After SD enacted SDCL 12-19-1.2 in 2013 requiring 46 days of absentee voting, does that 46-day rule apply to municipal (city) elections, or do the smaller 15-day and 7-day periods in SDCL 9-13-21 still control for municipal absentee voting?
Plain-English summary
For many years, SD municipal elections (city council, mayor, etc.) had to provide a minimum of 15 days of absentee voting under SDCL 9-13-21. If a city's ordinance allowed a runoff "secondary election" when no candidate got a majority, that secondary election needed a minimum of 7 days of absentee voting (SDCL 9-13-25).
In 2013, the SD Legislature passed Senate Bill 130. SB 130 took the absentee voting timing language out of SDCL 12-16-1 (which was the county auditor's ballot-preparation statute) and put it into a new freestanding statute, SDCL 12-19-1.2, which said: "Absentee voting shall begin neither earlier nor later than forty-six days prior to the election..."
When the language moved out of the county-auditor section, the original context (that this rule was for county auditors running countywide elections) disappeared. The new statute, on its face, said simply "Absentee voting shall begin... forty-six days prior to the election." Did "the election" mean all elections, including municipal ones? If so, the new 46-day requirement effectively wiped out the 15-day municipal rule.
The SD Municipal League asked the AG. Yvonne Taylor, the League's executive director, framed the question: 15 or 46?
The 2014 AG said the 15-day rule still controls for municipal elections. Three reasons:
First, SDCL 12-1-2 expressly says Title 12 election provisions apply to municipal elections "unless otherwise provided by statutes specifically governing their elections." SDCL 9-13-21 is the municipal-specific statute, so SDCL 12-1-2 sends the reader back to Chapter 9-13 for municipal elections. The Legislature already drew this line and SB 130 did not change it.
Second, statutory construction prefers specific statutes over general ones (the more-specific-controls canon, Estate of Hamilton and others). SDCL 9-13-21 is the more specific provision (for municipal elections); SDCL 12-19-1.2 is the more general (for elections generally). The specific one wins.
Third, repeal by implication is "strongly disfavored" (Faircloth v. Raven Industries). SB 130 did not repeal SDCL 9-13-21. To read SDCL 12-19-1.2 as overriding SDCL 9-13-21 would effectively repeal the municipal provision by implication, which courts avoid.
The AG also pointed out that SDCL 9-13-21 itself says absentee voting "shall be conducted pursuant to chapter 12-19." That tells readers Chapter 12-19 still governs how absentee voting works for municipalities (ballot distribution, counting, voter verification), just not the number of days it must run. The 15-day floor is set by SDCL 9-13-21, but the operational rules come from Chapter 12-19.
There was also a functional point. The AG noted that applying the 46-day rule to municipal elections would create absurd results. In some cities, candidate nomination petitions are not even due 46 days before the municipal election. Requiring absentee voting to begin before all candidates had been nominated would force the city to print ballots without knowing all the candidates. That alone showed SDCL 12-19-1.2 was not intended for municipal elections.
Bottom line: SD cities continue to use the 15-day minimum (and the 7-day minimum for runoff secondaries) for absentee voting on municipal candidates. SDCL 12-19-1.2's 46-day rule applies only where Title 12 controls without exception (primary and general state/county elections, school district elections subject to SDCL 13-7).
Currency note
This opinion was issued in 2014. 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. SD election statutes have been amended multiple times since 2014, and the relationship between Title 9 (municipal) and Title 12 (general elections) has been revisited. Check the current text of SDCL 9-13-21 and SDCL 12-19-1.2 before relying on the 15-day floor for any specific municipal election.
What the opinion meant at the time
For SD city clerks and municipal finance officers in 2014, the opinion gave a clean answer to a question that had been causing real confusion. City clerks had to know when to make absentee ballots available, and the answer was: 15 days before election day (or whatever longer period the city chose), not 46 days. Clerks could continue the existing municipal election timeline.
For the SD Municipal League and its members, the opinion preserved the practical workability of municipal elections. Municipal nomination petitions were due roughly 15-30 days before the election under various provisions. Requiring 46 days of absentee voting would have meant starting absentee voting before the candidate field was even known. That would have required either pulling petition deadlines back (a separate legislative fight) or running blind absentee voting, neither of which made sense.
For county auditors, the opinion was important because in SD many county auditors administer municipal elections under contract with cities. The opinion let auditors continue running municipal absentee voting on the 15-day timeline while running county absentee voting on the 46-day timeline (where applicable), without having to merge the two.
