When a candidate's nominating petition is built from multiple circulating sheets, does the candidate's formal declaration have to be attached to each sheet before it is circulated, or is one declaration attached at filing enough?
Plain-English summary
A South Dakota election official wrote the Attorney General with a procedural puzzle. SDC 16.0210, the nominating-petition statute as it stood after the 1961 amendment, required that "the formal declaration of the candidate shall accompany and be a part of the petition." Petitions were often built from multiple sheets that different circulators carried around. The question was whether the candidate had to sign and attach a declaration to each circulating sheet before it could be circulated, or whether one declaration attached at the end, when the candidate filed the assembled stack, was enough.
The AG concluded that one declaration at filing was enough. The reasoning leaned heavily on a 1929 opinion from the predecessor AG, which had interpreted the same language in the 1929 Primary Law (Chapter 118, Section 4). Under that 1929 reading, "the petition" meant the completed instrument offered for filing with the County Auditor or Secretary of State, not each piecemeal sheet circulated to voters. The petition could be assembled from many sheets, signed by many voters, gathered by many circulators. What had to accompany it at filing was a single formal declaration of candidacy.
The AG also drew on three South Dakota Supreme Court decisions that had treated the nominating petition as a unitary filed document. Healey v. Wipf (1908) had held that the primary election laws furnished the exclusive method of nominating party candidates. Danforth v. Coyne (1925) had held that a petition filed without the candidate's declaration was not a valid filing. Johnson v. Coyne (1923) had held that, absent statutory authorization, a single petition could not nominate candidates for more than one office. None of those decisions required a declaration on every circulating sheet.
Putting the cases and the 1929 opinion together, the AG concluded that the 1961 version of SDC 16.0210, although twice revised since 1929, carried the same structural logic. The candidate filed one petition, even if that petition was made up of many sheets with identical headings. One declaration accompanied that filing.
Currency note
This opinion was issued in 1961. 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's primary nominating procedures have been substantially restructured since 1961, with SDC 16.0210 superseded by the modern SDCL Title 12 (Elections) framework; the question of whether circulating sheets need individual declarations is now governed by current statutes and Secretary of State guidance, not by SDC 16.0210.
What the opinion meant at the time
For 1961-era county auditors and the Secretary of State, the opinion gave a clean procedural answer: when a candidate filed a multi-sheet nominating petition, do not reject it for missing per-sheet declarations. Look for one declaration attached to the assembled stack. If that single declaration was present and properly signed, the petition was complete on its face.
For candidates and their circulators, the practical effect was that a candidate could write and sign one declaration at the very end of the petitioning process, when the sheets were ready to be filed. Circulators did not have to carry a signed declaration with them as they collected signatures. The candidate's signature on the declaration was the gating event at filing, not at circulation.
For challengers, the opinion narrowed the available defects. A petition could not be invalidated for lacking a declaration on each sheet. The challengeable defect was the absence of the single declaration on the filed petition, or substantive defects in that declaration (wrong office, missing party affiliation, and similar).
Common questions
Q: Why did the AG rely so heavily on the 1929 opinion?
A: The 1961 statute's key language ("The formal declaration of the candidate shall accompany and be a part of the petition") came into the South Dakota election code in the 1929 Primary Law overhaul. The 1929 AG had already construed that language. The 1961 AG considered the 1929 opinion's reasoning sound and applicable to the unchanged statutory phrase.
Q: Did the opinion say anything about the contents of the declaration?
A: Only that it had to be the formal declaration required by the statute. The opinion was not about what had to be in the declaration; it was about when and how it had to be attached.
Q: What happened if a candidate filed a petition with no declaration at all?
A: Under Danforth v. Coyne (1925), cited in the opinion, a petition filed without the declaration was not a valid filing. The filing officer should not accept it, and if it was accepted by mistake, the filing was a nullity.
Q: Could a single petition nominate two candidates for different offices?
A: No. Johnson v. Coyne (1923), also cited, held that a single petition could nominate only one candidate for one office unless a statute specifically allowed combining offices. The AG mentioned this in passing to underscore that the petition was a unitary instrument.
Q: What about the multiple sheets having different headings?
A: The statute required all sheets of a petition to have identical headings, but the 1929 AG (quoted at length in this opinion) read the statute as not requiring identical declarations. The headings were the link that tied the sheets together; the single attached declaration was what made the assembled instrument a complete "petition" for filing.
Background and statutory framework
South Dakota's primary election law has a long pedigree. The original Richards Primary Election Law dates from the early twentieth century. In 1929, the legislature passed Chapter 118, a drastic overhaul that restructured nominating petitions, signature requirements, and filing deadlines. The "formal declaration of the candidate shall accompany and be a part of the petition" language entered the code in 1929, in Section 4 of Chapter 118.
Over the next three decades, the legislature amended the primary statute several times, including significant updates to filing dates and signature thresholds. Chapter 93 of the 1961 Session Laws was the most recent amendment when this opinion was written. Despite those changes, the core declaration language remained intact, which is why the 1929 AG's reading carried forward.
