

IN RE QUESTION NO. 1:

The voting right of a convicted felon who is sentenced to imprisonment in the state penitentiary is suspended during the term of the imprisonment. SDCL 23A-27-35. However, a convicted felon is not automatically eligible to vote upon his or her release from the state penitentiary. A felon's entire sentence must be discharged before he or she becomes eligible to vote. It is discharge from the sentence, not from the penitentiary, that controls.

SDCL 12-4-18 requires election officials to remove any voter "who receives a felony sentence to the adult state penitentiary system . . ." from the voter registration records. This removal is based on SDCL 23A-27-35, which suspends the voting right of any person upon a sentence of imprisonment in the state penitentiary for the term of that imprisonment.

SDCL 24-5-2 addresses an inmate's right to restoration of citizenship, including the right to vote. The right to vote is restored to a penitentiary inmate when he or she is "discharged." Discharge occurs upon completion of the court's sentence less applicable good time as set forth in SDCL 24-5-1. When an inmate's sentence is completed, he or she receives a certificate from the Secretary of Corrections stating that the inmate has been discharged and restored to the "full rights of a citizen." SDCL 24-5-2.

A felon's release from the penitentiary does not mean his or her sentence has been discharged. Many individuals are released from the penitentiary before completion of a sentence under the state's parole statutes. SDCL ch. 24-15. SDCL 24-5-2 recognizes that release from the penitentiary is not discharge from a sentence, providing "if an inmate is on parole at the time the inmate becomes eligible for discharge, the Secretary of Corrections shall issue a like certificate stating that the inmate has been restored to the full rights of a citizen." Therefore, it is clear that release from the penitentiary does not necessarily discharge an inmate from his or her sentence or restore an inmate's rights of citizenship.

Based on each of the provisions set forth above, it is my opinion that final discharge from a felony sentence, which occurs at the end of the Court's sentence less any applicable good time, generally determines when a convicted felon is eligible to vote.

IN RE QUESTION NO. 2:

You have asked whether a person receiving a suspended imposition of sentence or a suspended execution of sentence is eligible to vote.

To answer this question, a distinction must be made between a suspended imposition of sentence and a suspended execution of sentence. A suspended imposition of sentence is a constitutional, statutorily authorized form of judicial clemency, similar to a pardon. S.D. Constitution, Art. V, Sec. 5; SDCL 23A-27-13. A person may receive only one suspended imposition of sentence for a felony charge during his or her lifetime. When an order suspending imposition of sentence is entered under SDCL 23A-27-13, there is no conviction. The court withholds the entry of a judgment of conviction conditioned on the person satisfying certain conditions. If a person satisfies the conditions of the order suspending imposition of sentence, the criminal matter is closed through the trial court's entry of an order of dismissal and discharge. SDCL 23A-27-14. Under these circumstances, the person has not been convicted of a felony. Since the person has not been convicted of a felony, his or her right to vote is never lost. The recipient of a suspended imposition of sentence may continue to vote even though serving time in jail or the penitentiary was part of the conditions of a suspended imposition of sentence. See also, A.G.O. 93-14.

However, when a suspended execution of a sentence is ordered, a judgment of conviction is entered by the court, and part or all of the court's sentence is suspended upon the person satisfying certain conditions. SDCL 23A-27-18. As such, the person is convicted of a felony and loses his or her right to vote, if the original sentence included serving time in the state penitentiary. SDCL §§ 23A-27-18, 23A-27-18.1, and 12-4-18.

This is the case even if that person never, due to the suspended execution of sentence, serves time in the state penitentiary. SDCL 12-4-18 directs that a voter's name be removed from the voter registration list if the voter has received a felony sentence to the state penitentiary "including a suspended execution of sentence." SDCL 23A-27-35 provides for restoration of that person's rights only "[a]fter a suspension of sentence pursuant to § 23A-27-18, upon the termination of the time of the original sentence . . . ."

A person does not lose the right to vote even if convicted of a felony when he or she is sentenced to the county jail. Our statutes require imposition of a sentence in the state penitentiary. As a result, a person who receives a suspended execution of sentence and is sentenced to the "state penitentiary," loses his or her right to vote even if the court allows the person to actually serve his or her penitentiary sentence in the county jail. See SDCL §§ 23A-27-18.1; 23A-27-35. See also, SDCL 12-4-18. It is the original sentence imposed that controls.

IN RE QUESTION NO. 3:

You have also asked how a person can restore voting rights if he or she has been removed from the voter registration system based upon a felony sentence to the state penitentiary. Given the statewide registration file maintained by the Secretary of State, registration is straight forward. This master registration file should already include information regarding the felony conviction, and the date the penitentiary sentence was discharged.

Therefore, when a convicted felon has his or her sentence discharged, the person may then go to any voter registration location and register to vote. SDCL 12-4-5.3 requires the county auditor to review voter registration application information for eligibility. The county auditor will process the registration to determine actual eligibility. If there is a discrepancy concerning voter eligibility due to the felony conviction, the person should present the Department of Corrections' discharge certificate, or, if a suspended execution of sentence with no actual penitentiary incarceration was imposed, the order of discharge entered by the trial court judge. These documents should resolve any discrepancy.

Respectfully submitted,

LAWRENCE E. LONG
ATTORNEY GENERAL

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