For candidates and voters in municipal elections, the opinion meant the practical reality of 15 days of absentee voting continued. Voters who wanted to vote absentee had a roughly two-week window, with city ordinances permitted to extend it further.
For school district elections (which weren't the subject of this opinion), city clerks had to look at Title 13 provisions separately. School elections frequently track municipal elections in timing, but the rule for them is set by SDCL 13-7 and related statutes, not by SDCL 9-13-21.
Common questions
Q: How many days of absentee voting did SD municipal elections require in 2014?
A: Under the opinion, at least 15 days before election day. SDCL 9-13-21 sets the floor; a city could permit more.
Q: What about a runoff or "secondary" election?
A: SDCL 9-13-25 allowed local ordinance to provide for a secondary election when no candidate received a majority. SDCL 9-13-21 required a minimum of 7 days of absentee voting before that secondary election.
Q: What is SDCL 12-19-1.2 and when does it apply?
A: SDCL 12-19-1.2 was the 46-day absentee voting rule enacted by SB 130 in 2013. Per this opinion, it applies to elections where Title 12 controls (primary and general state and county elections, certain other elections governed by Title 12). It does not displace SDCL 9-13-21 for municipal elections.
Q: How does Chapter 12-19 still apply to municipal absentee voting if the 46-day rule doesn't?
A: SDCL 9-13-21 says municipal absentee voting "shall be conducted pursuant to chapter 12-19." That means the operational rules of Chapter 12-19 (how absentee ballots are requested, distributed, returned, counted, and verified) still apply to municipal absentee voting. Only the minimum-days provision is overridden by SDCL 9-13-21.
Q: Could a SD city voluntarily run 46 days of absentee voting?
A: The opinion says SDCL 9-13-21 sets a 15-day minimum, not a maximum. A city presumably could run more, subject to practical limits like when nomination petitions are due and when ballots can be printed.
Q: What about school district elections?
A: This opinion does not address school district elections. Look to Title 13 (Education) for school-board election timing. Many SD school district elections track municipal elections in timing, but the controlling statute is different.
Q: Why didn't the Legislature just clarify in SB 130?
A: Because, as the opinion details, SB 130's main purpose was to move the absentee-voting language out of the county-auditor section (SDCL 12-16-1) into its own standalone section (SDCL 12-19-1.2). The legislative history shows no intent to extend the rule beyond what it already covered. Repeal by implication is strongly disfavored, so the AG declined to read the silent move as an implicit municipal-rule change.
Q: Did the SD Supreme Court ever weigh in?
A: This opinion is an AG opinion, not a court ruling. AG opinions are persuasive but not binding. We are not aware of a SD Supreme Court case directly resolving the same question, but the AG's reasoning (specific-controls-over-general, no repeal by implication) tracks established SD interpretive doctrine.
Background and statutory framework
SD's election code is split across multiple titles. Title 12 (Elections) contains the general framework, including absentee voting in Chapter 12-19. Title 9, Chapter 13 (Municipal Elections) contains rules specific to city/town elections. Title 13 (Education) contains rules specific to school district elections. SDCL 12-1-2 ties the system together by providing that Title 12 applies to township, municipal, school, and other subdivision elections unless otherwise provided by statutes specifically governing their elections.
That "unless otherwise provided" clause is the key. When Title 12 sets a rule and Title 9, Chapter 13 sets a different rule for municipal elections, the Title 9, Chapter 13 rule wins. The Legislature codified the specific-over-general canon directly in the statute.
SDCL 9-13-21, as it stood in 2014, required municipal absentee ballots to be available no later than 15 days before election day, with a minimum 7-day window before any secondary election permitted by local ordinance. The statute also referenced Chapter 12-19 for the procedural rules of conducting absentee voting.
SDCL 12-19-1.2 was new in 2013, enacted as part of Senate Bill 130. The pre-2013 location of the 46-day language was SDCL 12-16-1, which was the county auditor's ballot-preparation statute and applied "for each election in which the voters of the entire county participate." That phrasing made it clear the 46-day rule was a county-auditor obligation for countywide elections, not a municipal rule.
When SB 130 moved the language to SDCL 12-19-1.2, the new statute simply said "Absentee voting shall begin neither earlier nor later than forty-six days prior to the election." The "voters of the entire county participate" context was stripped out. That created the ambiguity that prompted the SDML's question.