The structural logic the AG drew out of the 1929 opinion was simple. A nominating petition was a single filed instrument. The sheets that voters signed were components of that instrument. A declaration was an essential component, but only one declaration per filed petition was required because the petition itself was unitary.
The opinion did not address some related questions that election lawyers might have raised: what happens if the declaration is technically defective; what counts as "identical headings" across circulated sheets; how to handle photocopies versus originals. Those would have been governed by other provisions and other opinions.
Citations and references
Statutes:
- SDC 16.0210, as last amended by Chapter 93 of the 1961 Session Laws (nominating petitions)
- Chapter 118 of the 1929 Session Laws, Section 4 (predecessor primary election law)
Cases:
- Healey v. Wipf, 22 S.D. 343, 117 N.W. 521 (1908)
- Danforth v. Coyne, 49 S.D. 153, 207 N.W. 79 (1925)
- Johnson v. Coyne, 47 S.D. 138, 196 N.W. 492 (1923)
Prior AG opinions:
- AG opinion of January 29, 1929, reported at 1929-30 AGR 152
- 1930-32 AGR 390
Source
Original opinion text
Elections. Declaration of candidate on nominating petition.
You have requested my official opinion to interpret SDC 16.0210, as last amended by Chapter 93 of the Session Laws of 1961. This statute, which provides for nominating petitions in order for a political candidate for public office to have his name printed on the official primary ballot, is too long to set forth in full in this opinion. Your inquiry is directed to the meaning of the statement therein:
"The formal declaration of the candidate shall accompany and be a part of the petition."
Your question is as follows:
"Does the statute, as amended, require such declaration of the candidate to be made and attached to each 'circulated petition,' prior to its circulation and signature by qualified members of such political party, or does such require only that such declaration of the candidate be made and attached to the 'papers' or 'petition' filed with the County Auditor or Secretary of State?"
Our Supreme Court has never directly answered this question. It has held that the primary election laws furnished the exclusive method of nomination party candidates for public office (Healey v. Wipf (1908) 22 SD 343, 117 NW 521). That such declaration is an integral part of a filed petition and a petition filed without such declaration should not be filed. And if filed, such does not constitute a valid filing. (Danforth v. Coyne (1925) 49 SD 153, 207 NW 79). Our Court has further found that except when authorized by statute, only a single candidate for public office can be nominated by a single petition, that is, unless authorized by statute candidates for more than one political office could not be combined in a single petition. (Johnson v. Coyne (1923) 47 SD 138, 196 NW 492.) These decisions although decided under the original "Richards" Primary Election Law, which was drastically amended in 1929, seems applicable to our present primary election law.
These decisions, as well as a careful reading of the statute, contemplate that although several "petitions" might be circulated by different circulators nominating the same person for the same political office, that only a "single" nominating petition, consisting of such component parts, is with the proper filing officer.
The language you have quoted came into our Primary Law by the drastic revision of the Primary Law by Chapter 118 of the Session Laws of 1929. Section 4 of such Act, subject to changes in dates of filing, and the number of signatures required, is identical with the provisions of SDC 16.0210, as amended, to the form of Nominating Petition.
With an appreciation of this history of the statute, its interpretation by the Court, consideration must be given to the opinion of my predecessor in office, dated January 29, 1929, and reported in 1929-30 AGR 152, when he was asked to answer this question:
"Under Chapter 118 of the 1929 Session Laws relating to primary elections, is it required that the nominating petitions provided by Sec. 4 shall be signed by the candidate before they are circulated or will it be sufficient if he signs the declaration before filing the petition with the County Auditor or Secretary of State?"
"The only direct provision in the statute concerning this matter is a part of section four, as follows:
'The formal declaration of the candidate shall accompany and be part of the petition.'
"It is my opinion that the phrase 'the petition' means the completed instrument which is offered for filing with the county auditor or the secretary of state. Necessarily this petition is constructed as the circulation proceeds. Additional signatures and additional sheets may be added to it from time to time as appears from the following quotation from section four:
'Such petition may be composed of several sheets which shall have identical headings printed at the head thereof...'
"It is plain from this that any number of sheets may be combined to make up a petition; and while the statute required that all of said sheets shall have identical headings there is no requirement that they shall have identical declarations of the candidate.
"It is therefore my opinion that it is not necessary to have a signed declaration accompanying the various sheets which are being circulated and that a candidate may attach one declaration to his petition as finally offered for filing and thereby complete the petition in the manner required by law."
The conclusion that a candidate files but a single petition was again emphasized in 1930-32 AGR 390.
It is my opinion that my predecessor in office properly interpreted our Primary Law, and I am in agreement with the conclusion that SDC 16.0210, as last amended by Chapter 93 of the Session Laws of 1961, must be interpreted as was the statute in which it originated, Section 4 of Chapter 118 of the Session Laws of 1929, as not requiring to have a signed declaration of the candidate accompanying the various sheets which are being circulated, and which when collected consists of the "petition" filed by such candidate. The law provides that the candidate may attach such declaration to his petition when offered for filing and thereby complete the petition in the manner required by law.