If a municipal election needed a runoff (a 'secondary' election between the top two candidates) because no candidate won a majority, could a voter who would not be in town on Election Day cast an absentee ballot in the runoff?
Plain-English summary
South Dakota's municipal election statute (SDC 45.1322) required a "secondary election" between the two top candidates if no candidate for a city office received a majority of votes cast in the regular or special election. The runoff was scheduled for the Tuesday after the first election (or the second Tuesday following if voting machines were used).
The question was whether voters could submit absentee ballots in that runoff. The AG had already concluded, in opinions reported in 1945-46 AGR 61 and 1947-48 AGR 59, that absentee voting was permitted in regular and special municipal elections, because those elections required registration and were held under the Australian Ballot Law. Absentee voting was authorized by SDC 16.0606, as amended by Chapter 59 of the 1964 Session Laws, and the procedural provisions in SDC 1960 Supp. 16.0610 through 16.0614 and 16.0616.
The runoff statute, SDC 45.1322, said the secondary election would be "held at the same polling places, with the same judges and clerks, be conducted, returned and canvassed... in the same manner as the first election." The AG read "conducted... in the same manner" to carry over the absentee voting procedures from the regular election. So the answer was yes, even though the ballots could not be printed until the results of the regular election were certified and the window between the two elections was only one or two weeks.
The opinion acknowledged the practical difficulty: ballots had to be printed, distributed to absentee voters, completed, and returned in a compressed timeline. But the difficulty did not change the legal answer.
Currency note
This opinion was issued in 1966. 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. The SDC sections cited here have been recodified into Title 9 (Municipal Government) and Title 12 (Elections) of the current South Dakota Codified Laws, and the rules governing absentee voting, deadlines, and runoff procedures have been updated multiple times. Anyone administering or voting in a modern South Dakota municipal runoff should consult the current SDCL provisions and the Secretary of State's election manuals.
What the opinion meant at the time
For municipal clerks and county auditors administering elections, the opinion required them to set up the absentee voting machinery for the runoff just as they did for the regular election. That meant printing ballots immediately once the runoff field was set, accepting absentee ballot applications, mailing or delivering ballots to qualified absentee voters, and processing the returned ballots on election day. The short timeline made this logistically tight but legally required.
For candidates in a runoff, the opinion meant continuing to organize absentee voter outreach in the days between the two elections. A candidate who let absentee voting fall by the wayside in the runoff was giving up votes their opponent could still capture.
For voters who would be absent from the city on the runoff date, the opinion confirmed that they did not lose the right to vote just because the timeline was compressed. They had to act quickly to request and return the ballot, but the right was theirs.
For the public, the opinion supported the broader principle that runoff elections were a continuation of the original election rather than a separate event with different rules. Anything that applied to the first round (poll workers, polling places, ballot procedures, absentee voting) applied to the runoff as well.
Common questions
Q: How quickly did absentee ballots need to be turned around in the runoff?
A: With only one or two weeks between the regular election and the runoff, voters needed to apply for and return their absentee ballots in days, not weeks. The exact deadline depended on the absentee voting statutes (SDC 1960 Supp. 16.0610 through 16.0614). Clerks who could not print and mail ballots fast enough effectively shortened the window further.
Q: Could the city skip absentee voting in the runoff to save time?
A: No. SDC 45.1322 required the runoff to be "conducted... in the same manner as the first election," and the first election had absentee voting. The city had no discretion to drop the absentee procedure.
Q: What if a voter had submitted an absentee ballot for the regular election but was still going to be absent for the runoff?
A: The voter needed to submit a separate absentee ballot for the runoff. The two elections were distinct ballot questions even if part of the same overall contest.
Q: Did the same poll workers and polling places have to be used in the runoff?
A: Yes, per SDC 45.1322. The runoff used the same judges, clerks, polling places, and canvassing procedures as the regular election.