The AG resolved the ambiguity in favor of preserving the prior allocation. SDCL 12-1-2's general rule (Title 12 yields to specific election statutes for subdivisions) continued to apply. SDCL 9-13-21 was the specific municipal-elections absentee voting statute, so it continued to control. SB 130 did not expressly repeal SDCL 9-13-21, and repeal by implication was disfavored.
The interpretation also avoided absurd results. In a SD municipal election, candidate nomination petitions are due relatively close to election day. The exact petition deadline varies by office, but it can be less than 46 days before the election. Requiring absentee voting to begin 46 days before would mean ballots had to be printed and absentee voting started before the city even knew who all the candidates were. The Legislature would not have intended that.
The supporting cases ran through SD's established statutory-construction doctrines. Peterson v. Burns (2001) for the "later in time controls" canon (which the AG noted but did not let override the specific-controls canon). I-90 Truck Haven Service (2003) for reading statutes as a whole. Estate of Hamilton (2012) for specific-over-general. Faircloth v. Raven Industries (2000) for the disfavor of repeal by implication. Heumiller v. Heumiller (2012) for not rendering statutory clauses surplusage. Martinmaas v. Engelmann (2000) for avoiding absurd results.
The AG's resolution sat squarely within mainline SD interpretive law. No novel principle was needed; the question was just which canon controlled, and the specific-controls and no-implied-repeal canons both pointed to keeping SDCL 9-13-21 effective.
Citations and references
Statutes:
- SDCL 9-13-21 (municipal absentee voting period)
- SDCL 9-13-25 (secondary municipal election)
- SDCL 12-1-2 (Title 12 application to subdivisions, specific-statute carve-out)
- SDCL 12-16-1 (county auditor ballot preparation, pre-2013 version)
- SDCL 12-19-1.2 (46-day absentee voting period, 2013 enactment)
- 2013 SD Senate Bill 130
Cases:
- Peterson v. Burns, 2001 S.D. 126, 635 N.W.2d 556
- State v. I-90 Truck Haven Service, Inc., 2003 S.D. 51, 662 N.W.2d 288
- Estate of Hamilton, 2012 S.D. 34, 814 N.W.2d 141
- Faircloth v. Raven Industries, 2000 S.D. 158, 620 N.W.2d 198
- Heumiller v. Heumiller, 2012 S.D. 68, 821 N.W.2d 847
- Martinmaas v. Engelmann, 2000 S.D. 85, 612 N.W.2d 600
Source
Original opinion text
OFFICIAL OPINION NO. 14-01
January 8, 2014
Yvonne Taylor
Executive Director
South Dakota Municipal League
208 Island Drive
Ft. Pierre, SD 57532
RE: Absentee voting period for municipal elections.
Dear Ms. Taylor:
You have requested an official opinion from this Office:
QUESTION: Whether the forty-six day absentee voting period provided in SDCL 12-19-1.2, or the lesser periods found in SDCL 9-13-21, applies to municipal elections.
ANSWER: The lesser periods set forth in SDCL 9-13-21 control and require a minimum of fifteen days for absentee voting in municipal elections with a seven day period for secondary elections if required by municipal ordinance. Chapter 12-19 continues to otherwise govern the method and manner of "conducting" absentee voting.
IN RE QUESTION:
The periods of absentee voting at issue appear in SDCL Chapter 9-13, entitled "Municipal Elections," and SDCL Chapter 12-19, entitled "Absentee Voting." Specifically, SDCL 12-19-1.2, enacted in 2013, provides in pertinent part, "Absentee voting shall begin neither earlier nor later than forty-six days prior to the election..." SDCL 9-13-21, however, provides in relevant part, "The ballots for municipal elections shall be available for absentee voting no later than fifteen days prior to election day... Absentee voting shall be conducted pursuant to chapter 12-19." If, after the municipal election, no candidate receives a majority of the votes, local ordinance may allow for a secondary election for which at least seven days of absentee voting would be required. SDCL §§ 9-13-21, 9-13-25. Facially, these statutes appear to conflict.
With SDCL 12-19-1.2 being the latest legislative pronouncement, it could be argued that forty-six days of absentee voting is required in all circumstances. See Peterson v. Burns, 2001 S.D. 126, ¶ 29, 635 N.W.2d 556, 567. Statutes, however, must be read as a whole and in conformance with well-established principles of statutory construction. State v. I-90 Truck Haven Service, Inc., 2003 S.D. 51, ¶ 8, 662 N.W.2d 288, 291. The application of SDCL 12-1-2 and the well-recognized rule that "...statutory construction dictate[s] that 'statutes of specific application take precedence over statutes of general application'" lead to the conclusion that the provisions of SDCL 9-13-21 supersede the requirements found in SDCL 12-19-1.2. Estate of Hamilton, 2012 S.D. 34, ¶ 12, 814 N.W.2d 141, 144 (citations omitted).
Given this construction, municipalities must provide at least fifteen days of absentee voting for municipal elections with the possibility of another seven day minimum where secondary elections are required. The general election provisions are found in SDCL Title 12. Through the promulgation of SDCL 12-1-2, however, the Legislature has clearly expressed its intent to yield the general provisions of Title 12 to statutes specifically governing local elections. SDCL 12-1-2 provides, "The provisions of this title [Title 12] apply to township, municipal, school, and other subdivision elections unless otherwise provided by statutes specifically governing their elections or this title." (emphasis added). Municipal elections are covered in Chapter 9-13. Within that chapter, SDCL 9-13-21 requires a minimum of fifteen days of absentee voting in municipal elections with the possibility of at least another seven days for a secondary election.
Because the Legislature did not expressly restrict or repeal the fifteen day voting period found in SDCL 9-13-21, it is presumed to remain effective and applicable to municipal elections, as written. Any other interpretation "cannot be reconciled with the cardinal rule of statutory construction: repeal by implication is strongly disfavored." Faircloth v. Raven Industries, 2000 S.D. 158, ¶ 10, 620 N.W.2d 198, 202. Here, it is possible to harmonize SDCL 9-13-21 with absentee voting provisions found in Chapter 12-19. While SDCL 9-13-21 states that "The ballots for municipal elections shall be available for absentee voting no later than fifteen days prior to election day...," it also provides that "[a]bsentee voting shall be conducted pursuant to chapter 12-19." Because statutes cannot be construed in a manner that "renders parts to be...surplusage" we must give effect, where possible, to both clauses. Heumiller v. Heumiller, 2012 S.D. 68, ¶ 25, 821 N.W.2d at 853-54.
As described above, in municipal elections, the application of SDCL 12-1-2 allows SDCL 9-13-21 to control the minimum number of days allowed for absentee voting. At the same time, SDCL 9-13-21 permits Chapter 12-19 to otherwise govern the method and manner of "conducting" absentee voting. For instance, unless otherwise stated, Chapter 12-19 would still control the process for distributing and counting absentee ballots. Interpretations to the contrary would force SDCL 12-19-1.2 to be applied to municipal elections and run afoul of the principle that statutes must not be construed in a manner that leads to absurd or unreasonable results. Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611 (citations omitted).
The application of SDCL 12-19-1.2 to municipal elections, therefore, causes an absurd result because, in some instances, it requires absentee voting to begin even before those candidates are nominated. A review of the legislative amendments supports my conclusions. In 2013, Senate Bill 130 carved the absentee voting language from SDCL 12-16-1 and placed it in a new statute later designated as SDCL 12-19-1.2. Before the 2013 amendment, SDCL 12-16-1 read in pertinent part,
The county auditor shall provide printed ballots for each election in which the voters of the entire county participate... The sample ballots and official ballots shall be printed and in the possession of the county auditor not later than forty-eight days prior to the primary or general election. Absentee voting shall begin no earlier and no later than forty-six days prior to the election. (emphasis added).
The placement of the absentee voting provision within SDCL 12-16-1 made it clear that the obligation to provide forty-six days of absentee voting was that of the county auditor and only for elections in which the "entire county participate[d]." When the absentee voting period was moved from SDCL 12-16-1 to a new section within Chapter 12-19, however, it was stripped of this context. Nonetheless, as discussed above, when Chapter 9-13 and Title 12 are considered together, nothing in SB 130 demonstrates an intent to restrict the application of SDCL 12-1-2 or to repeal the municipal absentee voting provisions found in SDCL 9-13-21. Accordingly, the provisions for absentee voting found within SDCL 9-13-21 continue to control for municipal elections.
In conclusion, based on the specific exception in SDCL 12-1-2, as well as the principles of statutory construction, it is my opinion that SDCL 9-13-21 provides the minimum time periods in which absentee voting must be allowed in municipal elections, rather than the forty-six day period found in SDCL 12-19-1.2.
Sincerely,
Marty J. Jackley
ATTORNEY GENERAL
MJJ/RMW/jkp