Q: Was the runoff between the top two candidates regardless of whether either had been "close" to a majority?
A: Yes. The statute required a runoff whenever no candidate received a majority in the regular or special election. The top two from the regular election advanced to the runoff. There was no minimum threshold of votes either had to have received.
Q: What if voting machines were used in the city?
A: SDC 45.1322 pushed the runoff date out from the following Tuesday to the second Tuesday following the regular election when voting machines were used. That gave the city extra time to program and prepare the machines for the runoff ballot, but it did not change the absentee voting rules.
Background and statutory framework
Municipal elections in South Dakota in the 1960s were governed primarily by SDC chapter 45.13 and amendments thereto, with various provisions of the general election law (chapter 16) carrying over by reference. The "secondary" or runoff election under SDC 45.1322 was a feature of the majority-vote requirement for municipal offices: if no candidate cleared 50% in the regular or special election, the top two advanced to a runoff so the eventual winner had majority support, not just a plurality.
The absentee voting framework lived in SDC chapter 16. SDC 16.0606, as amended by Chapter 59 of the 1964 Session Laws, was the gateway provision authorizing absentee voting in elections where registration was required and the Australian Ballot Law applied. The procedural mechanics (application, ballot delivery, return, validity) were in SDC 1960 Supp. 16.0610 through 16.0614 and 16.0616.
The prior AG opinions (1945-46 AGR 61 and 1947-48 AGR 59) had already concluded that municipal elections fit within SDC 16.0606's scope because they were registration-required, Australian-ballot elections. The 1966 opinion built on that conclusion by adding that the SDC 45.1322 runoff inherited the same procedural framework "as the first election."
Citations and references
Statutes:
- SDC 45.1322 (secondary municipal election; conducted in same manner as regular election)
- SDC 16.0606 (general absentee voting authorization, as last amended by Ch. 59, SL 1964)
- SDC 1960 Supp. 16.0610 through 16.0614 (absentee voting procedures)
- SDC 1960 Supp. 16.0616 (absentee voting procedure detail)
Prior AG opinions:
- 1945-46 AGR 61 (absentee voting permitted in regular and special municipal elections)
- 1947-48 AGR 59 (same)
Source
Original opinion text
Elections. Absentee voting is permitted at Secondary Municipal Election SDC 45.1322, as last amended by Ch. 270 of the Session Laws of 1963.
An inquiry of state-wide importance has been forwarded to me from your County and I am taking the liberty of addressing this opinion to you.
The question propounded is:
"Do the provisions for absentee voting apply to a secondary election in municipalities, as provided by SDC 45.1322, as last amended by Chapter 279 of the Session Laws of 1963?"
SDC 45.1322, as so amended, provides that if no candidate for municipal office at a regular or special election receives a majority of all votes cast, on the following Tuesday (if voting machines are used, such election is held the second Tuesday following such election) there shall be a secondary election between the two candidates receiving the highest number of votes at the regular or special election. Such statute also provides:
"Such secondary election shall be held at the same polling places, with the same judges and clerks, be conducted, returned and canvassed, ...in the same manner as the first election."
This office, in pursuance to SDC 16.0606, as last amended by Chapter 59 of the Session Laws of 1964, and the provisions of SDC 1960 Supp. 16.0610 through 16.0614 and 16.0616, has heretofore held that because a regular or special municipal election is an election where registration is required, and such is held in pursuance to the Australian Ballot Law, that absentee voting at such regular or special elections is permitted. See 1945-46 AGR 61 and 1947-48 AGR 59.
As stated, SDC 45.1322, as amended, provided such secondary election is conducted in the same manner as the first election.
While I appreciate the difficulties attendant to the printing of ballots for such secondary election (as such cannot be printed until the results of the first election are known) and the short time between such secondary and original election (one to two weeks, depending upon the voting procedure used) it is my conclusion that the question propounded must be answered YES, absentee voting is permitted at such secondary elections.